[2019] KEHC 8135 (KLR)
The court found that the evidence of the complainant (PW 1) was clear, consistent, and unshaken in cross-examination regarding the act of penetration by the appellant. The complainant's age was confirmed by an age assessment report, establishing that she was 15 years old at the time of the offence. The court held...
Source-derived case information.
- Citation
- [2019] KEHC 8135 (KLR)
- Parties
- Appellant: Victor Wako; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 117 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DAS Majanja
- Legal Topics
- Defilement, Sexual Offences Act, Penetration Definition, Child Victims, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Wako
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of defilement beyond reasonable doubt.
- 2 Whether the conviction and sentence were proper in law.
Ratio Decidendi
The court found that the evidence of the complainant (PW 1) was clear, consistent, and unshaken in cross-examination regarding the act of penetration by the appellant. The complainant's age was confirmed by an age assessment report, establishing that she was 15 years old at the time of the offence. The court held that the prosecution had proved all elements of the offence of defilement beyond reasonable doubt. The appellant's denial was not sufficient to displace the prosecution's case. Consequently, the conviction and the mandatory minimum sentence of 15 years' imprisonment were affirmed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of 15 years' imprisonment are affirmed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CORAM: D.S MAJANJA J.
CRIMINAL APPEAL NO. 117 OF 2018
BETWEEN
VICTOR WAKO ........APPELLANT
AND
REPUBLIC .............RESPONDENT
(Appeal from the original conviction and sentence of Hon. R.M Oanda – PM dated 12th November 2018 at the Principal Magistrate’s Court at Kilgoris in Criminal (Sexual Offences) Case No.16 of 2018)
JUDGMENT
1. The appellant, VICTOR WAKO, was charged with the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act (“the Act”). The particulars of the offence were that in the month of January 2018 in Transmara West District of Narok County within Narok County, he unlawfully caused his penis to penetrate the vagina of RSS, a child aged 15 years. He was convicted and sentenced to serve 15 years’ imprisonment.
2. The appellant now appeals against conviction and sentence and the thrust of his appeal as I understand from reading his petition of appeal and written submissions is that the prosecution did not prove every element of the offence.
3. In order prove defilement, the prosecution must show that the accused did an act that amounted to penetration of a child. “Penetration” under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
4. I have analysed the evidence as required by the first appellate court and having done so I am constrained to dismiss this appeal for the reason that PW 1 stated that she was subjected to an act of penetration in January 2018 but she did not tell her mother. He description of what the appellant did to her was clear and concise and was not shaken in cross-examination. She knew the appellant as he was employed by her mother, PW 2, at least a year prior to the incident.
5. In April 2018, PW 1 found the accused quarrelling with the child and it is at this point that the child told her that she was pregnant and disclosed that he had been sexually assaulted by the appellant. When she was taken to the hospital on 18th January 2018, she was found to be pregnant. The appellant denied that he committed the act of penetration.
6. That PW 1 was aged 15 years old was confirmed by the age assessment report. Since the child was 15 years old, the mandatory minimum sentence that was imposed is affirmed.
7. The appeal is dismissed.
Dated and delivered at Kisii this 30thday of April 2019.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.