1.Evans Maikuma Baraza, the Appellant, was arraigned following allegations of having defiled R.N.M. a minor aged 17 years old contrary to the provisions of Section 8 (1) as read with Section 8(4) of the Sexual Offences Act. The alleged act was stated to have been committed on 23rd February, 2019.
2.In the alternative, he faced a charge of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars being that on the 23rd day of February, 2019 at [particulars withheld] Village, Kimilili Sub-County within Bungoma County, unlawfully and intentionally did cause his penis to come in contact with the vagina of R.N.M. a child aged 17 years.
3.Having denied the charge, he was taken through full trial, found guilty, convicted for the main count of defilement and sentenced to serve ten (10) years imprisonment.
4.Aggrieved, the appellant appeals against the decision of the trial court on grounds that his rights were violated and that evidence tendered was full of contradictions; and extraneous factors were taken into consideration.
5.Evidence adduced was that R.N.M. left her home going with the appellant herein to his house to purportedly collect her set book. He locked her inside the house and they had penetrative sex. While inside the house they heard her grandfather talking from outside, threatening to cut someone into pieces. She managed to sneak out but on reaching home their house was locked. The appellant went after her and they returned to his house. He could not let her go hence she stayed with him from Saturday to Monday, and she did not go to school. Thereafter, she managed to escape. She went home and sought forgiveness from her grandfather who caned her. The following day she went to school and learnt that her grandmother had reported the incident to the school. She divulged what transpired and the School Administrator referred them to the Police where they recorded statement and a warrant of arrest was issued.
6.Subsequently, the complainant was found to be pregnant. PW4 CWM, her father, who lived in Mombasa was notified of the occurrence. He travelled home and joined in the search of the appellant. Eventually, the appellant was arrested. After the complainant was delivered of the child, a DNA test was conducted. It turned out that the appellant was the biological father of the child.
7.Upon being placed on his defence, the appellant recounted how he was found on the farm and arrested by two individuals who asked him to accompany them to the Police Station. He complied and on reaching the Police Station they found a lady who alleged that he owed her Ksh. 10,000/- She asked to be given for Ksh. 200,000/- which he did not have. The lady gave the police Ksh. 2000/-. They assaulted him, took his Techno Spark 5 phone and Ksh. 1200/- then caused him to be charged.
8.The trial court considered evidence adduced, the credibility of prosecution witnesses and the defence put up which it disregarded and convicted the appellant, hence the appeal.
9.The appeal was canvassed through written submissions. It was urged by the appellant that the trial court erred by failing to appreciate that he could have been deceived by the complainant that she was above the age of eighteen (18) years; therefore, Section 8(5) of the Sexual Offences Act was applicable so that he can be set at liberty to go and provide for his family, namely the child sired and his mother.
10.Further, he submitted that he was rehabilitated and sought reduction of the sentence imposed.
11.The Respondent submitted that the appellant failed to point out the alleged inconsistences; and, that all ingredients of the offence had been established.
12.This being a first appellate court, it has the duty to re-evaluate evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno Vs. Republic (1972) EA 32, as follows:
13.Ingredients of the offence of defilement are captured underSection 8(1) of the Sexual Offences Act that provides thus:
14.Proof of the stated ingredients was well captured in the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013, where the court stated thus:
15.On the question of age it was held in the case of FappytonMutuku Ngui Vs. Republic (2012) eKLR that:
16.The age of the complainant herein was proved by evidence of a Birth Certificate. According to the document R.N.M. was born on the 12th February, 2002. This evidence that was not in dispute proved that at the time of the act, the complainant was seventeen (17) years old. Section 2 of the Children Act defines a child as:Any human being under the age of eighteen years.
17.Evidence adduced therefore proved that the complainant was achild.
19.It was the complainant’s evidence that they engaged in penetrative sex. She conceived and bore a child. This corroborated the fact of having engaged in penetrative sex which was proof beyond doubt of the fact of complete insertion of the male genital organ into that of the complaint’s genetalia.
20.It is urged by the appellant that the complainant deceived him to believe that she was an adult. He accepts being the biological father of the child and pleads to be set at liberty. Section 8(5) of the Sexual Offences Act provides that:
21.When the appellant subjected the complainant to cross- examination he did not suggest the allegations of having been deceived. Similarly, in his defence, the appellant who chose to state how he was arrested and allegedly told to settle a non-existent debt, failed to suggest that the complainant deceived him.
22.In determining whether the appellant could have been made to believe that the complainant was above eighteen (18) years old, the belief must be a reasonable one. Secondly, all circumstances and the step the appellant took into consideration must be established.
23.Evidence adduced was that the complainant was a school-going child. She allegedly went to the house of the appellant to collect a set book. This fact perse should have made the appellant interrogate the age of the complainant but he did not do it. In the premises the defence put up cannot be available to the appellant. The act that he committed was unlawful and intentional and the complainant had no capacity to consent to the act.
25.The sentence meted out at the time was not harsh. In the upshot, the appeal lacks merit. Accordingly, it is dismissed.
26.It is so ordered.