1.The Appellant, Booker Anyango Were was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (SOA). The particulars of the offence are that on 18.3.21, at Barani area in Malindi Sub-county within Kilifi County, the Appellant intentionally caused his penis to penetrate the vagina of M. M. (the Complainant) a child aged 3 years. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of this offence are that on the same day and in the same place, the Appellant intentionally committed an indecent act by touching the vagina of the Complainant. Following a full trial, the Appellant was convicted of the charges and sentenced to a life imprisonment.
2.Being aggrieved with both the conviction and sentence the Appellant filed a petition of appeal on 18.5.22 listing 3 grounds of appeal. On 4.1.22, he filed amended grounds of appeal which are somewhat difficult to follow and are reproduced hereunder:
Thus arbitrary and contrary to section 216 and 329 of the CPC.
3.The facts of the case according to the prosecution are that the Appellant was a guard in a 3 storey apartment block behind Cooperative Bank building in Malindi, in which PW1 lived. The Complainant often went to the compound of the apartment block to play with other children. On the material date, as PW1 left her house to go to work, he found the Appellant at the foot of the stair, underneath the stairs naked and on his knees with his trousers at his knees. Upon moving closer, PW1 saw the legs of the Complainant who was lying on the floor, naked with her legs propped on a pillow. She examined the child and saw that she was wet in her vagina. PW1 recorded the incident on her phone and reported the matter to the police station. The Appellant was arrested and charged in Court.
4.Both the Appellant and Respondent filed their submissions which I have duly considered. As a first appellate Court, I have also subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic  EA 32.
5.It is the Appellant’s case as I understand it from the rather difficult to follow submissions, that the learned Magistrate convicted him of the offence without sufficient proof. He contended that the trial Magistrate failed to re-evaluate the evidence on record and as a result reached a finding that was a miscarriage of justice. Further that there was an erroneous finding of fact which this Court has the power and duty to correct. The Appellant additionally submitted that the standard of proof in a criminal case is beyond reasonable doubt and that the prosecution had the duty to prove the ingredients of the offence of defilement. He contended that the testimony of PW1 raised doubts as to the credibility of her evidence on identification and that the Complainant only identified him in Court. Further that PW3’s narrative changed on cross examination. The ingredient of identification was thus not satisfied. The trial court therefore erred in failing to re-evaluate the evidence and to find that the prosecution failed to discharge its burden under Section 107 of the Evidence Act. Reliance was placed on the case of Okethi Okale and Others v Republic  EA 555, where it was held:
6.The Appellant further submitted that the ingredient of penetration was also not satisfied as the proof placed before the trial court was far below the standard and the statutory burden stipulated in the Evidence Act. The Appellant’s basis for this contention is that PW3 stated in cross examination “if you have a fertility problem and cannot take part in penetration”.
7.On the ground that the prosecution failed to discharge the statutory burden of proof, the Appellant submitted that the medical evidence was produced by a different medical officer from the one who did the examination, who could not substantiate the contents. Further that because the results of the examination of the Appellant’s libido was inconclusive it cannot be said that he participated in sexual activity and that there was doubt that the Complainant was defiled by him. The Appellant urged the Court to interfere with the sentence imposed him which he terms unjust, excessive and harsh and allow the appeal.
8.In its submissions, the Respondent submitted that the prosecution discharged its of proof as required under Sections 109 and 110 of the Evidence Act and that the charges against the Appellant were proved beyond reasonable doubt. To this end, the 3 elements of the offence of defilement were proved. The age of the Complainant was proved by means of a birth notification, P. Exh 3, indicating that she was 2 ½ years old at the time of the commission of the offence. Penetration was proved by eye witness evidence which was corroborated by the medical evidence adduced by PW3 who produced the P3 form as P. Exh 2. As regards identity, it was submitted that the Complainant stated that she knew the Appellant and that he is called “soldier”. She stated that he is a good person and that he removed her clothes. The Respondent submitted that the Appellant opted not to cross examine the Complainant. It was further submitted that the defence evidence did not cast any doubt in the trial court’s mind to warrant the Appellant to be a beneficiary of reasonable doubt.
9.In an apparent reference to the original grounds of appeal before amendment, the Respondent submitted that there were no contradictions in the evidence of the prosecution witnesses, which was watertight. The defence evidence did not also bring out any contradictions or dislodge the overwhelming evidence against him. Further that contrary to the Appellant’s allegation, his evidence was indeed analyzed by the trial court which found that the same cast no doubt but simply corroborated the prosecution’s case. The Respondent urged the Court to find that the Appeal lacks merit and that the same be dismissed.
10.The Appellant was charged with the offence of defilement of a child aged 3 years, was convicted and sentenced to life imprisonment. Section 8 of the Sexual Offences Act makes provision for the offence of defilement. Relevant to the case herein are subsections (1) and (2) which provide as follows:
11.It is now well settled that the key ingredients of the offence of defilement are as held in the case of George Opondo Olunga v Republic  eKLR. These are proof of the age of the complainant, proof of penetration and proof that the accused was the perpetrator of the offence.
12.In order to establish that a person is guilty of the offence of defilement, sufficient evidence must be laid before the Court by the prosecution to proves each of the ingredients, to secure a conviction. The burden of proving the offence which lies with the prosecution, must be discharged. Section 107 of the Evidence Act provides as follows on the burden of proof:
13.Section 109 goes on to provide:
14.The evidence on record, namely a document from Magongo Health Centre, PExh-3, shows that the Complainant was born on 6.4.17 and was first seen at the centre on the same date. The offence was committed on 18.3.21. As such, the Complainant was 3 years and about 11 months old at the time of the incident. The Appellant did not oppose the production of Pexh-3. The trial Court found that the child was 2½ years old. I find that the ingredient of age namely that the child was below the age of 11 years, was thus established.
15.As regards penetration, the evidence of PW2 is that she found the Appellant under the staircase of her residential building on his knees with his trouser at his knees with the Complainant naked under him, with her legs propped on a pillow. On examination before she dressed, she found that the child’s vagina was wet. On cross examination, she stated that the Appellant was naked and his private parts were showing and she saw his buttocks and penis. She took a video with her phone and reported at the police station. The medical evidence in the treatment notes, Pexh 1 and P3 form Pexh 2 showed that the Complainant’s vulva was swollen and there was redness in her labia majora and minora. There were also bruises on the lower part of the vagina and the hymen was not intact. The fact that PW2 caught the Appellant in the act and the medical evidence leave no doubt in the mind that penetration did in fact happen.
16.In the judgment, the trial Court after considering the evidence stated as follows regarding the ingredient of penetration:
17.The Appellant has challenged the medical evidence on the ground that the same was not produced by the medical officer who examined the child. His objection to production of the treatment notes and P3 form by a person other than the maker thereof who was unavailable, was overruled.
18.The Evidence Act allows the production as evidence in criminal proceedings, of a report authored by a government official, by another person. Section 77 of the Evidence Act as follows:
19.Under the foregoing provision, the court may presume that the signature in such report as well as the credentials of the maker are genuine. The court may in its discretion summon the maker of such report. The fact that the trial court in the present case, allowed a witness other than the maker to produce the P3 form, does not render the production thereof unlawful. The trial court acted within the discretionary power conferred upon it by Section 77 of the Evidence Act.
20.Section 33 of the Evidence Act enumerates the exceptions to the hearsay rule in instances where a witness is dead, unavailable or can otherwise not be procured to give evidence. The provision allows the production of documents or expert evidence whose maker is dead, cannot be found, or has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense or at all. Such evidence must however be produced by a witness who is an expert in the same field and capable to competently tender the evidence and answer any questions put to them either by the Court or by parties. In the present case, the P3 form and treatment notes were produced by PW3, Moses Rimba, a clinical officer at Malindi Sub-County Hospital as Dr. Ibrahim was unable to attend Court on that day. Moses Rimba testified that he had worked with Dr. Ibrahim, the maker of the document, for 8 years and knew his handwriting and signature. In the premises, I am satisfied that the imperatives of Sections 33 and 77 of the Evidence Act were met.
21.On identification, PW2 stated that she has known the Appellant since 2019. He was a guard of and lived in the apartment building in which she lives and where the incident took place. She caught him in the very act. She identified the Appellant in court by stating “the mzee is this man I see on the TV screen”. Further, the Complainant in her testimony stated the following about the Appellant:
22.In conclusion, the trial court stated as follows:
23.After carefully reviewing the evidence, I make a finding that the trial Magistrate arrived at the correct decision and cannot be faulted for returning a verdict of guilty. I too find that the evidence against the Appellant was overwhelming and that the ingredients of the offence of defilement were proved to the required standard.
24.The Appellant has asked this Court to interfere with the life sentence imposed upon him which terms as harsh and excessive. He also contends it is arbitrary and contrary to Section 216 and 329 of the CPC.
25.Section 216 of the Criminal Procedure Code provides:
26.In his mitigation, the Appellant stated that he was 61 years old and expressed remorse. He stated that he will never repeat such an offence. He stated that prison was not a good place and that he was willing to abide by any condition, if granted probation or a suspended sentence. The trial court considered the mitigation by the Appellant and found that as the apartment guard, the Appellant was expected to take care of the security of the children. The trial court stated that while it appreciated the Appellant’s age, the law provided that he be punished for destroying the life of a helpless child. The Appellant also told the trial court that he had a low libido problem and requested that he be subjected to a medical examination to prove he was incapable of having sex. The trial court acceded to his request. However, the report was inconclusive. The trial court further noted that the Appellant opted not to use the medical report in his defence.
27.In light of the foregoing, is, I am satisfied that the sentence imposed by the trial court did not contravene the provisions of Section 216 of the Criminal Procedure Code as alleged. As regards Section 329 of the Code, the same applies to proceedings in the High Court and is inapplicable herein.
28.The Appellant was found guilty of the offence of defiling a 3 year old child. The complainant used to go to the building that he guarded, to play with other children. Due to her tender age, she in all innocence stated that the Appellant removed her clothes and that he was a good man. She no doubt trusted him. This notwithstanding, he thought nothing of betraying that trust by violating and defiling the Complainant. Adults have a moral responsibility to protect children and not to harm them as the Appellant did to the Complainant. The pain he inflicted upon her is unimaginable and will live with her for a long time to come. The conduct of adults defiling children of tender age is rampant and must be deterred.
29.Section 8(2) of the Sexual Offence Act provides that a person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. Although the Appellant has termed the sentence as arbitrary and illegal, nothing has been placed before this Court to support this contention. In any event the provisions of Section 8(2) on the sentence to be imposed, are clear and unequivocal.
30.In the end, and for the stated reasons, the Court finds that the Appeal herein is devoid of merit. Accordingly, both the conviction and sentence are upheld and the Appeal is hereby dismissed.