Jamal Bilton Hassan v Republic

7. The Appellant told the complainant not to tell anyone. The Appellant went on cooking and cutting onions. 8. The complainant told their house help after which she was taken to hospital and reported at Mwatate Police Station. 9. The househelp who testified as PW3 said the complainant told her what the complainant had done to her. She reported to the complainant’s mother who testified as PW2. 10. The matter was reported to Mwatate Police Station where it was investigated by PW4 Corporal Enock Omari. 11. PW5 Solomon Omar filled the P3 Form. He said that upon examining the complainant, he found the sphincter was open and loose with no bruises and lacerations noted. 12. PW5 concluded that the minor had been defiled. 13. In his defence, the Appellant stated that on 8th December 2023, he was at a friend’s home preparing lunch for the family. He said when he done, he went to take a rest outside. 14. He said while outside he was arrested and escorted to the police station and then to the hospital where he was examined and he returned to the police station and later charged. 15. The trial court found the Appellant guilty as charged and sentenced him to life imprisonment. 16. The Appellant has appealed against the conviction and sentence on the following grounds:i. That the trial court erred in law by holding that penetration was proved yet the medical evidence adduced revealed that the hymen was not freshly broken. ii. That trial court erred in law by failing to appreciate that the evidence relied on to found the Appellant’s conviction was circumstantial and as such could not sustain a safe conviction. iii. That trial court erred in law by failing to find that the complainant’s age was not proved as required by law. iv. That the trial court erred in law by failing to find that the present case was borne out of a grudge. v. That trial court basing his judgment on the evidence on record should have used his discretion in favour of the Appellant. 17. The parties field written submissions as follows:-The appellant in his amended Grounds of Appeal, submitted that he is appealing against his conviction and life sentence for the ofience of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 18. The appellant, acting in person, has raised three main grounds for his appeal and has provided detailed arguments in support of each. 19. The appellant's first ground is that the case against him was fabricated. He points to contradictions in the testimony of the prosecution witnesses, particularly between the mother of the complainant (PW2) and the investigating officer (PW4). 20. He highlights that PW2's testimony suggested she and her husband went to the police station alone, while PW4 stated that he escorted the mother and daughter to the station. 21. The appellant questions how the police knew where to arrest him if the mother and child were left at the station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5457/eng@2026-04-28 2

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22. He argues that these inconsistencies reveal a lack of corroboration and suggest the matter was preplanned. 23. The appellant further alleges an ulterior motive, claiming the complainant's parents had a previous debt with him for work he had done, and this case was a way to frame him. 24. In his second ground, the appellant argues that the medical evidence exonerates him. He focuses on the testimony of the clinical officer (PW5), who confirmed that the anal swab taken from the complainant showed the presence of amoeba but no spermatozoa. 25. The appellant contends that since the alleged incident and his arrest occurred on the same day, scientific evidence would expect to find spermatozoa, as it can remain in the body for up to five days. 26. He also questions why his own P3 form was not produced in court, suggesting its results would have contradicted the prosecution's case. 27. Furthermore, he casts doubt on the complainant's ability to walk comfortably to the shop and hospital immediately after an alleged act of sodomy, and questions the absence of any torn or soiled clothing being presented as evidence. 28. Finally, the appellant argues that the case was not adequately investigated. 29. He reiterates the confusion over how the police located the home to arrest him and criticises the investigating officer for not conducting a proper inquiry at the scene of the alleged crime. 30. He submits that the prosecution failed to meet the required standard of proof, citing the legal principle that guilt must be the only rational inference from the evidence. 31. The appellant maintains that the numerous inconsistencies and gaps in the evidence should have entitled him to the benefit of the doubt. 32. For these reasons, the appellant prays that the appeal be allowed, the conviction be quashed, and the life sentence be set aside. 33. The respondent submitted that the trial court's decision to convict and sentence the appellant to life imprisonment for defilement was just and based on evidence beyond reasonable doubt. 34. The appellant had been charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the same Act. 35. He was acquitted on the alternative count but convicted and sentenced to life imprisonment for defilement. 36. The prosecution called five witnesses who testified against the appellant. 37. The complainant, a ten-year-old child, gave compelling testimony that on the material date, she went to assist the appellant in the kitchen by cutting onions. 38. The appellant touched her breasts, buttocks, and vagina before leading her to the pantry where he removed her trousers and his own, made her bend over, and inserted his penis into her anus. 39. He threatened to harm her if she disclosed the incident. Despite the threat, the complainant immediately informed the house help, who then called the complainant's mother. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5457/eng@2026-04-28 3

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40. The mother, together with the house help and the complainant, reported the matter to the police and sought medical attention. 41. All prosecution witnesses confirmed that the appellant was well known to them as a longtime friend of the complainant's father who was staying at their home at the material time. 42. The investigating officer produced the complainant's birth certificate confirming she was ten years old at the time of the incident. 43. The clinical officer who examined the complainant noted that although there were no visible bruises or lacerations, her anal area was open and loose. 44. While the medical evidence was not conclusive on its own, the trial court properly invoked Section 124 of the Evidence Act to convict the appellant based on the complainant's testimony, which remained unshaken during cross-examination. 45. The appellant was given a fair opportunity to defend himself, and after considering his mitigation, the trial court imposed the life sentence. 46. The respondent maintains that the prosecution discharged its burden of proof beyond reasonable doubt and prays that this honorable court upholds the trial court's judgment in its entirety. 47. This court, acting as the first appellate court, is duty-bound to re-evaluate the entirety of the evidence presented before the trial court and draw its own independent conclusions, while always bearing in mind that the trial court had the advantage of observing the witnesses' demeanor and hearing their testimony firsthand, as established in the locus classicus case of Okeno v Republic [1972] EA 32. 48. The key issues that emerge for determination in this appeal are as follows; i. Whether the prosecution proved all the essential elements of the ofience of defilement, particularly the age of the complainant, the fact of penetration, and the positive identification of the perpetrator as the appellant, to the required standard of beyond a reasonable doubt. ii. Whether the court must consider whether the trial court properly evaluated the medical evidence in light of the complainant's testimony. iii. Whether the court must assess the appellant's claim that the charges against him were fabricated due to an existing grudge, and iv. Whether the sentence of life imprisonment was lawful and merited under the circumstances. 49. On the first and most critical element of the complainant's age, the appellant has argued that it was not proved as required by law. This court finds this ground to be without merit. The importance of proving the age of a victim in sexual ofiences cannot be overstated, as the prescribed sentence is directly dependent on the victim's age. 50. The age of the victim is an essential ingredient of the ofience that must be proved beyond reasonable doubt. 51. In the instant case, the prosecution discharged this burden by producing the complainant's birth certificate, which was tendered as an exhibit by the investigating officer. 52. This document unequivocally established that the complainant, C.M.M, was ten years old at the time of the incident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5457/eng@2026-04-28 4

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53. This documentary evidence was conclusive and left no doubt as to the victim's age, placing the ofience squarely within the ambit of Section 8(2) of the Sexual Offences Act. 54. Regarding the element of penetration, the appellant has mounted a robust challenge, arguing that the medical evidence exonerated him. 55. He points to the clinical officer's (PW5) testimony, which noted that the anal swab revealed the presence of amoeba but no spermatozoa, and that while the sphincter was open and loose, there were no noted bruises or lacerations. 56. The appellant contends that the absence of spermatozoa and fresh injuries, especially considering his arrest on the same day, should negate a finding of penetration. 57. However, this argument misapprehends the law. Penetration, under Section 2 of the Sexual Offences Act, is defined as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." 58. It does not require the emission of spermatozoa, nor does it mandate the presence of tears or lacerations for it to be proved. 59. The clinical officer's finding of an "open and loose" sphincter is consistent with, and corroborative of, the act of anal penetration. 60. Moreover, medical evidence is not the exclusive means of proving penetration; the credible testimony of a victim can suffice. 61. In this case, the complainant's testimony was clear, consistent, and compelling. She narrated in detail how the appellant led her to a store, made her bend down, and inserted his penis into her anus. 62. This court finds that the trial court properly directed itself by invoking the proviso to Section 124 of the Evidence Act, which allows a court to convict on the sole testimony of a victim in sexual ofiences if it believes the victim to be truthful. 63. The complainant's testimony was indeed believable and remained unshaken under cross-examination, thereby providing a sufficient basis for the finding of penetration, with the medical evidence serving as valuable corroboration. 64. The absence of spermatozoa or the presence of an old tear does not, therefore, create a reasonable doubt about the occurrence of the alleged act on the material date. 65. The appellant's identification as the perpetrator is not in doubt. The evidence on record is overwhelming that the appellant was a long-time friend of the complainant's father and was residing at their home at the material time. 66. This was a case of recognition, which is generally more reliable than the identification of a stranger. 67. The complainant knew the appellant well, and the incident occurred in broad daylight. The appellant's own defence that he was at a friend's home preparing lunch did not displace the strong and direct evidence against him. His further claim that the case was fabricated due to a grudge arising from a debt was not substantiated. 68. The inconsistencies highlighted by the appellant, such as the sequence of how the report was made to the police, are minor and do not go to the core of the prosecution's case; they do not vitiate the conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5457/eng@2026-04-28 5

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69. It is not every contradiction that is fatal, particularly where the evidence identifying the appellant and proving the ofience is otherwise strong. 70. On the final issue of the sentence, the appellant was sentenced to life imprisonment for defiling a child aged ten years. Section 8(2) of the Sexual Offences Act prescribes a sentence of life imprisonment for a person who commits an ofience of defilement with a child aged eleven years or less. 71. The complainant was ten years old. The language of the statute is clear and mandatory. 72. This court is bound by the law as enacted by Parliament. While there have been judicial decisions questioning the constitutionality of mandatory minimum sentences, the mandatory nature of the sentence under Section 8(2) remains good law until it is specifically declared unconstitutional by a court of competent jurisdiction, 73. The trial court properly exercised its discretion in imposing the lawful sentence. This court finds no reason to interfere with that sentence. 74. In conclusion, this court finds that the prosecution proved its case against the appellant beyond any reasonable doubt. 75. The conviction is safe, and the sentence lawful. The appeal against both conviction and sentence is therefore devoid of merit. 76. The conviction is hereby upheld, and the sentence of life imprisonment is affirmed. 77. The appeal is dismissed in its entirety. 78. Orders to issue accordingly. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF APRIL 2026 IN OPEN COURT AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Millicent/Eghwa State Counsel:………………………………………….. Appellant: ……………………………………………… https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5457/eng@2026-04-28 6

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