Maruti Wekesa Alias Boyi v Republic

4. That the learned trial magistrate erred in law and fact when she took into consideration extraneous matters and failed to take into account relevant facts, thereby wrongly convicting the appellant. 5. That the learned trial magistrate erred in law and fact when she failed to consider the defence of the accused person. 6. That the learned trial magistrate failed in her duty as an umpire in a matter where one party was represented and the other party was not. 7. That the learned trial magistrate erred in law and fact when she resolved doubts raised in the prosecution evidence in favour of the prosecution instead of the appellant. 8. That the learned trial magistrate erred in law and fact by failing to take into account the age of the appellant during the conduct of the trial and sentencing. 9. That the learned trial magistrate meted out an excessive sentence. 10. That the learned trial magistrate was biased against the appellant. 4. The appellant seeks the appeal to be allowed and the conviction and sentence quashed. 5. As the first appellate court, my duty is well spelt out, namely to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the trial court. (See Okeno v Republic [1972] EA 32). 6. The evidence before the lower court was as follows: 7. L.B.W (Pw1) testified that on 25/11/2023, the appellant picked her and her sister, Angel, and took them to his house. He gave them food, and they all slept on the floor. Pw1 slept in a corner with the appellant, and her sister slept behind him. She further testified: “Boyi did bad manners to me. He did it on my urinating thing. (Minor points to her private parts.) Boyi used his urinating thing to do bad manners on me. I felt bad. He did not do bad manners to Angel. I cried.” 8. Pw1 and her sister returned home in the morning, as the appellant went to work. She told her mother that the appellant ‘did bad manners’ to her, and she took her to the hospital. She was able to identify him because there was light. 9. The complainant’s mother, L.N. (Pw2), recalled that on 26/11/2023, she was at home with Pw1, who told her she was in pain. She removed her pants, which had sperm, and observed that her private parts were swollen and also covered in sperm. The incident occurred on 25/11/2023, and they took her to the hospital on 27/11/2023. She reported the matter to Kimilili Police Station. She told the court that Pw1 was born on 4/5/2016 and is 7 years old. 10. In Kimilili Sub-County, Pw1 was treated by Manyendo Christine (Pw3), who holds a diploma in Clinical Medicine and Surgery. She examined the child and noted foul-smelling, creamy vaginal discharge, swollen labia, anal tenderness, vaginal wall lacerations, and a missing hymen. Pus cells were observed in the urine following laboratory tests. A diagnosis of defilement was made, with a urinary tract infection secondary to defilement. She produced the medical treatment notes as exhibits, Pexh1. 11. A group of people wanted to kill the appellant for the offence committed, and that’s when Mustapha Salwa (Pw4) received a phone call to rescue the appellant. Pw4 took the appellant to the police station and handed him over to the police after a report was made against him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18816/eng@2025-11-24 2

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12. At Kimilili Police Station, the case was assigned to Priska Auma Wandukusi (Pw5). She testified that she interrogated the minor, who recounted what had transpired. She accompanied the minor to the hospital and issued her a P3 form to be completed by a doctor. She recorded witness statements and charged the appellant. She produced the age assessment report. 13. When placed on his defence, the appellant testified that on the material day he was at Mwalimu Jose’s video shop from 9:00 to 11:00 p.m. He went home and found his nieces crying, and they told him that Pw1 had been raped. He also noted that his sack of maize and 7 gorogoro of beans had been stolen. His neighbour told him that someone had been in his house. Submissions 14. The appellant claimed that his rights under Article 49 were violated because the pre-bail report was found unfavourable without it being read in court. He submits that he was sentenced to life imprisonment on the basis that he had not mitigated. His mitigation was in his mother tongue, and therefore the court ought to have provided an interpreter. 15. The appellant submits that the circumstances of the case were not taken into account as required under section 33 of the Sexual Offences Act. In Absolom Amboka Okila v Republic (2020) eKLR, the court held that the circumstances in which an offence is alleged to have been committed cannot be ignored. Section 33 of the SOA says as much. While we look at the three ingredients of defilement, the fourth must be the circumstances, as the evidence required to prove whether a sexual offence is likely to have been committed is connected to the person concerned. He also submits that the court should consider that he is a first offender and impose a lesser jail term. 16. The prosecution submitted that the offence was proved to the required standard. It proved that the victim was 8 years old, and that her evidence, Pw2’s, and that of the clinical officer showed penetration. The appellant was positively identified through recognition. On the sentence, the prosecution submits that it was proportionate to the offence, as it has a permanent impact on the life of the victim. In Republic v Ayako (Petition No E002 of 2024) [2025] KE SC 20 (KLR) (11 April 2025) (Judgment), the Supreme Court upheld the life sentence. Analysis And Determination 17. I have carefully considered the rival submissions and the grounds of appeal. The issue before the court is whether the prosecution proved its case to the required standard and whether the sentence was harsh in the circumstances. 18. On whether the prosecution proved its case, the respondent was required to prove 3 elements: the age of the complainant, penetration, and identification of the assailant. 19. Regarding the complainant’s age, the child’s mother, Pw2, testified that she was born on 14/5/2016 and was therefore 7 years old at the time of the offence. According to the age assessment report, the child’s age was estimated at 8 years. Based on the evidence before the trial court, the complainant was a child, as she was under 18 years of age. 20. On identification, Pw1 testified that the appellant was their neighbour and a frequent guest in their home. On the night of 25/11/2023, the appellant picked her up along with her sister. She identified him by the solar light. The complainant’s mother, Pw2, testified that the appellant was her brother-inlaw. He would always visit her house and take the children out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18816/eng@2025-11-24 3

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21. According to the evidence of Pw1 and Pw2, the appellant was well known to them. He was a relative who lived 70-100 metres from their home. The Court in Wamunga v Republic (1989) KLR 424 stated: “ Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 22. In Roria v Republic [1967] EA 583, the Court warned on the dangers of convicting on the evidence of a single identifying witness, stating: “ A conviction resting entirely on identity invariably causes a degree of uneasiness… That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.” 23. In this case, the complainant left her home and proceeded to the appellant's house. She clearly saw the appellant using a solar light. Therefore, given the circumstances, I find that the appellant was positively identified. 24. I now turn to consider whether penetration was proved to the required standard. She testified that the appellant: “ …did bad manners to me. He did it on my thing. (Minor points to her private parts) Boyi used his urinating thing to do bad manners to me. I felt bad… I cried.” 25. The clinical officer, upon examining the complainant, testified that she had a foul-smelling, creamy vaginal discharge and swollen labia. She also reported tenderness at the anus, a laceration of the vaginal walls, and a missing hymen. She further testified that the complainant was defiled and had a urinary tract infection. 26. The appellant’s defence was that he was watching football when the offence occurred and that the complainant must have been defiled by an intruder who broke into his house. However, Pw1, who was in the house, did not testify to being attacked by an intruder. She was clear in her testimony that she slept on the floor with the appellant, whom she saw clearly by the light of the solar light. Therefore, the appellant’s defence was an afterthought and did not displace the evidence against him. 27. Therefore, having considered the evidence before the trial magistrate, I find that the prosecution proved the offence of defilement beyond reasonable doubt. 28. The appellant submitted that he received a harsh sentence because his mitigation was not considered. However, the trial court record shows that, in mitigation, he pleaded for leniency. The trial magistrate considered his mitigation but found that he deserved a deterrent sentence because he took advantage of the minor’s innocence and betrayed her trust. As a result of the offence, she will be traumatised for a long time. Section 8(1) and 8(2) of the Sexual Offences Act provide as follows: 8(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 aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18816/eng@2025-11-24 4

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29. Having considered the provisions on sentencing under the Sexual Offences Act and the appellant’s mitigation before the subordinate court, I find that the sentence imposed was not harsh. 30. Consequently, I find that the appeal lacks merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 24TH DAY OF NOVEMBER 2025 R.E. OUGO JUDGE In the presence of: Maruti Wekesa alias Boyi/ Appellant Miss Matere -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18816/eng@2025-11-24 5

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