1.The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence were that on the 10th day of March 2017 in Laikipia Central sub county of Laikipia county within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of LWW, a child aged 11 years.
2.In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the sexual offences Act No 3 of 2006. The particulars of the offence were that that on the 10th day of March 2017 in Laikipia Central sub county of Laikipia County within the Republic of Kenya intentionally and unlawfully touched the vagina of LWW, a child aged 11 years with his penis.
3.At trial the prosecution called five (5) witnesses in support of their case. The appellant was placed on his defence and gave unsworn evidence. The trial magistrate in his considered judgment found the appellant guilty and sentenced him to imprisonment for life.
4.The appellant being dissatisfied by the judgment and sentence filed a petition of appeal on March 21, 2019 on the grounds that;a.The learned trial magistrate erred in law and fact by failing to note that the medical examination was done a week after the alleged incident.b.The learned trial magistrate erred in law and fact by failing to note that there was no any independent evidence from any independent body brought before court to ascertain the truth.c.The learned trial magistrate erred in law and fact by convicting the appellant with single evidence without realizing the dangers surrounding his decision.d.The learned trial magistrate faulted in matters of law and fact by failing to note that the prosecution did not prove their case beyond reasonable doubt.e.The learned trial magistrate erred in law and fact by rejecting the appellant defence without any content reason.He thus prayed for the court to consider his appeal and set-aside the sentence laid upon him.
19.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by Okeno v Republic (1927)EA 32 & Pandya v Republic (1975) EA 366.
20.Further being the first appellant court, it must itself also weigh conflicting evidence and allow its own conclusion. In Shantilal M. Ruwala v Republic (1975) EA 57, it was held that;
21.Upon consideration of the facts of this case, the grounds of appeal and the submissions on record, the following issues are pertinent for consideration:a.Whether the offence of defilement was proven to the required standard thereby warranting a conviction.b.Whether the sentence of the appellant should be reviewed
22.It is trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller v Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
23.Section 8 (1) and (2) of the Sexual Offences Act provides as follows;(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)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.
24.The ingredients for the offence of defilement can be summarized as follows;a.Age of the victim (must be a minor),b.Penetration andc.Proper identification of the perpetrator.(see Wamukoya Karani v Republic criminal appeal No 72 of 2013 and George Opondo Olunga v Republic  eKLR)
27.PW1 stated that her names were LWW and was aged 11 and was a pupil at [partiulars witheld] primary school, class 5. PW2 the child, father also confirmed the age. PW5 the clinical officer too testified that, he filled the P3 form for PW1. She was aged 11 years at the time. The child was treated at Nanyuki Teaching and Referral Hospital, where he worked. She had a history of being defiled.
28.The trial court in its considered judgment dated March 15, 2019 considered the issue of age and made a finding that the age of PW1 was proved by the father and the medical records produced before court.
29.I have analyzed the evidence tendered with respect of the complainant’s age. The charge sheet stated that she was 11 years old, which was confirmed by the complainant when she testified. All the medical evidence presented indicated that the age of the child was 11 years old. I do find that there was no age assessment report presented in court to prove the age of the complainant and it cannot he held that a P3 form, and PRC form which indicate that age of a minor constitutes medical evidence as the details therein are filled based on information not scientifically verified. The medical evidence as contemplated in law is an age assessment report made by a medical practitioner. PW4 also just stated that her daughter was 11years old, but did not produce the birth certificate nor did he specify when she was born.
30.Be that as it may as held in several citations, apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardians’ evidence or by observation and common sense amongst other credible forms of proof. See Edwin Nyambogo Onsongo v Republic (2016) Eklr and Francis Omuroni v Uganda Court of Appeal criminal appeal No 2 of 2000 amongst others.
31.The complainant testified that she was 11years old and was a pupil at [particulars withheld] Academy. She testified before the magistrate who physically saw her and was able to assess her age group. This was confirmed by her father PW4 and PW5 also noted her age to be 11 years of age. As established in law age can also be established by common sense, observation or other credible forms of proof. I do find as a fact that by observation and common sense the trial court can approximate the age of a child and know if indeed she is 11 years or she is in that age bracket/group. It is common knowledge that a child in class 5 is still a child of tender years and given the circumstances and facts of this case it was safe to conclude that she was 11 years as presented in evidence. The only question which would remain uncertain is if the there is a possibility of her being older than the stated years as that would have a direct bearing on the sentence to be imposed.
32.The second element which the prosecution has to prove is penetration.Section 2 of the Sexual Offences Act defines penetration as;
33.PW1 recalled that the incident took place on a Thursday. The appellant waylaid her as she went to the shop, led her forcefully to his house, tied her hands and removed her shorts and pant before defiling her. Her verbatim evidence was that;
34.The evidence of the medical officer confirms that there was penetration. The hymen was broken and there was pain in the vulva. This was captured in the P3form as well are the PRC form .It was his testimony that the tenderness of the vulva means there was forceful penetration. This evidence corroborates the evidence of the victim who said she was defiled by the appellant. Penetration was thus sufficiently proved beyond any doubt.
35.The third issue which the prosecution had to prove is the whether the perpetrator was properly identified. PW1, PW2 and PW3 all identified the appellant as “Ritho”. In particular, PW1 knew him as the person who used to fetch water for her grandmother whom she lived with. This incident occurred in the afternoon, PW1 had ample time to clearly see the appellant and his identification was in the form of recognition of a person known to the other. PW1 evidence as relates to identification was corroborated by her grandmother PW2 who also confirmed that the appellant was their neighbor and she would pay him to fetch for her water.
36.The appellant in the grounds of appeal did allege that the trial magistrate erred in convicting him based on the evidence of a single witness without realizing the dangers that surround the said decision.
37.Evidence of recognition must be carefully examined to satisfy if the circumstances of identification were favourable and free from possibility of error before it can safely be made as a basis of conviction. See Wamunga v Republic (1989) KLR at 426. This incident occurred in the afternoon during the day, the complainant was able to describe the house of the appellant and vividly describe what he did. She also knew him by name and called him “Ritho” as a neighbor. She stated that
38.Section 124 of the Evidence Act, cap 80 provides as follows:
39.Thought the court based on section 124 of the Evidence Act, cited above can convict an accused person if for reason recorded it is satisfied that the victim is telling the truth, in the present proceedings, PW1 evidence was also corroborated by evidence of PW5 who confirmed that there was medical evidence of penetration. Having carefully examined the evidence adduced the identification of the appellant was by way of recognition and reliance on the same was safe. The trial court cannot be faulted for arriving at that conclusion.
40.I therefore find that all the ingredients for this charge were proven beyond reasonable doubt by the cogent and irrefutable evidence presented by the prosecution witnesses.
41.The appellant also alleged that the trial magistrate erred in law and fact by rejecting his defense without any reason. When the appellant testified, he only alleged he had been slandered. He did not present any evidence which the court could consider as a defense against the serious charges levelled as against him. He did not explain how he was slandered and how it was related to the charges he was facing. The trial magistrate thus cannot be faulted in any manner at arriving at the decision he arrived at.
42.As regards the sentence and whether it should be reduced, this court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru v Republic  eKLR where it was stated as follows;
43.The Court of Appeal also rendered itself as follows on sentences in sexual offences in the case of Athanus Lijodi v Republic  eKLR
45.In Maingi & 5 others v Director of Public Prosecution & another (petition No E117 of 2021) (2022) KEHC 13118 (KLR) the petitioners who were convicts serving offences under Sexual Offences Act No 3 of 2006 sued the Attorney General and sought for declaration that the mandatory nature of sentence under the Sexual Offences Act were unconstitutional as it fettered the discretion of judges and magistrates in meting out sentence. Justice G.V Odunga vide his considered judgment dated May 17, 2022 did find that –
46.The provision of section 8(1) as read together with provisions of section 8(4) of the Sexual Offences Act No 3 2006 and legislation that was in force before commencement of the Constitution of Kenya 2010 must be considered with adaptation, qualification and exception when it comes to the mandatory minimum sentence and in particular when the said sentences do not take into account the dignity of the individual as mandated under article 27 of the Constitution and as appreciated in the Francis Muruatetu case and applied by courts in several cases . See Christopher Ochieng v Republic Kisumu CA criminal appeal No 202 of 2011 and Jared Koita Injiri v Republic Kisumu CA criminal appeal No 92 0f 2104.
47.The trial magistrate did consider the appellant’s mitigation and also took into consideration all the circumstances of this case and sentenced the appellant to life imprisonment.
48.At this point before considering the sentence it would be prudent to revisit the issue of the age of the complainant. While by observation one can objectively assess and approximate the age of a child, when it comes to sentencing under provisions of the Sexual Offences Act, it would have been necessary to know with precision the exact age of a child for purposes of sentencing as this determines the amount of sentence to be imposes on conviction. See Gilbert Miriti Kanampius v Republic (2013) eKLR HCC at Meru criminal appeal No 97 of 2009
49.The only evidence presented in these proceedings was that of PW1 who testified that she was in class 5 and was 11 years old. Her father confirmed the same and she had informed the clinical officer who treated her that she is 11 years old and on that basis the P3 form and PRC form indicated as much. The charge sheet also indicated that she is 11 years old. While it can be safely can be assumed that PW1 age is 11 years, for purpose of sentencing it would be necessary to establish the exact age of PW1 as this would impact on the sentence meted out. It should be noted too that the investigating officer never testified.
50.In such borderline cases justice and fairness would dictate that additional evidence be taken to prove the exact age of PW1 to enable the court make an informed decision while considering the question whether the sentences imposed was proper or it was harsh and excessive. This is in line with article 27 and 50(2) of the Constitution of Kenya 2010, which calls for equality and fairness.
51.In criminal appeal this court is empowered to order the retaking of additional evidence. Section 358 of the Criminal Procedure Code provides that;a.“In dealing with an appeal from a subordinate court, the high court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.b.When the additional evidence is taken by a subordinate court, that court shall certify the evidence to the high court, which shall thereupon proceed to dispose the appeal.c.Unless the high court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken.d.Evidence taken in pursuance of this section shall be taken as if it were evidence taken at trial before the subordinate court.”
52.For the reasons advanced in paragraph 54 and 55 above and especial for purposes of sentencing it would be proper to get the specific age of PW1.
53.I do therefore order as follows:-1.This file be sent back to the trial magistrate to take additional evidence with regard to the age of PW1. The evidence shall be recorded by the trial magistrate and if already transferred such evidence be taken by the Chief Magistrate –Nanyuki Law Court.2.The evidence will be taken in the presence of the appellant and his advocate if he opts to have one. He will be at liberty to cross examine the witness.3.The trial magistrate shall certify the evidence so taken and have it forwarded to this court within 60 days for final orders as regards this appeal.