1.The appellant, Fredrick Nyabuto Obori, was charged with an offence of defilement contrary to section 8(1) as read with section 2 of the Sexual Offences Act of 2006. The particulars of the offence was that on 25th May 2018 at [Particulars Witheld] sublocation, [Particulars Witheld] location, Kisii Central District intentionally caused his penis to penetrate the vagina of JNO, a child aged 8 years.
2.The appellant was also charged with an alternative charge of, “Committing indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence was that, on the 25th day of May 2018 at [Particulars Witheld] area, [Particulars Witheld] location, Kisii Central District, Kisii County, intentionally touched the buttocks/anus/breast/vagina of J N O a child aged 8 years with his penis.
3.The Trial Magistrate after considering the evidence presented before it found the appellant guilty of the offence of defilement and sentenced him to life imprisonment. The appellant aggrieved by the finding of the subordinate court has filed this instant appeal through a memorandum of appeal dated 22nd September 2021 raises the following grounds:The appellant seeks that the appeal be allowed, that the conviction and sentence dated 10th September 2021 be set aside, varied and/or quashed. That the appellant be set free forthwith.
4.The role of this Court as the first appellate Court is well settled. It was held in the case of Okeno vs. Republic (1972) EA 32 that a first appellate Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.
5.JO (Pw1) testified that she is 8 years old and in class 3. On 25th May 2018 at 11:00 a.m. she was home with a child [Particulars Witheld] playing outside the house. That the accused person came by and asked if their parents were around. The accused person stood outside the gate and Pw1 went outside the gate. He greeted her by shaking her hand. Pw1 then testified before the trial magistrate as follows:
6.Pw1 further testified that when her mother (Pw2) came home she told her what the accused did. WKO (Pw2) testified that Pw1 is her daughter and is 8 years old. On the material date she had gone to buy food and locked the gate. When she came back Pw2 looked shocked and had red eyes. When she asked them who came by while she was away they answered that the accused person had come by and defiled Pw1. She sent Pw1 to the posho mill and noticed that she was not walking properly. Pw1 told her that the appellant had defiled her. She saw that her panty was torn and that she had a smell from her vagina and took her the nearby clinic, then to Bomachoge Hospital in Gucha.
7.Dr. Nabwana Ambrose (Pw3) testified that he works in Bomachoge Chache as a medical officer. According to the P3 form by Dr. Gilbert Simba the minor was defiled by a person known to her. On examination of the genitalia there was bleeding with obvious tears and laceration. Vaginal swab showed that there were spermatozoa and epithelial cells. According to the PRC Form Pw1 developed a fistula and was referred for gynaecological treatment. She was given ARVs and put on antibiotics to manage any infections.
8.No 100254 PCE Olivia Oluoch (Pw4) stationed at Kisii Police Station testified that on 26th May 2018 he received a complaint from Pw2 that her daughter had been defiled. He issued a P3 form which was filled. He visited the scene and found that the minor had been left home with her younger brother and they locked the gate. The appellant then visited the home and after finding out that the parent were not present lifted Pw1 outside the fence, removed her pant, inserted his fingers then his penis. The assault happened near an isolated maize plantation. When Pw2 returned she noticed that the child was in unusual mood and did not walk properly. Pw2 upon interrogating the child discovered that the child had been defiled.
9.The trial magistrate put the appellant on his defence and he relied on the evidence of Agnes Monica Obonyo (Dw2) and Beatrice Bwari (Dw3). The accused gave sworn testimony and testified as Dw1. On 25th May 2018 he attended a child’s funeral together with his wife and 3 children. The funeral was 10 kilometres from his home and it ended at about 3:30 p.m. The appellant denied committing the offence stating that he was not at home. Dw2 testified that the appellant was his son. She testified that on the material day they attended a funeral and the appellant accompanied him. She explained that they used they shared the same motor cycle with the appellant. They left at 10:30 a.m. and returned home at 4:00 p.m. Dw2 testified that on the material day she was attending the funeral for her son. She testified that she saw the appellant and his 2 children at the funeral.
10.The trial magistrate found that the appellant was the perpetrator of the offence and convicted him of the charge of defilement.
11.The appellant submits that according to the prosecution evidence it is not clear where the offence took place, whether it was by the gate or somewhere else. It has been established that an accused person should only be convicted on the strength of the prosecution evidence yet the trial magistrate convicted the appellant on the weakness of the appellant’s defence. The appellant in his submissions argues that the incident took place between 11:00 a.m. to noon. The appellant had raised a defence of alibi stating that he had attended a funeral on the day in question. The trial magistrate rejected his defence although it was corroborated by Dw2. It was therefore submitted that the court shifted the burden of proof to the appellant.
12.The prosecution in its submissions submitted that there was evidence that the complainant was 8 years old as the mother produced her immunization form. The victim clearly described what happened to her and the evidence by the doctor revealed that the genitalia were bleeding with obvious tears and lacerations. On identification, the prosecution submitted that the complainant testified that the appellant was well known to her.
Analysis and determination
13.I have considered the evidence before the trial magistrate, the grounds of appeal, the submissions by the parties. The issues for determination is whether the prosecution proved its case to the required standard; and whether the sentence was excessive. The prosecution was required to prove that penetration occurred, and that the perpetrator was positively identified as the appellant and that the complaint was below the age of 18.
14.I must say at the outset that the appellant was charged of the offence of defilement contrary to section 8(1) as read with section 2 of the Sexual Offences Act of 2006. Section 8(1) of the Sexual Offences Act of 2006 provides that‘a person who commits an act which causes penetration with a child is guilty of an offence termed defilement’. Section 2 of the Act deals with definition of various terms used in the Act. Section 8 (2) of the Act provides that ‘a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life’. The appellant ought to have been charged under section 8 (1) as read with section 8 (2) of the Sexual Offences Act which bears the sentence terms upon conviction of the appellant. However, the anomaly in the charge sheet does not go to the root of the charge and I find that the particulars of the offence were clear and the appellant knew that he faced a charge of defilement. The Court of Appeal in Peter Ngure Mwangi v Republic  eKLR cited with approval the Ugandan case of Peter Sabem Leitu v R, Cr. App No. 482 of 2007 (UR) where the Court held thus:
15.I now turn to consider whether the prosecution proved the first ingredient of the offence, penetration. The trial magistrate in his judgment found that Pw1 testified that there was penetration and her testimony was corroborated by Pw3’s evidence. Pw1 gave clear evidence that the appellant:
16.The medical officer, Dr. Nabwana (Pw3), testified that there were tears, laceration and bleeding visible upon conducting an examination of the child’s genitalia. The hymen was torn and she developed a fistula and was referred for gynaecological treatment. After high vaginal swab was done, there were presence of spermatozoa and epithelial cells. Pw3 produced into evidence the P3 form, Post Rape Care Form, treatment card and the child’s welfare card. After considering the above evidence it is clear that the prosecution proved beyond reasonable doubt that there was penetration. Pw1 testified that the incident took place outside the gate in broad daylight.
17.On identification of the perpetrator, the appellant submitted that Pw1 did not describe how the appellant was dressed on the material day. Pw1 testified that the appellant lived close to their house and used to come and greet them. The evidence of Pw1 is that the appellant was a person well known to her. Pw2 also testified that when she came home the child was distressed and her eyes were red. Pw1 was also not walking properly and when she asked her what happened, Pw1 told her that she was defiled by the appellant. However, the appellant’s defence was that he was not home when the incident occurred as he was in a funeral that was 10 kilometres away. He relied on the testimony of Dw2 and Dw3.
18.The incident took place in broad day light at 11: 00 a.m. in the morning. Due to Pw1’s familiarity with the appellant she approached the gate to talk to him. The only evidence on identification is that of Pw1.In the case of Stephen Nguli Mulili v Republic  eKLR the Court of Appeal had this to say regarding section 124 of the Evidence Act:
19.In this case, the appellant was one of the complainant’s neighbours. There is no evidence of any differences between the families as Pw1 testified that the appellant would often greet them. In her evidence she maintained that the appellant defiled her and gave a clear account on how it transpired. Upon her mother getting home, Pw1 told her that the appellant, Fred, had defiled her. On cross examination, her evidence as to who committed the offence was unshaken. I therefore find that Pw1 was telling the truth in terms of section 124 of the Evidence Act.
20.According to the child’s immunization card, Pw1 was born on 4th February 2010. Her mother Pw2 testified that the child was 8 years old at the time the offence was committed. I am therefore constrained to find that the prosecution established that the child was 8 years old. Weighing the evidence of the prosecution and the defence as a whole, and noting the coherent manner of the testimony of Pw1 on the circumstances of the defilement, I find that the prosecution proved their case to the required standard.
21.I now turn to consider whether the sentence meted on the appellant was excessive. Section 8 (2) of the Act provides that ‘a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life’. At the pre-sentence hearing, the prosecution told the trial court that the appellant was a first offender. It is not clear from the record whether the appellant stated anything during mitigation as the same is not captured by the trial magistrate. In his appeal before the court, the appellant states in his mitigation that he is of ill health and the sole bread winner of his family. Having considered the appellant’s mitigation and that he is a first offender; I set aside the sentence of the trial magistrate and substitute it with thirty (30) years’ imprisonment.