Evans Kitsao Ngova v Republic

d. That the learned trial magistrate erred in law and fact by finding the conviction and sentence without considering the defence evidence. e. That the learned trial magistrate erred in law and fact by finding the conviction and sentence without considering the sentence meted on the appellant was harsh, excessive, unjust, unconstitutional inhumane, and degrading. 4. The appeal was opposed by the state through M/s. Maureen Anyumba learned counsel. She contended that the prosecution proved all the ingredients of the offence to the required standards. 5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court. I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32. 6. To sustain a conviction for the offense of defilement, the prosecution has to prove the following ingredients: a. Whether there was penetration; b. Evidence must show that the accused is the perpetrator; and c. The age of the victim must be below eighteen years. In the case of Fappyton Mutuku Ngui v Republic [2012] eKLR Joel Ngugi J. said: Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. These are the ingredients I will endeavour to find if they are proven. 7. MM, ((PW1) testified that she had been a girlfriend of the appellant since March 2020. They started engaging in sexual intercourse. At one time, she returned home late at night and found their door locked and had to knock. Her mother enquired where she was from and she informed her that she had visited the appellant. 8. The evidence of her mother ((PW2) after three days the complainant escaped from home and when she reported, the appellant was arrested. 9. Jacob Leli Dingo ((PW3) testified that on July 24th, 2020, the area chief summoned him at about 10 p.m. They proceeded to the house of the appellant. They found the complainant’s mother at the door which was locked with a padlock from outside. When she opened the door, they found the appellant and the complainant seated on a mattress. 10. When the complainant was examined by Dr. Nafisa on July 30th, 2020, whose report was produced by Dr. Mohamed Ali Mohamed ((PW4), healed vaginal abrasions and a broken hymen were detected. It was concluded that there was penetration. 11. The appellant in his defence the appellant contended that the complainant’s mother had a grudge against him over some rent. This defence was an afterthought. He never confronted her with these facts during cross-examination. The learned trial magistrate was therefore justified to dismiss it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/30/eng@2024-01-11 2

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12. A copy of the birth certificate of F.A. was produced as an exhibit. It indicates that she was born on the 26th day of February 2004. At the time of the offence, she was sixteen years old. Section 8 (4) of the Sexual Offences Act provides: 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. The prosecution therefore proved the age of the complainant. 13. Though the appellant complained that the sentence was harsh, excessive, unjust, unconstitutional inhumane, and degrading, this is the prescribed sentence for the offence. This court will not interfere with it. 14. Section 333 (2) of the Criminal Procedure Code provides: Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. The learned trial magistrate ought to have ordered the sentence to run on July 25th, 2020, when he was arrested, but did not. I make an order that the sentence meted out by the learned trial magistrate to run from July 25th, 2020. 15. Except when the sentence ought to run, the appeal is dismissed. DELIVERED AND SIGNED AT MOMBASA THIS 11TH DAY OF JANUARY, 2024 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/30/eng@2024-01-11 3

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