Silas Nyabuti Nyambagera v Republic

Submissions 4. The appellant submitted that the medical evidence did not conclusively prove penetration since the clinical officer (PW4) found no lacerations or spermatozoa and only noted that the hymen was broken. He argued that the hymen could have been broken by other means. He also cited inconsistencies in the testimony of PW1 and PW2 and the prosecution’s failure to call the investigating officer as fatal to the case. He challenged the mandatory twenty-year sentence under section 8(3) as harsh. 5. The Respondent, through learned counsel for the State, opposed the appeal and maintained that all elements of the offence were proved. Counsel submitted that the complainant’s age was proved by a birth certificate; penetration was established through medical evidence of a broken hymen and whitish discharge; and identification was by recognition since the complainant knew the appellant as a motorcycle rider. The sentence, counsel argued, was the statutory minimum and could not be said to be harsh. Duty of the Court 6. This being a first appeal, this Court is required to re-evaluate the evidence on record, analyse it afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses testify (Okeno v Republic [1972] EA 32 at 36). Issues for Determination 7. I have considered the appeal in light of the trial court record, the grounds of appeal and the submission by both parties and the issues that arise for determination are: 1. Whether the age of the complainant was proved 2. Whether penetration was proved beyond reasonable doubt 3. Whether the appellant was positively identified as the perpetrator 4. Whether failure to call the investigating officer was fatal 5. Whether the sentence imposed was lawful 1. Whether the age of the complainant was proved 8. The prosecution bears the burden of proving the complainant’s age beyond reasonable doubt since punishment under section 8 of the Sexual Offences Act depends on the complainant’s age. PW3, complainant’s mother, produced a birth certificate showing that complainant was born on 06th October 2008. The offence was committed on 24th May 2021, meaning the complainant was 13 years old at the material time. The trial court therefore correctly found that the complainant fell within the age bracket of 12 to 15 years under section 8(3) of the Act. 2. Whether penetration was proved 9. Penetration, as defined in section 2 of the Sexual Offences Act, means the partial or complete insertion of the genital organs of one person into those of another. PW4, the clinical officer, found that the complainant had a broken hymen and whitish discharge consistent with recent sexual intercourse. 10. The Appellant submitted that the medical evidence did not conclusively prove penetration since the clinical officer (PW4) found no lacerations or spermatozoa and only noted that the hymen was broken. He argued that the hymen could have been broken by other means. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18365/eng@2025-11-13 2

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11. In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that: “ Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” 12. PW1 testified that the appellant lured her and PW2 into a bush, threatened them, and had sexual intercourse with her. PW2 corroborated this account. 13. Accordingly, the submission by the Appellant that absence of spermatozoa meant there was no penetration does not hold sway. I am satisfied as did the trial court that the medical evidence supported the evidence of the complainant that there was penetration. 3. Whether the Appellant was positively identiffed as the perpetrator 14. Identification of the perpetrator is often a central issue in sexual offences, as such crimes usually occur in private or secluded circumstances. 15. In this case, the prosecution relied on the recognition of the Appellant by two key witnesses, PW1 and PW2. Both witnesses testified that they knew the Appellant before the incident as a motorcycle rider operating within their locality. It was their evidence that on the material day, the Appellant, accompanied by another man, met the two girls and offered them a ride on his motorcycle on the pretext that he was going to collect a battery at Ekerenyo Market. The witnesses accepted the offer and spent a considerable portion of the day in Appellant’s company, engaging him in conversation and riding with him. The offence occurred later in the evening after this prolonged interaction. 16. From the evidence on record, there is no doubt that the witnesses had ample opportunity to observe the Appellant closely. They interacted with him for hours, and even as daylight faded, recognition was still possible because he was a familiar person. PW2 corroborated PW1’s testimony, confirming that she too knew the Appellant well and that he was not a stranger. Both witnesses were therefore testifying to recognition rather than first-time identification. 17. The long duration of their interaction, their prior familiarity with the appellant, and the evening occurrence of the offence eliminated the possibility of mistaken identity. 18. The Court of Appeal in Anjononi & Others v Republic [1980] KLR 59 held that recognition of an assailant is more satisfactory and reliable than identification of a stranger, since it depends upon personal knowledge of the assailant in some form or other. 19. From the foregoing, I find that the Appellant’s defence was a mere denial and did not challenge the issue of recognition. He did not allege mistaken identity or any grudge. Having re-evaluated the evidence, this Court finds as did the trial court that the identification of the Appellant was by recognition after prolonged interaction and was positive, credible, and free from error. 4. Whether failure to call the investigating oficer was fatal 20. The Appellant argued that the prosecution’s failure to call the investigating officer weakened its case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18365/eng@2025-11-13 3

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21. On this issue, section 143 of the Evidence Act provides as follows: “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 22. In Joseph Kiptum Keter v Republic [2007] eKLR the Court of Appeal stated that: “ Bukenya v Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 23. In the present case, the evidence adduced by PW1, PW2, PW3, and PW4 adequately covered all the essential elements of the offence. PW1 and PW2 provided direct and consistent testimony on the circumstances of the offence and the identity of the Appellant. PW3 corroborated the complainant’s age by producing the birth certificate, while PW4, the clinical officer, gave medical evidence establishing penetration. Collectively, this body of evidence was comprehensive and self-contained, leaving no material gap that could only have been filled by the investigating officer. 24. The role of the investigating officer in this context would merely have been to restate the sequence of events already established by the other witnesses and to confirm procedural steps leading to the appellant’s arrest. His testimony would therefore have been formal and repetitive rather than probative. The omission to call him did not occasion any injustice or prejudice to the appellant, particularly since all the critical facts were proved by primary witnesses with direct knowledge of the events. 25. Accordingly, the absence of the investigating officer’s testimony does not weaken the prosecution case, and the evidence on record remained sufficient to establish the charge beyond reasonable doubt. 5. Whether the sentence imposed was lawful 26. Section 8(3) of the Sexual Offences Act, 2006 provides that— “ A person who commits an offence of defilement with a child aged between twelve and fifteen years shall upon conviction be sentenced to imprisonment for a term of not less than twenty years.” 27. This provision establishes a mandatory minimum sentence. The Court of Appeal in Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) affirmed that the minimum sentences prescribed under section 8 of the Act are lawful and binding unless declared unconstitutional. The Supreme Court in Republic v Joshua Gichuki Mwangi Petition No. E018 of 2023 [2024] KESC 42 (KLR) reaffirmed that trial courts have no discretion to impose a sentence below the statutory minimum set by Parliament. 28. Accordingly, the sentence of twenty (20) years’ imprisonment imposed upon the appellant was lawful, proper, and in strict conformity with section 8(3) of the Sexual Offences Act. Conclusion and Orders 29. Having re-evaluated the entire evidence and grounds of appeal, the Court finds that the conviction was safe, and the sentence justified and makes the following orders: 1. The appeal is dismissed for want of merit 2. The conviction and sentence of twenty (20) years’ imprisonment are upheld https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18365/eng@2025-11-13 4

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DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER, 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18365/eng@2025-11-13 5

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