[2022] KEHC 14088 (KLR)

Wakuha v Republic (Criminal Appeal 39 of 2020) [2022] KEHC 14088 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14088 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 39 of 2020

DK Kemei, J

October 13, 2022

Between

Chrisostom Laisa Wakuha

Appellant

and

Republic

Respondent

Judgment

1. The Appellant, Chrisostom Laisa Wakuha, was charged before the Senior Principal Magistrate’s Court at Kimilili in Sexual Offences Case No 61 of 2018 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No 3 of 2006. The particulars were that the Appellant, on an unknown day of June 2018 while at [particulars withheld] in Bungoma County North District within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of RNK, a child aged Fourteen (14) years.

2. The Appellant also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars were that the Appellant, on an unknown day of June 2018 while at [particulars withheld] in Bungoma County North District within Bungoma County, intentionally and unlawfully caused his penis to come into contact with the vagina of RNK, a child aged Fourteen (14) years.

3. In his judgement, the learned trial magistrate found that the Appellant committed the offence with which he was charged in the main charge. The learned trial magistrate found that the evidence was overwhelming against the Appellant and therefore proceeded to convict him on the main charge and sentenced him to serve Twenty (20) years of imprisonment.

4. Being dissatisfied with the conviction and sentence, the Appellant has lodged the instant appeal based on the following amended grounds:i.That the pundit trial magistrate failed to inform him of his right to representation by an advocate.ii.That the trial proceedings were unconstitutional as he was not given an opportunity to prepare for his defence contravening Article 50(2) of the Constitution of Kenya, 2010. iii.That at the time of apprehension he was not informed promptly in the language that he understood of the true ground of arrest as per Article 49(1) (a) (i) of the Constitution of Kenya, 2010. iv.That the trial magistrate awarded him a mandatory sentence of 20 years’ imprisonment hence excessive, harsh in the nature that it denied the magistrate’s discretion to award less or an appropriate sentence.v.That the trial magistrate failed to consider section 333(2) CAP 75 Laws of Kenya to factor the period spent in custody from the sentence awarded.vi.That the age of the victim was inconsistent occasioning reasonable doubt.vii.That he was convicted based on the missing hymen notwithstanding that such hymen may miss by girls of 14 years through vigorous physical excessive exercises.viii.That the evidence tendered was meagre, distorted and the weakest kind to support a conviction as penetration was not proved beyond reasonable doubt as most of the evidence was hearsay evidence.ix.That the investigation was too poor, shoddy and paradoxical and a hotchpotch of prevarication of a made-up case made out of a grudge by PW3 against him.x.That there occurred material contradictions and consistencies in the evidence tendered by the prosecution witnesses weakening and destroying the inference of his guilt.xi.That the prosecution failed to summon vital witnesses to testify yet they were known.xii.That the trial magistrate failed to exhaustively evaluate his cogent sworn defence that was not challenged by the prosecution in compliance with section 212 of the CPC to call for evidence of rebuttal which prejudiced him.

5. The lower court record reveals that the prosecution called five (5) witnesses in support of its case.

6. After a comprehensive voire dire examination, the trial court formed the view that the complainant understood the importance of telling the truth and the dire consequences to be meted out for speaking lies. It further observed that the complainant’s level of comprehension was well advanced to understand the implications of oath-taking and was therefore capable of giving sworn evidence.

7. According to the complainant, RNK, (Pw1) in the month of June, 2018 at an unknown date while chopping firewood, the Appellant passed by her home beckoning her while he was standing at the road adjacent to her home. She proceeded to where he was standing and that the Appellant asked her to accompany him to some abandoned house to which she refused and went back to her home. After a few days, the Appellant came back to her home and found her removing clothes from a clothesline. She was then home alone. The Appellant followed her inside the house, held her hands tightly and started to undress her. He removed his trousers and proceeded to sleep on top of her on her bed. She told the court that the Appellant “Alinifanyia tabia mbaya.” “Alichukua makende yake penye anatumia kukojolea akaweka kwa sehemu yangu ya kukojolea.” She did not raise any alarm since the neighbours were not around but she spotted a boy named Philip a neighbour where she resides peeping through the window. The Appellant left thereafter and she remained indoors. She further recalled on 6th September 2018 while cutting grass on the maize farm the Appellant came up to her, held her hands and asked her to accompany him to his home but she declined and he told her that he receives Kshs 9,000/= and would go with her to Kakamega to which she did not responded. He left her cutting the grass. Her uncle enquired from her about the Appellant and the trip to Kakamega and she told him that it was the Appellant’s suggestion. Her uncle summoned the Appellant who denied everything and her uncle summoned the chief. The matter was reported at the police station and she was rushed to the hospital. On cross-exanimation, she told the court that the Appellant defiled her in the month of June and that she did not take any action as she feared being beaten by her uncle.

8. The prosecution sought leave to amend the particulars of the charge sheet to reflect the unknown day of June 2018 in both main and alternative charges. The substance of the charge was read to the Appellant afresh and he pleaded not guilty.

9. The court proceeded to inquire if the Appellant wished to recall PW1 in light of the amendments to which he agreed.

10. On recall, PW1 told the court that the Appellant found her in the maize farm as she was cutting grass and held her hands.

11. PW2, SN, testified that PW1 was her daughter. She recalled on 7th September 2018 she received a call from her aunt informing her that her child was in trouble. She immediately rushed to her aunt’s house where she found PW1. On inquiry, PW1 informed her that while cutting grass in the maize farm the Appellant emerged and started dragging her asking her to accompany him to his house and that on another day, she was away in Kitale for a funeral when the Appellant approached PW1 asking her to sleep with him but she declined. He returned on a later date and found her home alone and proceeded to defile her. On cross-examination, she told court that she recognized the Appellant as he was married to her brother’s daughter. On cross-examination by court, she testified that PW1 was born on 6th September 2005 and produced her baptismal card.

12. PW3, TWM, testified that the complainant was his niece and that PW2 was his sister. He recalled that on 6th September 2018 while at home he heard noises that sounded like people fighting. He quickly rushed to the source of the noise, which was the Appellant’s home. He found the Appellant’s wife and the Appellant engaged in a physical fight. He was able to separate them and inquired as to the cause of the fight whereupon the Appellant’s wife informed him that the Appellant had attacked her when she inquired as to what exactly he was doing at the home of the complainant. He left the duo and quickly rushed to the village elder where he made a report regarding the recent information he had stumbled upon and proceeded home and interrogated PW1 who confided in him that the Appellant had accosted her while at the maize farm cutting grass, and held her hands and started dragging her. Pw1 also informed him that the Appellant had also defiled her in the month of June at their house when PW2 had travelled for a funeral. He later escorted PW1 to the police station to make a formal complaint and to the hospital later on. On cross-examination, he stated that he did not witness the incident.

13. PW4, Simon Simiyu Bwabi, testified that he was a clinical officer attached at Makutano Heath Centre in Brigadier area. He stated that PW1 was brought to the facility by PW2 with a history of defilement. On examination, he observed that her hymen was broken, the pregnancy and VDRL tests were negative and both labias were normal. She had a normal white discharge. He filled her P3 form which he produced as Pexhibit 3 and the treatment book as Pexhibit 2. On cross-examination, he observed that PW1’s hymen was missing and concluded that she was defiled.

14. PW5, No 10xxx PC Rebecca Nunu, testified that she is attached at Brigadier Police Patrol base. She recalled on 7th September 2018 while at the patrol base she received PW1 in the company of PW2 and PW3 who came to make a report of defilement. PW2 and PW3 informed her that PW1 and the Appellant were found in a maize plantation and she quickly booked the complaint. On PW1‘s interrogation, she noted that in the month of June 2018 at an unknown date the Appellant approached her and asked her to have sex with him but she declined and that a few days later he came to her house while she was home alone and was outside hanging her clothes and asked her to accompany him to his house. She refused and he followed her into her house where he raped her. She recorded statements and proceeded to charge the Appellant. On cross-examination, she stated that she did not witness the incident but that the complainant informed her that the appellant had cautioned her not to tell anyone about the incident.

15. At the close of the prosecution’s case, the Appellant was found to have a case to answer and was thus placed on his defence whereupon he gave a sworn testimony and called no witnesses. He told the court that on 7th September 2018 while at his home relaxing, PW3 emerged and found his wife outside the house asking about his whereabouts. Immediately his wife informed him that PW3 was looking for him he rushed to his house. He stated that he had earlier on differed with PW3. On arriving at the house of PW3 he found him with three other gentlemen who informed him that the dispute between them could not end like that and they escorted him to the police station. At the station, he was not informed of the reasons for his arrest and later learned that he had defiled PW1 as they read out the charge sheet. On cross-examination, he stated that he only came to know the complainant in court. He also stated that he had differed with the complainant’s uncle Pw3) over some Kshs 200/ at a changaa den. He finally claimed that he didn’t know if the complainant was mentally upright.

16. The Appeal was canvassed by way of written submissions. Both parties have filed and exchanged their submissions.

17. I have carefully considered the lower court record and the rival submissions by the parties. The only issue which arises for determination is whether the prosecution proved his case beyond a reasonable doubt.

18. The question the court must answer is whether these errors in the charge sheet, if any, entitle the Appellant to an acquittal. Differently put, are these errors merely technical and capable of being cured or did they occasion a miscarriage of justice?

19. The answer to this question must begin with section 382 of the Criminal Procedure Code. In material part, it provides that:…. no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any injury or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.

20. The proviso to section 382 provides that in determining whether the error, omission or irregularity has occasioned a failure of justice the Court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

21. The starting point for this analysis is our case law. Two cases are pertinent: the case of Yosefa v Uganda [1969] E.A. 236 a decision of the Court of Appeal and a High Court decision by Justice Kimaru. Both hold that a charge sheet is fatally defective if it does not allege an essential ingredient of the offence where it was held:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence.”

22. Hence, the test for whether a charge sheet is fatally defective is a substantive one: was the Appellant charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him? In this case, the Appellant was charged under section 8(1) as read with Section 8(2) of the Sexual Offences Act instead of section 8(1) as read with Section 8(3) of the Sexual Offences Act. Did this prejudice the Appellant? To answer that question, one needs to ask if it can be reasonably said that the accused person understood the charges facing them including the specific ingredients of the offence charged so that he can properly direct his defences.

23. One approach to determining whether an otherwise defective charge should be immunized under section 382 of the Criminal Procedure Code is to use a cumulative sliding scale. The aim is to establish if the trial process could have been said to be fair to the accused person. If the charge sheet has a technical defect but all the other procedures are meticulously followed and the other substantive rights of the accused person are evidently respected in the trial process, it will be easier for a court to fairly immunize the technical defect in the charge sheet especially if it is clear that the accused person understood what was facing him and his participation in the trial process vindicates that position. On the other hand, if a defect in the charge is followed by a series of other procedural or substantive mishaps or miscues in the trial process which all affect the rights of the accused person, in my view, the Court should be reluctant to utilize section 382 to cure the charge sheet even if each of the defects in the trial process could, standing on its own, be cured or treated as harmless error.

24. Applying this approach to the facts of the present case, the question then, is whether this contributed to a miscarriage of justice. I think it did not. My analysis of the trial court indicating that the judgement was premised on the proper proviso of law. In any event, this court will get an opportunity to look at the record afresh and determine if, absent the error, a court of law properly seized of the law and facts could have concluded that the Appellant was guilty as the learned magistrate did.

25. With respect to Article 50(2)(c) and Article 49(1) (a) (i), the trial Court record before me indicates that there was substantial compliance with respective articles of the Constitution and the mere mention of contravention does not suffice before this court. The Appellant has not adduced any probable evidence to show that the same were contravened.

26. This being a first appellate court and as is expected, is obliged to analyse and evaluate afresh all the evidence adduced before the trial court and draw its conclusions while bearing in mind that it neither saw nor heard any of the witnesses. (See Okeno v Republic [1972] EA 32) where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] E.A 424. ”

27. Similarly, in Kiilu & another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:“1)An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2)It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”

28. Section 8 of the Sexual Offences Act provides as follows:8. (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if –it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to the such child within the prohibited degrees of blood or affinity.

29. This being a case of defilement, what was to be proved are the ingredients of the offence of defilement and in the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of an offence of defilement are; identification or recognition of the offender, penetration and the age of the victim.

30. It is now trite that for the appellant to be convicted of the offence of defilement, certain ingredients must be proved. The first is; whether there was the penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. (See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No 72 of 2013), where it was stated that:“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.”

32. The key evidence relied on by the courts in rape cases and defilement to prove penetration is the complainant’s testimony which is usually corroborated by the medical report presented by the medical officer. In this case, since the complainant was a minor, the evidence of the victim’s mother or guardian and the clinical officer are key to corroborating such testimonies. I have critically analyzed the evidence of the clinical officer (PW4) who testified herein. The evidence of the clinical officer seemed to have corroborated the evidence of PW1.

33. In the case of Hilary Nyongesa v Republic Eldoret Criminal Appeal, No 123 of 2009 the Court stated that:“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved….And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”

34. In the case of Kaingu Elias Kasomo v R Malindi Cr. App. No 504 of 2010 the Court of Appeal stated that:-“the age of the minor is an element of a charge of defilement which ought to be proved by medical evidence………. Documents such as baptism cards, school leaving certificates in my view would also be useful in this regard. Since the passage of the Sexual Offences Act, the practice has been that age assessment of defilement victims is carried out by dentists. The said assessments while useful and in defilement cases is just that. In this case the minor appeared before a qualified medical officer who estimated her age to be 15 years old, the same age given by the minor and her mother. The trial court heard the minor's evidence and saw her. The court was convinced that she spoke the truth.”

35. In Musyoki Mwakavi v Republic Machakos High Court Criminal Appeal No 172 of 2012, the court was of the view that:-“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”.

36. In the case of Edwin Nyambaso Onsongo v Republic (2016) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe v Republic, Mombasa Criminal Appeal No24 of 2015 (UR) the Court of Appeal held that: -“… 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.

37. It is also worth noting that Rule 4 of the Sexual Offences Rules of Court Rules recognizes that:“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."

38. I subscribe to this school of thought. This is informed by the fact that in some rural areas and informal settlements in urban areas the importance of birth certificates has not been appreciated and insistence on the same may result in untold injustice. In the instance case PW2 testified that she had the baptismal card for PW1 and was to apply for her birth certificate and on cross-examination, by the court, her evidence was that PW1 was born on 6th September 2005. On the analysis of the court record, the magistrate relied on the evidence of PW4 and that the P3 form he filled as he examined PW1 indicated she was 14 years old. This was not conclusive proof of age as he never conducted an age assessment and the evidence of PW2 was sufficient as she was the mother of the complainant. This means at the time of the ordeal the complainant was 13 years old.

39. On the element of penetration, it was the evidence of PW1 that on unknown date in June 2018 the Appellant defiled her. She told the Court that in the month of June, 2018 at an unknown date while chopping firewood the Appellant passed by her home beckoning her, he was standing at the road adjacent to her home. She proceeded to where he was standing and the Appellant asked her to accompany him to some abandoned house to which she refused and went back to her home. After a few days, the Appellant came back to her home and found her at the clothesline. She was home alone. The Appellant followed her inside the house, held her hands tightly and started to undress her. He removed his trousers and proceeded to sleep on top of her on her bed. She told the court that the Appellant “Alinifanyia tabia mbaya.” “Alichukua makende yake penye anatumia kukojolea akaweka kwa sehemu yangu ya kukojolea.” She did not raise any alarm since the neighbours were not around but she spotted a boy named Philip a neighbour peeping through the window. The Appellant left thereafter and she remained indoors. She further recalled that on 6th September 2018 while cutting grass on the maize farm the Appellant came up to her, held her hands and asked him to accompany him to his home but she decline and he informed her that he receives Kshs 9,000/= and would go with her to Kakamega to which she did not respond. He left her cutting the grass. Her uncle enquired from her about the Appellant and the trip to Kakamega and he told him that it was the Appellant’s suggestion. Her uncle summoned the Appellant who denied everything and her uncle then summoned the chief. The matter was reported at the police station and she was rushed to the hospital. On cross-exanimation, she told the court that the Appellant defiled her in the month of June and that she did not take any action as she feared being beaten by her uncle.

40. On examination of the complainant, PW4 observed that her hymen was broken, the pregnancy and VDRL tests were negative and both labias were normal. She had a normal white discharge. He filled her P3 form which he produced as Pexhibit 3 and the treatment book as Pexhibit 2. On cross-examination, he observed that PW1’s hymen was missing and concluded that she was defiled.

41. The Appellant in his defence denied having defiled the minor.

42. Section 2 of the Sexual Offences Act provides that: -“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;

43. In George Owiti Raya v Republic [2013] eKLR it was held that: -“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul-smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.”

44. In the case of Erick Onyango Ondeng v Republic (2014) eKLR the Court of Appeal held as follows on the aspect of penetration:“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."

45. In his Judgment in the present case, the trial court held that“……As regards the act of penetration, PW1 told the Court that the accused stripped her and that he also removed his long trousers and lay on top of her on the bed and inserted his penis in the vagina. The testimony of PW1 was corroborated by the medical evidence of PW4 the clinical officer who examined the complainant and noted that her hymen was missing. He further stated during cross-examination that he arrived at the conclusion that the missing hymen was as a result of defilement. Furthermore, there was no evidence adduced by the accused to controvert that the missing hymen was a result of an act of defilement……..”

46. PW4 the clinical officer testified that there were no bruises on both labias and that the complainant had a normal vaginal discharge and hymen was broken, the pregnancy and VDRL tests were negative. The clinical officer formed the opinion that the minor had been defiled.

47. In John Mutua Munyoki v Republic [2017] eKLR, the Court of Appeal in this regard held that:“Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt…The clinical officer was categorical that he was not in a position to ascertain the act of defilement after examining the complainant. He testified that he conducted vaginal examination and found no tears, no bruises, no hymen and no discharge. In addition, there were no spermatozoa and yeast cells or fungal cells. The complainant had also confirmed to him that she had previously engaged in sexual intercourse and was therefore not a virgin. Accordingly, the lack of hymen could not be attributed to the alleged incident involving the appellant. In a nutshell, there was no evidence of penetration. Faced with similar situation, this Court in the case of Arthur Mshila Manga (supra) observed while allowing the appeal that:‘But did the medical evidence on record establish that JM was defiled? We do not think so. It is apposite to produce verbatim the findings of Jenliza after examining JM, as narrated before the trial court by PW3. No blood stain was seen on clothes. On the head, abdomen and thorax nothing was seen. On the genitalia the hymen was absent and the vagina was open. No discharge was seen. No injuries on the legs or hands. Pregnancy and HIV tests were negative. The urine was negative. HIV test was to be done after three months. I wish to produce the PW3 form as PEXI.’The Court proceeded and stated that:‘From both the evidence of PW3 as well as the P3 form, which we have carefully perused, other than noting absence of hymen and consequently an open vagina, Jenliza never expressed any opinion that the JM had been defiled, or defiled the previous day. There was nothing on record to suggest that JM had lost her hymen the day before Jenliza examined her. The medical evidence having failed to confirm that JM was defiled, the only other evidence of defilement was that of JM. It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed v Republic (2008) KLR G & F, 1175 and Jacob Odhiambo Omuombo v Republic (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.’As we shall endeavour to demonstrate later in this judgment, much as the trial Court believed the testimony of the Complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the Complainant was actually defiled by the Appellant since there was no credible evidence as to the penetration of the Complainant. It is trite that those doubts should have been resolved in favour of the appellant.”

48. The key evidence relied by the courts in rape cases and defilement in order to prove penetration is the complainant’s own testimony which is usually corroborated by the medical report presented by the medical officer. In this case, since the complainant was a minor, the evidence of the clinical officer is key so as to corroborating such testimonies. I have critically analyzed the evidence of PW4, the clinical officer who testified herein and note that the issue of the defilement of the complainant was established save only that the said examination was conducted three months after the alleged incident.

49. From the referenced above authorities, it is clear that the examination of the complainant was done approximately three months after the incident. The sum effect of the above evidence is that it raises doubt as to whether there was actual or partial penetration. It is clear from the P3 form that the hymen was missing. It will be the evidence of the complainant to be subjected to the test so as to establish if indeed the incident took place.

50. According to the trial court’s judgement, PW1 was a sole eye witness and the victim of the sexual assault. The trial magistrates further held that he has warned himself of the danger of relying on the uncorroborated evidence of the complainant. He relied on the case of Kassim Ali v Republic CR. Appeal no. 84/05, where the Court of Appeal held that the fact of rape can be proved by the oral evidence of a victim of rape or by her circumstantial evidence. He further relied on the case of Martin Nyongesa Wanyonyi v Republic Criminal Appeal No 661 of 2010 where the Court of Appeal in tandem with the decision in Geoffrey Kinonji v Republic in CR. Appeal No 270/2010 held that the Court of Appeal found no reason why the same principles should not be applied in the case of defilement. The trial magistrate in this case found PW1’s evidence was sufficiently corroborated by circumstantial evidence placing further reliance on section 124 of the Evidence Act. The court noted that during PW1’s testimony it noted that she was not accurate with dates but she was very coherent with the sequence of the events that made the court to believe that she was telling the truth and that the treatment notes and P3 forms were consistent with the evidence adduced by the prosecution.

51. The trial court’s key determination was that the child was telling the truth, with reference to section 124 of the Evidence Act. Section 124 of the Evidence Act is on the following terms:“124. Corroboration required in criminal casesNotwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

52. As noted in The Kenya Judiciary Criminal Procedure Bench book, ibid at paragraph 95 the exception to requirement for corroboration is circumscribed as follows:“95. However, in cases involving sexual offences, if the victim's evidence is the only evidence available, the court can convict on the basis of that evidence provided that the court is satisfied that the victim is truthful (s. 124, Evidence Act). The reasons for the court's satisfaction must be recorded in the proceedings (lsaac Nyoro Kimita v R Court of Appeal at Nairobi Criminal Appeal No 187 of2009; Julius Kiunga M'birithia v R High Court at Meru Criminal Appeal No 111 of 2011).”

53. There are reasons within the meaning of the Proviso to section 124 of the Evidence Act for this court to believe that the complainant was telling the truth in view of her being the sole eye witness to the grotesque ordeal. The section is an exception to the rule for corroboration to evidence of children which is based undoubtedly on the good sense and principle of best interests of the child and the usual occurrence of sexual offences in circumstances where there may be no witness other than the victim, but which must in the interest of fair trial of accused persons be used sparingly and only where the circumstances fit the situation contemplated in the law that there is no other evidence available but a sexual offence crime should not go unpunished for lack of corroboration of the victim’s sole evidence. It is a cardinal principle of the law on corroboration that evidence which itself requires corroboration cannot corroborate other evidence. I find that the exceptional provision of section 124 of the Evidence Act was properly invoked in this case.

54. On the element of identification, PW1 stated that the Appellant approached her at an unknown date in the month of June 2018 proposing they have sex and she refused, it was her evidence again, that he came to her compound while she was unhanging clothes and followed her into her house and defiled her. He later sought her out while she was cutting grass at their maize farm and proposed that they elope to Kakamega together. These actions took quite some days and it was enough time for PW1 to identify the Appellant positively and even recognize him. On my analysis of the evidence in the trial court records, there is no substantive defence fronted by the Appellant to controvert the evidence of the prosecution witnesses. It also transpired that there had not been any differences between the appellant and the complainant to suggest any possibility of a frame up. The alleged differences between the appellant and the uncle to the complainant are not convincing in view of the fact that it is highly unlikely for the complainant’s uncle to use his niece as a victim of defilement so as to settle scores or differences with the appellant. Iam satisfied that the complainant spoke the truth about the appellant’s conduct in seducing her and subsequently defiling her. To that extent, I find that the conviction arrived at by the trial court was quite sound and I see no reason to interfere with it.1. The Appellant raised the issue of the burden of proof. It is trite law that the burden of proof in criminal cases never shifts. I find that the prosecution discharged the burden of proof. The Court of Appeal in the case of Stephene Nguli Mulili v Republic (2014) eKLR stated:“On the issue of whether the prosecution discharged its burden of proof, it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case……………In reference to this Lord Denning in Miller v Ministry of Pensions [1947] 2 ALL ER 372 stated:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

55. In my view there can be no doubt in this case that the prosecution has discharged its burden of proof.

56. The Appellant’s ground that the trial magistrate considered the contradictory evidence without any specification is nothing but mere allegations. It is important to reiterate that his conviction was solely based on the evidence adduced by the complainant. The complainant had no ulterior motive in framing him up. The truth of the matter is that the appellant and the complainant had been having a secret love affair which was exposed. The appellant knew better that the complainant was a minor and had no capacity to consent to sexual intercourse and hence the charges were properly laid against him. Thus, I have no doubt as to whether the child was telling the truth on what had transpired. She was categorical that she was defiled by the Appellant, a person she knew and even identified in the dock.

57. The above findings, lead me to the conclusion that the conviction arrived at by the trial court was sound and I see no reason to interfere with it.

58. Regarding sentence, it is noted that the Appellant was sentenced to serve twenty years’ imprisonment. Under section 8(3) of the Sexual Offences Act, a person found guilty of defiling a child aged eleven years or less shall upon conviction be sentenced to serve Twenty (20) years imprisonment. The complainant herein was found to be aged fourteen years old and hence the sentence imposed fell within the prescribed age bracket.

59. In Wanjema v Republic [1971] EA 493, the predecessor of this court stated that: -“[The] Appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

60. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Sexual Offences Act. It is observed as follows: -“We hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter the commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”

61. Prior to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR, the courts construed mandatory sentences literally, just like the trial court herein.

62. However, as the Supreme Court held the mandatory nature of prescribed sentences for the offence of murder, was unconstitutional because it took away the court’s discretion to be able to determine such sentence as may be informed by the particular circumstances of the case before it.

63. I am alive to the fact that the Supreme Court did issue directions after its judgment in the “Muruatetu Case”, clarifying that that decision was only about murder cases.

64. However, I hold the considered view that if the mandatory nature of the death penalty was declared unconstitutional, similar reasoning can extend to mandatory sentences such as those in Section 8 of the Sexual Offences Act.

65. In the Court of Appeal of Nyeri Appeal No 84 of 2015 Joshua Gichuki Mwangi v Republic, the appellate Court placing reliance on the respective decisions of Odunga J (as he was then) in Philip Mueke Maingi & 5 others v Director of Public Prosecutions & the Attorney General and that of Mativo J (as he was then) in High Court Constitutional & Judicial Review Division Petition No 97 of 2021 was aware of the fact that certain accused persons are clearly deserving of no less than the minimum sentences set forth in the Sexual Offences Act owing to the heinousness of the offences committed and they will continue to be appropriately punished as was pronounced in Athanus Lijodi v Republic [2021] eKLR;“On the issue of sentence, we reiterate that the life sentence imposed by the trial magistrate and affirmed by the High Court is not unconstitutional and can still be meted out in deserving cases Muruatetu’s case (supra) notwithstanding. This Court has on many occasions invoked the Muruatetu decision to reduce sentences that were hitherto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi v Republic [2019] eKLR). Having said that however, we must hasten to add that this Court will uphold a sentence prescribed by the Sexual Offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited.”

66. The Appellate Court further held that: -“On the other hand, there are definitely others deserving of leniency and this is the leeway we are asserting that ought to be at the disposal of courts. A good example is in the holding of this Court in Korir v Republic (Criminal Appeal 100 of 2019 [2021] KECA 305 (KLR) while reducing the appellant’s sentence to the period already served. It reasoned;“The appellant has contended that he was a first offender and a young man whose life is greatly affected by the imprisonment and that while in prison he had taken full advantage of the rehabilitative programmes offered in the correctional facility. It is also not lost on this Court that the appellant has been in custody since February 2015, a period of slightly over 6 years to date. We also note that the appellant had serious intentions of marrying G.C, a girl aged 15 years. However, the law does not allow for the marriage of girls below the age of 18 years. In our considered opinion and in view of the above, these factors coupled with the facts in this case mitigate for leniency. The appellant had the intention of marrying PW1. He took her to his grandparents’ place and left her to stay there. In applying the Muruatetu decision (supra) that removed the bar to discretion posed by minimum sentences, and considering that the appellant has been in custody for slightly over 6 years, we consider the period that he has served to be sufficient sentence in the circumstances of this case.”

67. The Seychelles Court of Appeal in Poonoo v Attorney-General SCA 38 of 2010) [2011] SCCA 30 (09 December 2011); Media neutral citation [2011] SCCA 30 addressing mandatory sentences referred to the textbook, Sentencing Law and Practice35 in which the author aptly stated: -“It has been said that while legislatures understand offences, courts understand offenders. No statute or guideline system, no matter how finely tuned, can cater in advance for the unique circumstances of every offender who will come before the courts for sentence.”

68. The court in the above-cited case proceeded to state that: -“sentencing involves a judicial duty to individualize the sentence tuned to the circumstances of the offender as a just sentence. It cannot be likened to the mere administration of a common formula or standard or remedy.”

69. It again quoted from Thomas O'Malley thus: -“The proper exercise of discretion required attention to established guiding principles. In a sentencing context, the objective must be to achieve a viable mix of consistency and individualization.”

70. From the foregoing analysis, I am unable to see any distinction between the mandatory nature of the sentence for the offence of murder and the mandatory minimum sentence for the offence of defilement. In my view, what renders the sentence unconstitutional is the fact that the prescribed sentence completely precludes the court from exercising any discretion, regardless of whether or not the circumstances so require it.

71. I now proceed to give due consideration to the mitigation, pre-sentence report and the circumstances in which the offence was committed. The trial court called for a pre-sentence report on the appellant. The same was availed and it is dated 13/2/2020 and whose summary is that the victim came from a dysfunctional family and who later came to live with her uncle and aunt who were changaa brewers in the area and that the victim used to be engaged in selling the changaa to several patrons who included the appellant herein. The report also indicates that the appellant had left his marriage and started an extra marital affair with an aunt of the complainant. The appellant duly gave his mitigation which was duly considered by the trial court. It is noted that he took advantage of the complainant’s naivety due to her age when he was expected to be her protector. He requires a custodial rehabilitation before being released back to the community. As The age of the complainant was stated by her mother to be 14 years old and which fits in the age bracket of 12-15 years so as to attract the minimum sentence of twenty years imposed under section 8(3) of the Sexual Offences Act. However, it is noted that no birth certificate or age assessment was availed by the prosecution and hence there is a likelihood of uncertainty as regards the exact age of the complainant. Iam of the considered view that the sentence of twenty years’ imprisonment is on the higher side due to the uncertainty of the age of the complainant. Iam persuaded to interfere with the said sentence and substitute it with a sentence of fifteen years.

72. In the result, it is my finding that the appeal on conviction lacks merit and is dismissed. The appeal on sentence succeeds to the extent that the sentence of twenty years imprisonment is substituted with a sentence of fifteen years imprisonment which shall commence from the date of arrest namely 7th September, 2018. It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF OCTOBER, 2022. D. KEMEIJUDGEIn the presence of:Chrisostim Lane Wakuha AppellantMukangu for RespondentKizito Court Assistant