John Mulinge Ndaka v Republic

Trial Court’s proceedings, the undated Petition and Amended Grounds of Appeal, the Appellant’s undated submissions and the Respondent’s grounds of opposition dated 21st June, 2023 and Submissions dated 27th January, 2024. 4. In as much as the appellant’s Petition indicates that he is only appealing against the sentencing only; in his amended grounds of appeal and submissions, it is evident that he intends to appeal against both his conviction and sentencing. 5. It is clear from all the filings in this appeal that the issues for determination are whether the prosecution proved its case to the desired threshold and whether the sentence meted upon the Appellant was lawful. Whether the prosecution proved its case to the desired threshold 6. 7. The Appellant was charged with the ofience of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides: 8(1) a person who commits an act which causes penetration with a child is guilty of an ofience termed defilement 8(2) A person who commits am ofience of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” The ingredients that ought to be established in an ofience of defilement are: the age of the complainant, proof of penetration and the positive identification of the assailant as set out in the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013. i. Age of the Complainant 8. In a charge of defilement, the age of the victim is important for two reasons: a. defilement is a sexual ofience against a child; and b. Age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence. On this element, the prosecution produced the complainant’s birth certificate which is conclusive proof that the complainant herein was 9 years old. ii. Penetration 9. Section 2(1) 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.” 10. On the element of penetration, PW1 testified that on a certain date she could not recall, she was playing with her friends on the road when the appellant came by. The appellant called her and they went to his house where the appellant locked the door and removed her trousers as well as his. The appellant put her on the bed then put his thing used for short call into her private part. The minor further added that it was not the first time the appellant had done that to her adding that he would call her from the road, give her Kes. 10/- and put his thing into her groin area. 11. Further the medical reports corroborated this. PW2, Dr. Farah Mohammed of Mama Lucy Hospital produced the p3 form, medical summary and PRC form which showed that on genital examination, the minor had reddening labia minoria and some laceration. The reddening showed that there was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/2802/eng@2025-02-13 2

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penetration and the laceration showed that the penetration was rough. The minor also had a whitish discharge and an old tear on the hymen at 3:00 o’clock. He added that a high vaginal swab was done and spermatozoa were seen. 12. Consequently, it is my finding that the second element of penetration was proved beyond reasonable doubt. iii. Identification of the perpetrator 13. Regarding the identification of the perpetrator, the complainant testified that the appellant was a neighbour, a fact confirmed by PW5, who was the minor’s elder sister. PW6, The investigating officer also testified that on visiting the scene, she found the complainant’s family lives opposite the appellant’s plot, only separated by a road. There is therefore no doubt that the Appellant was properly identified as the perpetrator of the ofience of defilement. 14. All the elements of the ofience of defilement were proved beyond all reasonable doubt and the evidence tendered was sufficient to sustain a conviction. Whether the sentence was harsh and excessive under the circumstances 15. The appellant contended that the sentence was excessive given the circumstances of the case herein. Section 8 (2) of the Sexual Offences Act No. 3 of 2006 provides as follows: “ A person who commits an ofience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 16. It is trite law that superior courts will not interfere with sentence unless it can be shown that the sentence was excessively harsh or excessive or that the court overlooked some material factors or took into account some wrong material or acted on the wrong principle of law. This was laid down in the Court of Appeal decision of Ogolla s/o Owuor Vs. Republic, [1954] EACA 270, as cited in Republic V. Stephen Mweizela Mutuku & 2 others [2020] eKLR. 17. I am satisfied that the sentencing of the Appellant to 23 years, 6 months’ imprisonment was not harsh or excessive. 18. From the foregoing analysis, I am satisfied that the Appellant was convicted on strong evidence and the prosecution discharged the burden of proof beyond reasonable doubt. I therefore find no merit in the appeal on both conviction and sentence. In the result, I affirm the judgement of the court below and dismiss the appeal in its entirety. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 13TH DAY OF FEBRUARY, 2025. ................................... BAHATI MWAMUYE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/2802/eng@2025-02-13 3

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