Abdultwalib Shoshoro v Republic

herein had rented a house near the complainant’s home and was therefore their neighbour. According to Pw-3 he was known as Kibabuu. 6. On 26/12/2020 Pw-2 who is the mother to the complainant sent her to her aunt to assist with laundry. She went with her and assisted, till at about 4.00PM when she went to the shop to buy something. At the place she met two young men. One was Tatizo and the other the appellant herein. The two had a motor cycle. They enticed her to accompany them to a wedding at Bali. She agreed. The appellant was riding the motor cycle. The complainant sat in the middle and Tatizo at the back. They got to the wedding. There was music and Tatizo invited her for a dance. She agreed and the two danced together. The accused also later had his share of a dance with her. 7. After the dance, Tatizo led her to a distance from the wedding venue and urged her for sex. She agreed. It was in a bush. Tatizo lowered his trousers up to the knees and as well removed her pant. He bent her over and penetrated both her anus and vagina with his penis. After they were through they went to Bali to pick the appellant. They picked him and Tatizo was the one riding the motor cycle. Tatizo said he could go to village 10 to pick his jacket. He left the complainant with the appellant as he did so. The complainant did not protest thought at night and she had not known the appellant well. When the two were left together, the appellant held her hand and led her towards the bush. The complainant resisted. The appellant however pulled her into the bush, removed his jean trousers and her panty before he penetrated her vagina with his penis. When he was through he carried her on the motor cycle. They got to a canal where he cleaned his penis. The complainant did not however take a shower. They then went up to the appellant’s house gate. He said he was going for a sweater. He took it and they went back to the wedding. At the wedding they met Tatizo. Tatizo carried her on the motor cycle, back home. He feared her father and dropped her at a distance from the house and left. 8. The complainant parents had noted of her absence. They had sought for her at the aunt’s place but in vain. She surfaced the following day at 5.00am. The mother asked her where she was and said at aunt’s place. She was beaten up by her father and agreed to take her to the house of the man who was with her. She led them to the appellant’s house. They however did not get the appellant and his wife who was present informed them that he attended a wedding the previous day and was yet to return home. 9. The case was reported at Bura Police Station. They were issued with a P3 form and referred to the hospital. On 28/12/2024 Pw-4 examined the complainant at Hola County Referral Hospital. She noted that her hymen was broken and had a foul smelling discharge from her vagina (vaginal candidiasis) of which she explained was caused by sexual activity especially at tender age. Her P-3 form was thus filled. 10. Pw-5 investigated the case. The appellant went to Bura Police Station to pick a client. It’s then he was arrested and charged. 11. The appellant defence is that he lives in Bura and is a Bodaboda operator. On 26/12/2020 he was from town. At the stage he met two passengers who said they wanted to be taken to a wedding. They agreed on charges and he took them to the wedding. They were to call him back when through so as to return them. They called him at about 3.00am and he took them back to Bura and then proceeded to his house for sleep. In the morning complainant and her mother went to his house looking for him. The appellant’s wife told them that he was away. They went and reported a case of defilement against him and some other boys. He heard about the allegation and continued with his work till 24th January, 2021. On this day he met Pc Karanja in town. The officer told him that they were looking for him together with Baba Mwende, and he should see him at 7.00Pm. On 25/1/2021 he went to the police station and he was arrested. He was shocked when he was charged with the offence of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3640/eng@2024-04-08 2

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12. The trial court evaluated the evidence and found the offence in the main count proved against the appellant beyond reasonable doubt. He was convicted of it and sentenced to serve 20 years imprisonment. 13. Dissatisfied with the said conviction and sentence, he appealed to this court on the grounds that; 1. He was convicted on contradictory and uncorroborated evidence. 2. The prosecution shifted the burden of proof from them to him. 3. He was convicted on a poorly investigated matter. 4. His defence which offset the prosecution case was not properly weighed. 14. The appeal was canvassed by way of written submissions and both sides filed their respective submissions. 15. I have re-evaluated the charges, evidence on record, the judgment of the lower court and the sentence meted, grounds of the appeal and submissions by both sides. 16. In a case of defilement under section 8 (1) of the Sexual Offences Act No.3 of 2006, the now well settled ingredients that need be established by the prosecution beyond reasonable doubt are; 1. The age of the victim, who must be below 18 years; that is a child. 2. Penetration, which can be partial or complete, of a sexual organ by the sexual organ of another. 3. Identification or recognition of the suspect as the real culprit. 17. In the case at hand, a birth certificate No.16XXX56, entry No. L0XXX12, in the name of the victim was produced as exhibit, showing that the victim was born on 4th March, 2007. The offence was allegedly committed on 26/12/2020. This establishes that at the time of the offence she was 13 years old. The victim, her mother and father, all stated in their evidence that she was 13 years old. There is no evidence to the contrary and the issue is firmly settled. 18. On penetration, the victim stated what happened to her on the material night. She narrated chronologically in impressive details of what happened to her. She was bold and honest enough to disclose that she consented to sex with Tatizo whom she knew very well and not with the appellant herein who forced her into it, in the bush. Though consent is no defence to the offence, at least it shows honesty on her part. Her account of what the appellant did to her, which amounts to penetration is graphic. He lowered his jeans trouser, removed her pant and then penetrated her vagina using his penis. She knew what she was talking about as Tatizo had hours before penetrated her anus and vagina. There is therefore enough reliable evidence that she was penetrated. The clinical officer’s evidence is not of great relevance as what was observed could relate to Tatizo’s incident, the appellant or even both. However, the evidence of the minor who was described by the trial court as transparent and candid, and her evidence which was observed to be free of exaggeration, malice or ill will, suffices in establishing penetration beyond reasonable doubt. 19. The last ingredient is of identification. Though the complainant states she had not known the appellant well before then, the two danced together in the wedding and after the commission of the offence he led her up to the gate of his house to collect a sweater. She therefore got to learn where his house was located and that is where she led the parents to. It’s noticeable that the appellant in his defence appreciates that on the material night he ferried her and another to a wedding and got them back. This to an extent gives credence to the complainant’s case that he was involved. Though he alleges he dropped them back https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3640/eng@2024-04-08 3

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and went home, that cannot be correct as when the complainant and her parents visited his house at 5.00am he was not present. Only his wife was found. He was told by the wife about the allegation of which shows the victim and the parents went to the right house. He was therefore properly identified as the real culprit. 20. His defence is of mere denial. The victim had no cause to fix him if at all he did not penetrate her. She would only have disclosed about Tatizo and not him. His defence was therefore rightly dismissed by the trial court. 21. Given the foregoing evidence it’s apparent that the appellant was rightly convicted of the offence in count one. 22. The victim was aged 13 years then. The appellant who is married forcefully forced her into sex in a bush. He unlawfully exploited her tender age and ignorance. Society would have expected him to protect her rather than cause harm, as a mature male. I agree with the trial court that he deserved a deterring sentence. 20 years imprisonment which is within the law well serves the purpose. 23. The bottom of it is that the appeal lacks merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT MALINDI THIS 8TH DAY OF APRIL, 2024 ............................ S.M.GITHINJI JUDGE In the Presence of; Ms Chomba holding brief for Ms Mkongo for the State. Appellant is in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3640/eng@2024-04-08 4

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