Simon Nthiga Ruugia v Republic

5. The Appellant filed amended grounds of appeal dated 19th July, 2024 in which he raised the grounds which can be paraphrased as follows:i. The learned trial magistrate erred in law and fact in convicting the appellant on insufficient evidence. ii. The learned trial magistrate erred in law and fact in failing to consider the defence. iii. The learned trial magistrate erred in law and fact in failing to exercise discretion in sentencing leading to a harsh and excessive sentence. iv. The learned trial magistrate erred in law and facts in convicting the appellant against the weight of evidence as no independent witnesses were called. 6. Both parties filed submissions to canvass the appeal as directed by the court. 7. I understand my role as a first appellate court to retry the case that was before the trial court. This duty was succinctly explained by the Court of Appeal in the case of Kiilu & Another-v- Republic (2005) 1 KLR 174 where the Court of Appeal stated:“ 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 weight conflicting evidence and draw its own conclusions. It is not the function of a 1st appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion. It must itself make its own finding. 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 advantage of hearing and seeing the witnesses.” 8. I have considered the trial record, grounds of appeal and the respective submissions of the parties. The issues that arise for my determination are inextricably linked with the ingredients of the offence and are as follows: i. Proof of the age of the victim. ii. Positive identification of the perpetrator. iii. Proof of penetration. iv. Consideration of the Appellant’s defence. v. Consideration of the Appellant’s sentence. i. Age of the victim 9. The Sexual Offences Act has provided graduated sentences based on the age of the victim. This makes proof of the age of the victim critical. This principle was clearly established by the court of appeal in the case of Hadson Ali Mwachongo [2016] eKLR thus: “ The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 2

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because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 (Kisumu). This court stated as follows; “…in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8 (1).” 10. The Appellant’s submissions did not specifically touch on the age of the victim. He generally submitted that the case against him was not proved. The Respondent on the other hand submitted that the age of the victim was proved through production of her Birth Certificate and that evidence was not challenged. 11. The relevant evidence touching on the age of the victim was given by her mother EM who testified as PW2. She told the court that MA was born on 10th October 2016 and was 5 years and 8 months. She displayed the Birth Certificate (MFI 2). The record shows that the Accused did not cross-examine PW2 on the age of the victim. 12. The Investigation Officer No. xxxxxx PC Mercy Gakii (PW4) testified that the victim was 5 years old. She produced her birth certificate (P-Exhibit 2). Again, the Accused did not raise any issue regarding the stated age or the authenticity of the exhibit. 13. I have considered the evidence on age. Firstly, I observe that the trial court observed on the record upon conducting a voir dire examination that “the minor is too young and cannot possibly understand the nature of an oath. Subject to give unsworn statement.” Secondly, PW2 testified that she was 5 years and 8 months. Thirdly, and conclusively, Exhibit 2 which I have read indicated the date of birth as 10th October 2016. 14. According to the charge sheet, the offence was committed on 31st July, 2022. By simple calculation, the victim was then 5 years and 9 months or 3 months short of 6 years. In law she was 5 years old. I hasten to add that the authenticity of the Birth Certificate was not questioned. 15. It is my finding from the evidence above that the victim was 5 years old and that such age was proven beyond any reasonable doubt. (ii) Identiffcation of the Perpetrator 16. In this appeal, the Appellant raised the ground that the case was a fabrication. With respect to identification, he submitted that being a relative of the victim and her minor sibling, he escorted them safely back to their gate and did not defile her contrary to PW2’s assertion. 17. The Respondents on the other hand submitted that the victim testified that the Appellant was their neighbour and relative. That she therefore recognized him as he was a person known to her. 18. The record shows that the victim (PW1) testified on 13th January, 2023. She told the court that “…I live with my mother, father, M and myself. I know the accused. He is our neighbour. The Accused did bad manners. The Accused picked me from home and took me to the bushes. I was with M. It was at night. My mum was at home. I was also at home. Accused told me and M to escort him. We reached a certain bush and he did bad manners…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 3

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19. PW2 testified that the Accused passed by her home on 31st July, 2022 at 6.30 pm. She saw that he was drunk. PW2 stated that “I saw that he was drunk. I heard him calling MA and ME my children to escort him. I told him that the children cannot escort him. I heard him call my children; I continued doing my chores. When I finished my chores I realized that my children were missing. I immediately knew the accused had gone with them.” PW2 went on to testify that she followed to the Accused’s house and did not find them. She said that a neighbour told her that she had seen the children with the accused along the road. That when she returned to the house, she found the children and PW1 told her that the Accused had done bad manners to her. 20. I have considered the evidence of identification as given by PW1 and PW2. I observe that the time of the incident was night and that PW1 was a child of tender years. I must therefore warn myself of the dangers of relying on the evidence as the evidence of identification was not given under favourable conditions. This caution was given by the Court of Appeal in the case of Cleophas Wamunga vs. Republic(1989) eKLR in the following terms:“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.” 21. I proceed to analyse the identifying evidence in light of the principles above. 22. PW1 was only 5 years old. However, she seemed to know the Accused. She stated in her evidence that she knew him. That he was their neighbour. This evidence that the Accused was well known to the victim’s family was corroborated by her mother (PW2). She stated that the Accused was passing by her house and he called her children asking them to escort him. She verbally forbade him and continued with her chores. 23. The fact that PW2 continued with her chores and was not alarmed that the Accused was talking to her young children means that this was someone she knew and not a stranger. 24. I am satisfied that the victim (PW1) knew and recognized him as he was not a stranger to their home. Her evidence is corroborated by that of her mother (PW2) who stated that she saw him in her home in the evening around 6.30 pm and she heard him call out the children being PW1 and her younger sibling. 25. PW1 stated in her testimony that the Accused was “uncle M” and indicated that it was usual for them to visit him in his house. That she was familiar with his face and voice. She also stated that the Accused conversed with her when he promised to give him 100/= and warned her not to tell her mum. 26. It is my finding that the Appellant was positively identified as the person who led the victim into the shrubs and did “bad manners” or sexually assaulted her. (iii) Penetration 27. The Appellant urged through his home-made grounds of appeal and submissions that penetration was not proven. He stated that the trial court erred in not analyzing the evidence as such analysis would have yielded the result that the offence was not proven. He singled out the medical evidence as having shown that the hymen was intact, that there were no tears or lacerations and that the laboratory tests https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 4

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were negative. The Appellant submitted that the “reddish” outer genitalia was a result of some kind of friction and that a defilement charge could not stand. 28. The Respondent on the other hand submitted that the evidence of the victim (PW1) was corroborated by the medical evidence contained in the P3 form produced by PW3. That according to PW3, she found that the victim had no pant on at the time of the examination and her outer genitalia was reddish which signified friction on the outer genetalia. The respondent submitted that all the elements of the offence were proved to the required legal standard. 29. Section 2 of the Sexual Offences Act defines penetration as “partial or complete insertion of the genital organ of a person into the genital organ of another person.” 30. I proceed to closely examine the evidence on penetration. As earlier stated, the victim (PW1) was a 5year-old minor. She testified that the Appellant went to their home in the evening and asked her and her younger sibling to escort him to his home. That they went with him and on the way, he led them to the shrubs where he did “bad manners” to her and then escorted them back home up to their gate. That she told her mother what had happened and her mother called the assistant chief who in turn advised that they report to the police and go to hospital. 31. PW1 stated as follows: “ The Accused told us to enter into the bush and did bad manners. I was wearing a dress that day. The accused removed my panty. M was present when the accused was removing my panty. The accused touched me…” The trial court noted on the record that PW1 pointed at her vagina. 32. When she resumed her testimony on 27th February, 2023, PW1 stated as follows: “ …The accused removed my clothes. He also removed his clothes. He removed his ‘tail’ and put in in (touches vagina). The Accused told me that if I cry, I will be beaten by Satan. The accused told me that he will give me Kshs. 100/=. He also told me not to report to my mother. The accused escorted me back to our gate…” 33. From my consideration of PW1’s evidence, I am persuaded that she understood what had happened to her. I understand as the trial court did, that her use of words “bad manners” and “tail” to mean sexual assault and penis respectively. 34. Further, it would not be difficult to understand why the victim was led by the accused to the bush. She trusted him as he was a person well known. He was not a stranger to her. She knew him as uncle M. 35. The victim reported to her mother immediately she got home. PW2 testified that she examined her daughter’s genitalia and saw that she was not wearing a panty and the biker she was wearing was upside down. The panty was missing and the vagina was swollen and wet and she was in pain. PW2 stated that she took the child to Marimanti Level 4 hospital where she was examined. 36. The victim was a 5-year-old and she gave an unsworn statement. The incident also occurred at night around 7.00 pm meaning that it was dark or was beginning to get dark. Her evidence therefore had to be corroborated by medical evidence. 37. Kenneth Mutwiri (PW3) was the Clinical Officer who examined the victim on 31st July, 2022. He testified that the victim was very shy. That her outer genitalia was reddish as the pubic region was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 5

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inflamed. That the hymen was intact and there were no tears or lacerations and the laboratory tests were negative. The patient was treated and PEP administered. PW3 opined that there was some kind of friction on the victim’s outer genitalia. He produced the P3 Form (P. Exhibit 1). 38. I have looked at the P3 Form (Exhibit 1). The examining medical officer noted as follows “Afraid of VE, mild redness of the pubic region, internal genitalia normal with hymen present, no lacerations. All laboratory tests were indicated as negative and no spermatozoa seen. The examining medical officer did not form any opinion or conclusion as to whether or not there was penetration. The witness (PW3) stated in his oral testimony in court that “it appears there was some kind of friction on the victim’s outer genitalia.” 39. From the notes in the P3 Form indicating “mild redness of the pubic region”, and the oral testimony of PW3 above, it can be deduced that there was an attempt to penetrate the victim. 40. Considered together, the evidence of the victim (PW1) that the Accused removed her panty and touched her vagina with his fingers and the evidence of the clinical officer (PW3) was corroborative and proved an attempt at penetration. The victim’s testimony that the Accused inserted his “tail” into her vagina was not supported by medical evidence. The medical examination showed that there were no lacerations or bruises on the outer genitalia meaning that the Accused attempted to but did not penetrate the victim. 41. I am aware that penetration need not be complete. The totality of the evidence in this case however does not prove partial penetration but attempted penetration. 42. Section 388 of the Penal Code defines attempt as: “ When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.” 43. For a charge on any attempted offence to succeed, there must be both intention and an overt act. The evidence must show that the accused had a clear and specific intent (mensrea) to commit the full offence as held in Mwaura v Republic [1973] EA 373. Secondly, there must be prove of an overt act going beyond mere preparation (actus reus). In other words, accused must have taken a step towards the commission of the offence, beyond planning or preparation. The act must be proximate to the completion of the offence. In Abdi Ali Bare v Republic [2015] eKLR the Court of Appeal held that:“ …the court must answer the question whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense. Ultimately therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts.” Thirdly, there must be non-completion of the intended crime. Once the crime is fully completed, it ceases to be an attempt and becomes the substantive offence. 44. As already shown, the evidence in the present case satisfies all the elements of attempted defilement. The intention was manifested by the act of taking the victim to a shrub in the evening and touching her genitals. He did more by removing her pant and biker. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 6

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45. It is my finding that the Appellant ought to have been charged with the offence of attempted defilement under Section 9 (1) of the Sexual Offences Act which provides: “ 9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.” The Appellant’s Defence 46. The Appellant raised the ground of appeal that his defence was not considered. He also submitted that the trial court rejected his defence without good reason by stating that there was no evidence to support it. 47. The Respondents on the other hand did not submit on this ground. 48. The trial record shows that when the Appellant was put on his defence, the accused gave sworn testimony and called no witness. He stated that he lived in Rukuruni and was a casual labourer. That he had a good relationship with his father-in-law who visited him frequently to the chagrin of his brothersin- law (sons to the said father- in -law). That his brother-in-law had warned him against receiving favours from their father and when the father-in-law visited him, his brothers-in-law went and arrested him (Accused) in his house. That he was taken to Marimanti Police and was later charged in court. The Accused stated that he did not know the complainant whom he only saw in court. 49. Cross-examined, the Accused stated that on 31st July, 2022 his father in law visited him, that he went to the market at 2.00 pm and returned at 5pm when he met the complainant’s mother. That he did not drink that day and the case was a fabrication by PW1’s mother and his brothers-in-law. 50. I begin the analysis of the Appellant’s defence bearing in mind that he bore no burden to prove his innocence as the burden of proof rested with the Prosecution. This long standing legal principle was aptly stated in the case of Sawe v Republic [2003] KLR where the court of Appeal stated as follows:“ The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.” 51. The Appellant hinged his defence on a bad relationship between him and his brothers-in-law. He said that the basis of the sour grapes was his good relationship with his father-in-law. While I have no reason to accept or reject that such relationship existed, I do not see how the same affected the defilement case. In other words, the bad relationship ought to cast doubt on the Prosecution case. As I have already found, the ingredients of the offence being age, identification and an attempt to penetrate were proven. 52. I find the appellant’s defence incoherent and irrelevant. There is no relationship between the bad relationship and the ingredients of the offence which I have already found proven. I therefore dismiss the defence as lacking in merit. The Sentence 53. The Appellant raised the ground that the sentence was harsh and excessive. The Respondent submitted that the sentence was prescribed under Section 8 (2) of the Act. 54. In considering the sentence, I hasten to remind myself that the Supreme Court has spoken on the issue of minimum sentences in the Sexual Offences Act. In the case of Republic Vs. Joshua Gichuki Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 7

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Petition No. E018 of 2023, the Supreme Court held that minimum sentences in the Sexual Offences Act were constitutional. The court held thus:68. “Our findings hereinabove effectively lead us to the conclusion that the judgement 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 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.” 55. In this case, I have already found that the Appellant ought to have been charged under Section 9(i) of the Act. As the offence of attempt has been proven, I apply the provisions of Section 179 (2) of the Criminal Procedure Code to substitute the charge of defilement under Section 8 (1) with the charge of attempted defilement contrary to Section 9 (1) of the Sexual Offences Act. I convict accordingly. 56. The sentence under Section 9 (2) is provided as follows: “ 9(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.” 57. I have considered the mitigation given by the Accused in the trial. I have also seen the pre-sentence report filed then. I have further taken into consideration the fact that the victim of the offence was a five-year-old minor. This was a vulnerable person. The impact of such an offence cannot be down played. Indeed, I consider the tender age of the victim as an aggravating factor. The Appellant, though now convicted of a lesser offence, still deserves a deterrent sentence. 58. I set aside the sentence of life imprisonment and impose a sentence of 20 years imprisonment. I observe that the Appellant was in pre-trial custody. I apply the provisions of Section 333 (2) of Criminal Procedure Code. The 20-year sentence shall be deemed to run from 21st November, 2022 being the date of arrest and pre-trial custody. Orders accordingly, JUDGMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 30TH DAY OF SEPTEMBER, 2025. .......................... R. LAGAT-KORIR JUDGE Judgment delivered in the presence of the Appellant acting in person. Ms Rukunga for the Respondent, and Muriuki (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14875/eng@2025-09-30 8

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