Haron Wamalwa Natembeya v Republic

Appeal 5. Aggrieved by the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he raised the following grounds of appeal : i. That, the trial magistrate grossly erred in law and facts to convict the Appellant on contradictory, inconsistency and uncorroborated evidence which meant that the witness was not credible. ii. That, this Court didn’t highlight to the Appellant on how serious the offence is or the magnitude of the offence. iii. That, the case against the Appellant was not proved beyond reasonable doubt by extraction of spermatozoa for the purpose of DNA test as provided in Sec. 36(1) of the Sexual Offences Act No. 3 of 2006. iv. That, the learned trial magistrate erred in law and facts by failing to consider that there were no reliable forensic investigations to the matter. 6. The Appellant prayed that this Honourable Court grants him another chance of exercising his constitutional enshrined rights under Article 50(2) by ordering a retrial of the case. 7. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive. 8. The duty of a first appellate Court was restated in the case of David Njuguna Wairimu vs. Republic [2010] eKLR wherein the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: “ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” Evidence 9. The victim testified as PW1 and stated that she was 5th grade student at (particulars withheld) Primary School. She recalled that on 20th January 2024, at around 11 a.m. she had been in school where she had gone to play and, on her way, back she had met the Appellant herein who had held her by her hand and dragged her into a kitchen. He had held her by the neck, spread her legs apart and pushed her down. He had proceeded to remove her clothes then his trousers and had done “tabia mbaya” to her. It was her testimony that the Appellant had inserted in his “dudu into her dudu,” her “dudu” which she uses to urinate. PW1 told the Court that she had experienced a lot of pain and that she had been injured in her “dudu”. After the grotesque act the Appellant had threatened to flog her if she told anyone about what he had done to her. That the following day, she told her grandmother about what the Appellant had done to her, and her grandmother who then alerted the nyumba kumi and area chief. A report was duly lodged at the Police Station and she was taken to Cheptais Sub- County Hospital for treatment. She told the Court that the Appellant was a neighbor and also a watchman at a neighboring secondary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 2

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school and that she had known him very well. Further, she stated that at the time the Appellant defiled her there had been ample light from the open window as he had only shut the door. 10. On cross-examination, it was her testimony that the Appellant was a watchman at (particulars withheld) secondary school and that there were no other watchmen at the primary school on the material day. 11. PW2, Priscila Nasimiyu, testified that on 20th January 2024, she had found PW1 in pain while she held onto her abdomen, pelvic area and back. On inquiry, PW1 had told her that the Appellant herein had defiled her while she was going to play. She quickly reiterated the information to nyumba kumi and the village elder, and they then headed to the police station where they were escorted to the hospital for medical examination of PW1. This witness told the Court that she had known the Appellant very well as he was a neighbor and also worked as a watchman at (particulars withheld) primary school. She then did a dock identification. 12. PW3, Truphena Naliaka, testified that she was a village elder and recalled on 28th January 2024 at 9 p.m. PW2 went and told her that PW1 had been defiled by the Appellant herein. She told the Court that she informed the mukasa and nyumba kumi who after interrogating the victim went and arrested the Appellant. She did a dock identification of the Appellant as the person they had apprehended. 13. PW4, No. 226933 PC Kennedy Chikombe, testified that he was attached to Nambulia Police Post and recalled on 20th January 2024, while at the office, members of the public brought in the Appellant complaining that he had defiled the PW1. He noted that the Appellant had been assaulted so he escorted him to Cheptis Sub-County Hospital and thereafter to Lwahakha police station. That he took the victim to Sirisia Sub-County hospital for an age assessment examination. He did a dock identification of the Appellant as the person the public had presented at the station. 14. PW5, Alfred Sambo, testified that he was a Clinical Officer based at Cheptais Sub-County Hospital and that he was before the Court to produce the P3 form and treatment notes of the PW1. He told the Court that the victim had been brought to the hospital with a history of defilement by a person well known to her. On general examination, he had observed that she was walking with difficulties and complained of pains in the abdomen. On genitalia examination, he had observed that the genitalia was swollen with bruises or laceration on the labia, the hymen was not intact and there was discharge. On laboratory examination, the Complainant’s urinalysis had indicated presence of epithelial cells. He produced the Complainant’s P3 form filled on 28th January 2024 as PEXH5), treatment notes as (PEXH1 & PEXH2), PRC form as (PEXH3) and discharge form as (PEXH4). He told the Court that an age assessment had also been done on the victim and he produced the same is Court as PEXH6. On cross-examination, he stated that his prognosis was that the victim had been defiled. 15. At the close of the Respondent’s case, the Appellant was found to have a case to answer and was thus placed on his defence whereupon he tendered his unsworn evidence denying committing the alleged offence. He told the Court that on 20th January 2024, he had clocked out of work at 6 a.m. and he had been with his fellow watchman. He had taken a bodaboda and went home and slept off as he was not on night duty. He told the Court that he had slept in until 10 a.m. He insisted that he had not defiled the Complainant herein and that the charges against him are a frame up. 16. DW2, Wasike Francis, testified that he was a watchman at (particulars withheld) secondary school and that he recalled on 19th January 2024, he had been on duty with the Appellant herein and they had clocked out together 20th January 2024 at 6.00 a.m. heading to their respective homes. He told the Court that he had stayed home until 4.30 p.m. and had reported to duty at 6.00 p.m. It was his testimony that at 4.00 p.m. on 20th January 2024, he had been at home and had not seen the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 3

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Issues For Determination 17. I have re-analyzed , re-evaluated and re-scrutinized the record of appeal and the rival submissions of parties and the issues that arise for determination are: i. Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt; ii. Whether there were contradictions and inconsistencies in the Respondent’s case; iii. Whether the Appellant’s spermatozoa ought to have been subjected to DNA analysis; and iv. Whether the Respondent failed to call a key witness v. Whether the sentence meted upon the Appellant was appropriate. Analysis And Determination Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt 18. 19. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The section provides that: “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.” To sustain the charge of defilement against the Appellant, the Prosecution needed to prove the following essential ingredients of the offence of defilement: a. That the Complainant was, at the material time, a child as defined under section 2 of the Children’s Act and of the age between 12 years and 15 years b. That there was penetration of the child’s vagina; and; c. That it was the appellant who caused such penetration of the complainant’s vagina or genitalia. Proof of age 20. On the age of the Complainant, PW4, testified that the victim was 14 years at the date of the incident. PW5 testified that the victim was 14 years old as per the age assessment report which he produced as PEXH 6. 21. The neccesity of proving the age of the victim in a charge of defilement was underscored in the case of Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 4

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22. Rule 4 of the Sexual Offences Rules of Court Rules is explicit that: “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." 23. Therefore, in this case, in the absence of any other evidence to the contrary, I find that victim’s was aged 14 when the alleged incident of defilement occurred. Penetration 24. 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.” 25. In the instant case, the victim gave sworn testimony that the on 20th January 2024, while at her school at around 11.00 a.m. she had gone to play and, on the way, she met the Appellant herein who held her by the hand and dragged her into a kitchen wherein he held her by the neck, spread her legs apart and pushed her down. She told the Court that the Appellant removed her clothes and did “tabia mbaya” to her after removing just his trousers. It was her candid testimony that the Appellant inserted his “dudu in my dudu” “dudu” she used to urinate and that he did not wear any condom. It was her evidence that the Appellant did the abhorrent act to her once and she felt a lot of pain on her hip, pelvic area and even got injured on her “dudu.” She testified that immediately after the repugnant act the Appellant threatened to beat her up if she dared to divulge to anyone what had happened. This medical evidence of PW5 hence corroborated the evidence of the victim. 26. Further, in the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus; “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 27. Consequently, guided by the above, I find that penetration had been proved. Identiffcation of perpetrator 28. As to whether the Appellant was the perpetrator, the Appellant's testimony was that he knew the victim as a student at the (particulars withheld) Primary School. On the other hand, the victim testified that she knew the Appellant very well as he worked as a watchman at a Secondary School which neighbors her school. PW2 testified that the Appellant was a neighbor. Further, PW3 testified that she knew the Appellant as he was her village mate. Further, the Complainant testified that during the grotesque act by the Appellant, she was able to see him clearly by the aid of the light penetrating through the window as he had only shut the door. It is thus clear that the victim knew the Appellant well and recognized him as the perpetrator. In the circumstances, I find that the Appellant was properly recognized as the perpetrator of the offence. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 5

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29. It is trite law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59). 30. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts. Whether there were contradictions and inconsistencies in the Respondent’s case 31. It is trite law that not all discrepancies and inconsistencies are fatal to the Prosecution case. The discrepancies must be of such gravity that they prejudice the Accused. In Mwangi v Republic [2021] KECA 345 (KLR) it was held: “ 34. On the alleged failure of the first appellate court to address inconsistencies, glaring gaps and extenuating gaps, the position in law and which we fully adopt is as was stated, inter alia by the court in Joseph Maina Mwangi vs. Republic Criminal Appeal No. 73 of 1993, that: “In any trial, there are bound to be discrepancies and any appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code to determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences…” 32. Consequently, the issue is whether in this matter, there were indeed contradictions and inconsistencies and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the Appellant. 33. The Appellant alleges that the contradictions arise in that PW2 testified that he was arrested on 21st January 2024, a Sunday, a day after the alleged incident and the contravention arises on crossexamination of PW2 wherein she states that the Appellant was arrested on 28th January 2024. The Appellant submits that the same evidence was tendered by PW4 who allegedly testified that he rearrested the Appellant on 20th November 2024, raising questions about the diverse dates of arrest. In Joseph Maina Mwangi Vs Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 34. There are cases where the inconsistency is so minor that, clearly, it will be of little effect and certainly would not necessarily mean that the witness is lying or that his/her testimony cannot be relied on. The Court must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. [See Nyakisia Vs R. E. A. C. A. Crim. App. 35-D-71; -/5/71]. 35. This Court has subjected the evidence adduced before the trial Court to a fresh scrutiny and it notes that some of the issues raised by the Appellant to be contradictory is the dates of his arrest. In my humble view, the same is neither here nor there as the Respondent only had to prove the elements of the criminal offence herein which in my view, were met. Consequently, this ground fails. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 6

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Whether the Appellant’s spermatozoa ought to have been subjected to DNA analysis 36. In this case, the Appellant PW5 stated that there was no presence of spermatozoa in the Complainant’s genitalia. The Appellant in his preferred grounds of appeal noted that it would have been prudent for the Respondent to have conducted DNA to fully determine whether the same belonged to him. 37. In the case of Martin Okello Alogo vs Republic [2018] eKLR as cited in the case of Williamson Sowa Mbwanga vs Republic the Court of Appeal stated: “ ……...As the Court of Appeal of Uganda rightly stated, in the Sexual Offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and it is not necessary that the hymen be raptured………It is partly for this reason that Section 36 (1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purpose of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific or DNA testing.” 38. It is instructive to note from the above authority that medical examination of the Appellant was not mandatory but discretionary as there are other ways other than DNA profiling, of proving the commission of a sexual offence. As such, this said ground must fall. That the Respondent failed to call a key witness 39. Section 143 of the Evidence Act provides that a fact can be proved by the evidence of a single witness unless a statute requires otherwise. 40. In the case of Bukenya & others v Uganda (1972) EA 549 the Court held that an adverse inference may be drawn in instances where the Prosecution failed to call a material witness. However in the case of Donald Majiwa Achilwa & 2 others v Reublic (2009) eKLR. the court held that :“ The law as it presently stands is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court in an appropriate case is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case”. 41. The Appellant submits that the failure by the Respondent to call the other children that the victim was playing with when he grabbed her by the hand and took her to the kitchen to defile her was critical as the Respondent failed to prove who committed the offence. There is totally no evidence to show that failure to call the other children who were playing with the Complainant was intentional or mischievous and that their evidence would have been adverse to the Respondent’s case. There was no oblique motive in failing to call said witnesses. That ground must fail. 42. In the end, I find and hold that the Respondent proved the guilt of the Appellant herein beyond reasonable doubt and therefore the appeal against conviction fails and is hereby dismissed. The conviction of the Appellant for the offence of defilement contrary to Section 8(1) of the Sexual Offences Act was sound and the same is hereby upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 7

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Whether the sentence meted upon the Appellant was appropriate 43. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Thirty (30) years. The Respondent in its written submissions beseeched this Court to maintain the Appellant’s sentence to Thirty (30) years. 44. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms: “ It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 45. The victim the subject of this appeal was found to be aged 14 years old at the material times and hence the sentence imposed fell within the statutory prescribed age bracket. It is noted that the trial Court duly considered the Appellant’s mitigation before exercising its discretion in sentencing him. I find the sentence to be appropriate. There is evidence that the Appellant was released on bond pending trial as the case to answer ruling indicated that his bond terms were cancelled immediately after he was sentenced. The sentence imposed was therefore proper. 46. In the result, this appeal against conviction and sentence lacks merit and the same is dismissed. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. M.S.SHARIFF JUDGE In the presence of: Appellant M/S Kibet for the Respondent Peter Machoni Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18215/eng@2025-11-14 8

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