After a trial before the Senior Resident Magistrate’s Court at Oyugis, Reagan Otieno Okello (the appellant) was convicted of the offence of defilement of a child contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act. He was then sentenced to 20 years imprisonment. This is a second appeal against both conviction and sentence.
The child, SAO, was said to be aged 13 years on September 7, 2015when the sexual assault happened. The prosecution case was that on that day, at about 7.00 pm, she was sent by her sister to pick a lamp from one Mama O. On her way back home, one Isaiah and one Kevin beckoned her. Kevin pulled her into a house, took her into a bedroom and defiled her. All this while, Isaiah remained in the sitting room. Her sister MO (PW3) unexpectedly appeared and found the complainant and Kevin in bed. She pulled the complainant to the outside and beat her using a stick, apparently upset at her behaviour.
It was at this point that the accused told her not to go home as she would be beaten again. That against her will, the accused pulled her to his nearby home. It was now about 8.00 pm. The accused took her into his brother’s house, locked the door and defiled her several times in the course of the night. The complainant told the court that as a result, she sustained injuries to her vagina and bled. She in fact stained her clothes with blood.
The accused and the complainant then moved to the home of his sister, where they slept and he again defiled her. On the next day the accused gave her fare to Kisumu where she attended a funeral. There, she met her brother, B, and her sister. She told them that she was with the accused. She also told them what had happened the previous night. Her sister took her to Agoro Health Centre for treatment.
Dr. Peter Ogolla (PW5), a doctor at Rachuonyo Hospital, examined the complainant and filled a P3 form on 14th September 2015. Her skirt was blood-stained and soiled on the back. He found a recently broken hymen, there was inflammation of the external genitalia and bleeding from the bruises. The cervix also had bruises and was bleeding. He concluded that it was evidence of recent penetration.
In his defence, the appellant denied the offence and stated that on that day, at about 7.00 p.m., on reacting to some noises he found the sister of the complainant alleging that the appellant had been defiled by Kevin and Isaiah. That M requested him for a rod so as to discipline the complainant but he declined. He and his witness, MO (DW3), stated that the complainant was never found at the home of the appellant.
In a homegrown appeal, the appellant raised 9 grounds but in effect, his complaint is that the conviction was against the weight of evidence. He submitted that the complainant behaved in a manner likely to suggest that she was an adult of sound mind who enjoyed sex with various men. He wondered why the other two people, Kevin and Isaiah, who had sex with her, were not charged with a similar offence.
He also took issue with the finding of the age of the complainant. The appellant submits that the complainant was not subjected to an age assessment and the age assigned to her was at best an estimate.
In equally short submissions, the Director of Public Prosecutions opposed the appeal and argued that the age of the complainant was proved and the evidence was sufficient to found a safe conviction.
This is a second appeal. The role of the court in such instance is circumscribed by the provisions of Section 361 (1)(a) of the Criminal Procedure Code to deal with only matters of law. On this rule, this Court has said;See Karani vs. R 1 KLR 73.
Let us start with the issue of the age of the complainant. The testimony of the complainant was that she was born on May 26, 2002and a Baptism Certificate which indicated the date of birth to be that day was produced as an exhibit. Undoubtedly, a medical age assessment may well be the best proof of age but documents such as Baptism Cards and School Certificates are not without value. Ordinarily, these documents would have been made without anticipation that the person whose age is entered would ever be a victim of a sexual offence and there may be no reason not to capture the correct age of the person.
In this matter, the Baptism Certificate was prepared on August 17, 2014, about a year before the day of the assault and the appellant has not told us why the information in it should be doubted. At any rate, the doctor who examined the victim before filling the P3 form estimated her age to be 13 years. We think and hold that the two courts below were correct in finding that the age of the complainant at the time of the assault was between the age of 12 and 15 years and the appellant was liable for sentence under Section 8 (3) which provides;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.
A second appellate court pays deference to concurrent findings of fact of the courts below unless the conclusion drawn is so perverse and cannot find any support in the evidence that was led at trial (see Adan Muraguri Mungara vs Republic  eKLR). Other than contending that other persons who are said to have defiled the complainant should also have been charged, the appellant has not pointed out to us why the factual findings of the two courts below which proved the ingredients of defilement namely; age of the complainant, penetration and identification of the perpetrator; should be faulted. We see none ourselves.
Even more recently, Mativo J (as he then was) weighed in on the matter in Edwin Wachira & 9 others v Republic: Mombasa Petition Nos. 97, 88, 90 and 57 of 2021 (Consolidated) (Unreported);
18.The trial magistrate, at that time, felt constrained by the minimum prescriptions of Section 8 (3) of the Sexual Offences Act on the sentence to impose and cannot be faulted for the minimum sentence meted. After all, that was the prevailing interpretation of the law from the superior courts. But given the persuasive decisions of the High Court in Philip Mueke Maingi and Edwin Wachira arrived at in line with the directive of the Supreme Court, we are persuaded and hold that there is scope to relook at the sentence imposed. The notes at the sentencing proceedings show that the appellant did not have any previous record of conviction. In mitigation, he stated that he was an orphan and had two siblings who depended on him and whose primary school fees he was paying. On the other end of the spectrum, the appellant defiled the victim on more than one occasion, over days. In addition, he took advantage of a child who had already been a victim of defilement by two other men. These are aggravating factors. This is enough material for us to consider whether or not the sentence ought to be reviewed.
19.In the end the appeal against conviction is dismissed but we set aside the sentence of 20 years imprisonment and substitute it with imprisonment of 10 years, effective from the date of sentence by the trial court. Those are the orders of this Court.