Tjc v Republic

5. The Appellant was dissatisfied with the conviction and sentence of the subordinate court and he lodged his undated Petition of Appeal on 29th November 2023 on the following grounds: a. That he pleaded not guilty to the charge herein. b. That the Trial court erred in both law and facts by failing to consider the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya 2010 c. That the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law. d. That the trial court erred in both law and facts by refusing to consider my defence and mitigation. Reasons wherefore the Appellant prayed that: 6. a. Conviction be quashed and sentence set aside; b. Retrial or c. Any other order deemed fit to grant. d. Leave of the court to be allowed to adduce more grounds after receiving the lower court proceedings. Prosecution’s case was supported by eight (8) witnesses who testified as follows: The Complainant was examined to establish whether she understood the meaning and importance of taking oath but it was found that she was of tender age and was not possessed of sufficient intelligence to understand the meaning of an oath. It was ordered that she was to give unsworn testimony. However, the Prosecuting Counsel applied that she be declared vulnerable and testify through an intermediary. SMC then testified as her intermediary. Her testimony was that the complainant was her daughter and she was 8 years having been born in the year 2012. She swore to tell the court what the Complainant told her with no additives or reductions. 7. PW1 said the Complainant was studying at [Particulars Withheld] Primary School in Nyabohanse in Grade 2. The Complainant said through her mother that she was 8 years old but did not know her birthday. She also said she did not know the Accused standing at the dock alone. 8. She said that on 23.5.2021, they were playing near their home, when (child points at the Accused standing at the dock) passed by and told them to go and get money from him to buy mandazis in school. The minor said she was with DW alone. That they both went to his house to collect the money where they met the mother of ‘this man’ (points at the Accused). That the Accused gave DW Kshs. 10/= and asked her to leave but told her to enter his house and bring him his coat from his bed. That as she took the coat, Accused followed her on the bed, and she said "alinifanyia mambo mabaya" between her legs (points between her legs). He used his body. His item is between his legs (points between her legs). She said that the Accused had removed his trouser when he inserted the thing inside her. She said she cried out in pain but he did not say anything. She said that M, the sister to the Accused came and got her from the bed after getting the Accused off her. She took her out of the house and they went to the house of the Accused's mother, The people asked her what had transpired. And she told them the Accused had done "tabia mbaya" to her. 9. That when she went home, she met her father and told him what the Accused had done to her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 2

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10. That she was taken to Isebania Hospital as shown in treatment notes PMFI I and PRC form as PMFI 2. That they also went to the Police and P3 Form as PMFI 3 was issued. The Complainant identified the Accused as the one who did to her bad things and she felt a lot of pain between my legs. 11. In cross examination, the Complainant said the Accused passed by around 7.00p.m. in the evening. She said there were many people at the accused home. She said she was taken to the Hospital another day that is not the day he did bad things to her. She said she did not see blood that day. 12. PW2 - LC the father to the Complainant testified that she was 7 years old having been born in 2012. He identified her birth certificate showing that she was born on 7.9.2012. He also confirmed that the Complainant was a student at [Particulars Withheld] Primary School in grade 3 now and he produced a letter to that effect MFI P5 dated 26.5.2021. PW2 said he knew the Accused TJC who is his step brother and they lived 200 meters apart at home. 13. PW2 said that on 23.5.2021 at around 7.00p.m. he was at home when the Complainant came home crying from the Accused's home. He said the Complainant knew the Accused by the nickname "Alshabab". She told him that Alshabab passed by as they played and told them her and Dorcas to go to his home and collect money for buying mandazi's and he went with the children. He said the children were to buy mandazi's on Monday in school. That the Complainant told him that on arrival at the accused person’s place the Accused gave Dorcas Kshs. 1'0/= and sent her away as he remained with the Complainant whom she sent to his house in his bedroom to fetch his coat so that he could give her money as well. That is when the Complainant entered the house, the Accused followed her and grabbed her placing her on his bed and raped her. 14. PW2 said the Complainant told him that the Accused "slept" with her after removing her pant and used his penis to do the "tabia mbaya" to her. That the Complainant told him she screamed in pain and that the Accused's sister called M came, knocked the door and entered and pushed the Accused off her and got her out of the Accused's house. That the said M and Accused's mother started beating her and let her go home. That is how she came home crying. 15. PW2 reported the matter to the Village Elder who asked his wife to check on the girl to confirm. The Village Elder and his wife on looking at the child's private parts found sperms inside the child's vagina and the Village Elder called the Chief and reported the defilement case. That the Chief advised them to report the matter at Isebania Police Station the next day. The next day 24.5.2021, PW2 took the child to Isebania Police Station where report was booked and he recorded his statement. They were then escorted to the Isebania Hospital where the child was examined and the Doctor confirmed the defilement after finding sperms inside the child's vagina. That they ran tests on the Complainant and referred them back to the Police Station where P3 form was issued and duly filled. 16. PW2 said that the Accused was later arrested and he was there at the time of the arrest in his house almost 12 days later. He said the Accused is not married and the scene of incident was his house in the same compound where his mother also resides in a separate house. PW2 said that at the time of incident, the Accused person’s mother and brother's wife as well as M his sister were at home. PW2 said that he tried talking over the issue but it was alleged he was framing the Accused. He said M and the Accused's mother did not agree to record their statements at the Police. 17. PW2 said that the Accused is Alshabab the one who raped his daughter. He said he is his step- brother. 18. In cross examination by the Accused PW2 said that the Complainant was not bleeding at the time. He said she was not beaten with a stick. She told PW2 that the Accused person’s mother and sister just pinched her and slapped her. PW2 said he did report the matter the same day to the Balozi and since there was a curfew they took the report to the Police the next day. The Balozi was informed of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 3

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defilement that same day. He said that the Accused lived near them. He said that children visit their homes unrestricted. He said the incident occurred on 23.5.2021 and the Accused was arrested later after the Police gathered evidence against him, 19. He said the Accused kept evading arrest since he kept going in and out but when he saw the Accused person, he called the Police to arrest him. PW2 said the Village Elder did not record her statement at the Police. 20. In re-examination, PW2 said that it was not the first time that the 2 children went to the home of the Accused and they had no reason not to visit their relative. 21. PW3 DW testified that she was 10 years old and studying at [Particulars Withheld] Nyabohanse. She said she was in Class 3 and goes to Nyabirongo Church where she attends Sunday School. God resides in heaven. She was examined and it was established: “she appears intelligent but does not understand oath. She shall give an unsworn” 22. Upon being sworn PW3 said that the Complainant was her neighbor and that on 23.5.2021 they were at the Complainant’s home playing in the evening hours. She said she was with the Complainant and other girls whose names she could not recall. That while playing TJC (points at the Accused at the dock) passed by. She said TJC is their neighbour. That he told them to go so that he could give them money to buy biscuits from school and they followed him to his house. She said it is her and the Complainant who followed the Accused to his house. 23. PW3 said that the Accused gave her Kshs. 10/= and told her me to leave. He then sent the Complainant to his bedroom to fetch him his jacket. That the Complainant entered inside as she left. That shortly after, she heard Faith crying. That she went back to the door of the Accused' house to find out why the Complainant was crying and she found Aunt M who was in the compound of the Accused had taken the Complainant outside and was beating her asking her what she was doing inside the house of the Accused. That G who is Complainant’s sister went and told their father that the Complainant was crying. That the Complainant’s father went to the home of the Accused, and the Complainant told him that TJC was doing "tabia mbaya" to her and aunt M got her out of the house and beat her up. 24. PW3 said that TJC is also called Alshabab at home. PW3 said they all then went home. Aunt M is aunt to the Complainant as well. She said TJC was all alone in the house when the Complainant entered his house. She identified the Accused in the dock as TJC. 25. In cross-examination, PW3 said that when accused gave her Kshs. 10, she did not leave immediately. She said that the accused person’s mother and his relatives were outside his house and the accused was inside the house alone. She said that the accused grabbed the complainant when the women outside went into their houses. 26. She said that outside the house of the Accused was aunt M but the Accused was alone in his house when the Complainant entered inside. 27. PW4 - SM the Complainant’s mother testified that on 23.5.2021, around 7.00p.m., she was at home cooking dinner when she heard children outside telling their father of something. She stepped outside and found the Complainant crying. That the Complainant told her that she was playing near the road with other children when TJC passed by and told them to go collect money to by snacks in school. That the girls went with the Accused to his house. That the Accused gave PW3 Kshs. 10/= and told her to go home, while he send the Complainant to go into his bedroom and fetch him his jacket inside his bedroom so that he could give her money. That when the Complainant went into the bedroom the Accused followed her grabbed her and lay her on his bed and did "tabia mbaya yaani mambo ya ngono" to her. PW4 said she took the Complainant to the bedroom, parted her legs and saw fiuids https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 4

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oozing from her vagina and she reported to her father. That the Complainant’s father called the Village Elder and later the Chief and the Chief advised them not to bathe the girl. The next day the father of the Complainant escorted her to Nyamaharaga Police Station aka- Isebania Police Station where they reported the incident, that they were escorted to Isebania Hospital where the girl was examined and treated and she later recorded her statement at the Police Station. PW4 said that TJC her my neighbour and also her in-law. She said she had no quarrel or grudge with the Accused. She identified him as the Accused in the dock. She said he is also known as Alshabab at home. 28. In cross examination, PW4 said that she couldn't take the child to the Hospital immediately because it was late at night and the Chief told them to take her in the morning and not bathe her that night. She said her daughter was given medication but was not admitted. 29. PW5 - David Kari Marwa Clinical Officer Registration No. 9551 from Migori County Hospital testified that he was initially at Isebania Sub-County Hospital. He said that the Complainant aged 9 years was treated at the facility as OTC 2919/21 on 24.5.2021. She was brought with a history of being assaulted on 23.5.2021 by a person well known to her as her neighbour. He examined her genitals and observed bruising of the hymen and bleeding from the vagina walls. He concluded that the child had been defiled. He said that laboratory tests were done but HIV, VDRL were all negative. She was given Pep & paracetamol and referred to the Police. 30. PW5 filled the PRC form on 24.52021. He confirmed the Complainant was born on 15.6.201 1 and She was examined on 24.5.2021 at 9.00a.m. He said the date and time of the incident was 23.5.2021 at around 7.00p.m. by one perpetrator identified as the neighbour aged approximately 30 years old. He said the Survivor said she was lured into the perpetrator's house forced into the ground and penile penetrated. He said it was vaginal sexual violence. He said the incident was reported to the Police on 24.5.2021 at 5.00a.m. 31. He said that on physical examination, the same results were found as those in the medical notes. The hymen was not intact thus freshly broken. She had changed clothes and had gone to the bathroom for a short call. He filled the P3 form as well on 24.5.2021. The conclusion is that there was evidence of forced vaginal penetration from the bruises on the vaginal wall and the broken hymen. 32. PW5 said that the approximate age of injuries was less than 24 hours. He produced the treatment notes as PEX No.1 and the PRC form as PEX No. 2. He also produced the P3 Form as PEX No.3. 33. In cross examination, PW5 said that there were no tears on her vagina but there were bruises on her vagina. There was no tear thus no need for stitches. She was bleeding from the vagina. He said he examined her on 24.5.2021. She claimed to have been defiled on 23.5.2021. The bleeding was minimal. He said he personally examined the patient. 34. PW6 the village elder Dansan Kerim Gati testified that he had been village elder for [Particulars Withheld] village for 10 years. He said that the Complainant hailed from his village and was his neighbor. 35. He stated that on 235.2021 at around 7.00 p.m., the father of the Complainant reported that TJC who is their neighbour had defiled the Complainant. That he saw the Complainant and called the Assistant Chief and informed him. That the Assistant Chief called Johnes Machoni instructed that the child should not to be bathed and that they should report the matter the next day to the Police. 36. That they later told him they had reported the matter and he later recorded his statement at the Police. That later he learnt that the Accused had been arrested. He said the Accused was his neighbor and was well known to me. He said the Accused was also neighbor to the victim's family. He said he had no grudge with him neither is he aware of any grudge between the Accused and the family of the victim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 5

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37. In cross examination, PW6 said that he saw the girl but did not see her private parts. He said she was a young girl and he did not examine her genital to confirm the defilement. He said he relied on the information told to him by the child and the father. He said he did not see any anomaly and it was late in the night. He said he advised them as the Assistant Chief had advised. He said they escorted her to the Hospital or Police that night. 38. PW6 said that he had no grudge with the Accused and there is no time they had differed with the Accused at all. He said the mother of the child was at home when he visited the child after the report was made through a phone call and the girl was working unaided. 39. PW7 - FC a Head Teacher at [Particulars Withheld] Primary School confirmed that the Complainant was a Grade 2 pupil at the school. He said he learnt of the incident herein on 24th May 2021 from the father of the Complainant that she had been defiled that previous day on 23rd May 2021. 40. That he called the girl and interrogated her and she told him she had been defiled. That he advised the parents to seek police help and he wrote to them a letter of referral to Children Officer Mabera. He produced the said letter as Ex P5 dated 26th May 2021. PW7 said he did not know the person who defiled the Complainant physically but the child said the culprit was TJC. 41. In cross examination, he said he relied on the information he was told by the father and the child. 42. PW8 - 24xx68 P. C. Phanice Achungo from Isebania Police Station testified that on 29.8.2021 she was assigned the case herein by an Officer who went on transfer called Lilian Njogu. Accused was TJC, Complainant was FW That she went through the file and established that the case was already in Court and investigations already complete. 43. That from the file, it was reported that on 23.52021 she discovered the Complainant FW was defiled at around 7.00p.m. She reiterated the testimony as given by the witnesses. She said that when the Accused followed the Complainant into the house , closed the door and grabbed the child and placed her on bed and defiled her, the child called out in pain and a neighbor heard her scream went into the house and rescued her and that is when she went and reported to her father who made report to the police and the Complainant was taken to hospital and treated. 44. She said that the Officer Investigating the matter compiled the file and the accused was later arrested and charged with this offence. The I/O said the Complainant was at the time around 9 years having been born on 7.9.2012. She produced the copy of her birth certificate Ex P4. 45. She also said that in the file was P3 form, PRC form and a letter from the head teacher of her school. She said she did not conduct any further investigations as she was involved in the investigations including the scene visit. She said she did not know the Accused prior to the case herein. 46. The Prosecuting Counsel drew the Court’s attention to the age of the Complainant as indicated in the charge sheet as 7 instead of 9 years and the same was amended upon the Accused being informed and he did not object. 47. Upon close of prosecution case the Accused was placed on his defence and he elected to give unsworn testimony. He said that on 23rd May, 2021 at around 7.30p.m. he was in Nyabohanse digging a well there and he did not defile nor commit an indecent act with this child. He said that brother the Complainant’s father held a grudge against him. He said they live around 200 feet apart and his brother always had a grudge with his family over a land dispute. That at one time he warned to teach his mother a lesson. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 6

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48. He said he heard what the Complainant said. He said that she was coached to give a false testimony against him. He said he was arrested from home and he did not commit the offences charged. He said his brother even asked him for a bribe to make this case go away but he could not pay for something he had not done. 49. Upon delivering Judgment and finding the Accused guilty and convicting him the Trial Magistrate said that:“ Accused though a first offender defiled an 8-year-old minor, a relative by enticing her with money to buy snacks. Through evidence he is a ducer sex predator who does not deserve to be released to the public for the safety of other children. In light with Section 8(2) of the Sexual Offences Act, I sentence Accused to serve 40 years imprisonment.” 50. The appeal herein was canvassed by way of written submissions. The Appellant and the Respondent filed submissions which this court has considered in arriving at the determination below. Analysis and determination 51. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal 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.” 52. Further, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that: “ … the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.” 53. 54. From the grounds of appeal, records of the trial court and the submissions, the following issues arise: 1. Whether the age of the Complainant was proved; 2. Whether penetration was proved; 3. Whether the Appellant was positively identified; 4. Whether the Appellant’s right to a fair trial was violated; 5. Whether the defence was considered; 6. Whether the sentence was lawful and appropriate. In consideration of the 1st issue, the Complainant’s birth certificate was produced in evidence indicating that she was below eleven years. This was corroborated by school records and medical evidence. The discrepancy in age indicated in the charge sheet was rectified and did not occasion prejudice. The Court is satisfied that the Complainant was a child aged below eleven years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 7

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55. On the 2nd element the Complainant gave a clear account of the act. This was corroborated by medical evidence which confirmed bruising, vaginal bleeding and a broken hymen, with injuries estimated to be less than 24 hours old. The Court finds that penetration was proved beyond reasonable doubt. 56. On whether the Appellant was properly identified as the perpetrator, the evidence establishes recognition. The Appellant was a relative and neighbor known to the Complainant and other witnesses. The incident occurred in his house and in circumstances that left no room for mistaken identity. The defence of alibi was not raised at the earliest opportunity and was not supported by evidence. This Court finds that the Appellant was positively identified. 57. The Appellant alleged that his right to fair trial under Article 50 of the Constitution was violated but the record shows that the Appellant was informed of his right to legal representation and he elected to proceed. There is no evidence of prejudice or substantial injustice. This ground of appeal therefore fails. 58. The Appellant similarly faulted the Trial Magistrate for failing to consider his defence. This court upon re-evaluating the Appellant’s statement in the trial court has established that the Trial Magistrate considered the Appellant’s unsworn statement as follows: “ Though accused denied defiling the minor as alleged and claimed to harbor a grudge against the complainant's father, PW2 herein, the same was not brought out during cross examination of PW2 as to a land dispute between them and hence in the eyes of this court, an afterthought.” 59. The Trial Court found that the allegations of grudge and fabrication and coaching of the Complainant were unsubstantiated and not supported by evidence. 60. This Court finds no error in the trial court’s treatment of the unsworn statement of the Appellant. 61. On whether the sentence passed against the Appellant was harsh and excessive in the circumstances, Section 8(2) of the Sexual Offences Act prescribes life imprisonment. The trial court imposed a sentence of forty (40) years imprisonment. Given the age of the Complainant and the circumstances of the offence, the sentence was lawful and not excessive. 62. In conclusion, this Court finds that the prosecution proved its case against the Appellant beyond reasonable doubt. The conviction is safe and the sentence lawful. 1. The appeal against conviction and sentence is hereby dismissed. 2. The conviction and sentence of the trial court are hereby upheld. Right of appeal within 14 days. It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF MARCH, 2026. HON. ANNE ADWERA- ONG’INJO JUDGE In the Presence of: Victor – Court Assistant Mr. Oimbo – Counsel for the Respondent/ State Appellant - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8358/eng@2026-03-19 8

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