IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO 525 OF 2013 (From original conviction and sentence in Murang’a CM Criminal Case No 5 of 2011 – J J Masiga, RM) JAMES MAINA KAMAU…………………………………….APPELLANT VERSUS REPUBLIC……………………………….………………......…RESPONDENT JUDGMENT 1. The Appellant in this appeal, James Maina Kamau, was convicted after trial of defilement of a child contrary to section 8(1) and (2) of the Sexual Offences Act, No 3 of 2006. It was alleged in the charge that on 08/05/2011 at about 18.00 hours at [particulars withheld] Village in Murang’a District of Central Province, he intentionally caused his penis to penetrate the vagina of one H N W, a child aged 8 years. On 05/11/2013 he received the mandatory life imprisonment for the offence. He appealed against both conviction and sentence. 2. I have examined the record of the trial court. The complainant (PW1) testified under oath after a voire dire examination. The trial court was satisfied that she understood the nature of the oath and the duty to tell the truth. 3. PW1 stated that she was 9 years old. There was no other proof of her age, documentary or otherwise. Her medical examination report (P3) produced in evidence merely gave her estimated age as 8 years. Her own mother, who apparently was available, never testified. She would probably have given acceptable evidence of the age of the complainant. A parent’s word no doubt could be sufficient evidence of a child’s age. An aunt of the complainant testified as PW2. She never stated the age of the complainant. 4. The offences under section 8 of the Sexual Offences Act are age–dependent. In other words, whether the offence of defilement (sub-section (1)) committed falls under sub-sections (2), (3) or (4) of that section will depend on the age of the complainant. The punishments for those offences are different: life imprisonment, minimum 20 years and minimum 15 years respectively. 5. The age of the complainant therefore is an ingredient of the offence of defilement that must be proved beyond reasonable doubt. See for instance the Court of Appeal case of Stephen Nguli Mulili (2014) eKLR. In this case there was no such proof of the complainant’s age. The conviction for defilement under section 8(1) and (2) of the Act therefore cannot stand. 6. However, there was ample evidence that the Appellant committed an indecent act with the complainant. Her testimony was that after he gave her bread and juice in his house where the two were alone, which she ate and drunk, he sat her on his lap. He then took out his penis and lifted up her dress. He removed her under-pants and started doing “bad manners” to her. He put his penis in her vagina. She
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told him she was feeling pain. He then put her down. 7. As already stated, the complainant testified under oath. She was not shaken in cross-examination. Her testimony was clear and straight-forward. It was eminently believable. 8. Apart from that there was the testimony of PW5 who found the complainant outside the Appellant’s house; the Appellant was standing at the door of the house. 9. There was also the medical evidence by PW4. The complainant was examined the day following the assault. She was found to have a freshly perforated hymen. 10. If it were not for the lack of proper proof of the complainant’s age, the Appellant’s conviction under section 8(1) and (2) of the Act would have been safe and unassailable. 11. Under section 179(2) of the Criminal Procedure Code, Cap. 75, 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. 12. I am satisfied that the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act was proved against the Appellant beyond reasonable doubt. That offence is minor but cognate to the offences of defilement under section 8 of the Act. 13. I will therefore set aside the Appellant’s conviction for defilement under section 8(1) and (2) of the Act and substitute therefor a conviction for indecent act with a child contrary to section 11(1) of the Act. 14. As for the sentence, the minimum provided for the offence is ten (10) years imprisonment. But in the present case the Appellant clearly deserves more, considering the complainant’s apparent tender age and the circumstances of the case. I hereby sentence him to twelve (12) years imprisonment, effective from the date of his sentencing by the trial court, that is, 05/11/2013. 15. To that limited extent only does the Appellant’s appeal succeed; it is otherwise dismissed. It is so ordered. DATED AND SIGNED AT MURANG’A THIS 2ND DAY OF NOVEMBER 2017 H P G WAWERU JUDGE DELIVERED AT MURANG’A THIS 3RD DAY OF NOVEMBER 2017
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