Criminal Appeal E035 of 2021

Case Metadata
Case Number:	Criminal Appeal E035 of 2021
Parties:	Ratemo v Republic
Date Delivered:	14 Jul 2022
Case Class:
Court:	High Court at Machakos
Case Action:	Judgment
Judge(s):	George Vincent Odunga
Citation:	Ratemo v Republic (Criminal Appeal E035 of 2021) [2022] KEHC 10035 (KLR) (14 July 2022) (Judgment)
Advocates:	Mr. Oketch for the Appellant, Mr Jamsumba for the Respondent
Court Division:	Criminal
County:	Machakos
Advocates:	Mr. Oketch for the Appellant, Mr Jamsumba for the Respondent
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Ratemo v Republic (Criminal Appeal E035 of 2021) [2022] KEHC 10035 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10035 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E035 of 2021

GV Odunga, J

July 14, 2022

Between

Charles Ratemo

Appellant

and

Republic

Respondent

(Being an appeal from the judgement delivered on 25th May 2021 in Mavoko S.O Case Number 13 of 2016 by Honourable B. Kasavuli, Principal Magistrate in Mavoko)

Judgment

1.The Appellant, Charles Ratemo Alias Baba Papa, was charged with defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on the 2^nd day of December 2016 in Athi River Sub County within Machakos County, he intentionally and unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of one IN, a child aged 4 years. He also faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006, the particulars being that on the 2^nd day of December 2016 in Athi River Sub County within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ (vagina) of one IN, a child aged 4 years.

2.The Appellant pleaded not guilty and the matter proceeded to hearing. In support of its case, the prosecution called 4 witness.

3.Upon being examined, the Complainant, who testified as PW2, was found to understand the meaning of saying the truth and gave unsworn statement. According to her evidence, the Appellant placed her on the sofa, gave her bread and in her words “alinidunga na mti yake” while pointing at her vagina. She stated that the accused person had a stick and he pinched her with his stick. She cried and ran away. She felt pain in her vagina which she pointed out. She recognized the Appellant in Court as Baba Papa though she did not know the said Papa. The Appellant did not ask her any question.

4.PW1, BAM, the father of the Complainant, testified that the Complainant was born on 25^th of May 2012. He stated that he had left the immunization card at home. On 2^nd of December 2016, he went to work at 7.00am, came back at 1.00pm and went back to work. He left the Complainant playing outside with the neighbours’ children as she was on school holidays. It was his evidence that the Complainant’s mother used to leave work at 5.30pm.

5.That night when they were sleeping, the Complainant started complaining of stomach ache. The pain seemed to have persisted because at 12pm when the Complainant woke up, she was still complaining of the same. At 2.00pm his wife gave her water as first aid but she was kicking in the air. The next day, the Complainant was unable stand on her own and upon being undressed, the mother saw discharge coming from the Complainant’s private part (vagina) which discharge, PW1 opined were sperms. Upon further inquiry, the Complainant who was hesitant disclosed that she had been called by the Appellant to his house where the Appellant gave her a piece of bread, removed his pant and trouser and started inserting his “stick” in his vagina.

6.PW1 then proceeded to the Appellant’s house which was house number 6 in the same plot about 50 metres from where he lived on the ground floor where the children were playing and asked him what he had done. While the Appellant admitted that he was with the Complainant, he initially denied having done anything wrong to the Complainant but upon being threatened with a beating he admitted having assaulted the Complainant and offered to pay PW1 Kshs 10,000.00 which PW1 declined took the Appellant to the police station where he reported the matter. He was then referred to the Hospital. According to him, the Complainant’s mother, PW2, was left at home as she was overwhelmed by the incident.

7.It was PW1’s evidence that when Florence Ngomoli, PW5, a police officer examined the Complainant’s private parts, she found that that they had not been washed or bathed and discharge was just coming out of the Complainant’s vagina. They proceeded to Nairobi Women’s Kitengela where the child was examined and treated on from 8.00am and was discharged on Sunday at 4.00pm.

8.It was PW1’s evidence that he had known the Appellant for 4 years as they were both of Kisii tribe and neighbours. He also knew the Appellant’s family of one wife and a child who were residing in their rural home. It was his testimony that they had a good relationship as friends and had never quarrelled. He confirmed that he saw the Appellant person in the morning and at 1.00pm but not at 7.00pm. According to him, at 1.00pm when he returned to work, the Complainant was fine and that they ate before he left for work.

9.PW3, RNO, the Complainant’s mother testified that she was working at EPZ as a helper cutting cloths. She confirmed that the Complainant was her 5 year old daughter who was born on 24^th May 2012 and exhibited an immunization card. She recalled that on 2^nd December 2016 she went to work and when she came back at 5.30pm, she found the Complainant sleeping on her bed in the house. After the return of PW1, at 7.30pm, she prepared food, they ate and slept at 8.00pm. However, at 10.00pm the Complainant started crying complaining about her stomach. Though her complaints persisted till the following day at 2pm when she woke up, they were unable to take her for medication immediately as there was no Hospital nearby. However, when they decided to take the Complainant to hospital, they realised that she was unable to stand and instead pointed at her vagina saying “hapa chini ni uchungu”. Upon checking the Complainant’s vagina, PW3 saw sperms being discharged and blood stains on her dress. When asked, the Complainant was initially hesitant disclosed that “Baba Papa alikua ananidunga.” She then stated that Baba Papa, whom she identified as the Appelalnt, called her and gave her bread, removed her clothes and started pinching her (dunga) with his stick.

10.Overwhelmed by this information, PW3 remained behind while PW1, her husband carried the Complainant and proceeded with her to the Appellant’s house which was within the same plot and asked him if he had committed that act but he denied.

11.She stated that when she left for work on the day of the incident, the Complainant was okay and was playing with the other children. It was her evidence that she saw the Appellant at 7.00am in the plot but in the evening he was not there. She stated that that they had been neighbours since 2012 and she had a good relationship with the accused person’s wife as well. She stated that since schools were closed, she would leave her child with other children.

12.In cross examination, PW3 stated they were staying at Slaughter at that time in the same area- neighbourhood with the accused, a distance of 20metres. However, no one witnessed her chid entering the Appellant’s house. It was her evidence that the Complainant’s father was with the Complainant at home and that she left the Complainant at the plot with her cousin. She confirmed that she found sperms on the child’s vagina and that she washed her stained clothes that she wore on the material day/ she said she took the child to hospital at 5.00pm.

13.PW4, Dr. Ruth Wengete of Nairobi Women Kitengela filled in the Post Rape Care report on 3^rd December 2016 at 10.30am and examined the Complainant who was born on 25^th May 2012. The Complainant had been brought having been defiled by a neighbour on 2^nd December 2016. She stated that the child told her that the neighbour had given her bread, took her to his house and upon entering removed her clothes and inserted his penis into her vagina. Her observation was that the body was normal but the vagina was bruised and had discharge around the vulva. In addition, the hymen was broken.

14.They tested her blood and urine and since her vulva had blood stain and pus, an indication that she was infected and the Complainant was given medication. She concluded that since there was penetration, she had been defiled. She produced the PRC Form and the P3 form she filed. According to her, the Complainant was 4 years old. She was not cross examined by the Appellant.

15.On 3^rd December, 2016 while PW5, Corporal Florence Ngomoli, was in the station at the gender desk, she was called by the officer in charge of reporting section and was referred to a father and a child. Upon interrogating the child the child disclosed to her, in the presence of her father, that on 2^nd December 2016 she was called by Baba Papa who led her in his house within the same plot. There, the Appellant brought her bread and soda and while she was eating, he removed her trouser and underwear, sat on the bed and removed his trouser and told the child to sit on him while facing him. He then inserted his penis, which she called “miti” in her vagina. As a result of the pain, the child started crying.

16.After the incident, the child dressed up and went to sleep. When her mother came back, she did not wake her up but at night she complained of a stomach ache and was given water making the pain subside but after a few minutes she complained about a stomach ache. The parents were not able to take her to hospital at night and waited until morning. In the morning when the mother wanted to wash her, she noticed her vagina had discharge and was painful. The mother interrogated her and she told her that Baba Papa had raped her. She called her husband who took the child to the police station.

17.PW5 advised them to get the child treated and referred them to Nairobi Women Hospital Kitengela where the child was admitted for one day and issued with a PRC form. It was her evidence that the child identified the Appellant whom she referred to as Baba Papa. They took her for age assessment that confirmed she was 4 years. She gave the complainant P3 form, age assessment report, child health and nutrition card that she produced as exhibits. She then recorded their statements, visited the scene of crime that comprised of a rental with 8 houses and noted that the Appellant occupied house number 4 from the gate while the complainant was residing in the last house from the gate. It was her evidence that the Appellant sought to have the matter settled the matter out of court but she told them since the matter involved a child and they ought not to interfere with the case. She charged the accused with the offence before the court.

18.In cross-examination, PW5 stated that when she saw the child, she noticed the discharge and she is the one who referred the complainant to hospital. She stated that she could not remember the kind of clothes the child was wearing and she does not keep clothes as exhibits. The houses in the plot are on one line and when she visited the plot, she found children but their parents declined to produce them to record a statement. She said that the accused was not examined by a doctor and that she did not get any sample to compare with the Appellant from the child. She testified that the doctor who examined the child found bruises in the vagina.

19.PW6, John Njuguna, a clinician at Nairobi Women’s Hospital Kitengela testified on behalf of one Dr. Ruth with whom he had worked for more than 6 months in the out patient before the latter left for greener pastures. He confirmed that he is conversant with her handwriting and signature and produced her medical report under section 33 of the Evidence Act.

20.On cross examination, he stated that the child’s age ranged between 4 and 5 years. It was his testimony that the hymen was missing and denied that this was caused by the medical examination. He stated that in this case there is no evidence of any other cause resulting in the missing hymen. According to his evidence, the child was taken to hospital the next day and explained that in this case, red blood cells were noted during examination. It was his opinion that the presence of blood depends on the degree of injury. He confirmed that no spermatozoa were seen but there were acute recent injuries to the vaginal area. He was however unaware if the Appellant was examined but to him, it was not necessary for him to be examined. It was his evidence that medically, you cannot state exact date of injury but PRC form, it was indicated that there were no physical injuries both front and back.

21.In re-examination, he stated that the hymen was mission due to penetration and that there were bruises and vaginal discharge. To him, it was abnormal for the victim to have red blood cells and purse cells in her urine. He averred that penis penetration is a blunt trauma.

22.At the close of the prosecution’s case, the Appellant was placed on his defence and he opted to give a sworn testimony. In his evidence, he recalled that on 16^th, he went to the barber to shave after which he went to work and went back at 10pm. He confirmed that the complainant was staying in the same plot with him. It was his testimony that she had gone to school and that she never used to return home for lunch as she took lunch at school. He explained that the plot is residential with 25 tenants and that his house is 30 metres from the complainant’s. It was his testimony that no neighbour saw her enter his house that day. According to him, he was not medically examined and was arrested 2 days later. It was his view that it was not possible for the offence to have occurred due to the proximity of the houses to one another. He stated that while some tenants used to go out, others would remain.

23.It was his case that his wife and the mother of the complainant used to quarrel most of the time over water and denied having committed the offence in question.

24.In her judgement, the learned trial magistrate found that from the child health booklet, the Complainant was born on 24^th May 2012 and was 4 years old at the time the offence occurred. It was further found that there was sufficient evidence of defilement based on the testimony of the Complainant and the medical examination. On the authority of the case of PKW v Republic [2012] eKLR, the court found that reference to that case would have led to a different conclusion had there been evidence on record to suggest that the Complainant sustained bruises at the vaginal opening and broken hymen by other means other than through penile penetration.

25.The Court further found that the complainant and the accused were neighbours and she even identified him by his alias name, Baba Papa and that his was confirmed by the Appellant also confirmed when he admitted that he knew the Complainant and her parents because they were tenants in the same plot. It was therefore found that there was no case of mistaken identity of the appellant, her aggressor. Based on the evidence of the offer by the Appellant to pay Kshs 10,000.00 the court found that the Appellant had committed the said offence, convicted him and sentenced him to life imprisonment.

26.Aggrieved by this judgement, the Appellant has appealed to this court seeking to have the appeal allowed, the judgment of the trial court set aside and substituted with this court’s judgement and that the Appellant be acquitted.

27.The grounds upon which this appeal is founded are;a.Thatthe Honourable trial magistrate erred in law and in fact by convicting the Appellant on contradictory evidence.b.Thatthe Honourable trial magistrate erred in law and in fact by failure to consider the Appellant’s decision relied upon namely PKW vs Republic [2012] eKLR.c.Thatthe Honourable trial magistrate erred in law and in fact by convicting the Appellant without any concrete evidence.d.Thatthe Honourable trial magistrate erred in law and in fact by showing open bias to the Appellant.e.The court sentenced the Appellant to an excessive and illegal sentence at law.f.Thatthe Honourable trial magistrate erred in law and in fact by failure to consider the Appellant’s Defence and submissions.g.Thatthe Honourable trial magistrate erred in law and in fact by convicting the Appellant whose samples were never taken to compare with the samples on the Respondent.h.Thatthe Honourable trial magistrate erred in law and in fact by failure to consider that crucial witnesses were never availed.i.Thatthe Honourable trial magistrate erred in law and in fact by failure to make a finding that failure to avail the clothes the respondent was wearing on the day of the offence was fatal to the claim.j.Thatthe Honourable trial magistrate erred in law and in fact by concluding that bruises and missing hymen on female genitalia is proof of defilement.k.Thatthe Honourable trial magistrate erred in law and in fact by failure to conclude that the alleged scene of offence is congested thus there was no opportunity to commit the offence.

28.It was submitted on behalf of the appellant that no identification parade was conducted at the police station and reliance was placed on the case of David Mwita Wanja & 2 others v Republic [2007] eKLR and Reuben Lukuru v Republic [2019] eKLR.

29.The second issue was whether there was sufficient evidence to convict the Appellant. He submitted that the threshold for criminal cases is beyond reasonable doubt and the prosecution relied on flimsy evidence to have the appellant convicted. It was submitted that the fact that the Appellant offered Kshs. 10,000 to the complainant was not proven yet this was relied upon by the Learned Magistrate in convicting the appellant. Since there was no evidence that any one saw the accused person get into the house of the complainant, not even the cousin who was left with the Complainant when the parents left, it was submitted, based on John Mutua Muyoki v Republic [2017] eKLR that the prosecution did not prove their case beyond reasonable doubt

30.As to whether there was sufficient corroboration of evidence, it was submitted that Section 124 of the Evidence Act provides for cases and circumstances in which medical evidence may not be needed in sexual offences. In this case, it was submitted that the evidence did not place the Appellant at the scene and further that he was not subjected to medical tests before conviction.

31.The Appellant contended that the prosecution’s case was full of inconsistencies, investigations shoddily done and the evidence was not corroborated. He submitted that the Trial court relied on hearsay and unsubstantiated evidence.

32.The Respondent did not file submissions.

Determination

33.I have considered the issues raised in this appeal. This being a first appeal, it is the duty of this court to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. See Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic [1957] EA (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” 70.Similarly, in the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 is as follows: - “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

34.I associate myself with the opinion of the Supreme Court of India in K. Anbazhagan v State of Karnataka & others Criminal Appeal No.637 of 2015 where the said Court expressed itself inter alia as hereunder:“We are absolutely sure that the learned Single Judge, as the appellate Judge, shall keep in mind the real functioning of an appellate court. The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. This being the position of a Judge, which is more elevated as the appellate Judge, we are of the considered opinion that there is no justification for rehearing of the appeal as the matter has been heard at length and reserved for verdict.”

35.The prosecution’s case, in summary was that on 2^nd day of December 2016 at Slaughter area, the complainant was playing in the plot outside their house when the Appellant called her to the house, gave her bread and defiled her by inserting “stick” into her vagina. At that time her parents were both at work. When her mother came home at 5.30p, she found the child asleep and did not wake her up and they just had dinner and slept. At night the complainant woke up complaining of stomach ache and was given water to soothe it but she kept on complaining about it. She was to be taken to the hospital in the morning because there was no hospital nearby. However, as the mother was preparing her, she noticed that she could not stand and upon examining her noticed that she had a whitish discharge that resembled sperms oozing from her vagina. Upon interrogation, the Complainant disclosed that the Appellant, whom she knew as Baba Papa, had defiled her. The Appellant was confronted and offered a bribe of Kshs 10,000.00 which the father declined and he was taken to the Police Station where the Complainant narrated her story and to PW5 and pointed at the Appellant, who had been taken to the Police Station by the Complainant’s father, as “Baba Papa.” The father then took the child to hospital where she was examined by PW4 who concluded that she was defiled. PW4 found discharge around the vulva, bruises at 3,6, 9 O’clock at the vaginal opening and missing hymen.

36.On his part, the Appellant stated that he was at work up to 10 pm on the material day. He contended that the child was at school and used to partake her lunch in school. He also said that there was a grudge between his wife and the complainant’s mother.

37.In this appeal it is submitted that since no identification parade was conducted yet it was necessary in cases of that nature to conduct an identification parade. With due respect the case against the Appellant revolved around recognition as opposed to identification. There is no doubt that the Appellant was known to the Complainant. The Complainant identified him at the police station as “Baba Papa”, the complainant told her parents that she was defiled by Baba Papa and the father knew which house to go to. He confronted the Appellant who offered to settle the matter out of court. The two families had been neighbours for 4 years. In those circumstances an identification parade was unnecessary. That being the complainant’s case, I agree that there was no need to conduct an identification parade as this was a case of recognition rather than identification. In James Murigu Karumba v Republic [2016] eKLR, it was held by the Court of Appeal based, on Suleiman Juma alias Tom v R [2003] eKLR; [2003] KLR 386 that:“Lastly, the three identifying witnesses did admit that they knew the appellant prior to the incident. Consequently, this was a case of recognition as opposed to identification of a stranger. Therefore, there was no need for the identification parades and the identification evidence therein was of no probative value.”

38.The Court of Appeal in Criminal Appeal No. 274 and 275 of 2009 at Eldoret in Peter Okee Omukaga & another v Republic (unreported) had this to say on the evidence of recognition at night:-“We have re-examined the evidence upon which that conclusion was made, and we find that it was well founded. We have no doubt whatsoever that Francis, John and Rose were familiar with the appellants; that Francis and John had known them by appearance as ‘neighbours from the village’, that they had played football with them long time ago, and that their voices were so familiar to them. Accordingly, we have no reason to disturb that finding and we dismiss that ground of Appeal. We also reject the argument that failure to hold an identification parade, and the non- recovery of the stolen articles made conviction unsafe. As this was a case of identification by recognition, an identification parade was unnecessary. The non-recovery of the stolen items did not in any way point to the innocence of the appellants.”

39.In Robert Mwangi Njoroge v Republic [2015] eKLR the Court of Appeal held that:“With greatest respect to the two judges of the High Court, it is our view that this conclusion was erroneous as the High Court ought to have found that where there is recognition then there is no need for an identification parade. Indeed, recognition and identification are mutually exclusive and it can never be that a case is made much stronger by both identification and recognition as the learned judges seemed to have been saying in the appeal before them.”

40.It was submitted that there was insufficient evidence adduced to warrant the conviction. According to the appellant, the evidence of the alleged offer by the Appellant t pay Kshs 10,000.00 was hearsay and ought not to have been admitted. I agree that the said piece of evidence tended towards an admission of the commission of an offence and could not on its own be basis of a conviction. The question is however, whether there was evidence independent of the said admission that could be the basis of the conviction.

41.Section 8 of the Sexual Offences Act,2001 provides as follows:8.(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if –(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

42.The ingredients for defilement were highlighted in the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetration and the age of the victim.

43.As regards the age of the complainant, in this case, it is not contested that the Complainant was 4 years. This is supported both by the oral evidence and the health card and it was not challenged by the Appellant. Accordingly, the prosecution proved the age of the Complainant beyond any reasonable doubt.

44.The next element is proving of penetration. “Penetration” is a term of art and is defined under Section 2 of the Sexual Offences Act to mean“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

45.This was explained in the case of George Owiti Raya v Republic [2013] eKLR where it was held that:-“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia...it remains therefore that there can be penetration without going past the hymen membrane.”

46.In the case of Martin Nyongesa Wanyonyi v Republic [2015] eKLR the court held that;“''As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.”

47.The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda SC Criminal Appeal No. 35 of 1995 where the Supreme Court held:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victims evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”“For evidence to be capable of being corroborated it must:(a).Be relevant and admissible Scafriot [1978] QB 1016.(b).Be credible DPP v Kilbourne [1973] AC 729(c).Be independent, that is emanating from a source other than the witness requiring to be corroborated Whitehead J IKB 99(d).Implicate the accused

48.The Court of Appeal in the case of Arthur Mshila Manga v Republic [2016] eKLR in this regard held that:“Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt…”

49.In this case according to the Complainant’s mother, she noticed that the Complainant could not stand and upon examining her noticed that she had a whitish discharge that resembled sperms oozing from her vagina. On her part PW4 found discharge around the vulva, bruises at 3,6, 9 O’clock at the vaginal opening and missing hymen and concluded that the Complainant had been defiled.

50.Having considered the totality of both oral and documentary evidence, I have no hesitation in finding that there was penetration of the Complainant’s genital organ.

51.As to who committed the act of penetration, it is clear from the evidence that the Appellant was well known to the Complainant. They were neighbours staying in the same plot. On that day the Appellant admitted that he was with the Complainant. The Complainant knew the Appellant very well as Baba Papa. The two families had been neighbours for 4 years. In fact, the Appellant does not deny this knowledge. The question that arises is what could have motivated the Complainant a child aged 4 years to make up a story against the Appellant. According to the Appellant, there was grudge between his wife and the Complainant’s mother. There was however evidence that the Appellant’s wife was residing in their rural home. In any case there would have been no reason for the Complainant’s mother to concoct a case against the Appellant if she had a grudge against his wife. Faced with not too dissimilar circumstances, the Court in Tito Kariuki Ngugi vs. Republic [2008] eKLR expressed itself as follows:“I am satisfied and I agree with Mr. Mugambi that the allegation of a frame up is an afterthought. The Appellant’s own daughter especially did not have any reason to frame up her father.”

52.Similarly, PW2 had no reason to frame the appellant. In Ayub Muchele v Republic [1980] KLR 44, Trevelyan and Sachdeva, JJ held that:“Just as animosity is a factor which is properly to be taken into account where required, so is lack of animosity. We see nothing wrong in an appropriate case for the court to ask “What reason had the witness to lie?”

53.In light of the evidence adduced and as the issue was not raised during cross-examination, I find that the same was just an afterthought.

54.The Appellant contended that there were many inconsistencies and that he was not placed at the scene. While the Appellant’s submissions were based on the fact that the incident occurred in the house of the Complainant, the prosecution’s case was that it did occur in the Appellant’s house. Accordingly, the issue of the Complainant’s cousin failing to witness the incident does not arise.

55.Whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol. 1 at 46.

56.In the case of John Cancio De SA vs. V N Amin Civil Appeal No. 27 of 1933 [1934] 1 EACA 13, the court stated that:“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”

57.This was the position in Willis Ochieng Odero v Republic [2006] eKLR, where the Court of Appeal held:“As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.”

58.A s was noted in Twehangane Alfred v Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

59.In Joseph Maina Mwangi v Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that: -“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”

60.In this case, I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were minor inconsistencies in the evidence of the said witnesses, which is common, I am unable to find that the same were material enough to warrant interference with the decision.

61.It was further submitted that the Appellant ought to have been subjected to medical examination. It was however held in the case of Martin Nyongesa Wanyonyi v Republic [2015] eKLR that;“''…subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.''

62.I find that it was not necessary to subject him to medical examination in order for the conviction to be upheld.

63.As regards the sentence, Section 8 (1) and (2) of the Sexual Offences Act under which the Appellant was charged provides that;(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

64.Whereas that sentence is a prima facie mandatory sentence, in Machakos Petition No. E017 of 2021 – Philip Mueke Maingi & others v Director of Public Prosecutions, this Court held that:“To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of Article 28 of the Constitution. However, the Court are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences.”

65.In meting out the sentence, the learned trial magistrate seemed to have been of the view that section 8(a) (sic) of the Sexual Offences Act did not give him the discretion in the matter. While I find that approach not entirely correct, I must state that this Court does not condone offences against minors and vulnerable persons. As was appreciated by Madan, J (as he then was) in Yasmin v Mohamed [1973] EA 370:“The High Court is especially endowed with the jurisdiction to safeguard the interests of infants, as the court is the parent of all infants. The welfare of the infants is paramount and it is dear to the heart of the court. There would be no better tribunal to perform the task more wisely as well as affectionately. All infants in Kenya of whatever community, tribe, sect fall within the ambit of the Guardianship of Infants Act and the court is charged with the sacred duty of ensuring that their interests remain paramount and are duly preserved.”See also Omari v Ali [1987] KLR 616.

66.Having considered the mitigating circumstances and as the Appellant was a first offender, while I decline to interfere with the conviction, I hereby set aside the life sentence imposed upon him and substitute therefore 20 years in prison. The Appellant was arrested on 5^th December, 2016 and was released on bond on 9^th November, 2017. Accordingly, in computing his sentence, the said period is to be taken into account.

67.Judgement accordingly.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14^TH DAY OF JULY, 2022.G. V. ODUNGAJUDGEIn the presence of:The Appellant online.Mr Oketch for the AppellantMr Jamsumba for the RespondentCA Susan

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