Evans Wafula Otuba v Republic

Evidence 4. The Respondent’s case was that the Victim in this matter who gave evidence as PW1 was born on 2nd April 2003, and was 15 years old. She told the Court that she knew the Appellant herein very well as he is her friend and that she was a form 2 student at (particulars withheld) Secondary School. She recalled on 11th January 2020 to 27th February 2020, she was at the house of the Appellant herein (points at him) and that she was living at the said house with him. She told the Court that the Appellant took her to live with him as a friend and that she agreed to live with him as his wife and that all this happened during the school term. She told the Court that she was scared of going back home, after staying with the Appellant for a week so she just decided to continue staying with him as she feared she will be chastised if she were to return home. She told the Court that she never reported to school and when her parents found them they took them to Kimaiti and she was later discharged to head home, but the Appellant remained there. She told the Court that she would love the case before it to be concluded as she will be going back to school and that the Appellant be discharged and acquitted. She told the Court that she still loves the Appellant herein and that he is her friend and not her husband. She told the Court that she had confessed her love towards the appellant to the police. Further that they had unprotected sex and that he had promised to marry her. It was her testimony that the Appellant would tell her to remove his clothes and that she would lie down and the Appellant would lie on top of him and they will then engage in coitus. She told the Court that the Appellant’s penis would get into her vagina and she proceeded to do a dock identification of the Appellant. On cross-examination, she told the Court that she knew the Appellant from late November, 31st to early December and that they had met in the market and that she loves him. She told the Court that she had told him that she was of marital age and that the Appellant believed she was older that she was, and that she was ready to live with him as his wife. She told the Court that she was not aware if her parents had demanded for any dowry and that the Appellant could not pay the same. She maintained that if the Appellant were to be convicted it would be because he believed she was 18 years old and above. 5. On re-examination, PW1 told the Court that the Appellant knew she was a student and that she never told the Appellant that she was old enough to get married. She reiterated that she told the Appellant that she was 15 years old and that her parents never asked for any dowry from the Appellant. 6. PW2, XW, testified that the Victim was her daughter and that he knew the Appellant herein after he found him with the Victim. He recalled that her daughter disappeared and was later found in the house of the Appellant herein after gaining forceful ingress therein. On cross-examination, he told the Court that the Victim disappeared in January but could not recall the exact date and that he never lodged any report with the police as it was his wife who did so. 7. PW3, ENW, testified that the Victim was 17 years old and that she delivered her on 1st April 2003. She told the Court that the Victim had disappeared from home and she proceeded to lodge a report with the area chief and after investigations her daughter was located at the house of the Appellant herein. She told the Court that the Appellant is the son of her brother, he is her nephew, and that students who were passing by heading to school notified her that they had spotted the Victim at the Appellant’s home. She told the Court that acting on this tip she reported the matter to the police. On cross-examination, she told the Court that she has no evidence that the Victim attends school and that a report was lodged in February 2020. She maintained that the Appellant is a son of her brother, same lineage but not biological siblings and between her house and that of the Appellant there is Tabala river and that she only learnt that the Victim was at the Appellant’s home 2 weeks after her disappearance. 8. PW4, KW, testified that the Victim, PW2 and PW3 are his neighbours. He recalled on 27th February 2020, he proceeded with PW2 to Kimaeti Police Station to lodge a report of a missing person and they https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 2

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then proceeded with the officers to rescue the Victim. He told the Court that the officers knocked on the Appellant’s door but he refused to open forcing them to forcefully gained ingress into his house where they found both the Appellant and the Victim. On cross-examination, he told the Court that he recorded his statement with the police and that PW2 had informed him of the disappearance of the Victim and that the next day he alerted her of where the Victim was. He insisted that he had never ventured on any journey to solicit for dowry for the Victim. 9. PW5, Baraza Tom Juma, testified that he was a Clinical Officer based at Bungoma County Referral Hospital and that he was in Court to produce the Victim’s treatment documents and P3 form. According to him, the Victim was referred to them from Kamaeti Police Station for examination and she came in with a history of defilement by a person well known to her from 13th August 2019 to 26th February 2020. On genitalia examination, he observed: a perforated hymen, and whitish discharge in vagina area. On laboratory examination, most of the conducted tests were negative. He also told the Court that an age assessment test was conducted showing that the victim was between 14 and 16 years. On cross-examination, he told the Court that he was the one who filled the P3 form and was 50/50 on whether the Victim was defiled or not. Further that the major reasons for perforation of hymen is sexual activity but it can also be perforated through vigorous exercises and injuries. He produced the victim’s treatment and P3 form in Court as P Exhibits 1 and 2 respectively. 10. PW6, No. 716XXXX Sergeant Limu, testified that he was the investigations officer. That on 26th February 2020, while he was at Kamaeti Police Base, PW2 visited the base while in the company of PW4 to lodge a disappearance report involving the Victim herein. They informed him that they had spotted her and sought their assistant to rescue the Victim. That while in the company of his colleagues, they proceeded to Talaba village where they saw a grass thatched house that was pointed out to them by PW4 and PW2 and there was light inside with people talking. They then knocked on the door but no one opened the door for them. That prompted them to forcefully gain ingress into the house wherein they found the Appellant herein and the Victim. They apprehended both of them and proceeded to charge the Appellant and had the Victim taken for medical examination the next day and that age assessment was also done. On cross-examination, he told the Court that the Victim had, according to the report made by PW2 disappeared from 11th January 2020 to 27th February 2020 and that OB No. 08/27/2/2020 captured that information. Further that PW2 had also informed them that he had lodged a report at Nambale Police Post and to the area chief. He told the Court that he was not aware of any dowry payment and that Victim told him that she was 15 years old. 11. PW7, Dr. Francis Khamal, testified that he was a dental specialist based at Bungoma County Referral Hospital and that he was in Court to avail the Victim’s age assessment report conducted on 9th March 2020. He told the Court that based on his assessment, the Victim was between the age of 14 to 16 years old. On cross-examination, he told the Court that no x-ray was conducted and that based on his assessment there was a high probability that the Victim was 14 to 16 years old. He produced the age assessment form in Court as an exhibit. P EXH 3. 12. 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 sworn evidence wherein he denied committing the alleged offence and maintained that the Complainant was his wife and that when he met the Victim after interacting with her, he deduced that she craving for marriage and showed up at his house with her clothes on 25th December 2019. He told the Court that the Victim told him that she was 19 years old and that she left school in Standard 8. He told the Court that he was arrested in 2020 while still living with the Victim and that his grandmother reached out to the victim’s parents who visited her in the company of PW2’s two brother to discuss the issue of dowry. He told the Court that the Victim’s family indicated that they wanted 12 cows which was beyond his means and he only gave them Kshs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 3

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5,000/= which angered them hence his subsequent arrest. He told the Court that he wished to be acquitted and to get his wife back. On cross-examination, he told the Court that he had lived with the victim for about 6 to 7 months prior to his arrest. 13. DW2, EO, testified that the Appellant herein is her brother. She told the Court that in February 2020 while at home, she established that the Appellant had married the Victim herein in February 2019. She testified that the Victim was welcomed to their home as the wife of the Appellant. Further that in February 2020, the Victim’s father and his brother visited their home and met with her and two of her elder brothers. That the Victim’s parents proceeded to ask for 12 cows as dowry payment and the Appellant was not willing to raise the same. The Victim’s parents demanded for immediate payment of the stated dowry and when the Appellant told them the he was not in a position to pay the demanded dowry, they left in anger. She told the Court that it was after the failed dowry negotiations that the victim’s parents returned with police officers to arrest the Appellant and that the Victim who had told them that she was around 20 years old and had left her identification card at her home. 14. At the conclusion of the trial, the trial Court found that the Respondent had proved it’s case against the Appellant beyond reasonable doubt. The Appellant was convicted and sentenced to a custodial term of Fifteen (15) years. Appeal 15. Aggrieved by the both the conviction and sentence, the Appellant filed his Petition of Appeal dated 21st November 2023, in which he raised the following grounds of appeal: a. The trial Magistrate erred in law and fact by convicting the Appellant when the age of the Complainant was not proved beyond reasonable doubt. b. The trial Magistrate erred in law and fact by convicting the Appellant when the Complainant presented herself to the Appellant as adult woman ready for marriage. c. The trial Magistrate erred in law and fact by not believing the cogent defence put up by the Appellant. d. The trial Magistrate erred in law and fact by convicting the Appellant when the Complainant’s parents requested for dowry payment but the Appellant failed to raise the same. e. The trial Magistrate erred in law and fact by sentencing the in Appellant to serve 15 years prison when decided cases gives leeway to the Magistrate to have discretion in sentencing the Appellant even to non-custodial sentence. f. The trial Magistrate erred in law and fact by not considering the submissions of the Appellant on record. g. The trial Magistrate erred in law and fact in believing the Complainant’s parents version that the Complainant was a minor when no birth certificate was produced putting in consideration that one cannot sit for KCPE examination without a birth certificate. h. The trial Magistrate erred in law and fact by acting with a lot of bias without being impartial hence arriving at a wrong decision. 16. He prayed for the appeal to be allowed and the Appellant to be set at liberty and the sentence of 15 years as meted out be quashed. 17. The appeal was canvassed by way of written submissions and both parties filed their respective submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 4

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Determination 18. I have considered the trial Court’s record, the grounds of appeal and the rival submissions filed by both parties and the following issues emerge for determination; a. Whether the ingredients of the offence of defilement were proven. b. Whether the sentence is harsh. a. Whether the ingredients of the offence of defilement were proven. 19. In the case of Pandya v Republic [1957] E.A 336, the Court held that: “ 14. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8 (1) of the Sexual Offences Act No.3 of 2006.” Age 20. Regarding the age of the Complainant, it was the evidence of PW1, during re-examination, that the Appellant herein knew very well she was a student and that she never told him at any point that she was old enough to be married. She insisted that she told the Appellant herein that she was 15 years old. 21. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added) 22. According to the age assessment form filled and produced by PW7 as P EXH 3, the Complainant’s age was assessed at 14-16 years at the material time. It is clear that when the victim testified on 15th October 2020, she had categorically said that she was 15 years old and that her date of birth was 2nd April 2003. The P3 form also indicated that the victim was 15 years old. 23. In the case of Gordon Otieno Nyambade vs Respondent, Criminal Appeal No E016 of 2020, the High Court at Kisumu stated that, “ In the absence of documentary evidence, observation and common sense can assist the court in determining a minor’s age. In the case of Joseph Kieti Seet vs Republic [2014] eKLR, the court therein held that a minor’s age could be proved by common sense, a position this court agreed with. In the case of Evans Wamalwa Simiyu vs Republic [2019] eKLR, the court therein accepted the doctor’s indication of the minor’s approximate age in the P3 Form to have been the apparent age of that minor. This court fully associated itself with the said holding….” 24. Due to the analysis made hereinabove I do find that the victim was aged 15 at the time of commission of the offence, wherefore she was a child within the meaning of the Children’s Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 5

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Penetration 25. Section 2 of the Sexual Offences Act No.3 of 2006, defines penetration as partial or complete insertion of the genital organs of a person into the genital organs of another person. 26. Genital Organs under the said Act are described as the whole or part of male or female genital organs and for the purposes of the Act also the anus.” 27. It was the evidence of PW1, that she had unprotected sex with the Appellant herein and that he promised to marry her. It was her testimony that during the time she stayed with the Appellant, he would tell her to remove his clothes and that she would lie down and the Appellant would lie on top of her and they would then engage in coitus: the Appellant’s penis would get into her vagina. The Appellant does not deny that fact of penetration for a lengthy period of time and he maintains that the victim had voluntarily presented herself to his house for marriage, while carrying her clothes. 28. The victim’s evidence was corroborated by the medical evidence tendered by PW5, a Clinical Officer, who produced the victim’s treatment note as PEXH 1 and her P3 form as P EXH2. It was his evidence that upon examining the victim he observed that there was a perforated hymen, presence of whitish discharge and the urinalysis came back negative. On cross-examination, he noted that the major reason for perforation of hymen is sexual intercourse although strenuous physical exercises could lead to a perforated hymen. I am persuaded that the element of penetration was not only proved beyond any reasonable doubt but was conceded to by the Appellant. Identification 29. The third and last element is identification. In this case there was identification by way of recognition. This fact was confirmed by the Appellant referred to the Complainant as his wife during his defence. PW3 who testified that the Appellant was his nephew by lineage and not biological siblings. In James Murigu Karumba vs. Republic [2016] eKLR, it was held by the Court of Appeal based, on Suleiman Juma alias Tom – v- R (2003) eKLR; (2003) KLR 386 that: “ Lastly, the three identifying witnesses did admit that they knew the appellant prior to the incident. Consequently, this was a case of recognition as opposed to identification of a stranger. Therefore, there was no need for the identification parades and the identification evidence therein was of no probative value.” 30. I find that the offence of defilement was therefore adequately proven in this case. 31. On the issue of dowry discussions, this ground to me was simply far fetched and a move by the Appellant to seek a lifeline. Traditionally dowry negotiations are an elaborate event that is documented through minutes and photographs; none were tendered by the Appellant in his defence. I thus find that this line of defence is unsustainable and it must fail. 32. Accordingly, I find that the elements of defilement namely, identification, penetration and minority age of the victim were proved beyond doubt. The Appellant’s conviction by the trial court was therefore proper and safe. Whether the sentence is harsh. 33. As regards the sentence, the Appellant was charged with defilement contrary to Section 8(1) and 8(3) of the Sexual offences Act No 3 of 2006. The Appellant was sentenced to 15 years’ imprisonment sentence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 6

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under Section 8(3) of the Sexual Offences Act. The record is however clear that Court stated that it had considered the mitigation tendered by the Appellant and all the circumstances of the case. 34. The statutorily prescribed mandatory minimum sentence under section Section 8 (3) of the Sexual Offences Act is twenty years for the offence of defilement of a child aged between twelve and fifteen years. It is however evident that the judicial officer did exercise discretion to impose a sentence of fifteen years, taking into account the circumstances of the case, including the gravity of the offence and the Appellant’s mitigation and the age assessment that placed the victim’s age between 14 to 16 years. 35. Upon considering the entire record of appeal, I am satisfied that the Court below acted with due consideration and prudence in passing the sentence, although it deviated from the statutory prescribed minimum sentence of 20 years. It balanced the interests of justice including the principles of proportionality and fairness. I am thus not persuaded that the sentence of 15 years imprisonment was harsh or excessive in the circumstances of this case and therefore, decline to interfere with it. 36. Whereas the Appellant and his witness had put up a spirited attempt to avail himself the defence under section 8 (5) of the Sexual Offences Act, I do find that as already analyzed hereinabove, no documentary evidence was adduced to support the alleged dowry payment agreement. The victim also maintained that she had tod the appellant that she was 15 years old and not 20 as his witness alleged. The appeal on sentence likewise is disallowed. 37. In the result, this appeal against conviction and sentence lacks merit and the same is dismissed. I therefore uphold both the conviction and sentence. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. M.S.SHARIFF JUDGE In the presence of: N/A by Wamalwa R for Appellant Appellant Ms Kibet for Respondent Peter Machoni - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18300/eng@2025-11-14 7

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