1.The Appellant, Edwin Kipngetich Langat, was charged before the Chief Magistrate at Kericho with the offence of defilement, contrary to Section 8(1) read with Section 8(3) of the Sexual Offences Act and in the alternative with committing indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act.
2.It was alleged that on diverse dates between 1st May 2017 and 3rd May 2017 at [particularS withheld] within Kericho County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of D.C, a girl aged fifteen (15) years or that he intentionally and unlawfully touched the vagina of the girl with his penis.
3.After a full trial, the appellant was convicted and sentenced to twenty (20) years imprisonment on the main count. He was dissatisfied with the conviction and sentence and preferred the present appeal on the basis of the grounds set out in the petition of appeal filed herein on 13th February 2019 in which he basically complains that he was convicted on evidence which was insufficient and that his defence as disregarded by the trial court.
4.At the hearing of the appeal, learned counsel Mr. Morata, appeared for the appellant and argued the appeal by way of written submissions.The Learned Prosecution Counsel, M/s Aseda, appeared for the state/respondent and opposed the appeal on grounds set out in their written submissions filed on 18th December 2022. This court, considered the appeal on the basis of the supporting grounds and the rival submissions. Its duty was to reconsider the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing the witnesses.
5.Accordingly, the prosecution case was briefly that at the material time the complainant (PW 1) was a fifteen (15) years old class five primary school pupil when she visited the appellant at his home and remained with him for somedays during which they engaged in sexual intercourse. He was the complainant’s boyfriend.An Assistant Chief, Isaiah Bett (PW 2), received information from members of the public to the effect that the appellant had married a school going pupil. He then reported the matter to the police at Sosiot Police Station.
6.The Chief proceeded to the appellant’s house accompanied by police officers and found the appellant therein with the complainant. She was taken to Sosiot Police Station and then to the hospital where she was examined by a Clinical Officer, Joshua Kibet Bondet (PW 3), who thereafter completed and signed the necessary P3 form (P.Ex 1) confirming that the complainant was indeed defiled.
7.The police investigations carried out by P. C John Muriuki (PW4), identified as PW5 in the proceedings, confirmed that the complainant was found with the appellant in his house after it was reported that he had married an underage girl.The age-assessment result slip (P.Ex 2) indicated that the complainant was aged sixteen (16) years old as at 22nd August 2018.The present offence was preferred against the appellant after police investigations were completed.
8.The defence case was a denial and a contention that the appellant was at his home all through but nobody saw the complainant there. He was therefore at a loss to ascertain the actual person complaining about him and further contended that he was framed up. His neighbour, Jonah Kipkurui Koskei (DW 2), contended that he (appellant) has never married and that it was a lie that he brought a school pupil to his place.
9.In convicting the appellant, the trial court found that the prosecution did establish beyond reasonable doubt the ingredients of the charge and that the appellant was responsible for the offence. These findings particularly in relation to the ingredients of the charge are faulted by the appellant in this appeal on account of the elements of penetration and age of the complainant. This court holds the opinion that the fact of penetration and indeed defilement was clearly an undisputed factor and was in any event sufficiently and credibly established by the complainant’s evidence as corroborated by the medical evidence adduced by the Clinical Officer (PW 3).
10.In the circumstances, a DNA analysis was unnecessary for the purpose of establishing penetration and by whom considering that the appellant was clearly identified as the culprit by the victim (PW 1) who lay claim to him as her boyfriend and confirmed that he engaged in sexual act with her but apparently with her consent. However, being a minor, she was incapable of giving consent.Despite his denial, there was credible evidence from the complainant, the Chief (PW 2) and the investigation Officer (PW 4 (5)) that the appellant was found in his house with the complainant, a minor child under the age of (18) years.
11.The age assessment result (P.Ex 2) was a public document from the health ministry and was obtained by the investigating officer in the course of his investigations. It bears the name and signature of the medical officer who carried out the age assessment and contains the stamp of the Kericho District Hospital. In the absence of a birth certificate, the document sufficed as credible proof of the complainant’s age at the time i.e 22nd August 208. This meant that the complainant was about fifteen (15) years old at the material time of the offence. A fact indicated in the P3 form (P.Ex1).
12.The appellant was already an adult and a farmer at the material time. The fact that he may have been the complainant’s boyfriend did not matter and cannot constitute a defence to the offence of defilement. The moment he lost his sense of judgment and decided to engage in a sexual act with his minor girlfriend rendered him liable for the offence of defilement as duly established herein by the evidence adduced against him by the prosecution with the effect that his defence was clearly disproved.
13.This court is therefore satisfied that the appellant’s conviction by the trial court was sound and proper and is hereby upheld.As regards the sentence, Section 8 (3) of the Sexual Offences Act provides for a sentence of not less than twenty (20) years for a person who commits an offence of defilement with a child aged between twelve (12) and fifteen (15) years. So, the sentence imposed by the trial court upon the appellant i.e twenty (20) years imprisonment; was lawful.
14.In sum, the present appeal is devoid of merit and is hereby dismissed in its entirety.Ordered accordingly.