[2020] KEHC 1489 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL APPEAL NO. 57 OF 2018

CORAM: HON. R.E.ABURILI J

COO...................APPELLANT

VERSUS

REPUBLIC.....RESPONDENT

(Appeal from the judgment, conviction and sentence passed on 15/8/2018 by Hon. E.N.Wasike, SRM in Bondo PM’s Court Sexual Offence Case No 855 of 2016)

JUDGMENT

Introduction

1. The Appellant herein COOwas charged before the Principal Magistrate’s Court at Bondo in Sexual Offense Case No. 855 of 2016 with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence are that on the 15th July, 2016 at about 1930 hours at [Particulars Withheld] shopping centre in Rarieda sub-county within Siaya County, he intentionally caused his penis to penetrate the vagina of F.A. [Full name withheld for legal reasons], a child aged 71/2years.

2. The appellant also faced the alternative charge of Committing an Indecent Act with the child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.

3. The appellant pleaded not guilty to both the main and alternative charge and the matter proceeded for hearing.

4. The trial magistrate, Hon. E. N. Wasike after hearing five prosecution witnesses and testimony of the appellant, found that the prosecution had proved their case beyond reasonable doubt and proceeded to convict and sentence the appellant to serve thirty (30) years imprisonment.

5. Aggrieved by the said conviction and sentence, the appellant filed his initial petition of appeal based on three grounds as follows:

a. That he pleaded not guilty to the charge.

b. That there was no corroboration of evidence adduced by all witness.

c. That the complainant was merely coached by my estranged wife.

d. That the alleged offence is a serious one and it could not happen in an open place.

e. That he prayed for court proceedings to adduce more evidence.

f. That he wished to be present during the hearing of the appeal.

6. The appellant subsequently filed further grounds of appeal in his submissions as follows:

a. That the charge sheet was defective.

b. That, the learned trial magistrate court erred in points of law by relying on the contradicted prosecution case to convict the appellant herein.

c. That, the first trial court gravely faulted in the matters of law and fact by failing to note that there was a very big existing grudge between the appellant herein and the victim’s mother.

d. That, the learned trial magistrate jury gravely erred in points of law by failing to give my plausible defence statement adequate consideration which was itself strong enough and capable of displacing the prosecution case, and further becoming obliged to reject the same without him giving out cogent reasons for doing so, thus rendering a prejudice.

e. That, the trial magistrate court erred further in the points of law by failing to furnish me with certificated true copies if the trial proceedings so that could prepare to adduce my defence statement. Thus article 50(2) was wrongly contravened.

f. That, the first trial court gravely faulted in points of law by failing to observe that, the appellant herein was not at all accorded with a right to a fair trial as provided for by article 25 (c) as read with article 50 (2) of the Constitution of Kenya promulgated in the year 2010 thus rendering to the serious miscarriage of justice upon me the appellant herein.

g. That as a result of the infringements of the appellant’s constitutional rights and relying on the cases of Albanus Mwasia Mutua v Republic Criminal Appeal No. 120 of [2004] eKLR (unreported) and Likoko Lisambu v Republic Misc. Cr. Application No. 36 of 2008 in the High Court of Kenya at Kakamega the appellant should be acquitted.

Appellant’s Submissions

7. The appeal was canvassed by way of written submissions due to the covid 19 pandemic which made it impossible for the appellant to be availed to the open court for a hearing hence directions were given for filing of written submissions.

8. The appellant submitted that the learned trial magistrate erred both law and fact in failing to consider or to adequately consider the fatal contradictions and inconsistencies in the prosecution case which created doubts, and which doubts ought to have been construed to his benefit. The appellant cited the specific contradictions as being the disparity in the PRC Form that showed the date of birth as 2001 whereas the Birth Certificate shows that PW1 was born on 28/11/2008. The appellant submitted that the age of the child was not proved beyond reasonable doubt and this created an impression in the mind of the court hence a prejudice of justice to him. Reliance was placed on the case of Ramkrishan Pandya v Republic [1957] EA LR 336 where it was held that where the evidence is contradicted or inconsistent ‘it should not be relied on’ and also the case of Ndungu Kimani v Republic [1979] KLR 282 where the Court of Appeal observed that:

“the witness in a criminal case upon whose evidence is proposed to rely should not create an impression the mind of the court that he is not straightforward person or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore unreliable inordinate witness which makes it unsafe to accept evidence.”

9. The appellant further submitted that the evidence adduced by the prosecution against him did not substantiate the charge of defilement as framed against him but that the charge brought against him should have been incest by a male person as provided for in section 20 (1) of the Sexual Offences Act. The appellant thus submitted that the trial court erred in convicting him as he should have been charged with the offence known that was concise so as to enable him prepare his defence. He relied on the case of Sigilai & Another v Republic (2004) KLR 840.

10. Further, the appellant submitted that the charge brought against him was defective. It was his submission that the trial court failed to be guided by the case of Suleiman Juma alias Tom v Republic (Criminal Appeal No. 181 of 2002) where the Court of Appeal found a charge brought against the appellant therein to be defective and quashed the death sentence imposed on him.

11. The appellant further submitted that following the decision of the Supreme Court in Petition No. 15 of 2015 Muruatetu & Another, the death sentence and life imprisonment were declared unmeritious and as such the trial court erred in convicting him and sentencing him to serve life imprisonment.

12. It was further submitted that the trial court erred by convicting the appellant whilst failing to observe that there was no forensic and other scientific tests including D.N.A test that connected him to the alleged offence. The appellant submitted that DNA tests were guaranteed under section 36 (1) of the Sexual Offences Act.

13. The appellant further submitted that the trial court grossly erred by rejecting and dismissing his plausible defense as the same was not displaced by the prosecution as required under section 212 as read with section 309 of the Criminal Procedure Code and as such the appellant was prejudiced.

14. It was the appellant’s submission that the trial court erred by failing to note that there was an existing grudge between the appellant and the victim’s mother arising out of the appellant’s failure/inability to pay the victim’s mother’s dowry, a fact corroborated by DW3 that eventually led to the victim’s mother fabricating charges against him, a fact which the trial court ignored. Accordingly, it was the appellant’s submission that the prosecution failed to prove their case beyond reasonable doubt.

Analysis and Determination

15. This being a first appellate court, the court must take into account the principles laid down in the case of Okeno vs. Republic (1972) EA 32where the former Court of Appeal for Eastern Africa stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424. ”

16. The prosecution evidence as presented in the trial Court was as follows: The complainant, F.A.[ full name withheld for legal reasons] testified as PW1 after voire dire examination and stated that on the 15. 7.2016 at about 7. 30pm, her father, COO, the appellant came home from work and found them when they had not eaten and so he caned them after which he went and bought food and after having supper, he told them to go and sleep. The minor stated that she was with her little brother called JJ. It was her testimony that the appellant told JJ to tell her to go and loosen his shoe lace and when she went to where the appellant was, the appellant lifted up her dress and started touching her vagina after which he went out and she went to sleep.

17. The minor then said that as she was sleeping, the appellant called her again and he took her close to some toilet of which he took out his penis and inserted it into her vagina and when she began to cry, the appellant slapped her. She then said that after the incident, she went to sleep. It was the minor's further evidence that as she was sleeping, the appellant called her again for the third time and took her to some unfinished building after which he went and got a sack and spread it down and he ordered the minor to sleep on the sack after which he took out his penis and inserted it into her vagina and this made her to start crying and shortly afterwards, the appellant’s mother went to their home and started calling her out and this made the appellant to go meet her and in the process the minor went and slept.

18. The minor further stated that while sleeping, the appellant went to where she was and took her to a certain building where he made her to lie down but in the process a lady known as Evelyn passed by and saw what the appellant was doing and then Evelyn confronted him with some questions after which she started screaming and a crowd formed and in the melee she screamed.

19. It was her testimony that a person known as a ‘Teacher’ called her and she was taken to Aram Police Station in the company of the village elder and other members of the public. She then said that she was later taken to Bondo District Hospital where she was treated. The minor concluded by stating that during the incident, her mother was not around as her father had chased her away.

20. IN cross-examination by the defence counsel, Mr. Nyachoti, the minor reiterated, among others, that the appellant had inserted his penis into her vagina and that he had been doing so on several occasions.

21. PW2 Eric Odera Opudo testified that on the 15. 7.2016 at about 8. 30pm, being the village elder, he had been called to go and resolve some disputes in a certain bar when he heard people shouting that, “K has raped his daughter.” He stated that K was OO (the appellant herein). The witness then stated that he moved closer and got the whole story and that is when he called the area Assistant Chief, one Wycliffe Odiango and informed him accordingly. That then Evelyn went and brought PW1 to where he was and by then, the suspect had been arrested by members of the public. The village elder then took the child and the suspect to Aram Police Station where the suspect was locked in the cells and they returned with the child back home.

22. In cross-examination, PW2 stated that he did not witness the offence and that neither did he go to the alleged scene of crime. He further stated that he could not tell whether the child was defiled or not as the child came while walking and he did not see any blood on the child. He also stated that he asked the appellant if he committed the offence but the appellant just kept quiet.

23. PW3 Evelyn Atieno Ochieng testified that on the 15. 7.2016 at about 7. 00pm, she was at her home and as she was going to the latrine, she heard a child crying. She went to where the cry was coming from and as she neared, besides a certain house, she found K on top of the child. It was her testimony that she knew K as the father of the child and when she asked him what he was doing, the child's father just kept quiet.

24. She further stated that the child was F.A., (PW1). The witness then stated that she screamed for help which attracted the attention of other villagers who came and arrested the appellant and escorted him to the police station. She stated that the child had no inner pant and the zip of the appellant’s trouser was open.

25. On cross-examined by Mr. Oyuko counsel for the appellant, the witness reiterated, among others, that she found the appellant on top of the complainant and that she even heard him asking the minor if it was sweet of which the child replied that K was hurting her.

26. PW4 CPL Francis Odongo, the Investigating Officer in this case testified that on the 16. 7.2016 at about 8. 30am, he was at Aram Police Station when he was assigned a case of Defilement to investigate, which case had been reported on the previous day. He stated that the complainant was called F.A, (PW1) who had already sought treatment and so he issued her with a P3 form and referred her to Madiany sub-county hospital for examination and filling of the P3 form.

27. It was PW4’s testimony that the suspect had already been arrested and locked up at the Police Station. He recorded the relevant witness statements and later visited the scene for purposes of investigations at the conclusion of which he charged the appellant herein with the offence of defilement. The officer then produced the Complainant’s Certificate of Birth as an exhibit (P. Exh.1).

28. In cross-examination, PW4 stated that he did not find any blood stained clothes in the course of his investigations and that he could not establish whether the appellant’s penis penetrated the vagina of the complainant or whether there was bad blood between the appellant and PW3. He further stated that there was an error in the dating noted in the P3 form.

29. PW5 Vincent Onyango Okello, a clinical officer gave evidence in relation to a P3 form (P. Exh.2) and a treatment chit (P. Exh.3) and a Post Rape Care Form (P. Exh.4) all in favour of F. A. (PW1). The clinician stated that the patient went to their facility with a history of having been defiled by a person well known to her and upon conducting a detailed examination on her genitalia, he observed that she had lacerations around the vaginal opening with a torn hymen and foul discharge was noted. He also stated that laboratory tests confirmed the presence of epithelial cells, yeast cells and pus cells and he concluded that the results showed evidence of forceful vaginal penetration.

30. In cross-examination, he stated that the patient went to the hospital 24 hours after the offence had occurred and that at the time, the patient had changed her clothes and had a bath. He further stated that it was necessary to examine the suspect but that he was not examined. He maintained that the results showed evidence of penetration but that he could not tell who penetrated the child. He stated that there was no DNA test carried out. He also stated that the hymen can be broken by any other causes apart from sexual intercourse including inserting a finger, physical exercise etc.

31. At the close of the prosecution's case, the appellant gave sworn statement of defence and stated that on the 15. 7.2016 at about 7. 30pm, he was in Bondo waiting for a customer and at about 8. 00pm, he found one by the name James Onyango (DW2) and they proceeded to Mahaya after which they proceeded to a bar known as Green-field bar for some drinks and that is when he was suddenly surrounded by a group of people who told him that he had defiled his daughter. They arrested him and escorted him o Aram Police Station.

32. In cross-examination, the appellant reiterated that on 15. 7.2016, he was staying within Mahaya centre with his children among them, the complainant herein and further that Greenfield bar was not far from his home.

3. DW2 James Omondi Onyango testified that on 15. 7.2016 at about 7. 30 pm, the appellant carried him on a motor bike up to Mahaya after which they entered a certain bar and ordered some drinks. That suddenly, some people entered the bar and arrested the appellant and left with him and the following day, he heard that the appellant had raped someone.

34. DW3 RAO the appellant’s mother testified that on the 15. 7.2016 at about 9. 00pm, she was at Mahaya when she received a phone call from the village elder who told her that the appellant had been arrested on allegations of defilement and that he had been taken to Aram Police Station and the child had been taken to Bondo District Hospital. That she proceeded to the home of the village elder and found the complainant sleeping and she appeared normal. The witness then stated how the appellant used to have constant wrangles with his wife and how the wife was using this case to take their children away since they had already separated and which she succeeded in doing.

35. In his judgment which is impugned, the trial magistrate, Hon. E.N. Wasike found that the prosecution had proved their case beyond reasonable doubt and that the alibi defense put forth by the appellant was a mere afterthought as PW3 had identified the appellant and placed him at the scene of crime. After considering the mitigation by the appellant, the trial magistrate sentenced him to serve thirty 30 years’ imprisonment.

Determination

36. Having carefully considered the appellant’s grounds of appeal, the submissions and the evidence adduced for the prosecution and the defence in the lower court, in my humble view, the main issues for determination in this appeal are:

1) Whether the appellant was accorded a fair trial

37. It is the appellant’s ground of appeal and submission that he was not accorded a fair trial in accordance with the provisions of Article 25 (c) as read with Article 50 (2) of the Constitution. The appellant states that the trial magistrate erred by failing to grant him certified true copies of the defence and as such he was unable to carry out his defence.

38. This court has considered the provisions of Article 50(2)(c) and (j) of the Constitution of Kenya, 2010 which provides:

“Every accused person has the right to a fair trial, which includes the right—

(c) to have adequate time and facilities to prepare a defence;

(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.”

39. The trial court record shows that the Appellant was arraigned on 18th June 2016 and after taking the plea, he was granted a cash bail of Kshs 200,000/= with a surety of the same amount. The trial court proceeded to order that the accused be supplied with statements of witnesses at his own cost.

40. On the 29th August 2016 when the matter came up for hearing but could not proceed as the prosecution sought to amend the charge, the appellant was represented in court by one Mr. Onyango Advocate who held brief for Mr. Nyachoti Counsel for the accused. Once again, the trial court directed that the defence be supplied with witness statements and other relevant documents in the case.

41. The hearing of the appellant’s case commenced on the 14th February 2017 with the appellant’s advocate Mr. Nyachoti fully representing him. The appellant’s advocate did not express any reservations on his client’s part on the failure to receive the documents that the prosecution intended to rely on to prove their case.

42. In addressing this right of an accused person being furnished with the relevant evidence, in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the Court of Appeal rendered itself thus:

“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under Section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.”

43. Notably, if a trial court grants an order that an accused person should be furnished with the evidence that the prosecution intends to rely upon and he fails to follow up the same from the prosecution, the blame would lie squarely on him. He would be expected and/or required to inform such trial court that he has not been supplied with the same before he proceeds with the trial. Indeed, such accused person has the right to refuse to commence participation in the proceedings until such time that he is furnished with the said evidence.

44. Where an accused person is a layman on issues pertaining to law and procedures in court, the trial court is charged with a higher responsibility to satisfy itself that such a person has been supplied with witness statements. If such person is a first offender as was the Appellant herein, he would not have been expected to know that he was entitled to witness statements or other evidence to enable him prepare for trial.

45. Appreciably, the Appellant was represented by counsel of his own choice during the trial and therefore he was fully aware of the right to be furnished with the said documentary evidence. At no point during the trial did the appellant’s advocate seek an adjournment or raise a query on the lack of documentary evidence from the prosecution. The witnesses testified and he cross examined them on their evidence. Accordingly, it is my humble view that this ground of appeal and submissions is devoid of merit and the same is hereby dismissed.

2) Whether the charge sheet brought against the appellant was defective

46. The appellant claims that the evidence adduced by the prosecution witnesses against him does not substantiate a charge of defilement and that the charge brought against him should have been incest by a male person as provided for in section 20 (1) of the Sexual Offences Act. He thus submits that he should have been charged with an offence known that was concise so as to enable him prepare his defence. The appellant relied on the case of Sigilai & Another (supra) and that of Suleiman Juma alias Tom (supra).

47. The trial court record shows that Ms. Makokha Prosecution Counsel while addressing the trial court on the same issue, submitted that the accused/appellant had been charged under Section 8(1) as read with Section 8(2) of Sexual Offences Act which provides that a person who commits an Act that causes penetration with a child is guilty of an offence termed defilement and as such the section did not exclude anyone including the father of the child and as such the accused /appellant had been properly charged.

48. The charge sheet brought against the appellant read as follows:

“CHARGE: DEFILEMENT CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

PARTICULARS: COO: On the 15th day of July 2016 at around 1930 hours at [Particulars Withheld] Shopping Centre in Rarieda Sub County within Siaya County intentionally caused his penis to penetrate the vagina of F.A. a child aged 7½ years.”

49. The trial court in its judgement addressed the same issue and stated that Section 8 of the Sexual Offences Act was the substantive Section that dealt with defilement as it clearly laid out the ingredients that ought to be established before the charge can suffice and further that section 8 of the Act did not have an exclusion clause so as to limit the kind of persons to be charged under the said provision of the law. The trial court further stated that section 20 of the Act just dealt with relational issue of the offender and the offended and was not a stand-alone provision as it derived its breath from Section 8 of the Sexual Offences Act.

50. Having considered the above rival arguments, it is my humble view that the trial court was correct in its interpretation of the provisions in question under the Sexual Offences Act. Section 8 (1) of the Act provides that:

“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement,”whereas section 20 (1) provides that “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years.”

51. A reading of the two sections reveals that indeed section 8 (1) is the substantive section. Section 20 (1) in my opinion expounds on a “type” of defilement, one that is committed by a relative. The type of complaint by the Appellant should be decided on the test provided in Section 382 of the Criminal Procedure Code. A finding, sentence or order passed by a court of competent jurisdiction shall only be reversed or altered on appeal or revision if the error, omission or irregularity in the Complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial occasioned a failure of justice: And in determining whether an error, omission or irregularity has occasioned a failure of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. Below is full text of section 382 of the Criminal Procedure Code:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the Complainant, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

52. The section provides insulation from attack of such finding or sentence except on the basis that injustice resulted from the error or defect. In this case, I find that no injustice was occasioned upon the appellant. The appellant through his advocate on record were fully aware of the charges brought against him.

53. This case is distinct from that of Sigilai& Another (supra)relied on by the appellant in that in the latter case the particulars of the offence did not disclose any offence known in law as it quoted a non-existent provision of the law. Further, this case is also distinct from that of Suleiman Juma (supra) also relied on by the appellant in that in the latter case the charge as laid was defective as it did not clearly specify the essential ingredients of the offence under S.296 (2) of the Penal Code whereas in the instant case, the charge clearly specifies the ingredients of the offence of defilement as provided for under section 8(1) of the Sexual Offences Act.

54. Iam in the circumstances of this case unable to detect any prejudice which the appellant suffered. The record shows that the appellant suffered no confusion when the charge, as framed, was read to him and when the witnesses testified, his advocate on record fully cross-examined them. He raised no complaint before the trial court. Further, there was no risk of confusion in the mind of the accused/appellant as to the charge framed and evidence presented as the appellant was fully aware of the case he was to meet when he was charged before the trial court and the charge as framed did not lead to a failure of justice. Consequently, this ground of appeal and submission fails in substance and is hereby dismissed.

3) Whether the prosecution witnesses adduced Inconsistent and contradictory evidence

55. The appellant further listed as one of his grounds of appeal that the learned trial magistrate erred in both law and fact in failing to appreciate the glaring, contradictions in the evidence by the Prosecution witnesses.

56. The appellant cited the specific contradictions as being the disparity in the PRC-Post Rape Care Form that showed the date of birth of the complainant as 2001 whereas the Birth Certificate shows that PW1 was born on 28/11/2008. The appellant submitted that the age of the child was not proved beyond reasonable doubt, which, according to the appellant, created an impression in the mind of the court hence a prejudice of justice to him.

57. PW4 CPL Odongo who produced the minors Birth Certificate and also gave the minor the P3 form ‘for filling in hospital after examination and treatment testified that the date of birth of the minor as provided in the Certificate was the 28th November 2008. In cross-examination he admitted that he did make a mistake when he wrote down the date of birth of the minor in the P3 form.

58. The Court of Appeal addressed itself on the issues of contradictions in the case of Erick Onyango Ondeng’ v. Republic [2014] eKLR and stated:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

59. More recently the Court of Appeal in Nyeri in the case of Richard Munene v Republic [2018] eKLR stated:

“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

60. The contradiction on the date of birth in the Birth Certificate and the P3 form was adequately addressed by the witness who issued the P3 form and admitted making an error by indicating 2001 instead of 2008. In my humble view, this error is curable and was cured by the witness who was the issuer of the P3 clarifying the position. That contradiction which is acknowledged and corrected by the witness was not substantial as to prejudice the appellant. Consequently, this ground of appeal fails.it is hereby dismissed.

4) Whether the prosecution proved its case beyond reasonable doubt

61. The appellant in this appeal was charged with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act which provides: “A person who commits an act which causes penetration with a child is guilty of the offence termed defilement and depending on the age of the victim i.e., if under eleven years shall upon conviction be sentenced to imprisonment for life.”

62. Going by this definition, for the state to sustain a conviction against an offender, the following elements must be proved beyond reasonable doubt.

i. Penetration of the male offender into the genitalia of the female victim.

ii. The age of the child must be established in view of Section 8(1), (2),(3) and (4) of the Sexual Offences Act.

iii. Evidence that the accused was positively identified as the perpetrator.

63. When dealing with sexual offences involving under the age of maturity the court is entitled to apply Section 124 of the Evidence Act on corroboration. However, in the absence of corroboration the proviso of Section 124 provides as follows:

“provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons be reached in the proceedings the court is satisfied that the alleged victim is telling the truth.”

64. It is therefore necessary to re-evaluate and subject the evidence to afresh scrutiny to be satisfied that the prosecution proved its case in the court below beyond reasonable doubt.

65. Regarding penetration, Section 2 of the Sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs of a person into the genital organs of another person. According to the interpretation of Section 2 the slightest and brief arousal Penetration is sufficient to complete the crime. The law does not envisage absolute penetration into the genital nor the release of spermatozoa or semen of the male organ for the act of penetration to be said to be complete.

66. In this case, the complainant testified that the appellant woke her from her sleep and took her next to a toilet where he took out his penis and inserted it into her vagina. The complainant further testified that she then went back to sleep only for the appellant to wake her, take her to some unfinished building, spread out a sack down, order the minor to sleep on the sack after which he took out his penis and inserted it into her vagina. The complainant was firm in cross-examination that the appellant inserted his penis into her vagina severally.

67. The appellant took issue that there were no forensic and other scientific tests including D.N.A test that connected him to the alleged offence. The appellant submitted that DNA tests were guaranteed under section 36 (1) of the Sexual Offences Act. I have already alluded to the legal position under Section 124 of the Evidence Act and further posit that the failure or refusal by the investigating officer or the police to examine the appellant was not by itself fatal to the prosecution case.

68. In enacting the provision of Section 124 of the Act Parliament in its wisdom was to reform the law for courts not to lean in favour of the accused and order for an acquittal on the grounds that there is no corroboration. The medical evidence on the complainant or that of the appellant is therefore not significant.

69. From the appraisal of the trial courts record’, in my view the prosecution placed sufficient corroboration from the undisputed medical evidence by PW5 who said the complainant was defiled. The evidence of epithelial cells, yeast cells and pus cells all evidence of forceful vaginal penetration as well as the conclusion reached by PW5 is compelling evidence against the appellant in the absence of any other material to the contrary. That together with the testimony of the complainant that the appellant severally defiled her as well as that of PW3 that she found the appellant on top of the complainant who was crying while the appellant was asking the minor whether the act he was doing to her was sweet and the child was saying that he was hurting her, renders credibility that indeed the complainant was defiled.

70. The appellant claims that no tests were done on him to connect him to the allegation. The ingredients of the charge of defilement which must be proved by the prosecution are, age of the complainant, the identity of the perpetrator and penetration. Medical examination of perpetrator is not a mandatory requirement to prove defilement.

71. Further, it is important to note that the law on Sexual Offences is proved by the evidence tendered by the prosecution and is not dependent on the examination of the perpetrator. Evidence of the victim is key in sexual offences and the only crucial medical examination is that of the victim to corroborate the fact of defilement or rape as the case may be. In the case of Fappyton Mutuku Ngui v R (2014) eKLR while considering a similar issue of medical examination of the perpetrator, the court stated:

“In our view, such evidence was not necessary and in any event the trial court found that there was sufficient medical evidence in support of PW-2-‘s testimony which was trustworthy as to the person who had defiled her.”

72. It follows that if the trial Magistrate believes the testimony of the victim on the identity of the perpetrator, the evidence is sufficient to support the conviction. Medical examination of the appellant was therefore not necessary. I find that there was overwhelming evidence that the child was penetrated and that the perpetrator of the offence was the appellant herein who was found in the act by PW3. Albeit the appellant claimed that he had a disagreement with PW3, and that she could have framed him, I find that the child was defiled and therefore whether or not the two had disagreed, there is no evidence of merely framing up the appellant. The appellant’s counsel suggested that the hymen could have been lost through other ways including a finger. However, examining the evidence of PW1, PW3 and the Clinician’s evidence, the child was penetrated with a penis and not a finger or anything else.

73. Turning to the age of the complainant, I find the same to have been proved beyond reasonable doubt by the production of the Certificate of Birth (P. exhibit 1) that showed that the complainant was born on the 28th November 2008 and thus placed the complainant at 7 years 8 months old on the date of the offence, the 15. 7.2016.

74. Finally, the identity of the appellant is not in dispute. He is the complainant’s father. PW3 testified that she knew the appellant as the complainant’s father. The appellant, according to PW1, took her severally from the house to the outside and on each occasion defiled her, let her go to sleep, woke her up and defiled her again. The complainant knew the appellant as her father and PW3 found the appellant in the act on top of the child. His trouser zip was open and he was asking the child if the act was sweet while the child was crying saying he was hurting her. Accordingly, the identity of the appellant as the perpetrator of this offence was not in dispute and was proved beyond any reasonable doubt.

75. The appellant raised an alibi defence that he did not defile the complainant and that at the alleged time of the incident on the 15. 7.2016 at about 7. 30pm, he was in Bondo waiting for a customer and at about 8. 00pm, he found one by the name James Onyango (DW2) and they proceeded to Mahaya after which they proceeded to a bar known as Green-field bar for some drinks and that is when he was suddenly surrounded by a group of people who told him that he had defiled his daughter. In cross-examination, he stated that on the material date he was living within Mahaya centre with his children among them, the complainant herein and further that Greenfield bar was not far from his home. DW2 James Omondi Onyango testified that that on the 15. 7.2016 at about 1930 hours, the appellant carried him on his motor bike up to Mahaya after which they entered a certain bar and ordered some drinks and that is when all of a sudden some people came and arrested the accused and they went with him and on the following day, he heard that the appellant had raped someone.

76. The appellant submitted that the trial court did not consider his alibi defence and thus shifted the burden of proof from the prosecution to himself by requiring him to call a witness to corroborate his case.

77. In the case of Charles Anjare Mwamusi v R CRA No. 226 of 2002 the Court of Appeal stated:

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable Kiarie V. Republic (1984) KLR 739 at page 745 paragraph 25. ”

78. I take cognizance of the principle that by setting up an alibi defence, the accused does not assume the burden of proving the alibi- see Ssentale v Uganda [1968] EA 36-. The foregoing was restated by this court in the case of Bernard Odongo Okutu v Republic [2018] eKLR where the court referred to the holding in the case of Wang’ombe vs. Republic [1976-80] 1 KLR 1683, where it was stated “the prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.”

79. However, this defence should also be raised at the earliest opportune time as was held in the case of Victor Mwendwa Mulinge v R [2014] eKLR where the Court of Appeal rendered itself thus on the issue of alibi:

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”

80. The said Court of Appeal has also held that nevertheless, even when the defence is raised late in the day, it must still be addressed. See (Ganzi & 2 Others vs. R [2005] 1 KLR 52. ) in the instant case, I have considered the appellant’s alibi defence vis avis the evidence of PW1, P[W3 and PW4 and Iam satisfied that the appellant’s belated alibi defence, weighed against the evidence adduced by the prosecution which was accepted by the trial court and which I wholly concur with, the conclusion I make is that the alibi defence is and was effectively displaced.

6) Whether the sentence imposed upon the appellant was harsh.

81. The appellant has impugned the judgment of the trial court in imposing a sentence of 30 years’ imprisonment. He argues that the sentence is manifestly harsh. Trial Courts have a greater deal of discretion when it comes to punishment and meting out the appropriate sentence and other determinations. The law basically provides various range of sentences from which a Judge or Magistrates can opt to effect and apply in specific cases. The same law provides for a minimum mandatory sentences where the appellant case is stated to have been proved by the prosecution.

82. From the record the accused faced a charge of defilement contrary to section 8(1) of the Act. The victim of the defilement was found to be aged 7years 8 months old at the time of the offence. The appropriate sentence on conviction is provided in Section 8(2) of the Act to be mandatory life imprisonment. The learned trial Magistrate therefore considered and paid due regard to the minimum legislated sentence for the offence of defilement and proceeded to sentence the appellant to 30 years’ imprisonment.

83. The law requiring the power and jurisdiction for an appellate court to interfere with any sentence passed by a trial court is well stated in the case of Ogalo s/o Owuora 1954 24 EACA 70. It is well set out that:

“This court has powers to interfere with any sentence imposed by a trial court if it is evident that the trial court acted on wrong principles or over looked some material factor or the sentence is illegal or manifestly excessive or as to amount to a miscarriage of justice”

84. Similarly, the Court of Appeal of East Africa stated in Wanjema v Republic [1971] EA 494 that:

“An appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, too into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case”

85. In the present appeal the horrors and trauma of a victim of defilement are such that they leave a permanent psycho-traumatic experience more so when the perpetrator is one from whom the complainant legitimately expects to be her protector. I am alive to the fact that when parliament legislated for minimum sentence in sexual offences it was meant to deal with societal problem of sex predators of young girls. However even with long minimum custodial sentences the problem seems not to abate nor such incidents reduced to zero rated within our country.

86. In the present case, after conviction, the appellant did not express any remorse for the physical pain and damage he caused to the victim. Considering the circumstances of the case I am of the considered view that this court should not interfere with the appellant’s sentence as a deterrent and further as it would be sufficient punishment to enable the appellant learn his lesson, be rehabilitated, and possibly be readapted into the community.

87. The appellant was in fact given an extremely lenient sentence as the law provides for mandatory life imprisonment. As the prosecution as not sought enhancement thereof, I hereby dismiss the appeal against sentence and uphold it. On the whole, the entire appeal against conviction and sentence is hereby dismissed.

Orders accordingly.

Dated, Signed and Delivered at Siaya this 6th Day of October, 2020

R.E. ABURILI

JUDGE