Nassoro Omar Mwagaweni v Republic

i. That the learned magistrate erred in law and fact in fact as she disregarded vital inconsistencies and serious factual contradictions in the evidence adduced by the prosecution witnesses and thereby arrived at a doubtful finding. ii. That the learned magistrate court erred in law and fact for not noting that the grave contradictions which varied the ingredient on age misled the process of imposing the sentence. iii. That the learned trial magistrate failed to consider the doubtful integrity of the principle victim thus pw1 Bint whose evidence was gotten from psychological intimidation which sway away from the rule of law. iv. That the learned trial magistrate court erred in law and fact for not considering the requirements of section 216 and 329 of the criminal procedure code which rendered the trial incomplete. v. That the learned trial magistrate court erred in law and fact for not considering that the mandatory minimum sentence couched under section 8 (4) of the SOA was unconstitutional as it hindered the rule of law of fair trial and equality provided in the constitution article 25 (c), 50 (2) and 27 of the constitution respectively. vi. That the learned trial magistrate court erred in law and fact for not considering the time spent in remand custody pursuant to Section 333 (2) of the criminal procedure code. vii. That the learned trial magistrate court erred in law and fact for not inviting Article 165 of the constitution to settle the inconsistencies featured in the present case primarily on constitutional level. Prosecution’s case 6. PW1 EA (minor) the complainant herein testified that she is 16 years. She stated that in March 2024 Nassoro made a marriage proposal but she did not comment. She informed Nassoro that she is school going and she was in grade 8 then. On 23/6/2024 Nassoro requested the minor to visit his home on Sunday which she did. He asked her to wash his clothes. He then forced her to make love with him. They were inside his house. He forced her into having sex with her. He first removed his clothes then he covered her mouth hence she was unable to scream. She struggled with him in a bid to free herself but he overwhelmed her. He managed to remove her clothes “akanifanyia kitendo cha mapenzi” “alitumia penis.” 7. He used his penis to penetrate her. She said that she felt pain. The sexual encounter lasted 3 hours. He warned her not to tell anyone. She spent the night there. She went home but did not tell her mother who enquired about it. Her mother took her to the police station and she recounted to them what happened. She later visited Likoni sub-county hospital and it was discovered that she was expectant. 8. On 12/7/2024 she experienced stomach ache. When she went to the hospital it was established that she had a miscarriage. 9. PW2 RMM the mother to the minor stated that her daughter was born on 13/10/2008. Birth certificate produced as EXH-1. She said that on 23/6/2024 her daughter went missing and came back home the following day at around 7.00pm. She interrogated her but she could not answer her questions hence she took her to Inuka Police Station to establish the truth. The police interrogated her and confirmed that she was at her boyfriend’s house. The boyfriend is called Nassoro. Examination at the hospital revealed she was expectant. On 12/7/2024 she had stomach pain and Pw2 escorted the victim to the hospital and she learnt that Pw1 had a miscarriage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4095/eng@2026-03-19 2

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10. PW3 Evans Nyayem stated that he works at Likoni sub-county hospital as clinical officer. He said that the victim was seen on 25/6/2024. She informed them that she was 17 years at the time. That she was at her boyfriend Nassoro’s residence where she stayed for 48 hours. On examination there was offensive discharge from the vagina, hymen was broken but it was old scar. There was a fresh laceration at 6 o’clock and 12 o’clock. On 26/6/2024 she was referred for scan which showed that she was 5 weeks pregnant. 11. On 15/7/2024 she came with abdominal cramps and bleeding. He said that they sent her for further scanning which showed she had miscarried. PW3 stated that he filed the PRC form on 15/7/2024. The incident occurred on 23/6/2024. He produced treatment notes as Exh-2, P3 form as EXH-3, Exh-4 (c) and (d) ultra sound and report, Exh 5 medical report from Dzeri medical centre, PRC form Exh-6, Exh-7 ultra sound report dated 15/7/2024, Exh 7 (b) is ultra sound report and radiology request as Exh-8. 12. On cross examination he stated that the minor visited their facility on 25/6/2024. The mother stated that she had brought her because she had gone missing for 48 hours. They did urine test and ultra sound and confirmed a 5 weeks’ pregnancy. Defence case 13. DWI the accused person testified under oath that in June 2024 he met mama R at a saloon and she asked for his number and saved it so that he would go to her home and do some paint work on her and her siblings. He did the work and R’s elder sister offered him a free room to work for 5 months rent free since he did not have a physical office and she requested him to teach her two daughters the skill. 14. On 23/6/2024 when DW1 was at his home with his wife and 2 kids, Mama R’s two daughters approached him and asked him about their sister’s whereabouts who they claimed had disappeared from home. He said that he told them he doesn’t know and he went outside and met Mama R who told him that she is stressed and confused. 15. In July 2024 he was called by his client at a certain shop when the officers showed up and arrested him. They escorted him to the station. Mama R came and the OCS asked her why the love letter was authored by Sule after the OCS had established Nassoro’s name. On cross examination he stated that the complainant has never been to his house. He stays in a rental house where he had been there for roughly 4 months. Mama R first became known to him in June 2024. 16. DW2 stated under oath that she is the wife to the accused person. He does body paint works. On 26/10/2024 she was home with her husband a certain lady showed up with her two daughters looking for he daughter at her house but they told her that she was not in DW2’s house. They left but dw2 noticed that they were enraged. After a DW1 was called to do paint work and then he was arrested. She added that the complainant was expectant and was escorted to hospital in the absence of accused’s representatives. 17. DW3 testified under oath that he was employed as a driver. He used to do deliveries. On the day of the arrest, he had gone to check on his cousin’s business in Changamwe. While at the hotel he saw a female individual approaching with 2 kids. The children bought chapatis and left. Shortly a pro box pulled up at the hotel and 4 occupants (officers) got out and arrested Joshua Kyalo. He was also arrested on allegations that they were selling food without a medical certificate. 18. Upon arrival at the police he met the two children after he alighted and the children alleged that they were their wives for six months. He called Ndunda who came and realized that Ndunda had a pending dispute with the children’s mother concerning ownership of kibanda. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4095/eng@2026-03-19 3

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Analysis and Determination 19. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: “ ….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424.” 20. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement; 8. 21. Defilement 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. 3. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms; “ 11. Indecent act with child or adult 1. 22. Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” The crucial elements that need to be proved for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4095/eng@2026-03-19 4

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i. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs) ii. The age of the victim (must be a child) iii. Positive identification of the accused as the person who committed the act. Penetration 23. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. in this case it is not in dispute that when the minor was examined her hymen was found to be broken. The PRC form on record shows that the minor had been penetrated on diverse dates resulting in pregnancy. This clearly indicate that the minor had sexual intercourse. 24. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: “ 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.” 25. In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt. Age of the victim 26. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “ 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.” 27. The record shows that the birth certificate of the complainant indicates that she was born on 13/10/2008 which meant that the victim was 16 years on the day of the alleged defilement. This court agrees with the trial court that the age of the victim was sufficiently proved beyond reasonable doubt. Positive identiffcation of the assailant 28. PW1 stated that she had sexual intercourse with the accused person on 23/6/2024. She said that the incident took place at the appellant’s home. Pw2 also stated that her daughter went missing for 48 hours and when she came back she did not disclose her whereabouts. PW2 decided to take her to Inuka police station for interrogation and that’s when she told the police that she was at her boyfriend’s place and the boyfriend is called Nassoro. 29. She was examined on 25/6/2024 and it was discovered that she had a 5 weeks’ pregnancy. On 15/7/2024 when the PRC was filed it was established that the she had visited a private facility with incomplete abortion. The P3 form indicates that the incident happened on diverse dates since May 2024. The hymen was broken with an old scar. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4095/eng@2026-03-19 5

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30. I find that the only person who witnessed the incident is the minor and the alleged perpetrator. In this case the evidence of the minor is not concrete as the story contradicts the results from the hospital. The examination done on 25/6/2024 shows that the minor was 5 weeks pregnant. The minor told the police that she had intercourse with the accused person on 23/6/2024. This evidence is not concrete to believe that the appellant is the one who penetrated the minor as alleged by the victim herself. The prosecution has failed to prove beyond reasonable doubt that the appellant is the one who penetrated the minor. 31. Having failed to prove the last limb of the offense, I find that the prosecution failed to prove their case to the required standard and therefore the appellants appeal is merited. The conviction was unsafe and it is hereby quashed 32. Consequently, the sentence is set aside and Appellant is hereby set at liberty unless otherwise lawfully held. 33. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2026. WENDY KAGENDO JUDGE In the presence of: Appellant in person Ms Cherop For The State Bebora Court Assistant Signed by/for: HON. LADY JUSTICE WENDY MICHENI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4095/eng@2026-03-19 6

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