Brian Wafula Makari v Republic

(4) Being dissatisfied with the decision of the trial court, the appellant filed this Appeal on 4th September 2024 citing the following grounds: (a) That the trial magistrate erred both in law and fact in convicting him without considering that the evidence on record was uncorroborated, fabricated, malicious and farfetched. (b) That the trial magistrate did not, at the beginning of the trial and subsequent events, appreciate the glaring irregularities in the prosecution case. (c) That the trial court did not consider that the medical report exonerated him from any wrong doing. (d) That the trial court based its findings on anticipation and wishful thinking to incriminate him. (e) That this was a case which was not procedurally reported to police for investigations. (f) That the trial court did not give him an opportunity to cross-examine PW2 which rendered the trial biased and unfair. (g) That the trial magistrate erred both in law and fact by arriving at her decision based on hearsay which is not backed by law. (h) That the sentence meted was very harsh in the circumstances. (5) On the basis of the foregoing grounds, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence set aside. (6) The appeal was canvassed by way of written submissions. Hence, the appellant relied on his written submissions dated 10th July 2025. He made reference to Section 8(1) of the Sexual Offences Act and set out the key elements of the offence that needed to be proved by the Prosecution before the lower court. The appellant also made reference to the cases of Kaingu Elias Kasomo v Republic, Criminal Appeal No. 54 OF 2010 and Hillary Nyongesa v Republic, High Court Appeal No. 123 of 2009, in which the dicta in the Ugandan case of Francis Onamu v Uganda, was adopted. The excerpt relied on by the appellant was as follows: “ In defilement cases medical evidences 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 case of any other evidence apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense" (7) The appellant also quoted from the case of Alfayo Gombe Okello v Republic, Criminal Appeal No. 203 of 2009, in which the Court of Appeal held: “ In its wisdom parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt." 8. In the appellant’s submission, the age of the complainant was not proved beyond reasonable doubt. He pointed out what he deemed to be inconsistencies in the evidence of the Prosecution. He pointed out that, whereas PW1 and PW2 testified that the minor was 10 years old at the time, PW3, the clinical officer, stated that the girl was aged 11 years. The appellant also contended that he was not served with copies of the Certificate of Birth, the P3 form, or the PRC form to enable him use the documents in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 2

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his submissions. Therefore, his submission was that the exact age of the complainant was not proved beyond reasonable doubt. 9. The appellant also made reference to other inconsistencies in the Prosecution case generally and urged the Court to find that the evidence, viewed as a whole, fell far short of proving the charge of defilement beyond reasonable doubt. He urged the Court to give him the benefit of the doubt arising from the gaps in the Prosecution case by quashing his conviction. 10. On the sentence of life imprisonment, the appellant submitted that the same is inconsistent with Articles 27 and 28 of the constitution of Kenya. He further argued that the sentence is harsh and excessive and therefore amounts to unfair trial, taking into account that he was a first offender. He therefore prayed that the sentence be set aside and in its place a more lenient sentence passed by this Court. He relied on the case of Nillson v Republic [1970] EA 599 as to the circumstances warranting the setting aside of sentence by an appellate court. 11. The respondent relied on the written submissions dated 5th March 2025 and urged the Court to find that the evidence adduced before the lower court placed the appellant at the scene of the crime. According to the respondent there was no miscarriage of justice as all the ingredients of the offence were proved beyond reasonable doubt. Regarding the age of the complainant, the respondent relied on the evidence of the complainant who testified that she was ten (10) years and a few months old at the time of the offence, having been born on 5th February 2013. The respondent further pointed out that, in addition to the evidence of the complainant, her mother (PW2) also testified as to her date of birth and produced a Certificate of Birth to that effect as Exhibit 1. 12. On penetration, the respondent reiterated the evidence adduced by the complainant, namely, that she had been sent to the posho mill and that, on her way back home, she encountered the appellant who was burning charcoal on his employer's land. That the appellant called her but she insisted that she had to take the flour home; and that the appellant followed her home and defiled her. In addition to the evidence of PW1, the respondent relied on the evidence of PW2 who stated that on returning home, the complainant reported to her that the appellant had defiled her. She also mentioned that the girl was limping and on examining her she observed that her genitalia was swollen. 13. The respondent also relied on the evidence of the Clinical Officer who testified as PW3. He stated that he examined the complainant and saw a thick whitish discharge from the vagina, linear laceration and multiple bruises in the labia majora and minora. The hymen was freshly broken, there was swelling of the cervix and the uterus closed. From his findings PW'3 formed the opinion that the minor had been recently defiled. Accordingly, the respondent urged the Court to find that penetration was proved to the required standard by the prosecution witnesses whose evidence was consistent, credible and well corroborated. 14. On identification, the respondent submitted that the appellant was known to the complainant prior to the incident and that the complainant knew where the appellant worked and lived. The respondent also submitted that on the material date the appellant was burning charcoal as the complainant was passing by and that they had a conversation. It was therefore the contention of the respondent that the complainant had ample time to identify and recognize the appellant. He was not a stranger to her and therefore this was a case of identification by recognition. 15. On the aspect of the sentence imposed by the lower court, the respondent submitted that the lower court took into consideration that the appellant defiled a child aged ten (10) years; and therefore the sentence was commensurate with the magnitude of the offence that was committed. In the premises, the respondent urged the Court to dismiss the appeal and uphold the sentence imposed by the lower court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 3

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16. I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that the Court did not have the opportunity to see or hear the witnesses. (see Okeno v Republic [1972] EA 32). 17. The complainant testified as PW1. Her evidence was that she was 10 years old and was in Grade 6 at the time. She stated that at about 3.00 pm on the 14th January 2024, she was on her way back home from the posho mill. She saw the appellant working burning charcoal on his employer’s shamba; and that the appellant called her, but she declined to go and told him she was taking the flour home first and would return afterwards. PW1 further testified that when she returned, she found the appellant standing near one of the doors of his employer. He was alone at the time. She explained that the appellant was then working for their neighbour known as J. 18. PW1 further stated that the appellant pulled her inside a single-roomed house and defiled her. She stated that her parents were not at home at the time; and that she ran back home and waiting for them. She further stated that when her mother returned home at about 4.00 pm she reported the matter to her and together they went to the police station and reported the occurrence for further action. 19. The complainant’s mother testified as PW2 and gave the complainant’s age as 10 years. She also confirmed that she was in Grade 6 at the time. She produced the complainant’s Certificate of Birth as the Prosecution’s Exhibit 1. Regarding the events of the date in question, PW2 testified that she left home in the morning to go and run some errands; and that she had instructed the complainant to go to the posho mill. She returned at about 6.00 pm and noticed that the complainant was limping. She asked her what had happened and she started crying and revealed that the appellant had defiled her. She checked her private parts and noted that they were swollen. They brought the matter to the attention of the appellant’s employer who was their neighbor and later reported the matter to Rodi Police Station for appropriate action. 20. Tobias Ochieng Oketch (PW3), a Clinical Officer based at Marindi Sub-County Hospital, testified that, on the 15th January 2024, he attended to the complainant herein; and that the minor gave a history of defilement by a known male. On examining the minor he noted that the presence of a thick curdlike discharge from her vagina, linear lacerations and multiple bruises in the labia majora and minora and swelling of her cervix. He also observed that the minor’s hymen was freshly broken. He therefore formed the opinion that the minor had been recently defiled and that there was penetration of her vagina. He requested for laboratory examination for HIV, pregnancy test and others, but these turned out negative. 21. The Prosecution’s last witness before the lower court was PC (W) Molline Achieng (PW4). She was then attached to Rodi Police Station, deployed at the Gender Desk. She confirmed that on the 14th January 2024 at about 2130 hours, a report of defilement was made and she was tasked to investigate the complaint. She interrogated the minor and thereafter escorted her to Marindi Sub-County Hospital for examination and treatment. The appellant was consequently arrested, charged and arraigned before court. 22. Upon being placed on his defence, the appellant confirmed that he was working for one JN at the material time; and that he was in the homestead of JN when he was arrested. He however denied the charges and explained that he had agreed with his employer that he would be paid three months’ salary at the end of the 3rd month of his employment to enable him pay school fees for his nephew. He further stated that when he demanded his three months’ salary, his employer colluded with the complainant’s mother to have him falsely accused of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 4

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23. In the light of the foregoing, the issues for determination are: (a) Whether the Prosecution proved their case against the appellant beyond reasonable doubt. (b) Whether the sentence of life imprisonment imposed by the lower court is harsh or excessive. A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt: 24. 25. For purposes of the substantive charge, of which the appellant was convicted and sentenced to life imprisonment, Section 8 (1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides: 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 under the age of eleven years shall be sentenced to life imprisionment. The ingredients of defilement are now well settled, namely, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows: (a) 26. On whether the complainant was, at the material time, a child for purposes of Section 8(2) of the Sexual Offences Act: There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus: “ 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. In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states: “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." 28. It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus: “ …whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…” 29. The complainant testified before the lower court and stated that she was 10 years old. The evidence of the complainant as to her age was corroborated by the evidence of her mother, PW2. She testified that the complainant was born on 8th February 2012. PW2 also produced a Certificate of Birth in respect of the minor. It confirms the date of birth as 8th February 2013. There was therefore credible evidence in proof of the complainant’s age. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 5

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30. Although the appellant alleged that there was a discrepancy between the evidence of PW1, PW2 and PW3 as to the age of the complainant, the inconsistency is not material. Indeed, the complainant was over 10 years by several months. She was short of her 11th birthday by about 19 days as at the time of the incident. Therefore, for all intents and purposes, she was 10 years because the months following the last birthday, if any, do not count for purposes of determining the age of a child, so long as they are less than one year. 31. This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder: “ Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year." 32. In any event Section 8(2) of the Sexual Offences Act provides for the age bracket of 11 years and below. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act, as read with Section 2 of the Children Act, No. 8 of 2001. (b) On Penetration of the complainant: 33. The evidence of penetration was presented before the lower court by the complainant. Although a single victim witness for purposes of Section 124 of the Evidence Act, the trial court duly cautioned itself of the need to received such evidence with care. She therefore took into account the surrounding circumstances as presented by both the mother of the complainant (PW2) as well as the medical evidence presented by the Clinical Officer (PW3). There was therefore credible evidence adduced by the Prosecution before the lower court in proof of penetration. 34. It is noteworthy that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that: “ …as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129). So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 35. The Prosecution evidence in proof of penetration remained uncontroverted. This is because, in his defence, the appellant simply gave the circumstances under which he was arrested. It is therefore manifest that penetration of the complainant’s genital organ was proved beyond reasonable doubt; and I so find. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 6

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(c) On whether the penetration of the complainant was by the appellant: 36. The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held: “ The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…” 37. On the issue of the appellant’s identity, PW1 testified that the complainant was a person well known to her as an employee of their neighbor, JN. The incident took place in broad daylight, at about 3.00 pm and the complainant immediately reported the occurrence to her mother and implicated the appellant right from the outset. The investigation officer (PW4) also confirmed that upon interviewing the minor, she named the appellant as the perpetrator of the crime; and that the appellant had been arrested and was already in custody at the time. 38. This was therefore a case of identification of a known offender and is therefore more reliable than the identification of a stranger. In Anjononi & 2 Others v Republic [1980] eKLR the Court of Appeal pointed out that: “ …recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other…” 39. I have not lost sight of the appellant’s complaint at ground 7 that the trial court did not give him an opportunity to cross-examine PW2 and therefore that he was not accorded a fair trial. This is not borne out of the record of the proceedings of the lower court. At pages 6, 7, 8 and 9, it is manifest that the appellant was indeed given an opportunity to cross-examine PW2, but also PW1. 40. In the premises, it is my finding that the offence of defilement under Section 8 (1) as read with Section 8(2) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore his conviction was based on sound evidence. C. On whether the sentence of life imprisonment is harsh or excessive: 41. In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that: It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. 42. The penalty for attempted defilement is prescribed in Section 8(2) of the Sexual Offences Act. It provides: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 7

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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. 43. The offence was committed against a 10-year old child and therefore lawful for purposes of Section 8(1) as read with Section 8(2) of the Sexual Offences Act. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court reiterated its position that: 64. 65. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. … 70. Our findings hereinabove effectively lead us to the conclusion that the Judgement of the Court of Appeal delivered on July 7, 2023 is one for setting aside. The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remains lawful and in line with section 8 of the Sexual Offences Act. (Emphasis supplied) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 8

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44. It is my finding that the sentence of life imprisonment was lawful in the circumstances and cannot be said to be harsh or excessive. I therefore find no basis for interfering with the sentence imposed by the trial court. 45. In the result, the appeal is dismissed in its entirely. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 19TH DAY OF MARCH 2026 OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6677/eng@2026-03-19 9

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