REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO CRIMINAL APPEAL NO.E001 OF 2021 COSMAS CHERUIYOT..........................................................................................APPELLANT VERSUS REPUBLIC............................................................................................................RESPONDENT (Being an appeal from the conviction and sentence of Hon. S. M. Mokua (CM) in Kericho CM CR. Case No.9 of 2018 delivered on 24/4/2020) JUDGMENT 1. The Appellant in this case, COSMAS CHERUIYOT KOSGEY (hereafter referred to as the Appellant) was sentenced to 12 years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(3) of the SOA No.3 of 2006. 2. The particulars of the charge were that on 18/2/2018 at [Particulars Withheld] village within Kericho County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of MCR, a child aged 15 years. 3. A summary of the prosecution evidence was as follows; On the 18th of February, 2018, at night, the complainant had gone to the river, when she met the Appellant, who was her neighbor and boyfriend. The complainant then accompanied the Appellant to his place, where they had sexual intercourse. She spent the night there and went to a friend’s place the following day. She was later traced by her parents, who took her to Kericho District Hospital, where she was examined and it was established that she had been defiled. The Appellant was then arrested and charged. 4. In his defence, the Appellant stated that he did not meet the complainant on the 18 th of February, 2018, as he was at Kericho District Hospital, taking care of a patient when the incident occurred. He further stated that the complainant’s mother, owed him Kshs.75,000 for tea seedlings, and that on the 19 th of February, she asked him to accompany her to the police station on the pretext that she was going to pick some money. 5. He said that it was at this point that she called her son, who beat him up, and the Appellant was then escorted to Brooke police station, where he was taken to hospital by officers and later arraigned in court. He further stated that he has a land dispute against the complainant’s mother, and the charges preferred against him are as a result of the said dispute. 6. The court found the Appellant guilty as charged and convicted him and sentenced him to 12 years imprisonment. 7. The Appellant has appealed to this court on the following grounds; (a) That the learned trial magistrate, erred in fact and in law in failing to detect that the appellant was 17 years at the time of conviction; (b) That the appellant is hypertensive and asthmatic and on medication; (c) That the learned magistrate erred in law and in fact in giving disproportionate, harsh and excessive sentence; (d) That the burden of proof was not established beyond reasonable doubt to warrant a sentence of 12 years imprisonment; and
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(e) That the appellant be present during hearing and determination of this appeal. 8. The parties filed written submissions which were as follows; The appellant submitted that he was born in the year, 2003, and was therefore a minor. He submitted that the age assessment report indicating that he was 19years of age was incorrect and was an approximation of figures, contrary to section 83(1)(9) of the Evidence Act, Cap 80 and that he was held in an adult facility in contravention of Article 53 (2) of the Constitution of Kenya. The appellant also submitted that he was discriminated against, as he was not afforded the services of an advocate at the onset of the trial, thereby compromising his rights to fair trial. 9. The appellant also submitted that his welfare is growing worse as he is asthmatic and hypertensive. The appellant submitted that, the learned trial magistrate gave to him a disproportionate, harsh and excessive sentence, in contravention to Article 25 (a) and (c) and Article 27 (I) and (4) of the Constitution of Kenya, as the age of the complainant was not proved as required under the sexual offences Act, and that the prosecution did not discharge its burden of proof to the required standard. 10. The respondent on the other hand, submitted that it had proved its case against the appellant beyond reasonable doubt, by proving all the three ingredients of defilement, which are the age of the complainant, proof of penetration and positive identification of the assailant. The respondent also submitted that the evidence that the appellant was a minor at the time of conviction was not placed before the trial court for consideration and evaluation and as such, it amounts to adducing new evidence on appeal without leave of court. 11. The respondent submitted that the appellant was about to be an adult at the time of judgment and at the time of hearing the appeal he was already an adult. The respondent also submitted that during mitigation, the appellant did not inform the court that he was asthmatic and hypertensive, and this ground is therefore an afterthought. 12. The respondent also submitted that the sentence of 12 years imprisonment was not harsh and excessive but is in accordance to the law, as the Sexual Offences Act, under section 8(3), prescribes a sentence of not less than 20years for anyone accused of defiling a minor between the ages of 12 to 15 years. 13. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at my own conclusion whether to support the findings of the trial court bearing in mind that the trial court had the advantage of seeing the witnesses. 14. The issues for determination are as follows; (i) Whether the Appellant was positively identified. (ii) Whether penetration was proved. (iii) Whether the age of the complainant was proved. (iv) Whether the Appellant was a minor at the time he committed the offence 15. On the issue of identification, I find that the complainant’s evidence was that the Appellant was her boyfriend and she voluntarily went with him to his house where they had sexual intercourse. 16. I find that the Appellant was positively identified. 17. On the issue of penetration, the Sexual Offences Act, under Section 2, defines the same as follows; “The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18. I find that the complainant’s evidence was corroborated by that of the clinical officer who said there was penetration. 19. On the issue of proof of the age of the complainant, the complainant was taken for age assessment and the Report produced dated 03/09/2018 confirmed that she was 15 years. 20. On the issue as to whether the Appellant was a minor at the time he committed the offence, the record is clear that the Appellant told the court in mitigation that he was born in 1996.He was therefore 22 years old at the time he committed the offence on 18/2/2018.The Appellant is trying to introduce new evidence at appeal stage and I find that the same is an afterthought. 21. I find that the prosecution proved the guilt of the Appellant to the required standard. The consent by the complainant is immaterial since she was a minor at the time of the commission of the offence. 22. I accordingly find that the appeal herein lacks in merit and I accordingly dismiss it and I uphold both the conviction and the sentence. DELIVERED, DATED AND SIGNED AT KERICHO THIS 18TH DAY OF MARCH 2022.
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A. N. ONGERI JUDGE
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