Mofat Wangila Wekesa v Republic

6. The failure to avail crucial witness like the sister to the victim, the assistant chief as witnesses prejudiced the appellant herein in a great way which occasioned an injustice. 7. Mama Selina who was supposed to braid her and mama Ruth who sent the victim to collect rice for her from a shop at the junction should have testified because they were part of the events that tool place before the offence was committed. 8. He believe that mama Ruth was a crucial witness to this case since it was after the complainant bought rice for her that the allegations arose just at the junction where the shop was. 9. The mandatory sentence for defilement of a child aged 12 -15 years is (20) years imprisonment under section 8(3) of the Act. 10. In BW vs R KSM CA Criminal Appeal No. 313 of 2010(2019) eKLR, the Court of Appeal has considered the constitutionality of mandatory minimum sentence under the act; and opted what the Supreme Court decision held in Francis Karioko Muruatetu & Another V R. SC Petition NO. 16 of 2015 (2017) eKLR that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 the Constitution. 11. He argues that it is settled that mandatory minimum sentence is unconstitutional and the court is bound to re-examine the sentence in view of the legislative position that offences of defilement are serious and merit stiff sentences and there has to be a good reason to depart from the indicative sentence prescribed. 12. In Dismas Wafula Kilwake (2018) eKLR, the Court of Appeal set out the factors to be considered in sentencing under Sexual Offences Act as follows: “ (We) hold that the provisions of Section 8 of the S.O.A must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the legislature and the society take the offense defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing. The Sentencing Policy Guidelines require the court, in sentencing an offender to a noncustodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of weapon to frighten or injure the victim, use of violence, the number of victims involved in the offense, the physical and psychological effect of the offense on the victim, whether the offense was committed by an individual or a gang and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted the role played by the offender in the commission of the offense and whether the offender is remorseful." https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 2

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13. He submits trial court did not give reasons in the law as to why he meted the sentence against the appellant and stated that "Accused defense is not sufficient to raise doubt. I consider them as afterthoughts. From the above, accused's innocence is incompatible with facts and evidence. As a result, I hereby convict him on the main count. The alternative hangs in abeyance." 14. According to the appellant, the court did not consider any of his mitigation in arriving at the sentence. 15. He argues that the age element remains in doubt as per the evidence adduced by PW1 the complainant testified that she was 15 years old which the mother confirmed. The charge sheet read that the minor was 14 years. Pw4 (clinical officer) testified while the the treatment cards, and P3 form for the minor indicated in the p3 form as 16 years old. 16. The three ages attract two different sentences where section 8(1)(3) states; 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. And section 8(1)(4) states; 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. 17. It is his case that the prosecution did not prove penetration. He argues that if she had been defiled as alleged, she would have notified her mother in the evening of the alleged crime. 18. Pw4 (clinical officer) testified that there was no presence of spermatozoa.During cross-examination by the appellant he stated that "I would not know if the bleeding was caused by the accused. 19. Furthermore, during examination at the hospital he stated that the complainant had changed her clothes and the same were not presented to the hospital. 20. In the judgment, the learned magistrate stated that "The state of the hymen was not noted on the p3 form." 21. Pw4 by not stating the state of the hymen rendered the element of penetration to being unproven or rather uncorroborated. From the above sentiment, its crystal clear that the element of penetration was not appropriately proved according to him. 22. The appellant argued that the discrepancy was substantial and the lapse created some doubt in the mind of the trial court that an accused person would be entitled to benefit from it. The Respondent's Submissions 23. In opposing the appeal, the respondent placed reliance in Court of Appeal in Okeno v The Republic [19721 EA32, 36 where it was held that an appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R [19571 EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala vR [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 the witnesses, see Peters v Sunday Post [19581 EA 424. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 3

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24. In responding to the issue that the learned trial magistrate erred in law and fact by using with the clinical officer's report and investigating officer to convict the appellant, it is it's case that this ground of appeal is grossly unfounded. 25. PW4 was the clinical officer who testified that he examined and treated the complainant FWW on 4th and 5th February, 2019. This was just a day after the incident transpired. He added that FWW complained of pain the vaginal area. They treated her and sent her to the laboratory. He noted that the vaginal region had lacerations on the labia minora and discharge in the vaginal area. There were pus cells but no spermatozoa. In cross examination he stated that the bleeding was not as a result of monthly menses as the complainant was not yet due for her next cycle. He then produced the treatment notes and p3 form as exhibits 3 and 4 respectively. 26. PW5 the investigating officer testified that on 4/2/19 he was at the police post when the complainant came with her mother. They had a letter from the head teacher of the school where the complainant attended. The letter complained of defilement against the complainant by the accused. 27. PW5 recorded the report in the OB and gave them a letter to attend hospital together with the p3 form. The p3 form was filled and they came back to the police station where he recorded witness statements. 28. The complainant stated that she knew the accused's home. They went for him on 5/2/19 in the company of the complainant and the appellant was identified, arrested and charged. 29. The prosecution argues that it juxtaposed the evidence of the complainant alongside that of the clinical officer and the investigating officer and contrary to the appellant's assertion, they are all consistent. 30. The trial court did not err in relying on their testimonies as urged by the appellant. 31. It is not true that FWW's evidence had any discrepancies or contradictions according to the respondent. Reliance is placed in The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:“ With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis ours) 32. During his cross examination of the victim, the appellant failed to bring out the inconsistencies and discrepancies that he raises in the appeal. Inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. It is the Respondent’s case that this ground should fail since there are no contradictions. 33. The appellant has argued that the failure by the prosecution to call certain witnesses who weakened the state's case and the court erred to rely on their evidence to convict him. 34. Section 143 of the Evidence Act provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. 35. In the case of Suleiman Aziz v Republic (2017) eKLR the court of appeal stated as follows: “ First, under section 143 of the Evidence Act, in the absence of a provision of law requiring a specific number of witnesses, no particular number is required to prove any fact. Secondly, as propounded in Bukenya v. Uganda [1972] EA 549,the proposition that the court may draw https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 4

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an adverse inference from the prosecution's failure to call important and readily available witnesses arises in cases where the evidence called by the prosecution is barely adequate." 36. In Donald Majiwa Achilwa & 2 Others v. Republic, Cr. App. No 34 of 2006, this Court explained the position thus: “ The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses' evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. " 37. The witnesses in this case were sufficient to prove the charge against the appellant hence the reason for his conviction according to the prosecution. 38. On the issue of sentencing, the prosecution relies in The Supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [20241 KESC 34 (KLR) affirmed that mandatory sentences are lawful and as such this honorable court is bound by virtue of the principle of stare decisis. 39. Section 333 of the Criminal Procedure Code provides as follows:,333. Warrant in case of sentence of imprisonment(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 40. He submits that Section 333(2) is quite clear that a sentence meted out on a convict shall be deemed to commence from the date it was pronounced in absence of any word to the contrary. The prosecution is amenable to having the sentence of the appellant computed to include the period spent in custody. 41. It submits that the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence as per the Judiciary sentencing policy guidelines: a. age of the offender; b. being a first offender; c. whether the offender pleaded guilty; d. character and record of the offender; e. commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; f. the possibility of reform and social re-adaptation of the offender; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 5

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g. 42. any other factor that the court considers relevant. The guidelines are aimed at promoting public understanding of the sentencing process and they do not replace judicial discretion. Analysis and determination 43. The issue for determination is whether the appeal has merit. 44. The applicant was charged of Defilement contrary to section 8(1)(3) of Sexual Offences Act where upon going through full trial process, the applicant was sentenced to mandatory minimum sentence of (20) years imprisonment as imposed by law. 45. In addressing my mind to the question whether there was a penetration I have considered the evidence of PW4 the clinical officer. In his evidence, he testified that he examined and treated the complainant on 4th and 5th February, 2019. 46. He noted that the vaginal region had lacerations on the labia minora and discharge in the vaginal area. There were pus cells but no spermatozoa. 47. During cross examination he testified that the bleeding was not as a result of monthly menses as the complainant was not yet due for her next cycle. He produced the treatment notes and P3 form. 48. I have also considered evidence of PW5 the investigating officer on 4/2/19 who recorded her statement. 49. On 5/2/19 the complainant who was in the company of the appellant was identified and arrested in his home. 50. From the foregoing evidence the court is satisfied that there was positive identification and penetration. 51. On the issue of the age this court is guided by the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR where the Court of Appeal held that: “ The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof". We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. " 52. In re-evaluating the issue of the age of the complainant the complainant testified that she was 15 years old when the offence occurred. 53. Pw3 who is the mother to complainant also testified that her daughter was 15 years. The chargesheet reads that the minor was 14 years while hospital documents showed that she was16 years. 54. The Learned magistrate noted in the judgment that ;- "The treatment cards, and P3 form for the minor who apparently is indicated in the P3 form as 16 years old.’’ The court notes that the three ages attract different sentences. 55. In settling the issue of the age of the minor, this court has looked at her birth certificate and established that the victim was born on 9.9.2004.Given that the offence was committed on 3.2.2019 it means she was 15 years old when the offence was committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 6

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56. Section 8(1)(4) provides that, 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. In case of victims 15, the punishment is different. It is 20 years imprisonment. The trial magistrate sentenced the appellant within the confines of the Law and this ground fails. 57. On the issue of contradictions, the appellant argued that the prosecution case was riddled with contradictions. 58. In The Uganda Court of Appeal in Twehangane Alfred vs Uganda it was held that it is not every contradiction that warrants rejection of evidence. It was held that:“ With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case." (emphasis ours). 59. Guided by the foreground principles it is my finding that the contradictions that the appellant raises are not deliberate and they do not affect the main substance of the prosecution's case. 60. In determining the issue of the failure to call witnesses ,this court is guided by Section 143 of the Evidence Act (Cap 80 Laws of Kenya) which provides that: “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact." 61. The Court of Appeal in Bukenya & Others v Uganda [1972] EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution. 62. The court finds that what counts in law is whether the prosecution has proven its case on the basis of the witnesses who attended court and testified. 63. It's not the number of witnesses that matter. It is more of quality than quantity. What matters is whether the prosecution has made out a case that is sufficient to prove the sexual offence. 64. On the issue of sentencing this court notes that The Supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [20241 KESC 34 (KLR) affirmed that mandatory sentences are lawful and as such this honorable court is bound by virtue of the principle of stare decisis. 65. The appellant has failed to demonstrate how the trial Court acted illegally in arriving at the impugned sentence. 66. After taking into consideration the nature and circumstances of the offence, the mitigation given by the appellant and the ramifications of the appellant’s actions on the complainant's future, it is my considered opinion that the sentence of twenty years was commensurate with the offence. 67. The sentence is within the law and is neither harsh nor excessive. This court upholds the sentence accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 7

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Determination; 68. The appeal Lacks merit. Order; 69. The appeal is dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 25TH DAY OF JUNE, 2026 ................................................... J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9029/eng@2026-06-25 8

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