Rwaka v Republic (Criminal Appeal 23 of 2019)  KEHC 14682 (KLR) (3 November 2022) (Judgment)
Neutral citation:  KEHC 14682 (KLR)
Republic of Kenya
Criminal Appeal 23 of 2019
KW Kiarie, J
November 3, 2022
Paul Juma Rwaka
(From the original conviction and sentence in S.O.A case No.8 of 2019 of the Principal Magistrate’s Court at Ndhiwa by Hon. V. Kiplagat –Resident Magistrate)
1.Paul Juma Rwaka the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) (2) [sic] of the Sexual Offences Act No.3 of 2006.
2.The particulars of the offence were that on the 20th day of February, 2019 at [particulas Withheld] village in [particulas Withheld] Sub county of Homa Bay County intentionally and unlawfully caused his penis to penetrate the vagina of JAO, a child aged 5 years.
3.The appellant was sentenced to life imprisonment. He has appealed against both conviction and sentence.
4.The appellant was in person. He raised grounds of appeal as follows:a.That the trial court acted without jurisdiction.b.That the trial court convicted the appellant on contradictory evidence.c.That the appellant was convicted on the evidence of a single witness.d.That the appellant’s defence was not considered.
5.The appeal was opposed by the state, through Ochengo Justus who submitted that all the ingredients of the offence were proved.
6.This is a first appellate court. As expected, I have analyzed and evaluated afresh all the .evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic  EA 32.
7.Section 8 (1) (2) of the Sexual Offences Act does not exist. The charge to that extent was erroneously drafted. It ought to have read:
8.Since the appellant fully participated in the trial, I find that he was not in any way prejudiced and the error is curable under section 382 of the Criminal Procedure Code.
9.Section 8(1) of the Sexual Offences Act defines defilement in the following terms:These ingredients were restated in Fappyton Mutuku Ngui vs. Republic  eKLR as follows:
10.J.A.O (PW1) was presented to hospital for age assessment on 16th April, 2019 and a report produced (P. exhibit 7). The clinical officer who examined her concluded that she was 6 years old based on the dental formula. Her mother (PW1) indicated that as at 28th March 2019 when she testified the girl was 51/2 years. Section 8 (2) of the Sexual Offences Act provides:
11.Grace Achieng (PW1) testified that on 20th day of February, 2019 she went to the market and left the complainant with the appellant at about 6 p.m. Her other daughter had gone to fetch water. She learnt of the incident on 22nd February, 2019. When she checked the complainant’s genitalia, she found pus oozing out.
12.J.A.O (PW2) the appellant defiled her on the seat in her mother’s house. Her evidence was that after the appellant had inserted his penis into her genitalia, he inserted it in her mother’s milk can. At the time, she said her mother had gone to sell milk while her sister had gone to fetch water.
13.At the time Benard Otieno (PW7) examined the complainant, she was in pain on the lower abdomen and the back. The genitalia was swollen and bleeding. The hymen was ruptured. There was bleeding from the cervix. There was thick yellow discharge from her vagina with a foul smell. He formed an opinion that there was defilement.
14.The medical evidence corroborated the complainant’s evidence and the learned trial magistrate had good reasons to receive the evidence of the victim and proceed to convict the appellant as provided for in the proviso to section 124 of the Evidence Act. The prosecution therefore proved penetration and that the perpetrator was the appellant.
15.Section 8 (2) of the Sexual Offences Act provides a mandatory sentence of imprisonment for life upon conviction. The appellant was therefore sentenced to serve the prescribed sentence. This cannot be termed as harsh.
16.The upshot of the foregoing analysis of the evidence on record, the appeal lacks merit and is accordingly dismissed.
DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE