1.Benson Mugo Njurai Mbuimwe, the Appellant, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. Particulars of the offence were that on the 22nd day of October, 2019 at [Particulars withheld] within Nairobi County, he intentionally and unlawfully caused his penis to penetrate the anus of P.M.S. a child aged 12 years.
2.In the alternative, he faced the charge of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars of the offence being that on the 22nd day of October, 2019 at [Particulars withheld] within Nairobi County, he intentionally touched the genital organ namely anus of P.M.S. a boy aged 12 years with his penis.
3.Having been taken through full trial he was convicted for the offence of defilement and sentenced to serve twenty (20) years imprisonment.
4.Aggrieved, the appellant proffered this appeal on grounds, as amended, that: Identification of the appellant was not proper; the act of penetration was not proved; there were material contradictions, inconsistences and incoherence that made the entire case deficient; and, that essential prosecution witnesses were not availed.
5.The appeal was disposed through written submissions. It is urged that the complainant stated in his evidence that he had never seen the appellant before the night of 22nd October,2019 at 8.00 pm. He questioned the intensity of the light which were alleged to have been street lights. That the finding of the trial magistrate that the complainant and accused were known to each other prior to the incident was biased.
6.That the complainant did not mention the assailant to anybody in respect of his description or even in the first report. Reliance was placed on the case of R. vs. Kabogo S/o Wagunju 23(1) KLR 50.
7.Also cited was the case of Akumu vs. Republic (1954) 21 EACA where the Court of Appeal stated that:
8.On the question of penetration of the complainant’s genetalia. It is argued that it was not conclusively proved. That sometimes children behave in a way that is beyond their age by consenting to sexual offences then deny having consented; and, may even make false accusations.
9.The Respondent/Republic through learned Prosecution Counsel Ms. Chege opposed the appeal. It submitted that the age of the victim was proved to be twelve (12) years. That penetration was through the anus which is a genital organ. That the complainant identified the appellant as the assailant, having seen him by aid of street lights and the appellant did argue that the complainant allowed him to have sex with him.
10.On the question of sentence, the respondent urged the court to be guided by the case of Ogolla s/o Owuor Vs. Republic (1954) EACA 270, where it was stated that:
11.Briefly, facts of the case were that P.M.S. the complainant returned to his friend Makau a radio, at 6.00pm but did not find him at home. As he walked back home he saw a man burning rubbish at the bridge. Streetlights enabled him to see the individual who whistled and beckoned him. He saw three other people nearby arguing. The person engaged him in a conversation by asking his name, why the three persons were fighting, where he lived and what he was doing alone? He asked him to wait at the place and he complied. The individual went behind the huge heap of garbage and returned with crushed smokies that he offered him but he declined. The person requested him to keep him company and he stayed until a certain lady approached them and picked up a child. The individual told him that the lady was his wife and requested him to assist in burning the rubbish.
12.Subsequently, the individual convinced him that he could encounter robbers along the way if he left. He spread some gunny bags and told him to sleep. He did and drifted off to sleep. He woke up to find the individual removing his trouser. When he resisted the individual removed a knife from his pocket and ordered him to keep quiet. He removed his trouser and inserted his penis into his (complainant) anus. Upon finishing he told him to sleep inside a makeshift structure made of carton boxes and he complied. The individual then proceeded to remove his trousers and under wear, he inserted his penis into his anus for the second time and warned him not to divulge the information to anyone lest he killed him.
13.At dawn the individual ordered him to leave. He went to a nearby dispensary and sought help. PW2 Jackline Syombua Mwithi his mother was contacted. He was taken to Medecins Sans Frontieres (MSF) Hospital, examined and treated.
14.The matter was reported to the Police whereby PW4 No. 96764 P.C. Vivian Akinyi was assigned the case. Together with the complainant and two (2) other officers, they moved to the scene where they found the appellant who was identified by the complainant. He was arrested and taken to Kariobangi Police Station. Investigations were carried out that culminated into arraignment of the appellant.
15.Upon being placed on his defence the appellant denied having committed the offence. He alluded to having been arrested by the police who did not explain to him any reason for his arrest. But, at the Police Station he was informed that he had defiled a child. He argued that the complainant should not have been taken seriously. However, when given an opportunity to mitigate he stated that he had no idea that it was an offence to sleep with a child.
16.This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of seeing and hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno -vs- Republic  EA 32 as follows:
17.It is argued by the appellant that he did not molest the complainant. Ingredients of defilement are provided by Statute, Section 8(1) of the Sexual Offences Act that enact thus;
18.In this respect the Prosecution was required to prove beyond reasonable doubt:i.The age of the victim.ii.Proof of the act of penetration.iii.Positive identification of the assailant (Also see the case of Fappyton Mutuku Ngui vs Republic, H.C.CR.A. No. 296 of 2010).
19.It is crucial to prove the age of the complainant in a case of defilement since a child is a young human being below the age of eighteen (18) years (Also see Section 2 of the Children Act).
20.To prove the age of the complainant the Prosecution adduced in evidence a birth certificate in the name of P.M. who was born at Pumwani Hospital on 5th December, 2007, evidence that was not challenged. PW2 his mother testified to his date of birth being on the 9th day of December, 2007. In the case of Omuroni Francis vs. Uganda Criminal Appeal No. 2 of 2000 the Court of Appeal held that:
21.It was hence proved without a doubt that at the time of the incident, the complainant was twelve (12) years old.
22.As to the ingredient of penetration, the term “Penetration” is defined by Section 2 of the Sexual Offences Act thus:
23.The complainant stated that the assailant inserted his genital organ (penis) into his anus. According to Section 2 of the Sexual Offences Act, a genital organ includes the whole or part of a male or female genital organ, an anus inclusive. The act was committed on the night of 22nd October,2019. According to the Post Rape Care Form, the complainant was subjected to medical examination at the MSF Medical facility on the 23rd October, 2019. Following the examination conducted, he had a tear on the anus at the six O’clock on the anal ring extending to the anal skin overlying the perineum region. Subsequently a P3 Form was filed which confirmed the injury sustained. This was proof of penetration having occurred.
24.On the question of identification of the assailant, the complainant was alone with the perpetrator of the act hence evidence tendered was of a single witness. In the case of Kibangeny Arap Korir vs. R (1959) EA 92 ,the court held that a child under 14 years is a child of tender years.
26.The complainant identified the appellant herein as the assailant. It is however contented that the identification was not positive as the prevailing circumstances did not favour correct identification.
27.In the case of Wamunga Vs. Republic (1989) KLR 42 it was stated that:
28.The complainant stated that there were street lights that enabled him to see the appellant properly. Besides, there was light from the burning fire. The evidence of the complainant of having slept with the appellant the whole night until dawn was supported by the fact of the appellant’s argument in his evidence before conviction that he had no idea that sleeping with a child was erroneous. This being the case the trial court was justified in believing the complainant who was consistent that he had been defiled by the appellant herein.
29.The complainant also contends that there were material contradictions which were not pointed out. Further, he also urged that crucial witnesses were not availed without expounding on the same.
31.In the case of Ogola s/o Owuor Vs. Reginum, (1954) EA 270, it was held that:
32.It is a basic principle of the law that sentence depends on the discretion of the trial court such that an appellate court would not interfere with it unless the sentence is excessive or based on wrong principles. (Also see, Benard Kimani Gacheru Vs. Republic (2002) eKLR.
33.In the case of Joshua Gichuki Mwangi Vs. Republic Criminal Appeal No. 84 of 2015 where the appellant was stated to have contravened section 8(1) as read with section 8(3) of the Sexual Offences Act, the Court of Appeal was of the view that even though the mechanical nature of mandatory sentences may promise certainty of severity of sentences, it is often at the expense of proportionality and individualized approach to sentences which balances between deterrence and the rehabilitation of the accused. The court went on to state thus:
34.Considering jurisprudence that has emerged in that respect, I set aside the sentence imposed of twenty (20) years imprisonment that I substitute with fifteen (15) years imprisonment. The sentence will be effective from the date of arrest, the 25th day of October, 2019.
35.It is so ordered.