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6. He therefore prays that the conviction be quashed and sentence set aside. In support of the appeal, the appellant also filed submissions on 21/2/2022. He submitted that the complainant stated that a stick was used to defile her; that the age of the complainant was not proved as different witnesses stated that she was a different age; that there is no evidence on record to prove that the complainant was coerced or threatened to engage in the illegal act; that the witnesses were coached because the evidence of PW3 who allegedly saw the actual act was contradicted by the complainant’s evidence as to what happened to her; that the prosecutor and his counsel agreed to change the date of the occurrence of the offence from 11/4/2020 to 10/4/2020, which amendment was done in order to fill the gaps in the prosecution evidence; that he was seventeen (17) years old at the time of trial and the trial court failed to consider that fact when sentencing him. 7. The appeal was opposed and Mr. Kimanthi,the prosecution counsel, filed his submissions dated 22/2/2022 on 23/2/2022. Counsel submitted that the complainant gave graphic details of what the appellant did to her; that PW2 confirmed knowing the appellant very well; that the said testimony was supported by the testimony of her father PW1 who recovered her soon after the act and took her to hospital; that the appellant was also well known to the appellant as a son to PW1’s brother; that PW3 confirmed that the appellant took away the complainant to the grandmothers house and left her playmates outside. He also related what happened thereafter; that PW4 who examined PW2 confirmed that she was defiled; that the court considered the appellant’s defence and found it to lack substance and rejected it; that the prosecution proved the three ingredients that constitute an offence of defilement; that the complainant was born on 6/8/2009 and was therefore ten (10) years eight months at the time of the offence; that the evidence of PW1, PW2 confirmed that penetration occurred and the perpetrator was identified as the appellant. 8. On sentence counsel submitted that instead of life sentence as provided under Section 8(2) of the Sexual Offences Act, the appellant was handed only twenty (20) years which was lenient. 9. This is a first appeal and it behoves this court to re-examine all the evidence tendered before the trial court, analyse and evaluate it before drawing its own independent conclusions. The court will have to make allowance for the fact that this court neither saw nor heard the witnesses testify. This court is guided by the decision of Okeno vs. Republic (1972) EA 32. 10. The prosecution called a total of five (5) witnesses in support of their case. PW1 PMK is the father of the complainant. She was born on 6/9/2009. PW1 identified the appellant as his nephew because he is a son to the brother. He recalled that on 10/4/2020, about 3:00 p.m he returned home to find PW2 lying outside, and she could not walk without help. Next day, he took PW2 to Migori Referral hospital where he was informed the child had been defiled and was admitted in hospital for a week. PW1 made a report to Mabera Police Station. He reported what Alex (PW3) told him that when they were playing outside, the appellant, D took PW2 to his grandmother’s house, stayed there for a while and when PW2 came out, she began to cry; that the appellant was then arrested at his home in [Particulars Withheld]; that the incident occurred when the appellant visited his grandmother. 11. PW2 EK a child of tender age, after undergoing a voire dire examination, gave an unsworn statement in which she stated that D, the appellant found her playing with K and A outside his grandmother’s house. He took her into the grandmother’s house, undressed her and that he applied saliva to his “miti yake” which is found between his legs which he inserted in her anus, that at that time, they were lying on the bed; that the appellant removed his trouser and was left with a short; that she felt pain and that the appellant released her and she went to the toilet, passed stool and A (PW3) took her home where she lay outside till her father came to take her into the house. PW2 told the court that she knew D the appellant very well. kenyalaw.org/caselaw/cases/view/233493/ 2

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12. PW3 AW a minor aged thirteen (13) years told the court that he knew D, the appellant, as his cousin as their fathers are brothers. He testified that while playing with PW2, W and R, the appellant came took PW2 to the grandmother’s house where he used to sleep; that he went peeped through the window of the grandmother’s house and saw PW2 bending and the appellant standing behind her and that PW2 was naked while the Appellant had removed his trouser, and that the appellant was thrusting his penis into PW2’s genitalia and had placed a blanket on PW2’s mouth; that he took PW2 home thereafter. 13. PW4, Peter Ochieng, a clinical officer at Bugumbe Health Centre treated PW2 and filled the P3 form and PRC form; that PW2 was aged ten (10) years. On examining PW2, he found a clean wound measuring 2 x1 cm at the 6th hour position of the anus but the vagina was normal. He formed the opinion that the anal wound was secondary to sodomy. According to PW4, he examined the complainant and filled the P3 form. On 16/4/2020, two (2) weeks after the incident. 14. PW5 PC James Njoroge is the investigating officer in this case. He interrogated the witnesses after the report was made at the police station, escorted the complainant to hospital with PC Maria. He arrested the suspect who was identified as Dickson, on 18/4/2020. 15. When called upon to defend himself, the appellant in his sworn testimony stated that the complainant is his aunt and that on 11/4/2020, he was with his father from 8:00 a.m. to 5:00p.m; that he had no house and slept in his grandmother’s house; that on the way home, he met the village elder who alleged that he had sodomized the complainant. He denied seeing the complainant on 11/4/2020. He that the witness had lied to the court and he believed that his father was in conflict with the complainant’s family over land issues; that his father had reported his cousin to the local parish about his sexual relationship with girls in the church and the cousin was stopped from conducting services and hence the frame up; that he had once beat Alex for calling him a blind person and that is why he has framed him. This being a charge of defilement, under Section 8 (1) of the Sexual Offences Act, the following ingredients must exist in order to establish the offence:- 16. 1) The victim must be a minor; 2) There must be penetration; 3) Proof of the identity of the perpetrator. PW1 produced the birth notification of PW2 (PEX No. 1). It indicates that PW2 was born on 4/8/2009. A birth notification is the document issued by the Ministry of Health at the time of birth of a child. It precedes the issuance of the birth certificate. Unless the contrary is shown, it is an authentic document and sufficient proof of a person is date of birth. As of 2020 when this incident allegedly occurred in April 2020, the complainant was ten (10) years old going to eleven (11) years. PW2’s age is not in doubt. Though the charge indicated that the complainant was seven (7) years instead of ten (10), that is not an error that does not to the root of the charge. Ten (10) years falls still under the bracket of the age group under Section 8 (2) which is relevant to sentencing, upon conviction. The complainant was a minor as of April, 2020. Proof of penetration 17. Penetration is defined under Section 2 of the Sexual Offences Act as: The partial or complete insertion of the genital organ of a person into the genital organ of another person.” kenyalaw.org/caselaw/cases/view/233493/ 3

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18. PW2 graphically explained what the appellant did to her after he undressed her. She stated “aliniweka mti wake kwa matako yangu”. He has a tree on his body. It is located between his legs; aliniweakea kwa matako pale pa kuendea choo” meaning he put a stick which is between his legs in her anus. She also demonstrated to the court actually where the said stick is situated. She said that she felt pain. Under Section 2 of the Sexual Offence Act, the anus is classified as a genital organ. PW3 (A) corroborated PW2’s testimony that they were playing outside the house when the appellant took the complainant into his grandmother’s house. PW3 purported to have peeped through the window and saw the complainant bent over and the appellant thrust his penis in her genitalia. He changed later and said that he saw the appellant lying on the complainant. From this contradictory narration of PW3, I doubt that PW3 saw anything. PW2 told the court that she told those she had been playing with who included PW3 what the appellant did to her. It seems PW3 lied, to colour his own account from what he had heard from PW2. 19. The unchallenged narration of PW2 was corroborated by the testimony of PW4 who examined her about six (6) days later on 16/4/2020. He found a tear to PW3’s anus i.e. 2 x 1cm tear. I am in agreement with the trial court’s reliance on the decision of Muganga Chilejo Saha vs. Republic (2017)eKLR where the court recognized the acceptance by the courts of victims of sexual offences use of euphemisms in describing the sexual organs or the sexual acts that occurred to them e.g. “he inserted his ‘dudu’ into my mapaja (Joses Kaburu vs. R, Meru HCCRA 106 of 2016) and “He pricked me with a thorn from the front part of his body (Samuel Mwangi Kinyati vs. Republic Nanyuki HCCRA 48 of 2015. In my considered view there was overwhelming evidence that penetration occurred. Identity of Perpetrator 20. The identity of the perpetrator is not in doubt. The accused is related to PW2. PW1 described the appellant as his grandson but later described him as his brother’s son which means that the appellant is a nephew to PW1 and therefore a cousin to PW2 and PW3. The offence took place during the daytime. The appellant was properly identified. 21. The appellant raised an alibi that he was at work with his father on 11/4/2020 from 8:00a.m to 5:00p.m and never left. He blamed his advocate and the prosecutor for changing dates on the charge sheet from 11th to 20th. I have perused the court record and I note that at no time did the prosecutor apply for amendment of the charge to change the date of the alleged offence from 11th to 10th April, 2020. However, PW1, PW2 and PW3 all testified about the incident occurring on 10/4/2020 but not 11/4/2020 and it was incumbent upon the prosecutor to cure that defect. 22. From the appellant’s submissions, he was aware that his counsel and prosecution had changed the date to 10/4/2020 and PW1, PW2 and PW3 testified to that date. He however, never made reference to that date in his defence. He talked of being at work on 11/4/2020 from 8:00a.m till 5:00 p.m He then alleged that he must have been framed due to land issues. 23. PW1 testified in court and no such allegation was put to him by the appellant. The appellant then alleged that he beat up PW3 for calling him blind and that is why he was framed. Again, PW3 testified in court and no such allegation was put him by the appellant. Lastly, the appellant stated that his father reported his cousin who is an alter boy, to the Parish about his sexual relationship with girls and that is why he was framed. Clearly, the appellant is shifty and the allegations are all an afterthought. I find that the trial court correctly rejected the alibi defence. I find that the prosecution proved beyond doubt that the offence of defilement was committed by the appellant. kenyalaw.org/caselaw/cases/view/233493/ 4

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24. As regards the difference on the date, in the charge, failure to amend it is not fatal to the charge as it is curable under Section 382 of the Criminal Procedure Code. The appellant was made aware of the date in the charge during the testimonies of the witnesses. He did not respond to them or challenge them. Whether the sentence was harsh and excessive. 25. On 24/4/2020, the court ordered for age assessment of the appellant. On 19/6/2020, the appellant told the court that he is seventeen (17) years old and his birth certificate was in school. On 10/4/2020, an age assessment report was presented to court indicating that the appellant was seventeen (17) years and therefore a minor. If a court is in doubt as to whether or not an accused person is an adult or not, the trial court must ensure that an age assessment is done before any proceedings are conducted so that the suspect’s rights are not violated in the event the suspect is a minor. Once the court determined that the suspect was seventeen (17) years, the court should have been on guard to ensure that the child’s rights are protected for example, that the case has to be heard in camera. By the time the court convicted the appellant, he was eighteen (18) years, still a minor. The court obtained a probation officer’s report to guide it in sentencing. The report was very favourable to the release of the appellant on probation. In sentencing, the court in such a case, should be guided by Section 191 of the Children’s Act in meting out the sentence. In my view, the court erred in sentencing the appellant to twenty (20) years imprisonment considering that he was a minor, a first offender with a very favourable probation officers report. Though it is true that the offence was committed against the complainant who was only ten (10) years is very grave and calls for a stiff sentence yet the appellant being a minor, was a child in need of guidance and counselling. With the above in mind, I hereby set aside the sentence and guided by the probation officers report on record, I hereby place the appellant on three (3) years probation DATED, SIGNED AND DELIVERED AT MIGORI THIS 5TH DAY OF MAY, 2022 R. WENDOH JUDGE Judgment delivered in the presence of Mr. Kimathi for the Respondent. Appellant in person. Nyauke* Court Assistant. kenyalaw.org/caselaw/cases/view/233493/ 5

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