1.This second appeal of Joseph Juma Wangila (the appellant) attempts to overturn the judgement of Chemitei. J dated May 10, 2018. The appellant was charged in the Magistrate’s Court with defilement of a child contrary to Section 8 (1) of the Sexual Offences Act as read with Section 8(2) of the same Act. He was tried, found guilty as charged and was sentenced to life imprisonment as provided by the law.
2.The particulars of the offence were that on September 30, 2016 at [Particulars withheld] village within Trans-Nzoia County the appellant intentionally caused his penis to penetrate, the vagina of ANW a child aged 6 years.
3.The appellant pleaded not guilty to the charge and as a result, the prosecution presented five witnesses to prove their case.
4.A summary of the prosecution case was that on September 30, 2016, ANW (PW1), a six years old girl was playing with her friend D , when the appellant called her into his house. While in his house the appellant put her on his bed, removed his 'thing' and swiped it on her thighs, vagina and buttocks. He then lay on her and inserted his 'thing' that, according to the child, looked like a stick in to her vagina. She felt pain in the chest. Meanwhile D was a silent witness of the ignoble deed as she stood by the wall in the house and watched. When the appellant was done, he wiped ANW with a rag and warned her not to tell anybody what he had done. The child however, found her mother, EW (PW2) and immediately told her what the appellant had done to her.
5.PW2, EW the mother, confirmed that PW1 was aged six years old and that on the material day, PW2 was washing the dishes when she asked PW1 to go and fetch D who had gone towards the road. She confirmed that she saw and heard the appellant from where she was washing the dishes, calling PW1 to his house but thought nothing of it since the appellant was her neighbour. PW1 presently came back to where PW2 was and she appeared ill at ease. She immediately told PW2 that the appellant 'ako na tabia mbaya' (the appellant was bad-mannered) and explained what the appellant had done to her. PW2 examined the child and found semen on her. She reported the matter to one G, the Village Elder and he accompanied her to the appellant’s house to confront him. The appellant confirmed that PW1 was in his house but denied having defiled her. The child was taken to Kiminini Police Station where a report was made and to Matunda Hospital for treatment and later still, to Kitale District Hospital for further treatment.
6.Linus Likare (PW3), the doctor at Kitale District Hospital examined PW1 on October 3, 2016 and concluded from the recently torn hymen that she had been defiled. He filled a P3 form in that regard. An Age Assessment Report on behalf of PW1 prepared by Dr Mukira and produced in court by Dr Pharis Solali (PW4) a Dental Officer from Kitale District Hospital, put the child’s age at six years. At the close of the investigations, Mary Mmoi, (PW5) the investigating officer preferred the stated charges against the appellant.
7.The appellant in his unsworn statement in his defence, denied the charges and called no witnesses. He told the court that on the material day, he was working on his farm in Mbai village when three people came for him on a motorbike under the pretense that they wanted him to assist them to cut maize stalks. They instead took him to Kiminini Police Station where he learnt of these allegations.
8.The learned Magistrate, P Biwott (SPM) considered the evidence before him and found that it was sufficient. He found the accused guilty as charged, considered his mitigation and sentenced him to life imprisonment.
9.Aggrieved by the above judgement the appellant filed an appeal in the High Court alleging that: the evidence of the prosecution witnesses was uncorroborated; the complainant’s age was not ascertained; crucial witnesses were not called and that his defence was rejected without cogent reasons.
10.The learned Judge considered the appeal before him, found that it had no merit and dismissed it in its entirety, hence this second appeal. The appellant’s grounds in this second appeal are that:a.Crucial witnesses, D and the Doctor from Matunda hospital did not testify,b.The defilement was intercepted hence the sentence should be reduced,c.The age of the complainant was not proved beyond reasonable doubt,d.The voire dire examination was brief and inconclusive on the intelligence and truthfulness of the minor.e.That the courts below erred by rejecting his defence
11.This appeal was disposed of by way of written submissions which were orally highlighted during plenary in the virtual hearing. The appellant was in person while the respondent was represented by Senior Assistant Director of Public Prosecution, Ms Jacklyne Kiptoo,
12.The appellant submitted that sexual activity could not have happened in the presence of D , as claimed by the complainant: that the time PW2 sent the complainant to call D was too short for any active sex to take place and that since the intention was not complete due to interruption by D and PW2, this Court should substitute the conviction to attempted defilement and sentence him accordingly.
13.Next, the appellant urged that the sentence meted upon him is bad in law as it tied the hands of the Judge and denied him discretion to award a less severe sentence, even where there was mitigation, and the circumstances of the case warranted lesser sentence.
14.The appellant further faulted the prosecution for failing to avail D and the clinical officer who examined the complainant initially when she was taken to Matunda clinic, and who were crucial witnesses. His contention was that the prosecution is duty bound to make available all the witnesses necessary to establish the truth.
15.On the age of the child, the appellant faulted the prosecution for failing to avail the doctor who conducted the age assessment, since no birth certificate was produced to prove her age beyond reasonable doubt. He submitted that it was necessary for him to cross-examination the doctor on how he arrived at the conclusion that PW1 was 6 years old. He was not satisfied with the testimony of PW4 Dr Mukira, who did not assess PW1.
16.It was also his submission that when the complainant was asked under voire dire examination 'what happens when you do a mistake at home?' she said nothing. On that basis the appellant desires this Court to construe that PW1 was not intelligent or truthful.
17.In rebuttal, Ms Kiptoo urged in her submissions dated November 29, 2022 that the age of the minor was proved to be 6 years old upon assessment by PW4. On proof of penetration, counsel pointed to the testimony of PW1 that: 'the appellant took his thing and swiped it here (she points her thigh, vagina and buttocks) removed his thing that looks like a stick and put it here (points at her vagina)' as he lay on top of her. In addition, counsel urged that PW3 examined PW1 and observed that her hymen was recently torn and, concluded that she had been defiled. On identification counsel stated that PW1 knew the appellant and there was therefore, no danger of mistaken identity. As such, counsel urged that all the elements for the offence of defilement were proved beyond reasonable doubt.
18.Counsel added that the records indicate that the appellant gave an unsworn statement of defence and in Amber May vs the Republic (1999) KLR 38, the Court held that an unsworn statement has no probative value notwithstanding the provisions of section 211(1) of the Criminal Procedure Code.
19.We have considered the record of appeal, the parties’ arguments and the law applicable. Our duty as the Court of second appeal is limited to consideration of matters of law only. In this respect, section 361 of the Criminal Procedure Code provides that –
21.From the rival arguments above the issues that arise for our determination are:a.Whether the voire dire examination was conducted in a proper way,b.Whether the prosecution left out crucial witnesses,c.Whether all the elements of defilement were proved beyond reasonable doubt,d.Whether the appellant’s defence was considered, ande.Whether the sentence meted upon the appellant was constitutional.
24.Further, in Japheth Mwambire Mbitha v Republic  eKLR, relying on the decision of this Court in Johnson Muiruri vs Republic  KLR 445, the purpose of voire dire examination was outlined as follows:1.'Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.2.It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.3.When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.4.A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.5.The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.'
25.The applicant argued that the voire dire examination was not conducted properly in this case to enable the court arrive at a conclusion that PW1 would tell the truth. The State did not submit on this point. In the record before this Court, the voire dire proceedings were recorded as follows:
26.In the end the court recorded that PW1 did not understand the nature of an oath and would therefore give unsworn evidence. We find no reason to fault the court for the manner in which the voire dire examination was conducted, or the conclusion that the court drew there from, because a child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath, apart from the ordinary social duty to tell the truth.
27.The next issue for consideration was whether the prosecution failed to call crucial witnesses. The appellant contended that the prosecution left out two crucial witnesses being a child called D who witnessed the incident, and the medical officer who conducted the age assessment on PW1. Again, the State did not submit on this.
28.The issue of which, or how many witnesses should have been called, was squarely addressed in the case of Bukenya v Uganda  EA 549, where it was stated that:
29.As has been stated many times in this Court, there is no stated number of witnesses that the prosecution must call to prove its case. The Director of Public Prosecutions has the discretion to decide who are the material witnesses to prove their case and whom to call to testify. The High Court addressed itself to the issue of the witnesses that were not availed as follows:
30.The two courts below assessed the evidence tendered by the prosecution which did not include the witnesses adverted to and found that it was sufficient to sustain a conviction. We have examined the record and find no reason to depart from the finding of the two courts.
31.The next issue for determination is whether all the elements of defilement were proved beyond reasonable doubt. The appellant was charged with defilement contrary to section 8(1) as read with section 8(2) of the SOA. Section 8 (1) of the SOA provides:
33.The appellant argued that the age of the PW1 was not proved to the required standard, and that PW4 was not the doctor who examined PW1 and the appellant could not question him how he arrived at the age of six years. On the other hand, the State argued that the age of the appellant was proved to the required standard by the testimony of the mother buttressed by the assessment report produced in court by PW4. The High Court pronounced itself on this issue as follows:
34.We note that there was no evidence on record that the appellant doubted that the complainant was anything other than a child of tender years, as stated by the mother and confirmed by the doctor who first attended her even apart from the report of the doctor who assessed her age. There is also no evidence that the appellant specifically requested for the doctor who did the age assessment to be called for cross - examination.
35.The question of proof of age in sexual offence cases will always take center stage since it has a direct correlation to the sentencing regime. In Edwin Nyambogo Onsongo v Republic (2016) eKLR this Court held that:We therefore hold that the two courts below properly found that the age of PW1 was proved to the required standard, based on the evidence availed.
36.On penetration, the appellant contended that the act of penetration was interfered with by PW2 and D , therefore he was not able to complete the act. On the other hand, the State submitted that PW1 gave evidence on how the appellant defiled her, which was further corroborated by the medical evidence of PW3. The superior court held the following on penetration:
37.PW1 gave such graphic details of how the appellant defiled her that we have no basis to assign it to the fertile imagination of a six year old. In addition, the evidence of PW3 corroborated her testimony as did the mother’s observance of the child when she reported to her. The mother also testified that prior to the child reporting the assault to her, she had heard the appellant call the child to his house. As such, we find no fault with the concurrent findings of the two courts below that this element was proved to the required standard.
38.On identification, the appellant was a neighbour to PW1. PW2 testified that their houses were close to each other. Identification was therefore by recognition. This Court in Rotich Kipsongo v Republic  eKLR held:
39.The next ground that the appellant latched on was that his defence was not considered although he did not submit on it. The State on the other hand submitted that the appellant’s defence was considered and found not to dislodge or cast doubt on the firm and consistent prosecution case.
40.The Judge of the High Court did not find much to consider in the defence and observed thus:
41.The appellant’s unsworn defence is found on page 23 of the Record of Appeal and is as follows:
42.This being a criminal case it was the appellant’s right in law to give an unsworn statement, or to elect to remain silent and leave it to the court. However, having elected to testify, his evidence must be assessed in the context of the rest of the evidence on record. His unsworn evidence was however incapable of being tested through cross-examination for veracity, and accordingly has low probative value.
44.It is evident that the appellant’s defence was considered by the courts below in the context of the rest of the evidence tendered and it did not debunk the prosecution case.
45.The last issue for consideration was whether the sentence meted upon the appellant was constitutional. The appellant argued that the mandatory nature of the sentence was unconstitutional since it does not give the court an opportunity to exercise discretion, especially considering the appellant’s mitigation. The State did not submit on this and since it was not a ground of appeal in the High Court the learned Judge did not pronounce himself on it. Be that as it may, we considered the constitutionality of the sentence.
47.Sentence is a matter that is in the discretion of the trial court and on appeal, the appellate court will not easily interfere with it unless, it is manifestly excessive in the circumstances of the case. This Court in Bernard Kimani Gacheru vs Republic  eKLR had this to say on sentencing:
49.In the case before us the appellant’s mitigation was as follows: 'I have children relying on me'. The learned magistrate considered his mitigation and held that: 'though accused is a parent, he failed to respect other children like the complainant herein. My hands are restricted by the law. I sentence accused to serve life imprisonment'.
50.We find that the appellant perpetrated a heinous act against a child of tender age who was a neighbor and expected his protection. Even at that tender age she knew something bad had been done to her as evinced by her report to her mother that; 'ako na tabia mbaya' (he has bad manners) in reference to the appellant. As a result, we hold that the sentence meted upon him was commensurate with his action. Ultimately, this appeal is dismissed in its entirety.