Benard Mwendwa Fundi v Republic

iii. The learned trial magistrate erred in law and facts for not considering that the age of the victim was not proven. iv. The learned trial magistrate erred in law and facts for contravening Section 50 (2) (h) of the Constitution. v. The learned trial magistrate erred in law and facts for considering the medical documents authentication in the present case. vi. The learned trial magistrate erred in law and facts by failing to give the appellant’s defense due consideration. Prosecution’s case 6. PW1 JAA the complainant’s mother stated that she knew the appellant as a cobbler who operates in their area. The complainant is her daughter born on 26/6/2011. She said that on 16/10/2022 she was at home washing clothes when Mama N and another neighbor asked her to call the complainant. They informed her that they had seen the complainant in their plot. When PW1 questioned the complainant, she told them that when she takes her shoes to the cobbler, he would tell her to go to the back. He had put on oil on her private parts and his penis and defile her. The complainant told her mother that this happened thrice. The matter was reported at Nyali Police Station and the minor taken to the hospital for examination. 7. PW2 S.A stated that she is class 6 and lives in Kisumu Ndogo. She said that the accused person is known to her as fundi wa viatu. She identified him in the dock. She said that the cobbler lives in the same plot with Mama N. The cobbler’s room is the last one furthest from the gate. It’s a one roomed house. PW2 said that she took her shoe to the appellant who said that he will do the work for free and asked PW2 to go with him at his house. Upon reaching his house, he grabbed her, removed her dress and panty. He applied oil on her private parts. He removed his penis, applied oil and inserted it in her vagina. He bent her over. Pw2 said that after he finished, he put her underwear back on. He gave her shoe back and ksh. 50 and kunazi fruits. 8. PW2 said that on her way out she met Mama N. The following day the appellant asked her again to meet him at his house and he defiled her again. He put oil on her private parts and his as well. He then gave her ksh.50 and kunazi fruits. PW2 said that she did not tell her mom at all. On 15/10/2022 pw2 said that the appellant was closing his business at around 8pm. She followed him and she met Mama N who asked her what she was doing there. She lied to her that a she was looking for a girl inside. She hid herself and later told Mama N that she did not find the girl. 9. Pw2 said that Mama N called Mama S outside. They both live in the same plot. They took pw2 to her grandmother. On the following day they reported the matter to pw1. Mama S told them that she kenw of two other girls who always go to the cobbler’s house. Pw1 said that she knew one of the girls called P who has mental illness. She said that she had found the cobbler putting oil on her private parts, her panty was removed. She was “I don’t want that”. They reported the incident to the police and pw2 was taken to the hospital. 10. PW3 WNN stated that she has known the appellant for three years as he was her tenant. She said that she knows the complainant as she was her neighbor. She told the court that on 15/10/2022 at 8.00pm she was coming from work and she met the complainant, she asked her where she was going. PW2 lied to her and she, pw3 stood at a corner. Pw2 came back later and pw3 told her to take her where she had https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4949/eng@2026-04-16 2

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come from. The child took her to a house where pw3 knocked the door and asked the woman if the child had been sent there but the woman responded in the negative. 11. PW3 said that she took the child to her grand mother who asked pw3 to take the child to her mother but pw3 told her it is at night thus she will take her the next day. The next day they took the minor to her mother and she was questioned of her whereabouts. The minor told them that she used to go to go the appellant’s home and he would give her ksh. 50 and defile her after applying oil in her vagina. She said she had been defiled thrice. She told identified the appellant in the dock. Pw3 said that she used to go to the place with P. P has a mental challenge and she could not talk. 12. PW4 Dr Gabriel Mnyola working at Coast General Teaching and Referral Hospital said that he has a P3 for the complainant it was filled on 24/10/2022. He said that Section C of the document shows injury on the victim as defilement. Age of the victim indicated as 10 years. P3 produced as PEX-2 and PRC form produced as PEX-3. 13. PW5 PC Florence Ngina attached at Nyali Police Station said that she knows the accused person after arresting him. Pw5 stated that on 16/10/2022 JA and WA came to her office with a minor girl. The minor was J’s daughter. Pw5 narrated the ordeal as explained by PW3. On 17/10/2022 they went the hospital for medical examination of the minor. Pw5 produced a birth certificate as PEX-5. Defence case 14. DWI Benard Mwendwa Kiti the accused person testified under oath that he stayed at Kisumu Ndogo for 8 years. The landlord separated with his wife and later passed away. He then had a love affair with the land lady. He said that the land lady asked him to take two female children that used to come at their plot for sacrifice but he refused. That this is the reason he was brought to court because of the fabricated charges. 15. In light of the above, the issues for determination before this court are; i. Whether the prosecution proved their case beyond reasonable doubt. Analysis and Determination 16. 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.” i. Whether the prosecution proved their case beyond reasonable doubt https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4949/eng@2026-04-16 3

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17. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement; “ 8. 18. 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) 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.” Penetration 19. 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 the minor stated that the appellant defiled her thrice in different occasions. On examination her hymen was broken with an old scar. This clearly indicates that there was penetration in the minor’s genital. 20. 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.” 21. In the above foregoing, the evidence of the victim stated that the appellant took her into his house and applied Vaseline on her vagina before inserting his penis into her vagina. He did this on 3 separate occasions. The Doctor’s evidence as shown in the medical documents was that she had a reputed hymen with an old healed scar. This was evidence was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I find that penetration was proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4949/eng@2026-04-16 4

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Age of the victim 22. 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.” 23. The child’s birth certificate on record shows that the minor was born on 26/6/2011. I find that the minor was aged 11 years old at the time of the incident. Positive identiffcation of the assailant 24. DW1 stated that he knew the complainant and her mother. He also testified that PW3 was his land lady and his lover. He said that the charges were fabricated because he refused to be used by pw3 to sacrifice the two minors who used to come to his place after school. The appellant said that he had no issue with the complainant’s mother and the complainant’s mother had no reason to lie to court about the him. 25. The accused person did not dispute the allegations against him but instead focused on his issues with pw3. He said that the main reason he was brought to court is when PW3 discovered that her life is danger when he discovered her secret that she sacrificed her husband. The appellant blames pw3 for the lies 26. The record shows that the minor was well known to the appellant. He admitted that he used to talk to her in the evenings as the children waited for the parents. The minor was examined under the voire dire rules on 22/6/2023 as shown on page 12 and 13 of the record of appeal. The trial court found that she was intelligent and appreciated the importance of telling the truth. She there after gave sworn evidence. 27. I have looked at her evidence and I find that she gave a consistent story to her mother, the medical personnel, the investigator and even in court. Even when she was cross examined, she did not change her story. She also admitted that she was beaten to extract the story and this would show that neither herself nor her mother had no reason to join with pw3 in coming up with the story. The complainant testified that she was had sex multiple times with the accused person and then give her ksh. 50 and kunazi fruit after defiling her. 28. The medical records and the evidence of the parents corroborated the minor’s evidence. In any event the child was of vulnerable age and the court found her evidence to be crediblIt would have carried the day, on its own , under section 124 of the EVIDENCE act. It is noted that no external injuries were recorded, but the victim explained that the appellant always took the precaution of applying Vaseline on the vagina and his penis before the sexual encounters. The age was proved and the defence considered. Therefore, none of the grounds raised in the appeal succeed. 29. The community had full trust in the appellant but he instead used it as a sexual weapon, preying upon young girls in his community. The complainant’s evidence is concrete and convincing that the appellant is the offender. I therefore find that the appellant’s defense does not hold water against the truth. 30. The upshot is that the prosecution proved their case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4949/eng@2026-04-16 5

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31. The appeal lacks merit and the same is dismissed. Both the conviction and sentence are upheld. 32. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF APRIL 2026. WENDY KAGENDO JUDGE In the presence The Appellant in person Mr Sirima for the State Bebora Court Assistant Signed by/for: HON. LADY JUSTICE WENDY MICHENI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4949/eng@2026-04-16 6

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