[2022] KEHC 3161 (KLR)

Sigei v Republic (Criminal Appeal E009 of 2021) [2022] KEHC 3161 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3161 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E009 of 2021

RL Korir, J

June 15, 2022

Between

Leonard Cheruiyot Sigei

Appellant

and

Republic

Respondent

(From Original Conviction and Sentence in Sexual Offence Case Number 26 of 2018 by the Principal Magistrate’s Court at Bomet)

Judgment

1. The Appellant was convicted by Hon. L. Kiniale, Principal Magistrate for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the Charge were that on 1st July 2018 in [particulars withheld] Sub County, within Bomet County, he intentionally and unlawfully caused his penis to penetrate the vagina of F. C, a child aged 13 years.

2. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the alternative Charge were that 1st July 2018 in [particulars withheld]Sub County, within Bomet County, he intentionally and unlawfully caused his penis to come into contact with the vagina of F.C, a child aged 13 years.

3. The Appellant pleaded not guilty to the Charges before the trial court, and a full hearing was conducted. The prosecution called six (6) witnesses in support of its case.

4. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Accused and he was put on his defence.

5. At the conclusion of the trial, he was convicted of the main Charge and sentenced to serve 20 years in prison.

6. Being dissatisfied with the Judgment, the Accused appealed to this court on the following grounds:i.That,the trial magistrate erred on the burden of proof.ii.That the trial magistrate erred on relying on the evidence of PW1 (the complainant) which was untruthful and not corroborated by the evidence of PW4. iii.That the trial magistrate erred on relying on the evidence of PW1, PW2 and PW3 without weighing the defence against the same.iv.Thatthe trial magistrate erred in law and fact by relying on a defective birth certificate of PW1 and no inference was made by any documentary evidence in respect of age assessment of PW1 thus arriving at a wrong sentence and conviction.v.Thatthe trial magistrate erred in casually disregarding the defence case.vi.Thatthe trial magistrate erred in law and fact by relying on the evidence of PW1, PW2, PW3 and PW4 which did not disclose the key ingredients of the offence of defilement notably age assessment, penetration and identification.vii.Thatthe trial magistrate erred in making inference which was not supported by evidence.viii.Thatthe trial magistrate erred in finding the appellant guilty of the offence before analysing the defence case.ix.Thatconsequently, the findings of the trial magistrate were bad in law and fact against the weight of the evidence.x.Thatthe sentence of 20 years was harsh and oppressive on the appellant and moreso when the age of PW1 was not ascertained.xi.That the prosecution failed to prove its case beyond reasonable doubt.

The Prosecution’s Case. 7. It was the Prosecution’s case in the trial that the Accused defiled the minor F.C on 1st July 2018. PW1 testified that on the material day, she had gone to collect milk from Caro’s home. She stated that after collecting the milk, she met the Accused, whom she described as a neighbour at the gate of Caro. It was PW1’s testimony that the Accused held her sweater and pulled her. That she removed the sweater and ran to a neighbour called Joan where she found 3 children namely C, E K and E K.

8. PW1 testified that the Accused followed her there and demanded a memory card. It was PW1’s testimony that the Accused pulled her again. That she told the other children to follow her to see what the Accused would do. It was her further testimony that it was about 6. 30 pm and it was getting dark.

9. It was PW1’s testimony that the Accused threatened the children not to follow him. That the Accused pulled her to the shamba that was close to Caro’s house, covered her mouth, removed her pant, removed his penis and placed it in her private parts. PW1 further testified that the Accused ran away upon seeing a d-light that was approaching.

10. PW1 further told the court that Caro and other people screamed and this attracted other people who came to the scene. She testified that a boda boda was brought and she was taken to hospital where she was given medication. It was her testimony that the matter was reported to the police at Siongiroi.

11. PW2 (F C) testified that on the material day, she was with EK and EK. She testified that PW1 told her that the Accused had chased her while asking for a memory card.

12. It was PW2’s testimony that the Accused arrived and pulled the complainant and she followed them together with EK and EK. That the Accused threatened to beat them if they did not return home.

13. She further told the court that she ran and called Caroline and when they returned, they found PW1 behind the house and it was at that point that they began to scream. She stated that she knew the Accused before the incident as he was a neighbour.

14. V C (PW3) testified that she was PW1’s cousin and a guardian. That on the material day, E K and E K came to her shop and told her that PW1 had been pulled by the Accused into the nappier grass. It was her testimony that she locked her shop and ran towards the nappier grass. She testified that she found PW1 behind the house and with no biker on. She further testified that PW1 had the biker in her hand and that her shoes were close to the nappier grass.

15. It was PW3’s testimony that PW1 told her that the Accused had defiled her and ran away. PW3 further testified that the Accused later came to the scene and was very harsh (meaning annoyed) stating that they had spoilt his name. She stated that she took PW1 to Siongiroi Health Centre and reported the matter to Chebunyo Police Station the following day. PW3 testified that she took care of PW1 as her parents lived in Molo and that PW1 was aged 13 years at the time of the defilement.

16. Kiprono Ian Samoei (PW4) testified that he was a clinical officer working at Sigor Sub County Hospital and that he had practiced for over 5 years. He testified that he examined PW1 on the material day and made treatment notes which he produced as P. Exh 4. He further testified that he examined PW1 again on 2nd July 2018, a day after the sexual assault and filled a P3 form which he produced as P. Exh 3.

17. PW4 testified that he examined PW1’s genitalia and found a broken hymen which in his opinion wasn’t newly broken. He also stated that there was vaginal bleeding due to monthly periods. He stated that he did a high vaginal swab and found no spermatozoa and that upon doing a urine analysis, he found one or two pus cells. It was his opinion that the hymen was not freshly broken. He concluded that there was defilement. He produced a Post Rape Care Form as P.Exh 2.

18. No. 244809, APC Johanes Oduor Olando (PW5) testified that on the material day he was on duty at Siongiroi AP Post when PW3 came to report that her foster daughter had been forced into sexual acts by the Accused. It was his testimony that PW3 had a medical summary from Siongiroi Health Centre that indicated that PW1 had been examined. He stated that PW3 received a call and she was told that the Accused had been spotted at Siongiroi boda boda stage carrying a travelling bag. That they went to the stage together with other officers and arrested the Accused and they handed him over to officers from Chebunyo Police Post.

19. No. 117124 PC Christine Wanja (PW6) testified that she was the Investigating Officer in this case and she was based at Chebunyo Police Post where she had been there for over a year. That on 2nd July 2018, a report was made at the Post that PW1 had been defiled by the Accused. It was her testimony that she took PW1 to Siongiroi Health Centre for examination and a P3 form was filled. That she later recorded the statements of PW1 and other witnesses.

20. PW6 stated that she found that PW1 had been defiled by the Accused on 1st July 2018 when she returned home from collecting milk. That the Accused took her to the farm near the nappier grass and defiled her. It was her testimony that PW1 was aged 13 years at the time of the incident and she produced a copy of the birth certificate as P. Exh 1. She stated that she was given the birth certificate by the guardian as the parents of PW1 lived in Molo and were in possession of the original birth certificate.

The Respondent’s Submissions. 21. The Respondent submitted that the age of a victim in sexual offence was of paramount importance. That the birth certificate of the minor was produced and although the appellant challenged its authenticity, it was still a document that was recognized by the Government and it was obtained in the year 2017, way before this case began. It was the Respondent’s submission that there was no contradiction on the evidence of age between PW1 and PW3 as they lived closely with PW1. It was the Respondent’s further testimony that PW1 was a primary school pupil and could not have been over 18 years of age. That the best evidence in relation to age was a Birth Certificate.

22. Regarding penetration, the Respondent submitted that PW4 had confirmed that there was penetration which was not fresh and that the bleeding he observed was due to her monthly period. That PW1’s testimony was corroborated by PW4 findings.

23. The Respondent submitted that PW1 had confirmed that the Appellant defiled her and PW1 and PW2 placed the Appellant at the scene of crime. That the Appellant raised the defence of alibi at the defence hearing as opposed to the start of the prosecution case and therefore the alibi defence was an afterthought.

24. The Respondent submitted that there was no law that required the presence of spermatozoa to prove penetration. It was the Respondent’s further submission that the Sentence meted out was proper as it was the minimum and not the maximum. It was the Respondent’s submission that the appeal was devoid of merit and ought to be dismissed.

25. On the standard of proof, the Respondent submitted that they proved their case beyond reasonable doubt and relied on the case. They cited several authorities to support their submissions including Miller v Minister of Pensions [1974] 2 All ER 372-373 G.O.A v Republic [2018] eKLR, Mark Ouiruri v Republic [2013] eKLR and Erick Onyango Odeng v Republic [2014] eKLR.

The Defence Case. 26. The Accused, Leonard Cheruiyot Sigei testified as DW1 where he denied committing the offence. That on the material day, he was at home feeding the cattle. That he asked people who were working at his brother’s house (SS, DW3) to come and do wiring in his house. It was his testimony that they came and worked until 7 pm. That he was with his wife, SS and Nicholas Langat.

27. It was the Accused’s testimony that CCM whom he referred to as PW2 arrived and asked why they had beaten her child. Upon being asked which child she referred to, she clarified the girl who had come from Molo. The Accused denied beating the girl.

28. The Accused stated that C had bought land from his uncle in 2016. That they had differences with C regarding the land and that Cdid not want to resolve the boundary dispute. It was the Accused’s testimony that he told his wife not to quarrel with C.

29. The Accused testified that he was arrested the following day by an officer from Siongiroi and was arraigned in court. He said that he did not know the complainant and only got to know her in court. That his (Accused’s) family and that of C had a bad relationship due to the boundary dispute.

30. DW2 (ES) testified that she was the Accused’s wife and that they lived together. That on the material day, in the company of DW1 they went to church and returned home at around 2pm. That they took lunch at around 5. 30 pm and thereafter N came with some people to do wiring and fix the lights for them.

31. It was DW2’s testimony that PW3 (VC) came and began raising the alarm that her child from Molo had been defiled. That it was not the first time she had said that. It was DW2’s testimony that they had not seen or noticed anything as no one had left their home since 5. 30 pm. That the fundis finished and they ate supper at 8pm and Leonard saw them off.

32. DW2 testified that DW1 called her the following day and informed her that he had been arrested. It was DW2’s testimony that PW3 was a neighbour and that she bought land from a neighbour. That they did not have a good relationship with her. It was DW2’s testimony that PW3 destroyed any fence they put up. It was DW2’s further testimony that she was with DW1 from 5. 30 pm to 8. 30 p.m. and there was no way that he could have committed the offence. That DW1 was also with N and SS.

33. DW3 (SS) testified that he was the brother to DW1. That on the material day, Nicholas came and they proceeded to DW1’s house to do wiring. It was his testimony that they installed the wires until around 7p.m. That C was also known as V, who was PW3.

34. It was DW3’s testimony that PW3 began making noises and stated that DW1 should leave the land and houses. That there was a dispute between PW3 and DW1 where it was alleged that DW1 had assaulted PW3’s child. DW3 averred that DW1 did not commit the offence and that he did not know the victim.

35. NK (DW4) testified that he was DW1’s neighbour. That on the material day, DW1 called him to do wiring in his house. That they went to DW1’s house together with DW3 and worked until 6. 30 p.m. He testified that while he worked, he heard noises outside and upon inquiring what the noise was about, DW2 informed him that they had a boundary dispute with a neighbour and that the neighbour even quarrelled when chicken crossed over to her farm. That they later left DW1’s house and heard that he had been arrested the following day. He testified that DW1 could not have committed the defilement as he was with him the entire evening.

The Appellant’s Submissions. 36. The Appellant submitted that the case was not proved. He submitted that the contradictory evidence of PW1 and PW4 clearly showed that there was no penetration as PW4 would have observed a freshly broken hymen. That PW4 had stated in cross examination and re-examination that the hymen was broken a long time ago. The Appellant further submitted that PW4 had clarified that the infection on PW1’s vagina could not be solely attributed to sexual intercourse. That there was no spermatozoa found in the swab obtained from PW1. That therefore the prosecution failed to prove that there was penetration.

37. The Appellant submitted that the defence evidence showed that on the material day, he was with DW2, DW3 and DW4 in his house. It was his further submission that the trial magistrate erred when she relied on the evidence of PW1, PW2, and PW3 without weighing it against the defence.

38. It was the Appellant’s submission that the prosecution failed to call Caro, the woman who alleged to have come to the scene of crime and found PW1, whose evidence would have corroborated the evidence of PW1, PW2 and PW3. That they also failed to call Joan, the mother of PW2, EK and EK.

39. The Appellant submitted that the trial court did not consider the bad blood between the Accused and PW3 over the boundary dispute which made PW3 instigate the present case to settle scores.

40. On the age of the victim, the Appellant submitted that the trial court relied on a defective birth certificate. That PW3’s testimony regarding the age of PW1 was doubtful since she did not sire her and the prosecution failed to call either the father or mother to tender evidence on the age of PW1. It was the Appellant’s further submission that PW3 fraudulently obtained the birth certificate which was produced as a Photostat. That the birth certificate was not certified a true copy of the original and it therefore offended Sections 64 and 66 of the Evidence Act. He relied on the cases of Adam Daktari Konoye v Republic [2019] eKLR and Kaingu Elias Kasomo v Republic, Criminal Appeal Case No. 504 of 2010 to support his submissions.

41. On Sentence, the Appellant submitted that the Sentence of 20 years was harsh and oppressive as the complainant may have been above 13 years.

42. It was his final submission that the prosecution failed to prove the age of the complainant, penetration and identification of the Accused and consequently the conviction and sentence be quashed.

43. This being the first appellate court, I have a duty to re-evaluate the evidence on record. The Court of Appeal in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & CO. Advocates [2013] eKLR, restated this duty as follows: -“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”.

44. I have gone through and given due consideration to the Petition of Appeal dated 1st March 2021, the Appellant’s Written Submissions dated 18th November 2021 and the Respondent’s Written Submissions dated 28th February 2022. The following issues arise for my determination.(i)Whether the Prosecution proved its case beyond reasonable doubt.(ii)Whether the Defence places doubt on the Prosecution case.(iii)Whether the Sentence preferred against the Accused was manifestly excessive, harsh and severe.

(i)Whether the Prosecution proved its case beyond reasonable doubt. 45. It is trite law that for the offence of defilement to be established, three ingredients being the age of the victim, penetration and positive identification or recognition of the offender must be proved.

46. The Accused was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) of the Act states that any person who commits an act which causes penetration with a child is guilty of an offence of defilement. The Children’s Act no. 8 of 2001. A child is defined in the Children’s Act as any human being under the age of eighteen years.

47. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.

48. PW3 produced a birth certificate (P.Exh1). The Birth Certificate indicated that PW1 was born on 6th July 2004 and that the name of the mother was VCM (PW3). The authenticity of the Birth Certificate was challenged by the Accused. He said that the name of the victim’s mother was at variance with PW3’s name. This discrepancy was explained by PW3 upon cross examination where she stated that she was not the real mother of PW1 but that PW1 was in her custody. She further stated that the parents of PW1 (A and RR) lived in Molo. She told the court that the victim was her cousin and was under her custody.

49. I am not convinced by the authenticity of the Birth Certificate as it does not bear the names of the parents of the victim. It cannot be used to determine the age of PW1. However, it is uncontested that at the time of the incident, PW1 was a school going child. PW1 testified that she was a pupil at [particulars withheld] Primary School. PW1 confirmed the same upon cross examination and further stated that she was in class 8. From this set of facts, I am satisfied that while PW1 may not have been proven to be 13 years of age was definitely not above 18 years of age. She was a minor.

50. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. In the case ofEE v Republic [2015] eKLR, Riechi J. stated that: -“An important ingredient of the offence of defilement is that there must have been penetration. Penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement”.

51. With respect to proof, the Supreme Court of Uganda held in the case of Bassita vs. Uganda S.C. Criminal Appeal Number 35 of 1995, that: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.

52. PW4 who was the clinical officer produced treatment notes that were marked as P.Exh 4. He also produced and marked the P3 form and Post Rape Care Form as P. Exh 3 and P.Exh. 2 respectively. PW4 testified that he examined the complainant on 2nd July 2018 and found that she had a broken hymen which was not newly broken. He further testified that he conducted a urine analysis and found one or two pus cells. It was his finding that due to the broken hymen, there was defilement.

53. Section C of the P3 form revealed the results of the examination that the hymen was broken but not fresh. PW4 testified that the hymen was not freshly broken. The Accused did not challenge the authenticity or the contents of the P3 form when he cross examined PW4.

54. The Post Rape Care Form that was filled on the material day confirmed the findings contained in the P3 form. I am convinced on the strength of the evidence contained in the P3 form, Post Rape Care Form and the testimonies of PW1 and PW4 that there was penetration. The question however is whether penetration happened on the material date or earlier.

55. PW4 testified that upon examining PW1, he found a broken hymen and it was his further finding that the hymen was not freshly broken. The same findings were contained in the P3 form and Post Rape Care Form. While I appreciate that there was evidence of penetration, there was no evidence that it happened on the material day.

56. To bolster his defence, the Appellant submitted that there was no spermatozoa found in the vaginal swab obtained from PW1 which in his view meant that there was no penetration. I have no hesitation in dismissing both the ground of appeal and submission. This is because there is no mandatory requirement for DNA testing. In the case of Robert Mutungi Mumbi v Republic, Criminal Appeal Number 52/2014 [2015] eKLR the Court of Appeal held that:“Section 36 (1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly, that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved.”

57. Furthermore, the law does not require the presence of spermatozoa as proof of penetration. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR, expressed itself on this matter as follows: -“…… and the effect that the medical examination was carried out on her on 16th November 2008, five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….”

58. Clarity on this issue was given by the Court of Appeal even prior to the enactment of the Sexual Offences Act (2006) in the case of Benjamin Mwangi & Another v Republic [1984] eKLR, where the Court rendered itself as follows:“The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has sexual intercourse nor is absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetration, an essential fact of the offence of rape.”

59. With regard to the issue of identification, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR expressed itself as follows:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.

60. The English case of R v Turnbull 1977] QB 224 is useful in this regard:“If the quality (of identification evidence) is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however that an adequate warning has been given about the special need for caution”.

61. In the present case, PW1 testified that the Accused was the person who defiled her. She further testified that she knew the Accused as a neighbour and that she saw him well on the material day. The court record also noted that PW1 identified the Accused in court. It was clear that PW1’s evidence was more of recognition than identification. In this respect, I draw guidance from the case of Peter Musau Mwanza v Republic [2008] eKLR, where the Court of Appeal expressed itself as follows: -“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for sometime, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident. It is not clear whether that is what Mr. Mutuku refers to as basis for recognition.”

62. The remaining prosecution witnesses did not witness the defilement though the testimony of PW2 placed the Accused near the crime scene. PW2 testified that PW1 had told her that the Accused had been chasing her while asking for a memory card. As they were talking the Accused arrived and pulled PW1. It was her testimony that she followed the Accused and PW1 together with EK and EK. That the Accused threatened to beat her if she did not return home. It is salient to note that PW2 identified the Accused as a neighbour.

63. I am satisfied that the Accused was properly identified by PW1 and PW2. He was also placed on the scene by PW2. The evidence of recognition by PW1 and PW2 was sufficient and of good quality as they both identified the Accused as a neighbour and also identified him in court.

64. The evidence described above is circumstantial. The two minors EK and EK though not called as witnesses went to call PW2 and upon responding, PW2 found the victim standing without shoes near the nappier grass with her biker in her hand and PW1 immediately told her that she had been defiled by the Appellant. In the absence of corroborative medical evidence of recent penetration, the evidence falls short of proof of penetration. The evidence however disclose a lesser offence of attempted defilement provided under Section 9(1) of the Sexual Offences Act.

ii.Whether the Defence places doubt on the prosecution case. 65. The Accused denied committing the offence of defilement. He stated that on the material day, he was at home with this wife (DW2), SS and DW4. That electrical work was being done in his home till late in the evening i.e. 7pm and that there was no way he could have defiled PW1. He further stated that they had a land boundary dispute with CC and that was the basis of this accusation.

66. DW2 corroborated what DW1 had testified. DW3 who was DW1’s brother stated that on the material day, he was with DW1 as wire installation was being done in his home. It was DW3’s testimony that C was also known as V. That there was a dispute between Veronica and DW1 regarding chicken and mbuzi that went to Veronica’s land to destroy his plants. DW4 testified that he was with DW1 on the material day till late in the evening and there was no way he would have committed the offence. It was his testimony that he heard from DW2 that they heard a boundary dispute with a neighbour he did not identify.

67. First, let me address the purported boundary dispute between DW1 and CCM. There was no evidence fronted by DW1, DW2, DW3 and DW4 to back up these claims. It emerged from the testimony of DW3 that CCM was also known as V who testified as PW3 He also stated that the dispute between DW1 and V was that DW1’s mbuzi and chicken trespassed into V’s land and destroyed her crops. There was no mention of a boundary dispute in DW3’s testimony. It was notable that PW6 who was the Investigating Officer, upon cross examination stated that she did not find any land dispute between the Accused and PW3.

68. It is my finding that the defence of an existence of a boundary dispute was an afterthought. The explanations put forward by the Accused and his three witnesses were insufficient, contradictory and without basis. This defence did not cast doubt on the prosecution case.

69. The Accused raised an alibi defence by stating that he was at home with DW2, Stacy Sigei and DW4. His wife (DW2) and DW4 supported his alibi. Alibi is defined in the Black’s Law Dictionary, 10th Edition as:“A Defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”.

70. The principle has long been accepted that an accused person who wishes to rely on a defence of alibi must raise it at the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the alibi. In Republic v Sukha Singh S/O Wazir Singh & Others [1939] 6 EACA 145, the former Court of Appeal for Eastern Africa held that:“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped”.

71. It is trite that once a Respondent raises an alibi defence, the onus is on the prosecution to displace the defence of alibi after the defence raises it at the trial. This was held in the Court of Appeal case of Victor Mwendwa Mulinge v Republic [2014] eKLR as:“It is trite law that the burden of proving falsity, if at all, of an accused‘s defence of alibi lies on the prosecution”.The Court of Appeal in the case of Wang’ombe v Republic [1980] KLR 149 held as follows:“……. In Ssentale v Uganda [1968] EA 365, 368 (Sir Udo Udoma CJ)…. said that a prisoner who puts forward an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout the prosecution. We agree, we have ourselves said so on more than one occasion. . . .The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible”.

72. In this case I note that this defence of alibi was raised at the defence hearing and not at the beginning of the trial. Besides, it did not shake the prosecution evidence which clearly placed the Appellant at the scene. It is my finding that the defence of alibi fails as I consider it an afterthought. Indeed the entire defence did not cast doubt on the prosecution case.

73. The court is granted power to convict on a lesser charge where the evidence so discloses even if an accused was not charged with it. Section 179 (2) of the Criminal Procedure Code states that: -“When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.

74. In this case, I have come to the conclusion that the evidence discloses the lesser charge of attempted defilement. I substitute the initial charge of defilement with that of attempted defilement under section 9(1) as read with section 9(2) of the Sexual Offences Act. The Appellant is convicted accordingly.

iiiWhether the Sentence preferred against the accused person was manifestly excessive, harsh and severe. 75. Section 9(2) of the Act provides that: -(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

76. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms: -“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist”.

77. I have considered the Appellant’s mitigation, in which he pleaded for leniency stating that he had young children who depended on him and that his youngest child was unwell. This court however would be failing in its duty if it did not avail children the protection of the law against those minded to prey on their innocence.

78. In the final analysis, I set aside the conviction for the offence of defilement and enter a conviction for the offence of attempted defilement. I also set aside the Sentence of 20 years Imprisonment and substitute therefor a Sentence of 10 years’ Imprisonment. This Sentence shall run from the first date of conviction and sentence.

79. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF JUNE, 2022. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr. Muriithi for the State, Mr. Koech holding brief for Mr. Koske for the Appellant and Kiprotich (Court Assistant).