Hassan Kubo v Republic

3. 4. That the learned trial magistrate erred in law by imposing a sentence that was harsh and excessive. 5. That the learned trial magistrate erred in both law and fact by failing to appreciate and consider the Appellant’s defence. The prosecution called 5 witnesses in the case while the Appellant testified and did not call any witness. Case for the prosecution at the trial court 4. The case for the prosecution was that the Appellant was married to the aunt of the complainant, a sister to the complainant`s mother. Her said aunt had given birth through caesarian and the complainant had gone to stay with her to give her help during her recuperation. 5. It was the evidence of the complainant that they were living in one big house in which the Appellant had a room and she had a room of her own. That one day the Appellant went to her room at night and found her sleeping. He undressed her, removed his clothes and had sex with her. He threatened to kill her if she disclosed the incident to anybody. She informed his wife about it but she told her not to tell anybody because if she did so the Appellant would be jailed. That she asked her to continue having sex with him until she, the aunt, recovered. The appellant made a habit of going to her room every weekend to have sex with her. He did so six times. Later her stomach started to swell and she informed another aunt who told her mother, PW2. Her mother took her to hospital and they reported the matter at Rabai police station. 6. The complainant was seen at Rabai Health centre and referred to Mariakani sub county Hospital. Tests were done that showed that she was 26 weeks pregnant. A clinical officer at Mariakani sub county hospital PW4 completed her P3 form and Post Rape Care form. 7. The case was investigated by PC Purity Jerobon PW 5. She obtained the complainant`s birth notification from the complainant`s mother that indicated that the complainant was born on 5/5/2006. The same had been issued by the area Assistant chief PW3. The Appellant was arrested and charged with the offence. The complainant gave birth when the case was going on in court. It was the evidence of the complainant that it is the Appellant who made her pregnant. 8. The complainant`s mother PW2 in her evidence stated that the Appellant is her brother-in -law as he is married to her sister. She confirmed that the complainant had at the material time been staying with her (PW2`s) sister who is married to the Appellant. During the hearing of the case in court the Assistant chief PW3 confirmed issuing the birth notification, MFI.5 to the complainant`s mother after the complainant was born. The investigating officer produced the birth notification in court as exhibit, P.Exh.5. The clinical officer PW4 produced the Post Rape Care form and the P3 form as exhibits, P.Exh. 2 and 3 respectively. Defence case 9. When placed to his defence the Appellant stated in a sworn statement that he was in the business of selling clothes. That he met a woman called Saumu who became his lover. The woman gave him money to expand his business. His wife learnt of the affair and left him. He then cut links with the woman. She threatened to revenge on him as her ‘chama’ members were demanding the money from her. It was his evidence that he never knew the complainant and saw her for the first time in court. He denied in cross-examination that the complainant was living in his house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 2

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Submissions 10. The appeal was canvassed by way of written submissions. The appellant in his submissions urged this court to consider the time he had spent in custody prior to his sentence. That he was arrested on the 2nd day of December, 2022 and convicted on the 13th day of October, 2023, a period of 11 months and 11 days. He urged the court to be guided by Section 333 (2) of the Criminal Procedure Code which provides as follows; 11. ‘Subject to the provision of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole day, the date on which it was pronounced, except otherwise provided in this Code. Provided that where a person sentenced under Sub Section (1) has prior to such sentence, been held in custody, the sentence shall take into account the period spent in custody.’ 12. The Appellant relied on the case of Ahamad Abolfathi Mohamed & another vs Republic Cr Appeal No. 135 of 2016 where the court held that taking into account the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. 13. The Respondent on the other hand submitted through the prosecution counsel that the prosecution had proved its case beyond reasonable doubt. That all the ingredients of defilement being the age of the complainant, penetration and identification of the perpetrator were all proved. That the age of the complainant was proved via the Notification of birth which indicated that the complainant was born on 15th May, 2006 making her 16 years at the time of commission of the offence. 14. On penetration, counsel submitted that though the complainant used euphemism to describe the defilement, it was clear that defilement occurred. The case of Mugamga Chilejo Saha v Re (2017) KLR was cited where the court held that it was acceptable for children to use euphemisms to describe the act of sexual intercourse. 15. Reliance was also placed on Section 124 of the Evidence Act Cap 80 and submitted that the trial court found the evidence of the complainant believable which evidence was corroborated by that of the clinical officer PW6 who examined the complainant and found her with a missing hymen and loose vaginal and anal sphincter muscles which were indications of penetration through both the vagina and the anus. 16. On whether the appellant was positively identified, the Respondent submitted that the complainant positively identified the appellant as her uncle and also referred to him as “Ustadh”. That she was living in the same house with him and she could therefore not be mistaken as to who defiled her. That she even knew his wife and therefore his defence that he did not know her was not believable. The Respondent urged the court to uphold the conviction and the sentence. Analysis and Determination 17. This being a first appeal, it is the duty of this court to exhaustively examine all the evidence tendered before the trial court, analyze it and arrive at its own conclusions but while at the same time bearing in mind that it neither saw nor heard the witnesses testify – see Okeno Vs Republic (1972) EA 32. In the case of David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that rspect: “ …the duty of the first appellate court is to analyse and reevaluate evidence which was before the trial the following in court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 3

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first appellate court may, depending on the 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 decision”. 18. I have in that respect considered the grounds of appeal, the evidence adduced at the trial court and the submissions filed in the appeal. The issue that arises for determination is whether the prosecution proved its case to the required standard of beyond reasonable doubt. 19. The specific elements of the offence of defilement which the prosecution is required to prove beyond reasonable doubt are proof of the age of the complainant; proof of penetration in accordance with section 2(1) of the Sexual Offences Act and positive identification of the assailant, see George Opondo Olunga vs. Republic [2016] eKLR. 20. The trial court made a finding that the complainant was aged 16 years at the time the offence was committed. It was the evidence of the complainant that she did not know her age. Her mother PW2 however said she was born in 2006 and was at the time of the offence aged 16 years. That she had obtained a birth notification certificate, P.Exh.5 after she was born. 21. The law is that the age of a person can be proved in various ways including by way of medical evidence, documents, direct evidence of parents or guardian or by observation by the court. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows: “ ... 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.” 22. In Thomas Mwambu Wenyi v Republic (2017) e KLR the court cited with approval the Uganan case of Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 which held that: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.” 23. In this case, a birth notification was produced that showed that the complainant was born on 15th May, 2006 thereby placing her age at 16 years at the time the offence was committed. The said document was issued by the Assistant chief, PW3. I find it to be a credible document in prove of the age of the complainant. The age of the complainant was therefore proved at 16 years. 24. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 4

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25. The prosecution had the duty to prove that the Appellant penetrated the victim. Penetration can be proved by way of medical evidence or by oral or circumstantial evidence. In AML v Republic (2012 eKLR the Court of Appeal held that: It was submitted that there was no medical evidence to connect the appellant with the offence as no DNA test was conducted. The position of the law is that the offences of rape and defilement are proved by way of oral evidence and circumstantial evidence and not necessarily by medical evidence. 26. The trial court in the matter stated that the evidence of the clinical officer, PW4, proved that there was penetration on the complainant by the Appellant. I however do not think so. All what the evidence of the clinical officer showed is that the complainant had a missing hymen and loose vaginal and anal sphincter muscles. A missing hymen by itself is not evidence of penetration. They hymen can be broken by other activities such as vigorous exercise as some girls are born without it, see P.K.W v Republic (2012) eKLR. The loose vaginal sphincter muscles may have been evidence that the complainant was sexually active but there was no supporting medical evidence to connect the appellant with the same. 27. In view of lack of medical evidence to support the charge of defilement, the question was whether the oral evidence of the complainant was sufficient to sustain the conviction. 28. The proviso to section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and records reasons for so finding. This position was succinctly held by the Court of Appeal in Williamson Sowa Mbwanga v Republic (2016) eKLR, where it stated that: “ The import of the proviso to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this court in George Kioji V Republic CR APP. NO.270 of 2012 (Nyeri): “where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and record the reason for such belief” 29. It was the evidence of the complainant that the Appellant went to her room while she was asleep, undressed her, removed his clothes and had penetrated into her vagina. He threatened to kill her if she told anyone. She all the same reported the incident to the Appellant`s wife who however prevailed upon her not to disclose the issue to anybody because if she did so the Appellant would be jailed. She further asked the complainant to offer sex services to the Appellant until she recovered from her operation. The complainant proceeded to have sex with the Appellant over the weekends until when she got pregnant. It was her evidence that she had sex with him for a total of six times. 30. The trial court found the evidence of the complainant to be credible and believable. The court said that there was no grudge between the complainant and the Appellant and therefore there was no reason for her to lie against him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 5

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31. I have carefully considered the evidence of the complainant and the reasons given by the trial magistrate for believing her evidence. I find no reason to differ with the finding of the trial court. The complainant gave a vivid narration of how the Appellant used to sneak into her bedroom to do “tabia mbaya” with her, which was an euphemism for penetrative sex. He did so six times which were over the weekends. There was no reason for the complainant to lie against the Appellant who was a person married to her aunt and was her religious leader. I agree with the trial magistrate that the complainant was a credible witness. 32. The Appellant alleged in his defence that he did not know the complainant before he was charged. I find no truth in this. The Appellant was represented by an advocate during the hearing at the lower court. No question was put to the complainant during cross-examination that she was not known to the Appellant before the case came up. Nor was any question put to her that she was not living at the Appellant`s house at the material time. The evidence that the complainant was at the material time living at the Appellant`s house was corroborated by the complainant`s mother PW2. Similarly, no question was put to PW2 in cross-examination on her evidence to that end. The Appellant`s defence to that end must have been an afterthought and a fabrication. 33. The Appellant further stated that the case was fabricated by the mother to the complainant PW2 over a love affair gone sour. Just as in the aforesaid issue, the issue was not put to PW2 during crossexamination. The issue must have been an afterthought. Besides that, it is clear from the evidence that it is not PW3 who brought up the issue of the complainant being defiled by the Appellant. It is the complainant herself who did so. The defence was a lie. 34. The Appellant stated in his grounds of appeal that the trial magistrate failed to consider contradictions and inconsistencies in the prosecution case. He further stated that the trial magistrate did not consider his defence. However, the Appellant did not point out any contradictions and inconsistencies in the prosecution case and I do not find any. I find the trial magistrate to have considered the Appellant`s defence and dismissed it for the reason that the complainant did not have a grudge against him which would have prompted her to lie against him. That conclusion was supported by the evidence adduced before the trial court. There are sufficient reasons for dismissing the Appellant`s defence. All in all, the charge of defilement was proved beyond reasonable doubt and the conviction is upheld. Sentence 35. The Appellant was convicted under section 8(1) as read with section 8(4) of the Sexual Offences Act No.3 of 2006 which provides for a minimum sentence of 15 years for a person found guilty of defiling a child aged between 16 and 18 years. The appellant was however sentenced on 2nd November 2023 when the interpretation of the law was that courts had discretion to impose lesser sentences than the minimum imposed by the Sexual Offences Act. This was before the Supreme Court judgment in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) which was delivered on 12th July 2924, clarified that courts had no discretion to impose anything other than the minimum sentences stipulated under the sexual Offences Act. In my view the sentence of 10 years was in accordance with the prevailing law at the time the sentence was pronounced. There was no cross-appeal for the same to be enhanced. Considering that the offence currently attracts a minimum sentence of 15 years, the sentence is not harsh as pleaded by the Appellant in his memorandum of appeal. Disposition 36. In view of the foregoing, I do not find merit in the appeal and the same is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 6

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DELIVERED, DATED AND SIGNED AT GARSEN THIS 30TH DAY OF JANUARY 2026. J. N. NJAGI JUDGE In the presence of: Miss Ochola for Respondent Appellant – Present in person at G.K. Prison Malindi Court Assistant: 14 days right of appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3767/eng@2026-01-30 7

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