Ronald Bob Ombongi Alias Sosi Makori v Republic

2. e. That the conviction and the sentence by the learned trial magistrate was unfair and unjust to the Appellant f. That the learned trial magistrate erred in law and in fact in putting the appellant on his defense without recalling the medical evidence. g. That the trial magistrate erred in law and in fact by giving a sentence which was harsh and not founded in the law and fact in given that he never committed the alleged offense. h. That the learned trial magistrate failed to appreciate the prosecution case was riddled with contradictions. i. That the trial magistrate erred in law and in fact by failing to evaluate and analyze and appreciate that the medical evidence was not enough to sustain a conviction. j. That the learned trial magistrate erred in law and in fact by failing to order for mental examination. k. The learned trial magistrate erred in law and in fact by failing to evaluate and consider that the complainant’s evidence did not specifically mention how, when and where the appellant defiled her. Based on the above grounds the Appellant prayed for this court to allow the appeal and set aside the sentence. The Factual Background 3. As first appellate court, I will re-evaluate the evidence adduced before the Trial Court and arrive at my own conclusion but bearing in mind that I neither saw nor heard the witnesses. See Okeno vs. Republic (1972) EA 3. 4. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read together with section 8 (2) of the Sexual Offenses Act No. 3 of 2006. The particulars were that on 12th day of July 2020, within Kisii County, the Appellant caused his Penis to penetrate the Anus of SK, a Child aged 11 years. Alternatively, the Appellant was equally charged with the offense of committing an indecent Act with a child contrary section 10 of the Sexual Offenses Act No. 3 of 2006. The particulars of the alternative offense were that on the 12th day of July, 2020, within Kisii County, the Appellant intentionally and unlawfully touched the anus of SK a child aged 11 years with his Penis. 5. During the hearing of the prosecution’s case, PW1, a minor aged 12 year testified that on 12th July 2020 while heading to a shop to buy paraffin she met the Appellant in nearby tea bushes. The Appellant grabbed her and pulled her to foot path, removed her panty, laid her down, removed his trousers, removed his penis and inserted it into her vagina, penetrated. He then carried her on his shoulders into a maize and millet plantation and defiled her again. He thereafter took her inside to nearby church. Luckily she managed to escape through the window at about 9.00 pm. when the appellant stepped out. On her way home, she met her grandmother looking for her. She narrated to her what had transpired. She was later taken to Ogembo Sub County Hospital for treatment she thereafter proceeded to report the matter at Ogembo Police station. She stated that she knew the accused person’s home and that she normally sees him in the village. She produced the clothes she wore on the fateful day. When the court asked her whether it was penetration from the vagina or from the anus, she responded that the penetration was from behind. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 2

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6. PW2 who was the minor’s grandmother stated that on 12th July, 2020 at 6:00 PM she sent the minor to go buy paraffin but she delayed to return. She was forced to go look for her. It took long her long search but the minor eventually came home. The minor narrated to her that one Bob grabbed her, took her to tea bushes and defiled her. She supported the evidence of th4e child in all material facts. She produced the treatment notes as an exhibit. She stated that the Appellant was from their village. When cross-examined by the Appellant, PW2 stated that the minor identified him. She also stated that she did not witness the incident and that it was the Minor who told her about the incident. 7. PW6 Godrey Moseya, a clinical officer at Gucha Sub County Hospital testified on behalf of his colleague Francis Omenya who initially treated the minor herein He stated that the history of the victim was that she had been sodomised by an uncle in maize plantation, her clothes were stained and had bruises on the left limb. He stated that as a result of the defilement the girl was unable to pass stool. it was found that the majora and vaginal area were normal. The hymen was intact but there were lacerations in the anal region. Blood and urine samples were taken and sent to the laboratory for tests and pus cells were noted in the urine. She was put on antibiotics and emergency pills. The opinion of the examining officer was that PW1 had been sodomised, A P3 Form and Post rape care form were filled and signed which he produced as evidence. (Pexh 3a and 3b respectively). 8. PW5 was the area village elder. He testified that on 12th July, 2020 while asleep the minor and her grandmother went to his home and reported to him that the minor had been defiled by the Appellant. She advised them to go for treatment. The next day the girl took them to the scene of crime. They arrested the accused, informed the area assistant chief and took the accused person to the police station where he was charged. 9. PW4 was, the Area Assistant chief. She testified that on 13th July, 2020 she was at home when the clan elder called her and informed her of a defilement incident that had occurred on 12th July, 2020 and that a suspect had been arrested. She went and found that the accused person had been arrested and proceed to escort him to Ogembo Police station. 10. PW3 was the Investigating officer. She testified that on 13th July, 2020 while at the station the minor went there in the company of her grandmother (PW2) to report a defilement case. The minor reported that on 12th July, 2020, she was waylaid by the appellant, who took her to a path, placed her on the ground and had anal sex with her. He also took her to a maize farm and defiled her again before taking her to a nearby church where she managed to escape when the Appellant went out went out. The minor also disclosed to her that the appellant had offered elope with her, marry her and set up for her a saloon business. PW3 testified further that the minor was in pain, wet and in muddy clothes. Her grandmother took her to Ogembo hospital at 2.00 am for treatment before reporting the matter at the station. She thereafter recorded the statement of the victim and her grandmother, escorted them to the hospital where the P3 form and the PRC form were filled. She thereafter visited the scene of crime and took the photos of the same which photos she produced as exhibits as well as a certificate from the scene of crime. She also produced a birth certificate for the minor which showed that the minor was born on 20th August, 2009. The accused person was thereafter charged after he was arrested and availed by clan elders and the area chief. 11. Upon the prosecution closing its case, the learned trial Magistrate upon considering the testimonies of the prosecution witnesses as well as the evidence in support of the prosecution case, found that prosecution had established a prima facie case against the Appellant and proceeded to put him on his defense. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 3

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12. During the hearing of the defense case he stated denied committing the offence and denied knowing the victim. On cross examination he stated on the fateful day he was coming from working at the building site of one Benard Ombongi. He sought for forgiveness. 13. On 9th March, 2022 in its Judgment found the Appellant was found guilty of the offense of defilement contrary to section 8 (1) as read together with section 8 (2) of the Sexual Offenses Act No. 3 of 2006 and was convicted accordingly under section 215 of the criminal procedure code. The learned trial Magistrate thus proceeded to sentence him to 15 years in prison. 14. It against this the above determination of the trial court that Appellant filed this appeal based on the grounds of Appeal outlined herein above. 15. In Response to the Appeal, the Respondent filed written submissions on 27th November, 2022. The Learned counsel for the Respondent submitted that the appeal lacked merit and was an abuse of the court process. The learned counsel contended that the prosecution adduced sufficient evidence that proved its case beyond reasonable doubt. He contended too that the evidence of the prosecution was not dislodged by the Appellant who was given an opportunity to defend himself but he merely denied having committed the offense in the face of overwhelming evidence of the prosecution to the contrary. 16. The learned counsel submitted that the essential elements of the offense of defilement being penetration, the age of the minor and the identification of the Appellant as the assailant were proved. He argued that there is no evidence that the Appellant was not accorded a fair trial. 17. On the sentence meted being harsh the learned counsel submitted the Appellant defiled a minor who was 11 years old and was sentenced to serve 15 years in prison. The learned counsel contended that the sentence meted upon the Appellant was in fact contrary to the section of the law under which the accused person was charged since provided for a mandatory life sentence. He urged this court to exercise it powers to review the sentence to a correct one. 18. On the ground of the evidence being full contradictions, the learned counsel submitted that there was no demonstration of such contradictions by the Appellant during the hearing of the case. 19. On the ground of the Appellant not being subjected to mental assessment before his trial, the learned counsel submitted that the same was not necessary and besides there was no application made by the Appellant nor did he put up a defense of insanity when he was put on his defense. 20. This court directed that Appeal to be disposed of by way of written submissions. The Appellant was several dates directed to file his written submission but he failed to do so. Issues Of Determination 21. Having carefully considered the grounds of appeal and submission in favour of and against the appeal, and having analysed and reassessed the evidence adduced on record the main issues of determination are; i. Whether case against the appellant proved by the prosecution. ii. Whether the sentence was excessive hence requiring a review by this court https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 4

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Analysis And Determination Whether case against the appellant proved by the prosecution 22. In determining this issue, this court needs to consider whether the key ingredients of the offence of defilement were proved in this case. The key elements to be precise are proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence. On looking at those aspects in this judgment, I will consider each of them singly. a.the age of the complainant: 23. The age of the complainant was by the birth certificate produced in the trial court confirming that the complainant was 11 years when the alleged sexual act took place. Her age was not contested by the Appellant during the trial and thus it safe to conclude that the complainant was a minor within the meaning of the law. b.the issue of penetration: 24. PW1 testified that the appellant penetrated her anus and this was denied. Section 2 of the Sexual Offences Act defines penetration as: ‘The partial or complete insertion of the genital organs of a person into the genital organ of another person.’ 25. This position was fortified in the case of Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus: ‘…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….’ 26. The Court of Appeal, in the case of Erick Onyango Ondeng v. Republic (2014) eKLR held as such on the aspect of penetration: “ In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured." 27. In this instant case, PW6, the clinical officer who examined the complainant testified that the child gave a history of having been defiled by a known person. He pointed out the medical evidence showed that the hymen was intact but there were lacerations at the anal region. Also that examining officer was confirmed that PW1 was sodomised. This is supported by the P3 form and the Post rape care form sodomy. It is my considered view that any unlawful penetration however slight constitutes a sexual offence. There is overwhelming evidence of penetration in this case. c.proof that the appellant was the perpetrator of the ofience: 28. In this case the only witnesses who put the appellant at the locus in quo are PW1. This court will therefore examine her testimony to determine whether the evidence she gave was adequate to prove the identity of the appellant. Appellant denied knowing the victim. PW1 told the court that she was defiled by Sosi who waylaid her on her way home and that she used to see him in the village. This piece of evidence was not displaced as Pw1 was not cross examined by the appellant. The appellant was given an opportunity to cross-examine Pw1 but he said he had no questions. This was within his https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 5

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constitutional rights. The evidence of Pw1 is also corroborated by the testimony of Pw2, PW4 and PW5 who following the report of the PW1, were able to trace the Appellant, apprehended him and took to the police station. It is clear from the evidence on record that the appellant was well known to Pw1 as they were living in the same village. Section 124 of the law of Evidence Act provides that; ‘’Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.’’ I have carefully re-evaluated the evidence of PW1 and I am satisfied that she knew the appellant as Sosi which is the alias name of the appellant herein and was not disputed. They come from the same village. PW2 told the court that she sent the child for cooking oil at about 6.00pm, PW1 said that she was heading to buy oil when she met appellant. This court takes judicial notice that darkness does not usually set in by 6.00pm in Kenya but from about 7.00pm. Pw1 also told this court that she managed to escape from the church at 9.00pm, but due to her tender age she may not be exact on time. what is however clear to me is that Pw1 met appellant at about 6.00pm . She spent quite some time with him from the time he first abducted her on the road took her to the path, then he took her to the maize plantation and finally to the church where he promised her ‘’marriage and a salon business ‘’ and she finally managed to run away at night. I have asked my self why this girl would have lied against the appellant but I do not find any answer. Pw1 clearly stated that she was defiled by Sosi. The defence of the appellant did alibi that appellant was at work at the material time. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the court of appeal held ‘’ It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. ‘’ It is clear that when an accused person raises a defence of alibi, the prosecution still has the burden to prove it’s case beyond any reasonable doubt. I have weighed the defence and the evidence of identification and I find that Pw1 had an ample opportunity to see and recognise appellant when he abducted her. This cannot also be a case of mistaken identity. From the foregoing, I am satisfied that PW1 was consistent truthful in her evidence despite her tender age and being the sole eye witness to the incident. I find that appellant was properly placed at the scene. 29. Further the defence that was tendered by the Appellant was a mere denial and the same did not shake overwhelming evidence of the prosecution that he had in deed defiled the minor. 30. From the forgoing therefore it is clear that the evidence given by the prosecution’s witnesses established the minor’s age as 11, confirmed the element of penetration and recognition of the appellant as the assailant. These lead me to the finding that the appellant’s conviction was sound. I proceed to uphold the conviction by the learned trial magistrate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 6

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Whether the sentence was excessive 31. As clearly pointed hereinabove the accused person was found guilty of defiling a minor aged 11 years old. Section 8(2) of the Sexual Offenses Act provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 32. While the Appellant has claimed that the Sentence of 15 years that was meted upon him was harsh and urged this court to consider reversing it downwards, the Prosecution has urged this court to use its powers to enhance the same to life imprisonment given that Section 8(2) imposes a mandatory life sentence to minor who is aged 11 years and below. 33. In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi and held that section 8 was still valid. The Honourable Justices of the Apex court observed as follows; (66) We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. (67) This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows: “Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.” We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case. (68) Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 7

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lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.” 34. I am well guided by the aforesaid decision of the Supreme Court on the Minimum sentences in the Sexual Offences Act which is binding on this court. I do not hesitate to add that the intention of the Legislature was clear in enacting the minimum sentences in sexual offences; i.e to curb the upsurge of the sexual offences in Kenya. The sentence of 15 years for the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act was thus unlawful for being below the minimum sentence provided for by law. The appeal on sentence is thus dismissed. 35. This court has discretion to reduce or enhance sentences under Section 354 (3) (ii) of the CPC. This discretion must however be exercised judiciously. Section 354(3)(ii) of the CPC which provides that: “ (3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may (ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence;” 36. I find that the trial court failed to consider the provisions of section 8 (2) of the sexual offenses Act which prescribes for a life sentence for an offender who defiled a child age 11 years and below. That being the case and in exercise of my discretion set out under section 354(3) (ii) highlighted hereinabove, I proceed to enhance the 15-year sentence imposed upon the Appellant to life imprisonment as provided for by law. 37. Orders accordingly. DELIVERED VIRTUALLY VIA TEAM’S PLATFORM IN THE PRESENCE OF: Appellant Mr. Kimanthi for the State Court Assistant Oigo T.A ODERA JUDGE 18.9.24 https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/12087/eng@2024-09-18 8

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