The Prosecution’s Case.
7.The victim, T. C testified as PW1. It was her testimony that she was born on 22nd June 2001. She told the court that the Accused was her boyfriend and that they had sexual intercourse severally. It was her testimony that she discovered she was pregnant in November 2018.
8.PW1 testified that they continued with the relationship until June 2019 when her relatives realized that she was pregnant. That after the Accused was called by her relatives, he denied knowing her. PW1 further testified that she went to Longisa County Hospital on 15th May 2019 to be examined. That she was seven and a half months pregnant at that time.
9.The victim’s mother EC (PW2) testified that PW1 joined Form one in the year 2017. She stated that PW1 told her that the Accused had advised her to leave school and that he would buy her land. It was PW2’s testimony that PW1 became pregnant in December 2018 and she thereafter refused to go to school. That PW1 told her it was the Accused who had impregnated her. She testified that PW1 was born in the year 2001 on a date she could not remember. That PW1 was a student at [particulars witheld] Girls High School.
10.PW2 testified that PW1 was taken to Longisa County Hospital for examination. She further testified that the Accused worked in Longisa town and that they were not related. She told the court she had no dispute with the Accused.
11.KK (PW3) testified that he was the brother to PW1. That on 17th June 2019, his mother PW2 called him and informed him that PW1 had been chased from school. That upon inquiring on the reason why, he was told that PW1 had not been chased from school but was required to give birth before returning to school. He was told that his friend (Accused) had befriended the complainant. PW3 further testified that he went to report the matter at Longisa Police Patrol Base.
12.Dr. Nixon Kiplangat Mutai (PW4) testified that he was based at the Longisa County Hospital. That he examined PW1 and stated that she was aged approximately 18 years and that she was 30 weeks pregnant. PW4 further testified that there was no sign of drugs or alcohol and that she had normal head, neck, lower and upper limbs. It was PW4’s testimony that on examination of the genitalia, there was an old broken hymen. PW4 stated that the complainant was approximately 18 years and that he did not conduct an age assessment.
13.No. 112415 PC Eric Mwenda (PW5) testified that he took over the case from PC Caroline Nthenya. That on 2nd July, 2019 the complainant while accompanied by her parents reported that PW1 and the victim had sex with the Accused on diverse dates in November, 2018 and that PW1 was pregnant. PW5 testified that PW1 was a Form 3 student at [particulars withed] Girls High School. PW5 stated that PW1 was referred to hospital and the examination did not reveal recent penetration but found a 7 month pregnancy.
Analysis And Determination
27.I have gone through and given due consideration to the trial court’s proceedings, the Petition of Appeal filed on 8th August 2022, the Appellant’s Written Submissions dated 11th November 2022 and the Respondent’s Notice to Concede dated 21st March 2023 and the following issues arise for my determination: -i.Whether the Prosecution proved its case beyond reasonable doubt.ii.Whether the Defence places doubt on the Prosecution case.iii.Whether the Sentence was harsh and excessive.i.Whether the Prosecution proved its case beyond reasonable doubt.
28.I begin the analysis by noting that the Respondents have conceded the appeal. However, I must consider whether the concession was merited bearing in mind that it was the Prosecution that dragged the Appellant to court, prosecuted and got a conviction.
29.It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender must be proved. I therefore analyse the evidence with these ingredients of the offence in mind.
30.PW1 testified that the Accused was her boyfriend with whom they sexual intercourse severally. When PW2 who was the complainant’s mother was cross examined, she testified that she knew the Accused as a neighbour. PW3 who was the complainant’s brother testified that the Accused was his friend. The Accused on the other hand testified that PW1 was his neighbour. I am satisfied that the Accused and the family of PW1 were neighbours and that they knew each other from daily or regular interactions. Furthermore, PW1 could not fail to recognize someone with whom they have had regular sexual intercourse. It is my finding therefore that the evidence of recognition was sufficient enough to identify the Accused.
31.The English case of R vs Turnbull (1977) QB 224 is useful in this regard. The court held as follows:-
32.For the charge of defilement to be sustained, penetration has to be proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. See John Irungu vs Republic (2016) eKLR.
33.In the case of Bassita vs Uganda S. C Criminal Appeal Number 35 of 1995, the Supreme Court in Uganda held that: -
34.In this case, PW4 who was the doctor based at Longisa County Referral Hospital clinical officer testified that when he examined PW1, he found that she was approximately 30 weeks pregnant. PW4 produced a P3 Form that was marked as P. Exh 2. The P3 Form indicated that PW1 had an old broken hymen and that there was no discharge, blood or venereal infections from the genitals. The P3 Form while proving that the complainant had been penetrated before, was inconclusive of when the penetration occurred. The court was therefore entitled to rely on the evidence of the victim. In the case of Kassim Ali vs Republic Cr. App. No. 84 of 2005 (Mombasa), the Court of Appeal stated that: -
35.The Proviso to Section 124 of the Evidence Act allows a court to convict purely on the evidence of the victim if it is convinced and the same is recorded that the victim was telling the truth. Section 124 of the Evidence Act provides: -
36.Though not having the benefit of seeing PW1 testify, I have carefully gone through her evidence and I have noted that she stated that the Accused was her boyfriend with whom they had several sexual encounters and as a result she became pregnant. I have also gone through the trial court Judgment and I noted that the trial Magistrate stated that she was satisfied there was penetration as the complainant gave elaborate details on the nature of her relationship with the Accused and she was satisfied that the complainant knew the Accused very well and that they were in a relationship for a long time. I am convinced based on the testimony of PW1 that the Appellant did penetrate the complainant on various dates.
37.It is an uncontested fact that PW1 became pregnant. It is also salient to note that pregnancy is not required to prove of penetration as was stated by the Court of Appeal in Evans Wanjala Wanyonyi vs. Republic  eKLR, that: -
38.In this case however the medical examination showed that the complainant was seven and a half months pregnant and a subsequent DNA test showed that the Accused was the father of the complainant’s child. The DNA test proved beyond any shadow of doubt that the Accused penetrated and impregnated the complainant.
39.Both parties in this appeal were conscious of the importance of age as an ingredient of the offence. Thus they urged at length that the age of the victim was not proven beyond reasonable doubt.
40.The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo Vs Republic (2016) eKLR as follows: -
41.Similarly in the case of Eliud Waweru Wambui vs. Republic (2019) eKLR, the Court of Appeal reiterated that: -
42.I have therefore keenly reviewed the evidence on age. PW1 testified that she was born on 22nd June 2001. PW5 who was the investigating officer produced a copy of the birth certificate marked as P.Exh 1 which indicated that PW1 was born on 22nd June 2001. That would mean that she was 17 at the time of the offence. PW2 who was the complainant’s (PW1’s) mother testified that PW1 was 15 years old at the time of the alleged offence. She also testified that PW1 was born in the year 2001 in a month she could not recollect.
43.The Appellant has argued that PW1’s age was not proved because the Prosecution produced a copy of the birth certificate. The Respondent/Prosecution agreed with the Accused and even stated that there was an inconsistency on PW1’s age because the complainant’s mother testified that she was aged 15 years at the time of the offence.
44.I have gone through the proceedings and I have noted that the authenticity of the birth certificate was not challenged during the trial. Section 64 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. Section 65(1) of the Evidence Act defines Primary Evidence as the document itself being produced for the inspection of the court. Section 66 of the Evidence Act states as follows: -
45.In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased (2016) eKLR, Mativo J. (as he then was) stated that: -
46.It is my finding that the issue of the photocopies birth certificate was an afterthought by both parties and I further find the birth certificate (P. Exh 1) to be credible and admissible. Indeed, the record shows that the Respondent’s witness produced the photocopy which was admitted by the court without objection by the defence. Failure to lay a basis for the production of the copy in my view pointed more to inadequate prosecution skill rather than lack of the document. The Court of Appeal stated in Edwin Nyambogo Onsongo vs Republic (2016) eKLR that: -
47.In this case therefore I hold the view that even if I were to exclude the documentary evidence in the birth certificate, there was still the evidence of the mother who testified that the complainant was born in 2001 a date she couldn’t remember. She also said that the girl was 15. This later statement to me shows a numerical error. In any case, both statements show that the victim was under 18 at the time of the offence. The complainant herself testified that she was 18 years old at the time of the case meaning she was 17 at the time of the defilement. By simple calculation, by the time of the alleged offence occurred in November 2018, PW1 was aged 17 years old, which I hereby find.
48.I therefore dismiss the suggestion that age was not proved. As shown above, it was proved beyond reasonable doubt. I find no material inconsistency or contradiction on the age of the Appellant as submitted by the Respondent in conceding the appeal.
49.Having established the age of the complainant, proof of identification and penetration, it is my finding that the Prosecution proved its case against the Accused in the trial court beyond reasonable doubt. The concession of the Appeal by the Prosecution in the higher court is consequently disallowed as it is not borne of evidence.ii.Whether the Defence places doubt on the prosecution case.1.I have considered the Appellant’s defence in which he denied committing the offence. DW1 stated that he knew PW1 as a neighbour and that he did not commit the offence. He continued denying any sexual relations with the complainant even in the face of a DNA finding that he was the father of the complainant’s child. He persisted in the denial without suggesting to the court that the complainant may have gotten pregnant through means other than sexual intercourse. This he did despite the fact that the DNA testing was ordered by the court and done on his application and insistence. I dismiss his defence as a figment of imagination. He knew the complainant beyond her name.iii.Whether the Sentence was harsh and excessive
51.The principles which guide an appellate court in sentencing were set out in S vs. Malgas 2001 (1) SACR 469 (SCA). In this persuasive authority, the Supreme Court of Appeal of South Africa held that: -
52.Similarly, in Mokela vs. The State (135/11)  ZASCA 166, the Supreme Court of South Africa held that: -
53.The penal section for a defilement of a child of 17 years is provided by Section 8 (4) of the Sexual Offences Act which states that: -
54.The aforementioned Section is couched in mandatory terms as it provided for a mandatory minimum sentence in the event of a conviction. Mandatory minimum sentences are not illegal and the same was clarified by the Supreme Court in the case of Francis Karioko Muruatetu and Another vs Republic, Petition no. 15 & 16 (consolidated) of 2015 it was held that: -
55.Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. An appellate court would only be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon a wrong principle.
56.The above position was enunciated in Shadrack Kipchoge Kogo vs Republic Criminal Appeal No. 253 of 2003 (Eldoret), in which the Court of Appeal stated:-
57.Similarly, the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic, (1954) EACA 270, pronounced itself on this issue as follows: -
58.The Appellant in this case was sentenced to 15 years which is, prima facie, the mandatory minimum sentence under the SOA. The facts and circumstances in this case however warrant a re-examination of the minimum sentence imposed.
59.It is clear to this court that the Appellant and the victim were in a long-standing sexual relationship which their respective parents were aware of. The victim’s mother in her testimony stated that the daughter (victim) had told her (to her dismay) that the Accused wanted to buy land for her and settle her if she abandoned school. It also emerged from the evidence that the Accused’s relatives were in the know concerning the relationship.
60.This court believes that the parents did counsel the victim and she disregarded their wise counsel. Indeed, the victim (PW1) categorically stated in her evidence as follows: -
61.The victim (PW1) further told the court that she came to learn that the Accused had a wife and he refused to take responsibility when she (PW1) fell pregnant. It therefore appears to this court that the otherwise budding relationship was rocked by the pregnancy and the refusal by the Appellant to take responsibility. In the mind of this court the panacea for a deceitful sexual relationship, refusal to marry the complainant and to raise the child of the unlawful sexual union is not a long jail term for the deceptive sexual partner. The legal remedy for broken romantic trust is unfortunately elusive. The remedy for breach of promise to marry lies outside the SOA while the clearer and available remedy for disowning a child lies in a suit for child maintenance.
62.In the peculiar circumstances of this case therefore, I associate myself with the considered view of Odunga J (as he then was) in the case of Nyale Vs Republic (2018) eKLR where he stated that: -
63.I am guided by the Court of Appeal decision in Evans Wanjala Siibi vs. Republic (2019) eKLR where the higher bench made the following observation: -
64.In the end, I have come to the conclusion that the charge against the Appellant was proved and I uphold the conviction. On sentence however, I have come to the conclusion based on the circumstances of this case, that the justice of the case calls for a deviation from the minimum sentence. I therefore set aside the sentence imposed by the trial court and substitute therefor the period already served.
65.The Appellant is set at liberty forthwith unless otherwise lawfully held.