[2025] KEHC 4339 (KLR)

Abuya v Republic (Criminal Appeal E043 of 2023) [2025] KEHC 4339 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4339 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal E043 of 2023

AK Ndung'u, J

April 3, 2025

Between

Gilbert Ambwenyi Abuya

Appellant

and

Republic

Respondent

(From original Conviction and Sentence in Nanyuki CM Sexual Offences Case No E034 of 2020– V.M Masivo, SRM)

Judgment

1. The Appellant, Gilbert Ambwenyi Abuya was convicted after trial of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, No 3 of 2006. The particulars were that on diverse dates between 20/05/2022 and 30/05/2022 at Kieni East Sub-county within Nyeri County, intentionally caused his penis to penetrate the vagina of DMO a child aged 14 years. On 16/06/2023, the Appellant was sentenced to twenty (20) years imprisonment.

2. Being dissatisfied with the conviction and the sentence, he filed a petition of appeal filed and amended supplementary grounds of appeal alongside his submissions and raised the following grounds;i.The learned magistrate erred by failing to note that the prosecution’s case was not proved beyond reasonable doubt.ii.The learned magistrate failed to appreciate that the age of the complainant was not proved.iii.The learned magistrate failed to appreciate that the birth certificate was a forgery as per the report from the registrar of births, the date of birth did not corroborate.iv.The learned magistrate failed to note that the name of the parent differed from the birth certificate.v.The learned magistrate failed to note that he was not subjected to medical examination.vi.The learned magistrate failed to note that his right under Article 50 of the Constitution was infringed.vii.The learned magistrate failed to note that the prosecution’s case was full of disparities and discrepancies.The Amended supplementary grounds of appeal filed alongside his submissions were;i.The learned magistrate erred convicting him whereas two ingredients of the offence being age and identity of the perpetrator were not proved.ii.The learned magistrate convicted him without appreciating that oral evidence of PW1 was contradictory and doubtful and circumstantial evidence did not place him squarely at the scene of crime.iii.The learned magistrate failed to note that there was an issue of grudge between PW1’s aunt which was the main reasons for the aunt instigating the charges.iv.The learned magistrate quashed his defence without giving good reasons why it was rejected.v.The learned magistrate applied wrong principles during sentence by meting out a mandatory minimum sentence which was harsh, excessive and unconstitutional.

3. The appeal was canvassed by way of written submissions. In his written submissions, he argued that he was supplied with a copy of birth certificate that was marked as PMF1 at the onset of the trial. The birth certificate produced was a fabrication since the two birth certificates produced by PW5 had two different names of the victim, different names for the parents and different places of birth in that PW5 testified that in the first copy of the birth certificate the date of birth was 14/12/2008 whereas the second birth certificate read 13/03/2008; in the first copy, complainant’s name was Dalvin Moraa whereas in the second copy it was DMM; in the first copy the mother’s name was MKN whereas in the second copy, the name was TMM; the first copy lacked the father’s name whereas the second copy had the father’s name as NM, that in the first copy the place of birth was [Particulars withheld] whereas in the second copy, it was Borabu. Therefore, the birth certificates did not belong to the complainant DMO and this shows that there was non-disclosure of vital documents to him which was a violation of his right under Article 50(2) (b) (j) of the Constitution and attempted forgery of vital prosecution’s exhibit. Further, PW1 testified that she was 14 years, PW3 testified that PW1 informed him that she was 15 years and PW5 testified that the complainant was 14 years and therefore, it cannot be said that age was proved. That the prosecution had sought time to resolve the issue of conflicting birth certificates but closed the case without doing so.

4. As to penetration, he submitted that epithelial cells were observed which was an indication that there was a recent sexual intercourse and having observed epithelial cells, it behoved upon PW3 to confirm the age of injuries in order to connect the same with the time it was alleged he spent with the complainant. That the medical evidence failed to create a nexus to link him since PW3 estimated the injuries to be 3 days old prior to examination meaning 29/05/2022 whereas PW1 testified that she was at his home for five days from 20/05/2022 and was defiled for three consecutive nights beginning on 21/05/2022 which meant that by 24/05/2022, the complainant was not in his house. This shows that she was penetrated by someone else on 29/05/2022. He submitted that the relevant evidence is that of the complainant and clinical officer and when their evidence contradicts and fails to concede on the material time of the offence, the evidence becomes infallible and cannot tell who was right or wrong.

5. Further, PW1 testified that there were tenants and the landlady living in the same area the Appellant was living but it beats logic why she failed to raise alarm by either knocking on the door or screaming as there was no evidence whatsoever that she had been tied or restrained. The scene was not visited and PW2 failed to report the matter of a missing child for 10 days to the police or even her aunt. PW2 purportedly reported to the sub area who was not called to testify. That the trial court failed to record anything on complainant’s credibility and integrity as required by section 199 of the Criminal Procedure Code.

6. That his defence was not considered despite having brought up the issue of grudge between him and PW1’s aunt at the earliest stage. That PW1’s aunt was not availed as a witness and no reason was given why she could not testify. That she could have clarified matters of whether PW1 went missing and why she ran from home. That the investigating officer should have investigated the issue of grudge as the prosecution had been afforded an opportunity to interrogate. As to sentence, he submitted that mandatory minimum sentences have been rendered unconstitutional. He urged the court to re-look into the sentence and reduce it based on the fact that he was a first offender, he is a young person, there were no aggravating circumstances, the sentence ignored mitigating factors and it disregarded his rights under Article 27 and 28.

7. The Respondent’s counsel on the other hand submitted that the Appellant’s right under Article 50 (2) (b) of the Constitution was not violated since he was informed of the charges with sufficient details and in respect to Article 50 (2) (j), she submitted that he was supplied with the prosecution’s evidence on three occasions. Further no prejudice was occasioned for failure to supply the certified copy of the birth certificate from Kisii’s registrar of persons since PW5 was very detailed on the contents of the certified copy and contradictions on the two sets of birth certificates. That there can only be prejudice if he was hindered from asking questions and challenging the evidence on account of the omission to supply. That the detailed information by PW5 enabled the Appellant to extensively cross examine her on the contents as well the contradictions on the two sets of documents. She urged the court to note that the said document was obtained on account of PW1’s parents’ separation and at the time, the case had been marked as a last adjournment.

8. That the complainant’s age was proved by certified copy of birth certificate obtained by PW5 from the Kisii Registrar of Births and Deaths (Exhibit1). On the Appellant’s contention that the birth certificate was a fabrication because of the discrepancies with the copy earlier supplied, she submitted that contradictions do not necessarily prove that a document has been fabricated. As to which document was to be relied on, she stated that pursuant to section 26(4) of the Births and Deaths Registration Act and section 83 of the Evidence Act, the certified copy is to be received as conclusive proof of the complainant’s date of birth. Reliance was placed in the case of ASK v Republic (Criminal Appeal 59 of 2021) [2023] KECA 719 (KLR). That even the copy that the Appellant was supplied with also placed the complainant age at 14 years at the time of the offence and does not assist the Appellant to state that there was a discrepancy between the two documents since they both place the complainant age at 14 years hence a minor.

9. On the issue of conflicting names, she submitted that the only difference was that the copy supplied to him did not bear the surname Mageto. The issue of differing parent’s name was a non issue since paternity was not in question. Further, both certificates had the same serial number which is a unique identifier and they believe that no two certificates would bear the same serial number. Furthermore, age can be proved through observation. That the fact that the trial court conducted a voir dire examination is supportive of the fact that the complainant was a minor even in the eyes of the court and as was held in Gordon Otieno Nyambade vs Republic (2022) eKLR, observation and common sense can assist the court in determining the minor’s age in absence of documentary evidence.

10. In regards to penetration, she submitted that penetration was proved through the complainant’s evidence which was corroborated by the medical evidence and the Appellant’s admitted in his submissions that indeed, penetration was proved. As to Appellant’s submissions that penetration would have occurred on 29/05/2022 when the complainant had already left his place, she submitted that the complainant was clear during re-examination that she went to his home on 20/05/2022 and left on 30/05/2022. That the complainant stated that they had sex and she submitted that this is the euphemism that the court of appeal in Muganga Chilejo Saha v Republic (2017) eKLR appreciated as apt description of defilement and in Wachira v Republic (Criminal Appeal E024 of 2023) [2024] KEHC 5972, this court appreciated the impact of developmental stages in children and how the same might affect their ability and willingness to describe sexual organs and act. Further, section 4(2)(d) of the Victim Protection Act recognises that witnesses should be allowed to express themselves in a manner appropriate to their age and intellectual development. That the circumstances in Wachira case (supra) are similar to the instant case since in both cases, the perpetrator had an opportunity to commit the offence and, in this case, the Appellant stayed with PW1 in his house from 20/05/2022 to 30/05/2022.

11. As to identification, she submitted that PW1 stayed with the Appellant for a couple of days hence eliminating any possibility of error in identification. That she stated that the Appellant informed her that he had met her father and he was looking for her and the fact that he was well acquainted with the complainant’s family was also corroborated by PW2 who stated that he was familiar with the Appellant. As to the Appellant’s contention that the scene of crime was not visited and that PW2 did not look for PW1, she submitted that there is no good that visiting the scene would have elicited and it does not matter what places PW2 looked for PW1. As to discrepancies, she submitted that inconsistencies must go to the root of the charge and peripheral discrepancies that do not go to the root of the charges are not decisive. That the Appellant did not submit with sufficient details on the nature of the inconsistencies and there was no inconsistency that PW1 was a minor, she was penetrated and he was the perpetrator.

12. On his defence, she submitted that he only asked PW1 whether she was aware of the grudge between him and her aunt which PW1 stated that she was not aware of. That he did not mention the issue of grudge to PW2 and in his defence, he did not mention any grudge with anyone. Further, he was the one who brought out the issue of grudge and therefore, pursuant to section 111 Evidence Act, the prosecution had no obligation to disprove the grudge. Further the trial court considered his defence in detail and found it not to be plausible. As to sentence, she submitted that sentence is a discretion of the court. That the Appellant did not mitigate but instead went on denying the offence and therefore, there was no material before court to attract clemency. Further, he was sentenced to 20 years which is the minimum provided under the law and the court in R v Joshua Gichuki Mwangi & others Petition No. E018 of 2023 clarified that the Muruatetu case does not apply to minimum sentences under the Sexual Offences Act and confirmed that the Apex court had not nullified the minimum sentences under the said Act. Therefore, there is no discretion to reduce the sentence any lower.

13. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

14. To be compliant with the dicta in Okeno vs Repuplic (supra), a recap of the evidence adduced at the trial court is necessary to place this court in a position to re-evaluate the evidence afresh.

15. I have also read through the record of the trial court in order to evaluate all the evidence placed there and arrive at my own conclusions regarding the same. I have borne in mind however, that I neither saw nor heard the witnesses myself, and I have given due allowance for that fact. I have considered the submissions made and case law cited.

16. The evidence before the trial court was as follows. The complainant testified as PW1. She testified that she was born on 14/12/2008. On 20/05/2022, she was going to her aunt’s place when she met the Appellant and she went to his home. On 21/05/2022, he left for work and locked her inside his house. He returned and they had sex. The following day, he left and when he came back, he informed her that he met her father who was looking for her. That she stayed in his house for almost five days. They were cooking and having sex. On the 5th day, he asked her to leave since the landlady got wind that he was hosting a child. She went to her aunt’s place who contacted her father. Her father enquired where she has been and she informed him that she was at the Appellant’s place and she was taken to hospital on 31/05/2022.

17. On cross examination, she maintained that she was at his place for 5 days. That she narrated to her cousin what had transpired and the cousin told her aunt. That she did not know about the grudge between her aunt and the Appellant. On re-examination, she testified that she went to his house on 20/05/2022 and she left on 30/05/2022 as per her witness statement and after leaving, she went to her aunt’s place.

18. PW2, the complainant’s father testified that he left home for work and in the following morning, his son informed him that the complainant did not sleep at home and he reported to the sub-area. On 30/05/2022, he was called by his aunt who informed him that the complainant was at her home. He rushed there and the complainant informed him that she was at the Appellant’s home. He reported to police station and he was referred to hospital and the P3 form was filled on the following day. That the complainant informed him that she slept with the Appellant and they had sex. That he spotted the Appellant and he informed the police who arrested him. That the Appellant was familiar to him.

19. He testified on cross examination that the complainant went missing on 20/05/2022 and was found on 30/05/2022. That after reporting to the sub-area, he advised him on how to look for the complainant and he searched for her at the church and in the neighbourhood. He testified on re-examination that he reported to the police on 21/05/2022.

20. PW3, the clinical officer testified that on examination, the genetalia had no injuries, there was foul smelly bloody per vaginal discharge, PIPC was negative, VDRL was negative, pregnancy negative, 2 to 5 pus cells were seen, moderate epithelial cells seen and the hymen was old broken. That he concluded from the history, physical exam and lab test, there was evidence of defilement. He produced the P3 and the PRC forms as Pexhibit 2(a) and 2(b) respectively.

21. He testified on cross examination that he examined the complainant who informed him that she was 15 years old. That she had no bruises on her genetalia, no sperms in her vagina, pus cells indicated commencement to an infection and she had an UTI infection. That he could not estimate the age of the broken hymen and that it might have been broken three days prior to the examination. That it is possible there is lack of injuries or bruises despite penetration.

22. PW4 was the arresting officer and he testified that he was informed that PW2 saw the Appellant within Ishuga area. They rushed to the location where they met the complainant who identified the Appellant. They arrested him and disclosed the reason for his arrest. On cross examination, he testified that PW2 identified him and the complainant was also present.

23. PW5 the investigating officer testified that the complainant informed her that she left home and met with the Appellant and they proceeded to his home. They engaged in sex the second, third and fourth night and she left on 30/05/2022 to her aunt’s. She informed the aunt that she was at the Appellant and her father was informed. That the complainant was 14 years. She was stood down to produce the original birth certificate. Upon recall, she testified that she visited Kisii registrar of persons officer for rectification of the birth certificate. That the first copy which was availed to her indicated date of birth as 14/12/2008 whereas the second copy date of birth was 13/03/2008. That the names in the two copies were not similar. The first copy had the name of DM whereas the second copy was DMM. That there were discrepancies in the parent’s names being that in the first copy, the mother’s name was MKN whereas the second copy was TMM. That the first copy lacked the father’s name whereas the second had the father’s name as Nyagreso Mageto. The first copy showed the place of birth as Mwakebagendi whereas the second copy was Borafu. That the two copies only shared registration no. being 0161xxxxxx. She produced the certified birth certificate as Pexhibit1.

24. On cross examination, she testified that she was initially given the copy which was supplied to the Appellant during pretrial. That when she visited the registrar of persons, she was given Pexhibit1 as the authentic birth certificate. That Pexhibit1 does not bears PW2 name as the father. That she did not visit the scene of crime and the complainant was not found in his premises.

25. In his unsworn testimony, he testified that he is a barber and on 04/06/2022 while at work, he was arrested for hosting a girl which was false. That the scene of crime was not visited and investigations was inept. That the investigating officer testified that the complainant certificate was fake and that the case was stage managed against him. That the child was not found in his house and that he did not commit the offence.

26. I have had occasion to consider the evidence adduced at trial. I have borne in mind, however, that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I have considered the submissions made and case law cited.

27. Of determination is whether the prosecution proved its case to the required degree and whether the sentence meted out was legal and appropriate in the circumstances.

28. It is trite that for the charge of defilement to stand, the Prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. This is provided for under Section 8(1) of the Sexual Offences Act No. 3 2006.

29. Having established the ingredients of the charge, the question that this court should therefore grapple with is whether those ingredients were proved to the required standard.

30. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

31. In the present appeal, proof of age is disputed. According to the Appellant, he was supplied with a birth certificate at the onset of the trial which differed in material with the certified copy that was produced by PW5. This was indeed confirmed by PW5 who testified that she was also supplied with the copy that was initially supplied to the Appellant. She further stated that she visited Kisii registrar of persons officer for rectification of the birth certificate. That the first copy which was availed to her indicated date of birth as 14/12/2008 whereas the second copy date of birth was 13/03/2008. That the names in the two copies were not similar. The first copy had the name of DM whereas the second copy was DMM. That there were discrepancies in the parent’s names being that in the first copy, the mother’s name was MKN whereas the second copy was TMM. That the first copy lacked the father’s name whereas the second had the father’s name as NM. The first copy showed the place of birth as Mwakebagendi whereas the second copy was Borabu. That the two copies only shared registration no. being 0161xxxxxx. She produced the certified birth certificate as Pexhibit1.

32. A cursory perusal of the trial court judgment shows that the trial magistrate was aware of the discrepancies in the birth certificates. He held that the court conducted voir dire on the complainant after observing her. That the complainant was a student at [Particulars withheld] Primary school and that he had no doubt that she was a child at the material time. He adopted the certified copy of her birth certificate and made a finding that she was 14 years at the material time.

33. The court in Thomas Mwambu Wenyi v Republic (2017) eKLR the Court of Appeal cited with approval Francis Omuromi Vs. Uganda, Court of Appeal Criminal Appeal No.2 of 2000 which held that:-“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….”

34. In the instant case, a certified copy of birth certificate was produced. However, it is not lost that the Appellant had initially being supplied with another birth certificate that materially differed with the certified copy produced as was highlighted by PW5.

35. The complainant testified that she was 14 years old and was born on 14/12/2008. The date of birth in the certified copy of birth certificate that was produced by PW5 was 13/03/2008. PW2, the complainant’s father was EO whereas the father in the certified copy that was produced was NMM. Even though both dates show that she was a minor at the time the offence was committed, the discrepancies noted by PW5 cannot be overlooked. A lot is left to be desired. No explanation was given by the prosecution and when they sought more time to clarify the discrepancies, they did not give an explanation but chose to close their case.

36. No doubt there were serious discrepancies in the birth certificate initially issued to the Appellant and the certified copy that was produced in evidence. While the holding of the court in Francis Omuromi Vs. Uganda, (supra) is clear that apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense remains true, I hold the view that the prosecution in the quest to prove the age of a victim cannot seek to rely on a birth certificate and observation at the same time. It must be one or the other.

37. Once a birth certificate is introduced in evidence, the court is shorn of any wherewithal to determine age based on observation and such determination must be left to the information on the Official Government record. To allow anything to the contrary would be giving room for trial and error method in criminal trials, an act that would be inimical to tenets of criminal justice as established in law. Should there be discrepancies in the record(s) that are not satisfactorily explained as in this case, such discrepancies must be resolved in favour of the Appellant.

38. The birth certificates as clearly admitted by PW5 differ in respect of the names of the child, date of birth, place of birth and parents’ names which differences required a concerted effort at explanation to confirm that the certificates refer to the same person. This was never done.

39. In a persuasive case, the court in Issack Nyamu Wanjiru v Republic [2018] eKLR while faced with a similar issue observed that;“The evidence in support of the age of the complainant was very suspect. PW-5- informed court that the original birth certificate of the complainant got lost. He then said he had a copy of the birth certificate issued on 27/3/2015. He had issued a police abstract to show that the original got lost. As he was producing the copy of the birth certificate he told the court he had information that the original certificate has been found. It was handed over to him by the complainant’s mother right there in court as he was giving evidence. At that juncture the court said after comparing the original birth certificate with a copy thereof it was admitted as exhibit -6-. Page 29 lines 4 -14. The copy which PW-5- had was not a copy of the original. The copy was issued on 27/3/2015 by the Registrar of Births. This was after this offence was committed. In the submissions by counsel for accused it is stated that exhibit -6- when compared with the annextures in their submissions differs in material respect as it is indicated that she was born in Nyeri while their annexture shows she was born at Kerugoya District Hospital. I have looked at exhibit -6-. The birth certificate which was produced. It shows that birth was registered on 27/3/2012 and the complainant was born in Nyeri on 8/10/1998. The PW-5- had said a copy was issued on 27/3/15. The birth certificate annexed by the appellant shows she was born in 1996. The evidence on the age of the complainant was doubtful. There was a spirited effort to fabricate the age of the complainant. With the two conflicting birth certificates and the doctors evidence saying if complainant said she was 22 years old he would not doubt, it is not proved beyond any reasonable doubts that the complainant was below 18. There was a miscarriage of justice on how the birth certificate was produced in court and relied on to proof the age. There were discrepancies on the age of the complainant….The evidence surrounding the age of the complainant was riddled with doubts and contradictions. The complainant herself had claimed to be an adult. I find that doubts on the age of the complainant must be given to the appellant.”

40. In Gerishon Gichera Muremi v Republic [2017] eKLR the court held that;“Her age was not conclusively proved. The birth certificate which was produced in court for FW who was born on 23rd October, 1996 shows she is the daughter of PMG The name of the mother is given as HWN. However in court the person who testified as the mother of the complainant gave her name as FW. No explanation was given for this disparity. As submitted by the Appellant, the name on the birth certificate is different from that of the person who gave evidence in Court as the mother. It raises doubts as to whether the birth certificate is that of the complainant. In view of the anomaly doubts are raised as to the age of the complainant. The age of the complainant was not proved beyond any reasonable doubts.”

41. I think I have said enough to demonstrate that the evidence in support of the age of the complainant fell way below prove of age beyond reasonable doubt.

42. The Court of Appeal in Wambuiv Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR) (22 March 2019) observed that;“In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt. That has been the consistent holding of this court and we are content to adopt what the court sitting at Mombasa stated in Hadson Ali Mwachongo Republic [2016] eKLR”

43. My view is that the totality of the evidence on age was that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt.

44. Having so found and age being one of the ingredients requiring prove in a case of this nature, I find it unnecessary to delve into the determination of prove of the 2 other ingredients.

45. With the result that for reasons stated, the appeal herein succeeds in its entirety. The judgement of the trial court is set aside and substituted thereof with an order acquitting the Appellant. He shall be set at liberty forthwith unless otherwise lawfully held under another warrant.

DATED SIGNED AND DELIVERED THIS 3RD DAY OF APRIL 2025. A.K. NDUNG’UJUDGE