1.The appellant, Dennis Odongo, appeared before the Resident Magistrate at Busia facing a charge of attempted defilement, contrary to s.9 (1) (2) of the Sexual Offences Act: in that on the September 25, 2019 at Butula within Busia County he attempted to sexually assault JHM, a girl child aged eight (8) years.
2.In the alternative, the appellant faced a charge of committing an indecent act with a child, contrary to s.11 (1) of the Sexual Offences Act, in that on the September 25, 2019 at Butula within Busia County he intentionally and unlawfully touched the vagina of JHM, a girl child aged eight (8) years.
3.The appellant denied both counts and was thereafter tried and convicted on the main count for which a sentence of ten (10) years imprisonment was imposed upon him.Being dissatisfied with the conviction and sentence, the appellant preferred the present appeal on the basis of the grounds set out in the memorandum of appeal or rather, the petition of appeal filed herein on July 15, 2021 by Balongo & Co. Advocates.
4.At the hearing of the appeal, learned counsel, Mr. Erick Jumba, represented the appellant while the Republic of Kenya was represented as the respondent by the learned prosecution counsel, Mr. Gibson Mayaba.The appeal was canvassed by way of written submissions which were filed by both sides respectively.
5.Being a first appeal, this court was required to reconsider the evidence and arrive at its own conclusion bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. In that regard, the prosecution case was briefly that the child complainant (PW 1) and the appellant apparently lived in the same neighbourhood.
6.On the material date, the complainant arrived home from school and found nobody there. A few minutes thereafter, the appellant whom she had previously known as “Denno” appeared and knocked at the door. The complainant beckoned him in. He asked her whether there was anyone else inside the house. She answered negatively. It was then that the appellant removed his pair of jean trousers and underwear. He also removed the complainant’s underpants and then laid her on a seat in the sitting room. He proceeded to sexually assault her before lying on top of her.
7.At that juncture, a neighbor, SA (PW 2), also known as “Mama G” appeared at the scene and entered the complainant’s house thereby prompting the complainant to take off and the appellant to ran to the dining room. Shortly thereafter, the appellant approached Mama Getty and pleaded with her not to shout while telling her that the drugs he had taken were working on him. Mama Getty then called the complainant’s aunt, Margaret Kemunto (PW 3) in whose house the incident occurred.
8.Margaret, was in her shop at Butula shopping centre when she was called on phone by Mama G (PW 2) and informed what had transpired in her house. She hurried to the house and found both the complainant and the appellant therein. She locked the appellant inside the house while she proceeded to make a report at the Butula police station accompanied by the complainant.
9.Sudi Isaac Kajabe (PW 5) received the report and commenced investigations. In the process he proceeded to the scene and arrested the appellant. He then made necessary arrangements for the complainant to be medically examined and this was done by a clinical officer, Maureen Mbotela (PW 4) who thereafter completed and signed the medical examination report (P3 form) (P Ex 3).
10.The defence case was that the appellant proceeded to the complainant’s home to link up with a friend called Derrick but did not find him. He instead found the complainant in their house. He enquired the whereabout of Derrick and in the process S (PW 2) came into the house. The two questioned each other’s mission in the house and this led the appellant to threaten that he would report S to her husband and mother-in-law.It was then that S locked him and the complainant inside the house before calling the complainant’s aunt (PW 3).
11.On arrival at the scene, the complainant’s aunt questioned the appellant menacingly and cut his hand with a broken slasher. She took his phone and locked him inside the house after which police officers arrived at the scene and were informed that he had defiled the complainant.
12.Kent Omita (DW 2) confirmed that the appellant passed through his house on the way to Derrick’s house to collect some items. He (DW 2) was later called by one Manu and informed that the appellant had attempted to defile the sister of Derrick.
13.After considering the evidence in its totality, the trial court concluded that the main charge against the appellant had been proved beyond reasonable doubt. The appellant was therefore convicted and sentenced accordingly. Having considered the evidence afresh, this court is satisfied that the appellant was properly and lawfully convicted on the basis of the strong and credible evidence adduced against him by the prosecution especially through the child complainant. (PW 1), her neighbor (PW 2) and the clinical officer (PW 4) whose collective evidence had the effect of discrediting and disproving the defence raised by the appellant.
14.Indeed, there was no dispute that the appellant and the complainant were known to each other. Their respective families were also known to each other. There was also no substantial dispute that the appellant and the complainant, a minor said to be eight (8) years old at the time, were found inside the complainant’s house in a compromising position by their neighbor Susan (PW 2). It was this fact which raised suspicion in the mind of Susan that the appellant could have sexually offended the complainant. This suspicion was confirmed by the complainant when she apparently felt the heat and indicated that the appellant actually defiled her.
15.However, the evidence by the clinical officer (PW 4) fell short of establishing the offence of defilement. Nonetheless, the evidence showed that the complainant had injuries around her genitalia. This implied that if she was not defiled then there was a clear attempt to defile her. Besides, the appellant’s acts of removing his trousers and underwear as well as the complainant’s underpants and being found lying on top of the complainant on a seat amounted to overt acts pointing towards his attempt to defile the complainant.
16.The appellant’s defence was in the circumstances clearly unsustainable and an indication that he was economical with the truth with the aim of portraying himself as an innocent visitor in the complainant’s house.In sum, none of the three grounds of appeal were herein established. They are accordingly overruled with the result that this appeal is dismissed both on conviction and sentence.The appellant’s conviction by the trial court is hereby upheld and the sentence of then (10) years imprisonment affirmed.Ordered accordingly.