John Mutuku Ngoma v Republic

B. Petition of Appeal 6. 7. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds that; i. the learned Trial Magistrate erred in both law and facts by sentencing the Appellant to a sentence of twenty (20) years imprisonment which sentence was excessive in the circumstances ii. the learned Trial Magistrate erred in both law and facts by failing to make an independent opinion on the burden of proof as required by law iii. the learned Trial Magistrate erred in both law and facts by failing to observe that the evidence brought forward by the prosecution fell too short of the standard needed in law hence the sentence pronounced was manifestly excessive and unsafe The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 28th January 2025 while the Respondent’s submissions are dated on 31st January 2025 by Ms. Agatha Abang, prosecution counsel. C. Analysis 8. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appellate court which was well captured by the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where the Court stated thus: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 9. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial court and the written submissions filed on behalf of the Parties. 10. I have also read the proceedings and judgment of the trial court. Having done so, I find that the main issue arising for my determination is whether the evidence adduced by the prosecution was sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt. Prosecution’s Case 11. The trial court conducted voire dire and the victim was confirmed fit to give a sworn testimony. PW1 stated that he was in class 6 and he was 12 years old. He narrated the events leading to the unfortunate act. He told the court that on at the material time the Appellant was a worker at their neighbour’s place. He used to see home at their home several times. 12. On the material day of 5.2.23 at 3pm he had gone to fetch water from the river. It was a Sunday and his mother had gone to visit another lady. While on the way he met the Appellant who asked him whether he wanted a bulb. The complainant said that he did not mind. The Appellant then took him to his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14391/eng@2025-06-03 2

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house with the pretext of giving him a bulb. When they entered the house, the accused turned against him. He closed the door of the house, got hold of him, removed his clothes, placed him on the bed and did “bad manners" to him. The bad manners consisted of the accused removing his own clothes, removing his male organ and inserting it in the complainant's buttocks. 13. When he finished, he opened the door for the complainant with a warning not to tell anyone. The complainant went home but did not tell the mother since he was afraid. She noticed something was amiss as he went to school but he told her that he had fallen from a mango tree. 14. While at school he was unable to sit due to pain. He went home early due to the pain and told his mother the truth. They made a report at Ndithini police station and the accused was arrested. 15. On re-examination, he stated that the Appellant's house was one roomed with an iron roof. It has a chicken coop outside. 16. PW2 was the mother to the complainant. She said that she knows the Appellant who works for a neighbour. 17. Her evidence was that on the 6.2.23 she saw the complainant walking with difficulty. She asked him what had happened and he said that he had fallen from a mango tree. He went to school but then came back shortly. He then opened up and told her that on the previous day of the 5.2.23 he had met the Appellant while on the way to the river. The Appellant used a pretence of giving him a torch bulb. The complainant followed the Appellant to his house in order to get the said bulbs. It was then that the Appellant closed the door and defiled him. 18. When the complainant’s mother heard that, she called the village elder and the Appellant was arrested. 19. PW3 testified that on the 6.2.23 he was called by the village elder to go to his home. He went and found the complainant and the mother thereat with allegations of defilement. The witness was sent to fetch the Appellant. He did so and the complainant repeated the claims in the presence of the Appellant while identifying the said Appellant as the perpetrator. 20. PW4 was the investigating officer. His evidence was that on 6.2.23 the accused was taken to the police station while accompanied by the complainant and the mother on allegations of defilement He was informed of what had transpired. He locked the Appellant in the cells while the complainant was taken to the hospital. 21. He produced in court an age assessment report as proof of age of the complainant as an PExt.3. 22. PW5 was the clinician. His evidence was that the complainant and the mother visited Ndithini Level 4 hospital on the 6.2.23 at 4pm with a history of sodomy. 23. He examined the complainant and found that the estimated age of the said child was 13 years old. There were bruises on the anal opening, with a foul-smelling discharge. He was walking in pain. He couldn't even sit down. They had to give him analgesics in order to examine him. He concluded that there was penetration of his anal region. 24. He produced the complainant's P3 form as PExt.1 and PRC form as PExt.2. Defence case 25. The Appellant testified as DW1. He gave sworn statement. He stated that he did not commit the ofience. He said that on the material day he went to church and then when to his home at 3 pm. He stayed there until 9 pm. He only went to the farm the following day when he was arrested by a headman who came with a motorbike. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14391/eng@2025-06-03 3

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26. He stated that he only knew the complainant's elder sister called JW but was not calling her as a witness. D. Determination 27. The question which needs to be answered is whether the ingredients of defilement in this case were proved to the required standards? 28. The ofience of defilement is created by Section 8 (1) as read with 8 (2) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) provides as follows: “ (1) 29. A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement. The ingredients of the ofience of defilement were reiterated by the High Court in the case of George Opondo Olunga Vs Republic [2016] eKLR, which are: i. Proof of age of the complainant to be below 18 years ii. Proof of penetration iii. Proof that the accused person was the perpetrator (identification). Age of minority 30. The age of the complainant forms one of the essential ingredients of the ofience of defilement which must be proved by the prosecution beyond reasonable doubt. Under section 8(1) of the Sexual Offences Act a person is deemed to have committed defilement if he or she does an act which causes penetration with a child. 31. Under Section 2 (1) of the Sexual Offences Act, the definition of a child is the one assigned in the Children Act. This entails any human being of less than eighteen (18) years. The onus of proving age resides with the prosecution. 32. The significance of proving the ingredient of age in defilement cases was clearly spelt out by Mwilu J (as she then was) in the case of Hillary Nyongesa vs Republic (Eldoret Criminal Appeal No.123 of 2000) stated that: “ Age is such a critical aspect in Sexual Ofiences that it has to be conclusively proved…. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” 33. Therefore, in a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual ofience against a child, and ii) the 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. 34. A child is defined as a person under the age of eighteen years. Is the victim herein a child? 35. PW1 testified that the he was in class 6 and was aged 12 years. PW5, the complainant’s mother testified that the Complainant estimated age was 13 years. PW4, the doctor testified that the complainant was aged 13 years while the investigating officer, PW4 testified that the complainant was a minor as at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14391/eng@2025-06-03 4

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time and in this respect, he then produced PW1’s minor’s Age assessment report indicating that the minor was between 11 to 12 years old. The trial court in its judgement stated that: “ The age assessment report that was prepared by the doctor after examining the complainant’s dental formulation was therefore a proper means of proving the age of the complainant. It proved that the complainant was 11 to 12 years old at the time of the ofience” 36. I find the age of the victim was between 11 to 12 years old based on the age assessment report. Penetration 37. 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.” 38. In dealing with this issue, I shall be guided by the record. The complainant in her testimony took the court through the events leading to the incident. He stated that on the material day. She narrated how the Appellant opened the house and he entered. Once he was in, the Appellant closed the house and turned against him. The Appellant removed his clothes and placed him of the bed and did "bad manners" to him. The complainant stated that the Appellant removed his clothes and removed his male area and inserted behind him. When the Appellant was finished, he told him to open the door. The Appellant opened and told him not to tell anyone. 39. PW5 was the clinical officer. He testified that PW1 had bruises on the opening of the anus and it was wet with foul discharge. He stated PW1 was writing in pain and could not sit down thereby giving him analgesics to be able to examine him. Both the P 3 Form PExt.l and the Post Rape Care Form PExt.2 indicated that PW1had bruises at his anus. PW5 concluded that in his view something was inserted in PW1's anal region. PW5 evidence corroborated PW1’s evidence. Something was inserted in the anal area causing the pain and discharge that PW1 's had. This is prima facie evidence of penetration hence there can be no doubt that penetration was occasioned on the complainant. Identification of the Appellant as the perpetrator 40. The complainant stated he met the Appellant by the river as he went to fetch water. He also mentioned the Appellant was employed by their neighbour. PW2 also confirmed that the Appellant was their neighbour's worker. Further, proof that the complainant had been lured in the accused's house at the time of the ofience was confirmed by the fact that the said complainant was able to describe the accused's house. He said that it was one roomed with an iron roof and a chicken coop outside. 41. Apart from being credible the complainant's evidence was corroborated by the other evidence on record. His mother PW2 narrated how the child owned up on the following day after coming early from school. He informed her that it is the accused who committed the ofience. PW3 who was send to take the Appellant to the village elder's home also confirmed that the child identified the Appellant as the perpetrator in the presence of the Appellant himself. 42. I find that the identity of the Appellant as the perpetrator was conclusively proved. 43. I have analysed the trial court’s judgement on the Appellant’s defence and I observe that the trial court considered the defence and stated that it did analyse the defence by the Appellant to see whether it https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14391/eng@2025-06-03 5

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brought any doubt on the State's case. In doing so the trial court placed in mind the fact that the burden of proof does not shift to the accused. It always was on the state. 44. However, the Appellant did not shake the strong and credible prosecution case herein. He only alleged that he was in church the entire day and the retired to his house at 3pm. That amounted to a defence of alibi. However, he did not give a notice to the prospection to investigate any such alibi as is the practice. He also did no give any corroboration of that alibi. 45. I find that the trial court was trial court was therefore right in disregarding the Appellant’s defence. Sentence 46. The Appellant submitted that the trial court erred in sentencing him to a sentence of twenty (20) years imprisonment which was manifestly excessive and unsafe. The Appellant seeks the sentence to be revised or reviewed to a manageable prison term. 47. The Appellant was sentenced to 20 years in prison. The appellant was given a chance to mitigate and all he said was that he was sorry. Section 8(1) and 8(3) of the Sexual Offences Act provides: 48. l. A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement 3. A person who commits an 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. I agree with the prosecution’s submission that looking at the circumstances of the case, it is apparent that the Appellant abused the trust bestowed upon him by the society and instead took advantage of a minor boy who was twelve years old at the time of the incident and lured him to his house where he sodomized him. See Republic v Joshua Gichuki Mwangi SC Petition No. 018 of 2023 where the Supreme Court held that the mandatory minimum sentences in the Sexual Offences Act are legal and Constitutional. The sentence imposed on the Appellant was within the law and proper. D. Disposition 49. In view of the foregoing, I find that there was sufficient evidence for convicting the Appellant for the ofience of defilement. The appeal herein is dismissed in its entirety. 50. Right of appeal 14 days. 51. Orders accordingly. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 3RD JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 3RD JUNE 2025 In the presence of: In person...............for Appellant Ms. Agatha..............for Respondent Milly.Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14391/eng@2025-06-03 6

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