Bikundo v Republic

was framed by PW2 after she refused to pay his salary. Upon evaluation of the evidence, the trial court found him guilty, convicted him, and sentenced him to serve twenty (20) years’ imprisonment. 3. Being dissatisfied with both conviction and sentence, the Appellant lodged this appeal. 4. This being a first appeal, this Court is obligated to re-evaluate and re-analyse the entire evidence on record and arrive at its own independent conclusion, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. 5. The Appellant filed written submissions in which he challenges the conviction on both factual and evidential grounds. He contends, in substance, that: 1) The prosecution evidence was contradictory, particularly between PW1 and PW2. 2) PW1’s testimony was unreliable and inconsistent, including on her age and the circumstances of the alleged offence 3) The case involved family members, raising the possibility of fabrication 4) The medical evidence did not conclusively link him to the alleged offence.

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5) Crucial witnesses were not called and exhibits were not properly connected to him. 6. On sentence, the Appellant urged this Court to interfere with the term of twenty (20) years’ imprisonment and relied on the decisions in Wanyonyi v Republic [2019] KECA 679 (KLR), Ochieng v Republic [2018] KECA 59 (KLR) and Jared Koita Injiri v Republic [2018] KECA 78 (KLR). He further invoked the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic (2017) eKLR (commonly referred to as Muruatetu I) to contend that mandatory or minimum sentences are unconstitutional and that courts retain discretion in sentencing, and on that basis urged this Court to reduce the sentence. 7. The Respondent opposed the appeal and urged the Court to uphold both conviction and sentence. 8. It submits that the prosecution proved all the essential ingredients of the offence of defilement, namely proof of age, penetration and identification of the perpetrator. 9. On age, the Respondent relies on the evidence of PW1 and the birth certificate produced by PW4 confirming that the complainant was a minor aged about 13 years at the time of the offence. On penetration, reliance is placed on the

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testimony of PW1, corroborated by PW2 and further supported by the medical evidence of PW3 who confirmed defilement and produced the P3 form and treatment notes. On identification, the Respondent submits that this was a case of recognition as both PW1 and PW2 knew the Appellant as a neighbour and a person who had previously worked for PW2. On sentence, it is submitted that section 8(3) of the Sexual Offences Act prescribes a minimum sentence of twenty (20) years, which the trial court properly imposed. 10. From the record and the submissions of the parties, the issues that arise for determination are: 1) Whether the age of the complainant was proved 2) Whether penetration was proved 3) Whether the Appellant was positively identified 4) Whether the prosecution proved its case beyond reasonable doubt 5) Whether the sentence was lawful and/or ought to be interfered with 1. In determining this appeal, this Court is guided by the settled principle in Okeno v Republic [1972] EA 32, that a first appellate court is under a duty to reconsider, re-evaluate and analyse the evidence on record and to draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses

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testify. That duty obliges the Court to subject the entire evidence to a fresh and exhaustive scrutiny so as to determine whether the findings of the trial court are supported by the evidence and the law. 11. Guided by that principle, this Court has carefully re- examined the record of the trial court, the judgment delivered, and the rival submissions made on appeal. In doing so, the Court has weighed the totality of the prosecution evidence against the defence, and considered whether the essential ingredients of the offence were proved to the required standard. 12. On the issue of age, the Court finds that the evidence was clear, consistent, and supported by documentary proof. The complainant’s testimony as to her age was corroborated by the birth certificate produced in evidence, which placed her at approximately 13 years at the time of the offence. That evidence was neither displaced nor controverted, and the trial court properly relied on it. The element of age was therefore proved beyond reasonable doubt. 13. The alleged inconsistency regarding age does not alter that conclusion. While PW1 stated that she was 12 years old, the birth certificate produced by PW4 shows that she was born on 12th June 2009, thereby placing her at approximately

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13 years at the time of the offence. Upon re-evaluation of the record, the Court is satisfied that this variance is minor and does not go to the root of the charge. The age proved by documentary evidence remains conclusive. 14. In any event, both ages fall within the same statutory bracket under section 8(3) of the Sexual Offences Act, which applies to children aged between twelve and fifteen years and prescribes a sentence of not less than twenty years’ imprisonment. The distinction between 12 and 13 years is therefore legally immaterial for purposes of both conviction and sentence, and the discrepancy neither occasions prejudice to the Appellant nor weakens the prosecution case. 15. On the issue of penetration, the Court has carefully re- evaluated the entirety of the evidence on record. The complainant (PW1) gave a detailed, coherent and consistent account of the incident. She testified that on the material night, the Appellant entered the house, threatened her grandmother, switched off the lights, removed his clothes and proceeded to insert his penis into her vagina. She described the act in clear terms and stated that she experienced pain. Her testimony remained firm and was not shaken on crossexamination.

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16. The Appellant’s contention that the medical evidence did not conclusively link him to the offence does not disclose any inconsistency in the prosecution case, but rather a misapprehension of the role of medical evidence. The evidence of PW3, the clinical officer, was clear and specific. Upon examination of the complainant, he observed bruises, torn clothes, a freshly broken hymen and the presence of spermatozoa, and formed the opinion that there had been recent sexual penetration. That evidence was consistent with and corroborative of the account given by PW1. Medical evidence serves to prove the fact of penetration, and not the identity of the perpetrator, which in this case was established through recognition evidence. 17. The complainant’s account was further corroborated by PW2, who testified that shortly after the incident she found the complainant crying and distressed. Upon inquiry, the complainant immediately reported that she had been defiled by the Appellant. PW2 also observed that the complainant’s clothes were in disarray, a state consistent with the narrative given by PW1. 18. The Court therefore finds that the direct evidence of PW1, the prompt report made to PW2, and the clinical findings of PW3 are consistent and mutually corroborative. The medical evidence provides objective confirmation of penetration, and

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the Appellant’s contention that it was inconclusive is not borne out by the record. In the circumstances, the Court is satisfied that penetration was proved beyond reasonable doubt. 19. With regard to identification, although the incident occurred at night, the evidence on record establishes that this was a case of recognition. The complainant (PW1) testified that she knew the Appellant prior to the incident and identified him by name as “Bikundo,” the same name by which he was charged. PW2 likewise confirmed knowing the Appellant by that name. Although the Appellant denied knowing the complainant, he admitted knowing PW2, thereby placing himself within the same locality. The consistent reference to the Appellant by name by the complainant reinforces the evidence of prior familiarity. 20. Further, the Appellant’s complaint that the case rested on the sole evidence of the complainant is addressed by the proviso to section 124 of the Evidence Act (Cap 80), which permits a court to convict on the evidence of the victim alone in sexual offences if it believes that evidence and records reasons. In the present case, the complainant’s evidence was credible, cogent and internally consistent, and was in any event corroborated by the immediate report made to PW2 and the medical findings of PW3. In the circumstances, the

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possibility of mistaken identity is substantially diminished, and the Court is satisfied that the Appellant was positively identified. 21. The Appellant raised a concern on the failure by the prosecution to call the complainant’s grandmother, who was said to have been present at the scene. 22. Upon re-evaluation of the record, that contention is factually misplaced, as the evidence clearly shows that the complainant’s grandmother did testify as PW2. Her evidence formed part of the prosecution case, particularly with respect to the immediate aftermath of the incident and the report made by the complainant. The complaint that a crucial witness was not called is therefore not borne out by the record. 23. In any event, even if the issue were to be considered from the standpoint of sufficiency of witnesses, the law under section 143 of the Evidence Act (Cap 80) is clear that no particular number of witnesses is required to prove a fact. As stated in Bukenya & Others v Uganda [1972] EA 549, the prosecution is not obliged to call a superfluity of witnesses where the evidence adduced is sufficient to establish the charge. In the present case, the evidence of PW1, corroborated by PW2 and supported by the medical findings

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of PW3, was sufficient to prove the offence beyond reasonable doubt. 24. On the allegation that the case involved family members and was therefore susceptible to fabrication, the Court has reevaluated the record and finds that there was no evidence to support that assertion. The relationship disclosed in evidence was that the Appellant was known within the locality and had interacted with PW2, the complainant’s grandmother, but there was no indication of a family relationship between the Appellant and the complainant. 25. The Appellant, in his sworn defence, stated that he had been framed by PW2 after she allegedly refused to pay his salary. PW2, however, denied having employed him. Upon reevaluation, this Court finds that the Appellant did not place before the trial court any evidence to substantiate the alleged employment or the existence of a dispute over salary. The allegation therefore remained a bare assertion. Moreover, even if such a disagreement had existed, no material was placed before the Court to demonstrate how it would motivate PW1, a minor, to falsely implicate the Appellant in so serious an offence. In the absence of any evidential foundation for the alleged grudge, and in light of the consistent and corroborated prosecution evidence, the

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defence of fabrication is untenable and does not raise any reasonable doubt. 26. On sentence, the Court has considered the apparent inconsistency between the age indicated in the charge sheet and the age proved in evidence. The charge sheet described the complainant as aged 14 years, whereas the birth certificate produced by PW4 shows that she was born on 12 th June 2009, thereby placing her at approximately 13 years at the time of the offence. Upon re-evaluation, the Court finds that the age proved by documentary evidence is the correct and conclusive age for purposes of both conviction and sentence. 27. The variance between 14 years as stated in the charge sheet and 13 years as proved in evidence is not material. Under section 8(3) of the Sexual Offences Act No. 3 of 2006, where the complainant is a child between the ages of twelve and fifteen years, the prescribed sentence is imprisonment for a term of not less than twenty years. Both 13 and 14 years fall squarely within that statutory bracket. The discrepancy therefore does not occasion any prejudice to the Appellant, nor does it affect the validity of the conviction or sentence. The trial court, in imposing the minimum sentence provided under section 8(3), acted in accordance with the law, and there is no basis for interference.

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28. This Court has considered the Appellant’s submission on sentence. The legal position is now settled by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR, that the decision in Muruatetu I applies strictly to the mandatory death sentence under section 204 of the Penal Code. The Supreme Court expressly clarified that its earlier decision did not invalidate mandatory or minimum sentences prescribed under other statutes, including the Sexual Offences Act. 29. Accordingly, to the extent that decisions of the Court of Appeal such as Wanyonyi v Republic (supra), Ochieng v Republic (supra), and Jared Koita Injiri v Republic (supra), extended the reasoning in Muruatetu I to minimum sentences under the Sexual Offences Act, that line of authority was overtaken by the Supreme Court’s authoritative pronouncement in Muruatetu II. In the premises, the sentence is lawful and is hereby upheld. 30. From the foregoing analysis, this Court is satisfied that the conviction was safe and the sentence lawful. The findings of the trial court were firmly grounded on the evidence and disclose no error in law or fact to warrant interference. The appeal therefore lacks merit.

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31. Accordingly, the appeal against conviction is hereby dismissed and the conviction is upheld. The sentence of twenty (20) years’ imprisonment imposed by the trial court is confirmed. DELIVERED AT NYAMIRA THIS April 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Appellant - Present For the DPP - Mr. Mwangi 23rd DAY OF

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