1.The appellant was convicted of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006 and was sentenced to serve 10 years imprisonment. The particulars of the offence were that on the October 23, 2021 at [Particulars Withheld] area in Marsabit Central Sub-County within Marsabit County he intentionally touched the buttocks (anus) of HR (herein referred to as the complainant), a child aged 10 years with his penis.
2.The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are that there was no medical evidence to link him to the commission of the offence; that the prosecution evidence was uncorroborated and contradictory; that the investigations in the case were shoddy; that the trial magistrate failed to consider his defence and mitigation and that the case was not proved beyond reasonable doubt.
The Evidence in the Case-
3.The prosecution called six witnesses in the case. It was the evidence of the complainant PW1 that he was a class 2 pupil at [Particulars Withheld] and lived with his family at [Particulars Withheld] estate in Marsabit town. That on the material day at 1pm he was at [Particulars Withheld] with a friend called HA PW2, a boy also aged 10 years. That the appellant who was unknown to him called him. He showed him a note of Ksh 100/= and promised to give him the money if he accompanied him to the toilet. The complainant complied. Once they were in the toilet the appellant told him to remove his trousers and to bed down. He did so. The appellant removed his trousers and put something that looked like a balloon on his penis. He inserted his penis into the buttocks of the complainant. After the appellant finished he put on his trousers and left. He never gave him the money as promised. The compliant went out. He proceeded to his home. His mother interrogated him. He explained what had happened.
4.The other boy, HA PW2, told the court that he was a class 3 pupil at [Particulars Withheld]. That on the October 23, 2021 he was at [Particulars Withheld] with the complainant. That the appellant who was present at the time told the complainant to get him water for him to visit the toilet. The complainant got him the water. He, PW2, saw them enter the same toilet. He went and entered the toilet next to the one they had entered. The toilets were separated with iron sheets. There were holes on the iron sheets. He peeped through the holes and saw the complainant removing his trousers. The appellant removed his trousers and put on something that looked like a balloon on his penis. He entered his penis into the complainant`s buttocks. He did it for about 3 minutes. He then removed the balloon and dropped it into the toilet. The appellant left. PW2 went to the complainant and found him cleaning his buttocks. He asked the complainant why he had consented to the act. The complainant pleaded with him not to report him to his parents. PW2 went to the home of the complainant and reported to the complainant`s mother. The appellant was sought. PW2 identified him and he was arrested. PW2 said that he had known the appellant before. He was called Ibrahim.
5.The complainant`s father PW3 testified that he was at home on that day at 2pm when PW2 reported to him that the complainant had been defiled at the mosque by a person called Ibrahim. That he went to the mosque but he did not find his son. He returned home and found him. He inquired from him what had happened and he narrated the incident. They went out in search of the perpetrator. The person was identified by PW2 and he was taken to the police station.
6.An aunt to the complainant PW4 testified that she was at the home of the complainant`s father when HA PW2 went and reported that the complainant had been defiled by a person called Ibrahim. Later the complainant arrived and confirmed the story. The said person was arrested.
7.It was the evidence of Cpl Hussein PW6 of Marsabit Police Station that he was the Investigating officer in the case. He testified that the complainant was taken to the police station by his parents. They reported that the complainant had been defiled. He recorded their statements. He issued a P3 form to the boy and escorted him to hospital for examination. He was examined by Dr Tume PW5 of Marsabit County Referral Hospital who however did not find any injuries on the anal area. The boy however had a healing wound on the neck. Due to the said injury the doctor concluded that there was attempted defilement. The doctor completed the P3 form. Later in the day around 4.15 pm the appellant was taken to the police station by the complainant`s father and members of the public. Later PW6 was given the birth certificate of the complainant by his parents. It indicated that he was aged 10 years. PW6 charged the appellant with the offence of attempted defilement and in the alternative committing an indecent act with a child. During the hearing the doctor PW5 produced the P3 form in court as exhibit, Pexh1 while the Investigating Officer PW6 produced the birth certificate as exhibit, Pexh2.
8.When placed to his defence, the appellant told the court in a sworn statement that he did not commit the offences as charged. That the charges were a fabrication.
10.The trial court found no evidence of attempted defilement but found the appellant guilty of the alternative count of committing an indecent act with a child. In convicting the appellant of the offence the trial magistrate said that he believed that the complainant was a truthful witness on what had been done to him by the appellant. That the appellant was previously known to HA PW2. That PW2 identified the appellant when he was arrested shortly after the incident. That the appellant`s defence was a mere denial that did not shake the prosecution evidence.
11.The appellant submitted that the offence he was accused of committing was not corroborated by the evidence of the doctor. He further submitted that the evidence adduced by the prosecution was contradictory.
12.The prosecution opposed the appeal and submitted that all the ingredients of the offence were proved which were - the age of the complainant, identification of the appellant and the act of committing an indecent act. They supported the finding by the trial court that the prosecution witnesses were truthful. They stated that there was no reason brought forth as to why the witnesses would lie against the appellant.
Analysis and Determination–
13.This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and draw its own independent conclusions while keeping in mind that the trial court had the advantage of seeing and hearing the witnesses testify -see Okeno v Republic (1972) EA 32.
14.The appellant was convicted of the offence of committing an indecent act with a child. In the Sexual Offences Act, “an indecent act” is defined as follows:-
15.The appellant challenged the conviction on the ground that there was no medial evidence adduced to link him with the offence. From the definition of the offence of indecent act as shown above all what the prosecution was required to prove in this case is that there was unlawful contact between any part of the body of the appellant with the buttocks of the complainant. Medical evidence was therefore not a requirement to prove the offence.
16.The appellant argued that the evidence adduced against him was contradictory. He however did not point out any material contradictions in the case. If there were such contradictions they were minor with no effect on the evidence adduced by the prosecution.
17.The appellant argued that the trial court did not consider his defence. The appellant simply denied committing the offence and said that the charges were a fabrication. The trial court considered the appellants denials against the evidence adduced by the prosecution and came to a conclusion that the charge was proved beyond all reasonable doubt.
18.On my own analysis of the evidence I find the prosecution to have proved all the material ingredients of the offence. The age of the complainant that he was of the age of 10 years was proved by production of a birth certificate, Pexh2. There was then no doubt that the complainant was a child in terms of the Sexual Offences Act.
19.The appellant was a person well known to the boy called HA, PW2. It is HA who reported to the complainant`s mother and his aunt PW4 that the complainant had been defiled by the appellant. HA knew the appellant by name Ibrahim. He is the one who identified him to the members of the public when he was arrested. The complainant identified the appellant as the perpetrator after he was arrested. The incident took place in broad daylight. The identity of the appellant left no room for mistaken identity. The prosecution did prove that the appellant was the perpetrator.
20.Section 124 of the Evidence Act allows a court in sexual offences involving minors to convict on the sole evidence of the child where the court is satisfied that the child is telling the truth. In this case the trial magistrate found the complainant to be a truthful witness. I have no reason to doubt the findings of the trial magistrate that the complainant was a truthful witness. There cannot have been any truth in the allegation that the charges were a fabrication as the appellant did not explain as to who could have fabricated the case against him and why. The evidence by the complainant was credible. Though the evidence of a child cannot be corroborated by that of another child, it was clear that HA PW2 witnessed the whole episode. There was no reason for the two boys to fabricate the evidence against the appellant. There was thus sufficient evidence that the appellant touched the buttocks of the complaint with his penis. The evidence adduced against the appellant was overwhelming and I accordingly find his denials to have been of no effect. The appeal on conviction is dismissed.
22.The appellant was sentenced to the minimum sentence of 10 years. The sentence was in accordance with the law.
23.The upshot is that the appeal is lacking in merit and is dismissed.