[2023] KEHC 26136 (KLR)

DMM v Republic (Criminal Appeal E035 of 2021) [2023] KEHC 26136 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26136 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal E035 of 2021

DK Kemei, J

November 30, 2023

Between

DMM

Appellant

and

Republic

Respondent

(From original Conviction and Sentence in Nanyuki CM Sexual Offences Case No 31 of 2020– V. M Masivo, SRM)

Judgment

1. The Appellant in this appeal, DMM, was convicted after trial of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act, No 3 of 2006 (Count I) and sexual assault contrary to section 5(1)(a)(i) of the same Act (Count II). On 11/05/2021, he was sentenced to thirty (30) years imprisonment on count one and ten (10) years’ imprisonment for count two. The sentences were ordered to run consecutively.

2. The particulars for count one were that on unknown dates between the month of January 2020 and the month of March 2020 in Meru County intentionally caused his penis to penetrate the vagina of MN, a child aged nine years old. The particulars for count two were that on the same dates and place, he unlawfully used his finger to penetrate the vagina of MN, a child aged nine years old.

3. The Appellant appealed to this court challenging the conviction and sentence vide a petition of appeal filed on 13/05/2021. He filed an amended memorandum of appeal on 22/03/2023 and sought for the same to be merged with the grounds in his petition of appeal. The conviction and the sentence are being challenged on the following grounds;i.That penile penetration and identity of the perpetrator were not proved to the required standard.ii.The trial magistrate failed to appreciate that the complainant gave unsworn evidence.iii.That the Appellant was not subjected to medical examination to rule out his culpability.iv.The learned magistrate erred by allowing the medical doctor to introduce a new matter that was not captured in her medical report in examination in chief.v.The learned magistrate erred by convicting the Appellant in both counts of defilement and sexual assault and ordering the sentences to run consecutively.vi.The learned magistrate erred by quashing the Appellant’s defence without cogent reasons.vii.The learned magistrate failed to note that the charge sheet was defective since the charges preferred subjected the Appellant to double jeopardy.viii.That investigations were not carried out.Additional grounds from the petition of appeal filed on 13/05/2021 were as follows;i.The learned magistrate erred by failing to note that the evidence adduced by the prosecution was not watertight to warrant a conviction.ii.The learned magistrate failed to note that the Appellant was HIV positive and if at all he defiled the complainant, the complainant would have been infected with HIV.iii.The learned magistrate failed to note that the prosecution’s evidence was contradictory, not collaborating and inconsistent.iv.That the charge was defective as it was in variance with the evidence adduced.v.That the sentence be ordered from the day of his arrest considering the time he spent in remand custody.

4. The appeal was canvassed by way of written submissions. In his written submissions, the Appellant argued that the complainant gave unsworn evidence which has a diminished probative value. That there was need for her evidence to be corroborated by medical evidence or by other material evidence. Reliance was placed in the case of Oloo vs R (2009) eKLR. The Appellant attacked the complainant’s credibility and stated that the traumatising ordeal for a child young as complainant would have been difficult to hide from her mother since she did not break a tear while testifying and that her narration sounded so common and that it beats logic how forceful sexual penetration would not be painful and fail to damage her genitalia.

5. He submitted that the evidence of PW3 revealed an offence of sexual assault and not defilement hence defilement was not proved since PW3 did not corroborate the evidence of PW1. That the matter was reported five days after PW1’s parents were informed of the ordeal hence there was mischief. That the investigating officer failed to carry out investigations and failed to interrogate his wife and children to know of their whereabouts in the purported months hence she failed to place the Appellant squarely at the scene of crime. Further, PW4 testified that she did not notice anything unusual with the complainant which beats logic on how the complainant would be defiled and still walk normally. That there was an outstanding bad blood between the complainant’s mother and the Appellant’s wife to which the complainant’s mother admitted during cross examination.

6. On the medical report, the Appellant submitted that the medical report indicated that there were no visible injuries on the complainant’s genitalia, however, there were pus cells which was as a result of an infection but that the infection was not linked to the Appellant nor the broken hymen. That PW2 did not state whether the broken hymen was as a result of penile penetration or other factors. That PW2 testified that there were lacerations on the genitalia while the P3 form and PRC form did not state so hence, PW2 introduced new evidence that was not contained in the said forms. Furthermore, the medical report revealed that the complainant was not infected with HIV whereas the Appellant admitted from the onset of the case that he was HIV positive and therefore the medical report failed to link him to the defilement. That a broken hymen is not conclusive proof of penetration as it has been held in several cases. That he was supposed to be subjected to medical examination in the instant case since the complainant gave unsworn evidence.

7. The counsel for the respondent supported the convictions and the sentences. The counsel argued that the medical report that was produced by PW2 was not challenged by the Appellant. On the question of the demeanour of the complainant by the Appellant, the counsel submitted that penetration was proved by medical report and cannot be disproved by emotional reaction but by production of expert evidence. That the allegation by the Appellant that identification was not sufficiently established was false since the Appellant was the complainant’s neighbour as witnesses testified.

8. On reliance of the unsworn evidence of the minor, the counsel submitted that the trial court considered this issue and was alive to the fact that the complainant’s evidence was to be considered alongside other evidence of which the trial court did. The counsel further submitted that the testimony of the complainant was fully corroborated by the evidence of PW2, PW3 and PW4 who established beyond reasonable doubt that the complainant was defiled.

9. On the issue that the Appellant was denied his right to be medically examined to disprove his culpability, the counsel submitted that this was just a mere allegation without evidence in support since he failed to explain how exactly this right was denied. On the introduction of new matter of evidence by the clinical officer, the counsel submitted that PW2 relied on the medical report produced and the general observation of the victim and her conclusion on whether the complainant was defiled was well captured in the medical report and the proceedings.

10. The counsel submitted that the Appellant failed to address how the trial magistrate erred in convicting him in both counts. Nevertheless, the two counts are separate offences with their own penalties and which were committed on different days warranting to be treated independently. On whether his defence was considered, the counsel submitted that the trial court considered the Appellant’s defence on the issue of bad blood between him and the complainant’s mother and found the evidence of the prosecution to be consistent and that the Appellant’s defence failed to dislodge the prosecution’s evidence. Furthermore, the complainant’s evidence was corroborated by evidence unlike the Appellant’s which was not corroborated reducing his defence to a mere denial.

11. On the issue of defective charge, the counsel submitted that the trial magistrate fully dealt with that issue vide a ruling dated 22/09/2020. On the issue of investigation, the counsel submitted that PW5 carried out investigations by recording the statements of the witnesses before arresting the Appellant which amounted to investigations. The counsel further submitted that the sentence was proper since the offence of defilement attracts a maximum sentence of life imprisonment whereas he was given 30 years which was lenient and that sexual assault attracts a maximum sentence of 10 years which could be enhanced to life imprisonment whereas the appellant was given five years imprisonment.

12. 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.

13. I have therefore considered the submissions and the authorities relied by the parties. I have also read through the record of the trial court in order to evaluate all the evidence placed before it 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.

14. It is trite that for a 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.

15. As to the charge of sexual assault, section 5(1)(a)(i), provides that;1)Any person who unlawfully—(a)penetrates the genital organs of another person with—(i)any part of the body of another or that person; or(ii)an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

16. The Court of Appeal in John Irungu V Republic, [2016] eKLR pronounced itself on the essential ingredients of the offence of sexual assault as follows:“…. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”

17. From the foregoing, it is clear that in order to establish the offence, the prosecution must prove that there was penetration into the genital organs of the victim by any part of the body of the perpetrator of the offence or any other person or objects manipulated by the perpetrator for that purpose.

18. Having established the ingredients of the charges, the question that this court should therefore determine is whether those ingredients were proved to the required standard.

19. 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 as the sentence to be imposed will be dependent on the age of the victim.”

20. In the present appeal, it was not in dispute that the victim was a minor aged around nine years at the time. PW4 produced her Birth Certificate (Pexhibit3) that indicated her date of birth as 10th March, 2011 and this remained uncontroverted by the Appellant.

21. What is in dispute is identity and penetration. To prove their case, the prosecution called a total of five witnesses.

22. PW1 was the complainant. She gave unsworn testimony and testified at length on what transpired between the month of January to March 2020. She stated that one morning, she was going to collect milk from Mama Joyce who is a neighbour and that on her way, she met Baba V, the Appellant who was also a neighbour. She stated that she would pass through the Appellant’s home to go to Mama J. On that morning, the Appellant’s children were not at home and his wife was at work. He took her by his hand and led her to his house where he closed the door and removed her trouser and underpants, lifted her dress as he removed his trouser. He laid her on the seat and then ‘akaingisha kitu yake ya kukujoa kwa yangu’. She stated that she did not scream and that she dressed up and went home. He told her that ‘atanirusha kwa demu nikisema’.

23. She stated that on another day when she had gone to plait her hair at Mama Karanja, the Appellant appeared and told Mama Karanja that he will escort the complainant to their napier grass. While there, she stated that ‘akaanza kuingisha kidole kwa kitu yangu ya kukojoa’. He did not undress her.

24. On another day, she had gone to collect milk at Mama J. The Appellant grabbed her while near the road and took her to the sheep pen which used to be a kitchen in his home. She stated that ‘alafu akaingisha kidole kwa susu pahali nakojoleanga’. She told the court that she informed her friend M when she had gone to collect milk from their house. She stated that she told M that the Appellant did ‘tabia mbaya’ to her and B. She stated that B had informed her that the Appellant had done the same thing to her.

25. She told the court that one day she saw the Appellant and ran away and that M questioned her as to why she did that. She thereafter briefed her on what the Appellant had done to her. She stated that the first time when the Appellant defiled her, he gave her chapati and on the second time he gave her mangoes. She identified the Appellant in court by pointing in the dock.

26. On cross examination by the Appellant’s counsel, she testified that the appellant did not use a condom. On being asked what a condom was, she said ‘ni ile kitu iko na kitu ya red’. She stated that she did not know what condom is used for. She stated that they would pass through the Appellant’s home as it was a short cut. She stated that it was on a Tuesday when the Appellant defiled her for the first time and that it was when schools were closed. She testified that while at mama Karanja’s, she did not tell her that she was afraid of the Appellant. When the Appellant took her to the sheep’s shed, the sheep were grazing outside. It was around 4:00pm on a Monday and on midterm. She stated that she continued using the path at the Appellant’s house despite the ordeal as there were dogs at Mama Kanja’s home.

27. She testified on re-examination that she did not report as the Appellant had threatened to throw her into a dam if she dared reveal to anyone.

28. PW2 was the clinical officer at Nanyuki Teaching and Referral Hospital. She examined the complainant on 30/05/2020 and on examination, her hymen was broken, there were laceration on her vagina, HIV/AID, syphilis and UTI tests were negative, there was presence of yeast and pus cells in her vagina which was an indication of a minor infection. Her conclusion was that there was proof of penetration. She produced the PRC and P3 form as Pexhibit1 and Pexhibit2 respectively.

29. On cross examination, she testified that the complainant stated that it was unprotected sex and that the injuries noted were 2-3 months old.

30. PW3, MW a 10-year-old minor gave sworn testimony and testified that on 25/05/2020, she was with the complainant and her cousin. The complainant saw Baba V (Appellant) and ran away and locked herself inside PW3’s house. The Appellant greeted them. They went to collect milk and on return, they found the complainant crying. They questioned her why she ran away upon seeing the Appellant but she did not answer. She stated that some other time she went to collect milk at the complainant’s home with her sister and B when the complainant informed them that the Appellant ‘alimfanyia tabia mbaya’ and that she stated that it happened again on another date. She informed them that it was the reason why she ran away when she saw the Appellant. She stated that she informed them that ‘alitolewa nguo’.

31. She testified that she informed her mother the next morning and that her uncle Kimathi informed the complainant’s parent. She identified the Appellant and informed the court that the Appellant was their neighbour.

32. On cross examination, she testified that she did not tell the police that the complainant had locked herself in the house. That when they met the Appellant, it was on a Sunday but the complainant revealed what had happened at a later date. She stated that the complainant informed her that the Appellant undressed her and then inserted his finger in her private part and that it happened twice in the sheep house and in the Appellant’s house.

33. PW4 DK was the complainant’s mother. She testified that on 28/05/2020, her husband called her aside and informed her that he had been alerted by PW4’s sister who informed him that their children had been defiled. She planned to question the children the following morning but she did not as she was to report to work early. In the evening, she questioned the complainant but she was hesitant. The complainant however agreed to tell her what had happened on account that she will not be punished. She testified that the complainant informed her that the Appellant defiled her and inserted his fingers in her private parts once in the chair and another time at the sheep shed. That the Appellant would entice her with fruits and chapatis.

34. She informed her husband and her pastor who instructed her to take her children to the hospital. Upon examination, the doctor informed her that complainant’s private part appeared big compared to B’s. She stated that B had also informed her that the Appellant had sexually assaulted her. She testified that the Appellant is their neighbour with whom they had not differed. She produced the complainant’s birth certificate as Pexhibit3.

35. On cross examination, she testified that she had loaned the Appellant’s wife Kshs.4,000/- but she had paid it back. She confirmed that on 29/11/2019, she visited the accused’s homestead to request for the balance of Kshs.2,000/- but it was paid. She denied that a fight ensued and that the Appellant chased her away. That she was on leave in the month of February but she did not notice anything odd with the complainant.

36. PW5 was the investigating officer. She testified that she interviewed the kids, the complainant and her sister B. The complainant reported that she was defiled and sexually assaulted by the Appellant four times. That one time she was passing by the Appellant’s house, he called her and defiled her, the second time the Appellant took her to the napier grass and inserted his finger in her vagina, the third time the Appellant took her in a boma within Appellant’s compound and defiled her and on the fourth time, the Appellant defiled her on his sofa set. That the complainant revealed the whole ordeal to her cousin M, PW3 who pestered her to know why she ran away when she saw the Appellant. PW3 thereafter reported to their aunt F who informed the parents.

37. On cross examination, she testified that the complainant informed her that it was unprotected sex and that she was defiled three times and was sexually assaulted once. She stated that she did not make an inquiry on the whereabouts of the Appellant during those months and that she was not aware of any conflict between the complainant’s family and the Appellant. She testified on re-examination that the Appellant failed to give an alibi for her to investigate.

38. The Appellant in his sworn testimony denied committing the offence. He stated that he was not in a position to answer well to the charges as the dates alleged, he committed the offence were not indicated on the charge sheet. He denied knowing the complainant but stated that he knew PW4, the complainant’s mother. He testified that the case was framed up due to a debt dispute between his wife and PW4. He stated that PW4 had violently invaded his home requesting to be paid her money. He however threw her out but she threatened him by stating that she would do something that he had never witnessed and that the debt would be paid in double. He stated that he reported the threats at Timau police station. He testified that he was HIV positive hence he would not have defiled the complainant while knowing his status.

39. On cross examination, he testified that he had known PW4 for a long time but saw the complainant and PW3 for the first time in court. He told the court that he was arrested when he went to make a report and that HIV is not transmitted by inserting fingers.

40. That was the totality of the evidence placed before the trial court.

41. The Appellant disputed identity. In his defence, he denied knowing the complainant. He however admitted that he knew PW4, the complainant’s mother. He testified that he had known her for a long time. He did not deny that he was their neighbour as the witnesses testified in court. PW1, the complainant referred to the Appellant as Baba V and Baba Kim, the names that he did not deny throughout the trial. He confirmed during cross examination that he is also known as Baba Kim. PW3, a minor also referred to the Appellant as Baba V. The evidence also revealed that the Appellant was a neighbour. PW1 stated that she would pass by the Appellant’s compound while going to collect milk at Mama J’s home. PW4 told the court that the Appellant was a neighbour and their homes were only separated by one parcel of land.

42. From the foregoing, it follows therefore that the complainant knew the Appellant. The Appellant though he stated that he saw the complainant and PW3 for the first time in court, this was just a lie. There is no way he could not have known his neighbours children who would even pass through his compound on a daily basis. The complainant and the other children had known him quite well and hence the issue of identification is not in doubt.

43. As to penetration, the Appellant attacked the complainant’s credibility based on her demeanour in court. He stated that she testified as if it was a normal thing. That she did not state whether she experienced any pain or suffered any injuries if at all she was defiled. He faulted the medical evidence by stating that it failed to link him to the charges since he was not examined. That the medical report revealed that the complainant had a minor infection but he was not linked to the infection. That PW2 testified that there were lacerations on the complainant’s genitalia whereas the medical reports did not indicate so. Further, PW2 did not attribute the broken hymen to penile penetration. He further submitted that he was HIV positive meaning that if at all he defiled the complainant, he would have infected her with HIV.

44. I have considered those sentiments by the Appellant. The complainant as seen earlier testified at length. She was aged about nine years but could remember the three occasions the Appellant took advantage of her. At first, she passed by the Appellant’s home, the route she would use to go to Mama J to collect milk. The Appellant took her by his hand and led her to his house. She explained in graphic details how the Appellant locked the door, removed her underpants and lifted her dress and laid her on the seat. That the Appellant also removed his trouser and then ‘akaingisha kitu yake ya kukujoa kwa yangu’.

45. The second time, she testified that she had gone to plait her hair at Mama Karanja’s. The Appellant appeared and he offered to escort her. While at their napier grass, he inserted his finger into her vagina. He did not undress her. The third time she had gone to collect milk as usual. The Appellant took her to the sheep shed in his compound and stated that ‘akaingisha kidole kwa susu pahali nakojoleanga’. She stated that she kept using that route within the Appellant’s compound as it was a short cut and there were dogs at Mama Karanja’s house.

46. This would have continued if it was not for PW3, a minor aged 10 years. She testified that she was with the complainant when the Appellant was passing by. The complainant saw the Appellant and ran away and locked herself at PW3’s house. PW3 asked the complainant the reason as to why she ran off when she saw the Appellant but she did not say anything. On a later date, she had gone to collect milk at the complainant’s home when the complainant revealed what the Appellant had done to her and that was the reason why she ran away when she saw him. She stated that the complainant informed her that the Appellant had inserted his fingers in her private parts and that alimfanyia tabia mbaya. She informed her mother and the complainant’s parent were thereafter informed.

47. PW2, the clinical officer examined the complainant. She testified that her hymen was broken, there were laceration on her vagina, HIV/AIDS, syphilis and UTI tests were negative, there was presence of yeast and pus cells in her vagina which was an indication of a minor infection. Her conclusion was that there was proof of penetration.

48. The evidence of the complainant squarely placed the appellant as the one who defiled her. It cannot therefore be said that there was no evidence that would link him to the crime. It follows, therefore, that the fact that the appellant was not medically examined to link him to the crime was not fatal to the prosecution’s case. As stated elsewhere, PW1 gave an eloquent statement on what transpired, which the trial court believed, and, which, I must state, was, alone, sufficient to found a conviction upon.

49. Furthermore, her evidence was well corroborated by evidence of PW2 and PW3. The medical evidence found that her hymen was broken. I am alive to the fact that a hymen can be broken by other factors but according to the complainant’s testimony, her hymen was broken by the act of the Appellant defiling her and then inserting his finger in her vagina on several occasions.

50. The Appellant stated that he was not medically examined to link him to the infections found in the complainant and that he was HIV positive meaning that if at all he defiled the complainant, he would have infected her with the virus.

51. The matter of medical evidence for the purpose of sexual offences is provided for in section 36 of the Sexual Offences Act. The said provision states as follows:“36. Evidence of medical, forensic and scientific nature(1)Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence....."

52. Section 36 of the Sexual Offences Act is in permissive terms. It gives the court discretion to direct the taking of samples for forensics. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could only be made at the discretion of the court in circumstances where the court deems it fit.

53. There are several court decisions where section 36 was considered. In George Muchika Lumbasi vs. Republic [2016] eKLR, it was stated that section 36 of the Sexual Offences Act does not make medical examination mandatory, except where the court thinks it is appropriate in the circumstances of the case to subject an accused person to such examination. In Evans Wamalwa Simiyu vs. Republic [2016] eKLR and Edwin Maiyo Kandie vs. Republic [2019] eKLR the court held the same position.

54. Furthermore, the law has been settled that, despite section 36 of the Sexual Offences Act, sexual assault is proved, not by medical examination, but by evidence adduced at the trial. The evidence of the victim and that of corroborative witnesses or circumstantial evidence is usually enough to establish sexual offences such as rape and defilement. That position was stated by the Court of Appeal in Fappyton Mutuku Ngui vs. Republic [2014] eKLR, where it was said that medical evidence was usually not necessary. A similar position was taken in AML vs. Republic [2012] eKLR, Kassim Ali vs. Republic [2006] eKLR, among others. It is thus clear that the appellant’s claim that the failure to examine him exonerated him from blame is not convincing. In any case, there is no hard and fast rule that upon a sexual encounter there will be immediate infections. Again, the appellant’s claim that he was HIV positive was not supported by any medical evidence. The evidence of Pw2 who conducted the examination of the complainant confirmed that indeed penetration had taken place.

55. The Appellant in his submissions attacked the complainant’s unsworn testimony. He argued that the unsworn testimony by the complainant was worthless and has no probative value and that there was need to corroborate the said evidence with medical evidence or other material evidence. Reliance was placed in the case of Oloo vs R (2009)eKLR.

56. The law relating to unsworn statements was well expressed by Emukule J in the case of Mercy Kajuju & 4 Others v Republic [2009] eKLR where he stated as follows:“I also discussed at some length the nature and value of unsworn statement, and on authorities held that unsworn statements have no probative or evidential value unsworn statements are not in evidential sense, facts which either go to prove or disprove a point alleged by one party and disputed by another. Facts in issue must be proved and unsworn statements are inappropriate subject of evidence....”

57. In Oloo v R (2009) KLR, the Court of Appeal held that:“In our view, corroboration of evidence of a child of tender years is only necessary where such a child gives unsworn evidence. (See Johnson Muiruri v Republic (1983) KLR)…..….in law evidence of a child given on oath after voire dire examination requires no corroboration in law but the court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it”.

58. It is noteworthy that the trial court delved on this issue at length and found that there was indeed corroboration of the complainant’s evidence from the medical evidence that was produced by PW2, the evidence of PW3 and PW4. The trial court relied on the case of Dickson Nasio Mukuba vs R (2018) eKLR where the court found corroboration of victim’s testimony from the medical evidence and evidence of two more prosecution witnesses to whom the victim had reported to before the matter was reported to the police.

59. Accordingly, though the minor gave an unsworn statement, the same was corroborated. More so, the trial magistrate meticulously followed the procedure for taking evidence of a child of tender years as required by section 19 of the Oaths and Statutory Declarations Act. I have analysed the evidence of PW1 and find that her evidence was corroborated by the evidence of PW3 whom she informed about the ordeal and the medical evidence of PW2 to the extent that the medical evidence confirmed that there was penetration of the genital organs of PW1. I thus hold the opinion that the prosecution proved the element of penetration. The trial court arrived at the correct finding in holding that the act of penetration was proved against the appellant. In any case, the appellant duly cross-examined the complainant and which thus strengthened the weight of her unsworn evidence.

60. The Appellant further submitted that the charges were as a result of the bad blood between his wife and PW4, the complainant’s mother. He stated that there was a dispute on an outstanding debt that his wife owed PW4. He testified that PW4 violently invaded his house requesting for her money. He threw her out and she threatened the Appellant with dire consequences. He therefore claimed that the charges were as a result of those threats. He further stated that he reported the threats at Timau police station.

61. I have evaluated this line of defence and noted that PW4 admitted that she had lent Kshs.4,000/- to the Appellant’s wife. That on 29/11/2019, she went to the Appellant’s house and demanded for the balance of Kshs.2,000/-. She testified that the money was refunded in full. She denied that on the said date a fight ensued.

62. It is noteworthy that the debt was paid back in 2019 way before the commission of the alleged offence. Furthermore, PW3 was an independent witness. The Appellant did not mention whether there was bad blood between him and PW3’s parent to conclude that indeed this was a fabricated case. PW3 was not privy to the issue of debt. Again, it is highly unlikely for the complainant’s mother to use her vulnerable young daughter as a victim of defilement so as to get at the appellant in order to settle differences over an unpaid debt.

63. From the foregoing, it is my humble view that the charges were proved to the required standard. There is proof from the complainant that the appellant defiled her and inserted his fingers into her private parts. She did not mention anyone else but Baba V, the Appellant. I am satisfied that the appellant was placed at the scene of crime. Hence, the finding on conviction by the learned trial magistrate was quite sound. I see no reason to interfere with it.

64. As regards sentence, it is noted that the appellant was sentenced to serve 30 years’ imprisonment on the main count and five years ‘imprisonment on count two. It is noted that the prescribed sentence for an of offence as in the main count is a life imprisonment while the sentence in count two is a term of ten years imprisonment. It is also not in dispute that the offences took place on different dates and hence the trial court’s order that they be served consecutively was appropriate. Looking at the sentences, I find them not to be harsh or unreasonable in any way. It is noted that the offences are serious as the victim has been psychologically affected. The appellant took advantage of the hapless complainant instead of being her protector. I see no reason to disturb the said sentences.

65. In the result, it is my finding that the appeal is devoid of any merit. The same is dismissed.

DATED AND DELIVERED AT BUNGOMA (VIRTUALLY) THIS 30TH DAY OF NOVEMBER 2023. D.KEMEIJUDGEIn the presence of:DMM AppellantMiss Kimani Mwaniki for RespondentSavuni Court Assistant