[2025] KECA 1141 (KLR)

Loruasia v Republic (Criminal Appeal 62 of 2019) [2025] KECA 1141 (KLR) (20 June 2025) (Judgment)

Neutral citation: [2025] KECA 1141 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Criminal Appeal 62 of 2019

JM Mativo, PM Gachoka & WK Korir, JJA

June 20, 2025

Between

Zakayo Napai Loruasia

Appellant

and

Republic

Respondent

(Being an appeal from the Judgment of the High Court of Kenya at Naivasha (R. Mwongo, J.) dated 16th July 2019 in CRA No. 14 of 2017 Criminal Appeal 14 of 2017 )

Judgment

1. Zakayo Napai Loruasia, (the appellant), was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act at the Chief Magistrate’s Court at Naivasha in Criminal Case No. 59 of 2015. The particulars of the offence were that on the night of 18th and 19th August 2015 in [Particulars Withheld], Naivasha Sub-County within Nakuru County, he intentionally and unlawfully caused his penis to penetrate the vagina of FMK, a child aged 7 years.

2. The prosecution case rested on the testimony of 5 witnesses, namely, the complainant (PW1), (PW2), who was in charge of Loving Lands, Safe House, a residence for individuals in need of protection, (PW3), who was a neighbour to the complainant, (PW4), a Doctor and PW5, (the Investigating Officer. The defence case rested on the appellant’s unsworn testimony. He did not call any witness in support of his defence. After the conclusion of the case, the trial court returned a verdict of guilty. After considering the appellant’s mitigation, the trial magistrate sentenced him to serve life imprisonment.

3. Dissatisfied by the said decision, the appellant appealed to the High Court at Naivasha in Criminal Appeal No. 14 of 2017 seeking to overturn his conviction and sentence. After hearing the appeal, Mwongo, J. upheld both the conviction and sentence and dismissed the appeal.

4. Undeterred, the appellant appealed to this Court seeking to reverse the High Court decision citing 4 grounds of appeal, essentially faulting the learned judge for:(a)failing to note that penetration was not proved;(b)shifting the burden of proof to him, yet his defence was reasonable and truthful;(c)no medical evidence was adduced to prove the case; and(d)the complainant’s age was not proved beyond reasonable doubt.

5. The appellant filed supplementary grounds of appeal and undated written submissions citing 3 grounds, namely;(a)the ingredients of the offence were not proved;(b)his defence was not considered; and(c)the life sentence imposed upon him was unconstitutional and against the judiciary sentencing policy guidelines.

6. When this appeal came up for hearing before us on 19th March 2025, the appellant appeared in person while learned counsel Mr. Omutelema appeared for the respondent. Both parties relied on their written submissions.

7. In support of his appeal, the appellant submitted that the prosecution failed to prove that he was positively identified by the complainant bearing in mind that the alleged incident happened at night (9. 00pm) and that during cross- examination the complainant confirmed that she did not know the appellant, and, she had never seen him before the incident, and that, her mum had sent her at around 9 o’clock.

8. The appellant also submitted that PW3 testified that PW1’s mother was taking alcohol with the appellant and when she sent PW1 to the shop, the appellant left his half glass of alcohol and never returned, prompting PW1’s mother to believe that it was the appellant who defiled the complainant. He maintained that the said evidence was never corroborated by PW1 because her evidence was that she was carried in a brief case by her assailant and the said brief case was never recovered, nor was the shop keeper together with the Good Samaritan called as witnesses to confirm that the appellant was at the scene. Therefore, the issue of identification was never corroborated by other evidence since no identification parade conducted.

9. The appellant maintained that PW3’s evidence was contradictory since she testified that the appellant had conned her and was a bad person. However, on cross-examination, she confirmed that she had never had issues with the appellant.

10. Regarding the complainant’s age, the appellant argued that PW1 gave her age as 8 years, while the charge sheet stated she was aged 7 years. In addition, the appellant submitted that the age assessment report was produced by PW 4 who was not competent to produce it in accordance with Section 77 of the Evidence Act because she was not the maker of the document. He contended that the said anomaly prejudiced his right to cross-examine the maker of the said report, and this violated his rights under Article 50 of the Constitution.

11. The appellant maintained that penetration was not proved nor was it supported by medical evidence or DNA to ascertain if he was the defiler as provided under Section 36 of the Sexual Offences Act.

12. Regarding the sentence imposed on him, he questioned its constitutionality arguing that his right to fair trial under Article 50 (2) (p) of the Constitution which provides for the benefit of the less severe punishment was violated. In support of his contention that the sentence is unconstitutional, he cited this Court’s decision in Julius Kitsao Manyeso vs. Republic Criminal Appeal No. 12 of 2021 which held that life sentences are unconstitutional since they contravene Articles 27 and 28 of the Constitution. He also cited Paul Ngei vs. Republic [2019] KECA 419 (KLR) where this Court substituted a mandatory minimum sentence of 20 years with 12 years imprisonment.

13. The appellant argued that he is rehabilitated and he has acquired knowledge, experience and he will be productive in building the nation if he is released on the basis that the period he has served is sufficient.

14. In opposition to the appeal, learned counsel for the respondent Mr. Omutelema submitted on four points. Regarding penetration, he maintained that there was overwhelming evidence which proved the penetration. He referred to PW1’s testimony that the appellant met her after she had been sent to the shop by her mother to buy milk and in the pretext of showing her where there was good milk, he put her in a brief case, then took her to the forest where he defiled her. PW2 who was in charge of Loving Lands Safe House testified that PW1 was brought to the Safe House after she was discharged from the hospital where she had been treated after being defiled. PW4, Dr. Ivy Masinde in her testimony detailed the injuries sustained by PW1 as follows: a third-degree tear on her vagina necessitating stitching; a broken hymen; inflamed outer genitalia; red eyes due to trauma and nose bleeding. Her clothes were dirty and blood stained. Counsel maintained that after considering the evidence, the trial court was satisfied that the complainant had been defiled.

15. Regarding the complainant’s age, Mr. Omutelema submitted that her age was correctly captured in the charge sheet as 7 years, PW5 in her testimony confirmed that the complainant was 7 to 8 years old and Dr. Ivy produced the age assessment report which showed that the complainant was aged 7 years and 8 months. Counsel maintained that the trial magistrate had the benefit of seeing the complainant in court during the hearing, therefore, the magistrate evaluated the evidence and correctly concluded that she was aged 8 years at the time of the offence.

16. Regarding the identification of the perpetrator, Mr. Omutelema maintained that PW1 was not mistaken in identifying the appellant because she knew his face and she was able to identify him. This fact was corroborated by PW2, PW3 and PW5. He also submitted that there was electricity light at the shop where PW1 went to buy milk, therefore PW1 saw the appellant clearly and during the hearing, PW1 would cry every moment she mentioned him as she testified.

17. Concerning the legality of the sentence, Mr. Omutelema submitted that the Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) determined that the minimum mandatory sentences in sexual offences are lawful and therefore the sentence meted upon the appellant was lawful. Counsel maintained that bearing in mind the aggravating circumstance of this case, the sentence of life imprisonment ought to be upheld.

18. This is a second appeal, therefore, our jurisdiction is limited to considering matters of law as stipulated by Section 361 of the Criminal Procedure Code. This Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at their findings. (See David Njoroge Macharia vs. Republic [2011] eKLR).

19. First, we will address the question whether the appellant was positively identified as the offender. Positive identification of an accused person is an essential element of any offence and a fundamental part of the criminal process. Properly obtained, preserved and presented, eyewitness testimony directly linking the accused to the commission of the offence, is likely the most significant evidence of the prosecution. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony, such as the witness's intelligence, his capacity for observation, reasoning and memory, and his ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.

20. This Court has in a myriad of cases stated that evidence of visual identification is of great importance in criminal cases but if not properly evaluated and tested can cause a miscarriage of justice to an accused person. In the case of R vs. Turnbull & Others [1976] 3 All ER 549, Lord Widgery, CJ. had this to say on the issue identification of an accused person:“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance?”

21. Addressing the question whether the appellant was properly identified, the trial magistrate stated:“The accused in my view merely denied having defiled PW 1. He did not tell this court where he was on the material day. He did not dispute that before the incident he had spent the day drinking changaa at the complainant’s house.Further the accused did not challenge the evidence of PW 3 that they knew each other and that he is also known as Nyai. PW 3 identification was therefore by recognition. She knew the accused prior to the incident though as Nyai. She also knew him as a boda rider a fact which the accused confirmed.PW 3 stated that the complainant’s mother had told her that Nyai (the accused) had defiled PW 1. Unfortunately, the complainants' mother died before even recording her statement. It is that information that led to the arrest of the accused since PW 3 knew who Nyai was.It was stated that after the incident, Nyai disappeared and he was spotted about a month later when he was confronted by PW 3 and villagers from the area. He was taken to Safe House where PW 1 was and that PW 1 identified him as the person who defiled her.Notably PW 1 in her evidence told this court that she saw the accused well while at the shop because there was light. He also spent a long time with her in the bush defiling her and she was able to see him well. She was even able to describe the clothes that the accused was wearing at the time of the incident.The accused also narrated how the O.C.S [Particulars Withheld] had conducted an identification parade. In my view, if he was called together with other men from the cells for PW 1 to identity the perpetrator, the O.C.S then exercised due diligence. For the accused to be arraigned in court and charged, he must have been satisfied that the accused was properly identified.PW 3 had no grudge against the accused. It took a period of a month for the accused to be found.He was the suspect and he could only have been arrested upon being spotted for investigation and that is exactly what happened.”

22. Confronted with the same issue, the first Appellate Court (Mwongo, J.) after re-evaluating the evidence on identification concluded as follows:“The complainant had given a description of the appellant as tall and dark. Although there was another tall and dark person in court, she clearly identified and pointed out the appellant and stated that the other dark person was not the one who defiled her. During a voire dire examination of the complainant, the magistrate confirmed that the victim had good understanding, and very aware of her testimony. PW2 and PW3 also pointed out the fear and trauma suffered by the complainant at the safe house when she was identifying the appellant. She did not hesitate and quickly pointed out the appellant as the perpetrator.... I am not persuaded that there is a proper basis for interfering with the lower court's determination on identification. I do find, however, that the trial magistrate was wrong to conclude that an identification parade was held because there is no evidence that a formal parade was conducted. What happened was that after the accused was arrested he was taken to the safe house where the complainant was staying and she identified him there. This is the evidence of PW2, Ann Wambui Kinuthia, who was in-charge of the safe house, and PW3 Margaret Wanjiku Njeri, the complainant's neighbour who took responsibility for the complainant after her mother died.”

23. We have independently re-evaluated the evidence and the concurrent findings by the two courts below. We note that even though an identification parade was not conducted, the complainant stated that at the shop where she encountered the assailant, there was adequate lighting and that her defilement in the forest and the time spent with the assailant was lengthy and therefore she was able to identify him. We find no reason to doubt the honesty of PW1 and her capacity to observe and remember her assailant bearing in mind that the trial magistrate was satisfied that PW1 had good understanding, and very aware of her testimony.

24. PW3 testified that the complainant’s mother told her that Nyai (the appellant) had defiled PW1. Unfortunately, the complainant’s mother died before even recording her statement. It is that information that led to the appellant’s arrest since PW 3 knew who Nyai was. We have carefully re- evaluated the said evidence. We are alive to the fact that that while direct evidence is more reliable than hearsay evidence, Section 33 of the Evidence Act lists 8 exceptions, which if any is present, hearsay evidence can be admitted in evidence. Significantly, the opening paragraph of Section 33 gives the context within which the exceptions covered under the said Section apply. It reads:Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases-

25. Where the interests of justice demand the admission of hearsay evidence, the court should apply a holistic approach, that is, the court must assess whether the evidence is of adequate probative value in light of all of the other evidence taken together. Probative value may be generally defined as the weight of the evidentiary fact in proving or disproving a fact-in-issue. This value depends on the strength or weakness of the logical relationship between an evidentiary fact and a fact-in-issue, along with many other factors such as, the importance of the issue, the extent to which the fact is challenged by the opposing party, and whether it is outweighed by other countervailing factors such as:(i)its probative value is outweighed by the procedural disadvantage of receiving it at trial;(ii)its admission is contrary to certain policy considerations irrespective of its probative value; or(iii)it is an unjustifiable limitation of a constitutional right.

26. In any event, hearsay evidence is not to be considered in isolation, but in totality with the other relevant and admissible evidence. This means that not only, ‘what will the hearsay evidence prove if admitted, but ‘will it do so reliably?’ In this case, the most compelling justification for admitting the hearsay evidence is the numerous pointers to its truthfulness. We say so because we have considered the fact that it is the evidence of PW3 which led to the appellant’s arrest by members of the public who then took him to Loving Hands Safe House where PW1 positively identified him without hesitation. The two courts below evaluated this evidence and agreed on the factual findings. It is important to underscore that we are obligated to honour concurrent findings of fact arrived at by the two courts below, unless such findings are based on no evidence at all, or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings. We find no reason to depart from the concurrent findings by the two courts below on the issue under consideration, therefore, this ground of appeal fails.

27. Regarding the ingredient of penetration, the appellant faults the two courts below for finding that penetration was proved. He questions the evidence tendered by the Doctor and casts doubts on its veracity. In determining this issue, the learned Magistrate had this to say:“PW 1 testimony was that she was defiled. he stated that the perpetrator inserted something which she did not know into her vagina and that he laid her and did bad manners to her. PW 5 took PW 1 first to [Particulars Withheld] Sub County Hospital where she was told to refer the child to Nairobi Women’s Hospital Nakuru since the extent of damage as a result of defilement is such that she had to undergo surgery. PW 4 tendered in evidence PRC form and P3 form. She stated that PW l had been defiled and she had torn hymen and torn vagina with a 3rd degree tear.”

28. The first Appellate Court after evaluating the entire record held that:“17. The medical evidence availed including the P3 form and PRC form show that the complainant presented with a freshly torn or broken hymen, inflamed labia, and a second- degree perineal tear, which had to be stitched. No vaginal discharge was noted.

18. Although the appellant stated that there was no medical report or evidence linking him to the commission of the offense, there is case law indicating that medical evidence is not mandatory...

20. I am satisfied from the overall evidence that it clearly shows that the complainant was penetrated in her vagina, probably with the fingers, but certainly by the accused when he lay on her.”

29. We note that PW1 testified that the appellant laid her down and did bad manners to her and when she wanted to scream, he covered her mouth with his cap. The court also noted that PW1 was crying while stating that the assailant penetrated her with a thing that she did not know and when she tried to remove him, he assailant hit her head and stepped on her tummy. PW4 Dr. Masinde who produced a report prepared by Dr. Salim and the P3 form corroborated the complainant’s account by stating that the findings after the complainant’s medical examination were consistent with penetration since the degree of harm was grievous, her hymen was torn, her labia was inflamed and her genitalia sustained a third degree tear. In the end, we see no reason to doubt the concurrent findings by the two courts below on this issue. This ground of appeal fails.

30. Next, we will address the question whether the complainant’s age was proved to the required standard. The trial magistrate rendered herself as follows on the issue of age.“PW 4 stated that they conducted age assessment at the hospital which established then she was seven years. Age assessment report was tendered in evidence as exhibit 3. ..As court, I saw PW 1 she was a very young girl with a clear body of a child who cannot be over 10 years. The age assessment report is in my view sufficient provides prove and in this case even if it were not done, I would have found that she was a child below the age or 11 year. Her frame of body clearly depicted her as a child a fact which cannot be mistaken.”

31. It is noteworthy that the first appellate court did not render itself on the issue of age, because the appellant filed amended grounds of appeal and written submissions which did not question the complainant’s age. The appellant mainly challenges, the production of the age assessment report by PW 4, who was not a competent witness to produce the report as stipulated in Section 77 of the Evidence Act since she was not the maker. We note that the appellant never raised the issue of production of the age assessment report by PW4 in his amended grounds of appeal before the High Court. Therefore, the High Court did not have the benefit of determining the said issue.

32. However, the complainant’s age under the Sexual Offences Act is an issue of law. This is because it is one of the ingredients of the offence under the Act which must be proved. In addition, under the Act, punishment depends on the complainant’s age. The younger the child, the more severe the punishment. Therefore, we shall address it. The appellant mainly challenges, the production of the age assessment report by PW 4, who, he claims was not the author of the report, therefore, he was not competent. Section 77 of the Evidence Act allows the production of a document by a person other than the maker if they are familiar with the handwriting and signature of the maker. This Section establishes a presumption as to the genuineness of the signature and the qualification of the person signing the document. Accordingly, we are satisfied that the age assessment report was properly admitted and that the complainant’s age was proved to the required standard.

33. In any event, there numerous decisions by this Court stating that by age in cases of this nature can be proved by oral evidence or documents. For example, this Court in Edwin Nyambogo Onsongo vs. Republic [2016] eKLR stated:“...the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”

34. PW 4 stated that they conducted age assessment at the hospital which established that the complainant was aged seven years, and the age assessment report was prepared which was tendered in evidence as exhibit 3. The learned magistrate in the earlier cited excerpt was alive to the issue of age. She stated that she saw PW 1, and proceeded to describe her as a very young girl with a clear body of a child who could not have been be over 10 years. The learned magistrate was satisfied that age assessment report was sufficient prove, and added that even if it was not done, she would have found that she was a child below the age or 11 year. She stated “her frame of body clearly depicted her as a child, a fact which cannot be mistaken. We find no reason to doubt this finding.

35. The other argument urged by the appellant is that the first appellate Court did not analyze his defence. We have read the impugned judgment. We note that the appellant gave an unsworn testimony and chose not to call any witnesses. In May vs. The Republic [1981] KLR. 129, the Court inter alia held:“That unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.No adverse inference can be drawn against the appellant for electing to make an unsworn statement as she was exercising her right conferred by Section 211 (1) of the Criminal Procedure Code…”

36. We note that the trial court and the first appellate court analysed the appellant’s unsworn defence. The learned trial magistrate having extensively considered the appellant’s unsworn evidence found that the appellant did not tell the court where he was on the material day and he did not dispute that before the incident he had spent the day drinking changaa at the complainant’s late mother’s house and that the appellant never challenged PW3’s evidence that they knew each other and that he is also known as Nyai.

37. We have also considered the judgment. We note that the learned judge found that the appellant’s evidence was a mere denial since he merely stated that he was a boda operator and went to work as usual on 20th September 2016, later a crowd came and told him to go to Loving Hands Safe House so that a child could identify him. He went and was the only man on the parade, and it is then that the child said he was not the one but that he resembled the culprit. He was then arrested, taken to the police station and eventually charged. From the foregoing, we find no reason to make a finding that is inconsistent with the first two courts on matters of facts. We are satisfied that the appellant’s conviction was safe.

38. Lastly, regarding the legality of the sentence, it is noteworthy that the mandatory minimum sentence provided for defilement of a child aged 11 years or below under Section 8 (2) of the Sexual Offences Act is life imprisonment, which is the sentence that was passed by the trial court and upheld by the first appellate court. Nevertheless, we have carefully considered the appellant’s amended grounds of appeal before the High Court and his submissions before the High Court. We note that the appellant did not specifically complain about the constitutionality of the life sentence imposed on him before the High Court, therefore, the first appellate court did not have the benefit of applying its mind on the said argument.

39. However, constitutionality of a sentence is a matter of law, therefore, we shall consider the said ground. As we do so, it is important for us to mention that the appellant, in his quest to persuade us that the sentence imposed on him is unconstitutional cited this Court’s decision in Julius Kitsao Manyeso vs.Republic Criminal Appeal No. 12 of 2021 which held that life sentences are unconstitutional since they contravene Articles 27 and 28 of the Constitution. He also cited Paul Ngei vs. Republic [2019] KECA 419 (KLR) where this Court substituted a mandatory minimum sentence of 20 years with 12 years imprisonment.

40. However, the above decisions are no longer good law because the Supreme Court in Republic vs. Mwangi (supra) affirmed the lawfulness of life imprisonment prescribed under the Sexual Offences Act. It stated:“(57)In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities...(62)Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. This was our approach and direction in Muruatetu which must remain binding to all courts below.”

41. It follows that the argument that the sentence of life imprisonment imposed upon the appellant is unconstitutional is unsustainable. Furthermore, the decision of this Court in Julius Kitsao Manyeso vs. Republic Criminal Appeal No. 12 of 2021 was overturned by the Supreme Court in Republic vs. Manyeso [2025] KESC 16 (KLR), when it held that:The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remains lawful and in line with Section 8 of the Sexual Offences Act.”We say no more. In conclusion, we find that this appeal is without merit and the same is hereby dismissed in its entirety.

DATED AND DELIVERED AT NAKURU THIS 20TH DAY OF JUNE, 2025. J. MATIVO.............................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb.............................JUDGE OF APPEALW. KORIR.............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.