Joseph Kinyua Wanjiku v Republic

2. The alternative charge was Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He denied the charges and following a full trial, he was found guilty and convicted on the main charge. And subsequently sentenced to serve twenty years imprisonment. Aggrieved with the outcome, he filed a petition of appeal containing 11 grounds of appeal: 1. The Trial Magistrate erred in law and fact by finding that the Appellant had committed the offence of defilement. 2.The Trial Magistrate erred in law and fact by failing to fault the prosecution and consequently failing to disallow the second witness statement that the complainant testified on, which was never furnished to the defense during pretrial but produced in the course of trial, contrary to the right to a fair trial. 3. The Trial Magistrate erred in law and fact by failing to note the prosecution’s failure to produce the P3 form, an important medical document, thereby falling below the required standard of proof beyond reasonable doubt. Judgement HCCRA NO. E054 OF 2023 2

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4. The Trial Magistrate erred in law and fact by failing to appreciate that the complainant was taken to hospital more than one month after the alleged last incident of defilement, which could not substantively confirm the time of penetration as the medical documents pointed to late presentation. 5. The Trial Magistrate erred in law and fact by failing to appreciate that the medical documents indicated two perpetrators, yet only one accused person was presented to court. 6. The Trial Magistrate erred in law and fact by holding that the Appellant was a Sunday school teacher without evidence, despite clear proof that he lacked the required qualifications to teach in Sunday school. 7. The Trial Magistrate erred in law and fact by failing to appreciate contradictions in medical evidence regarding the freshness of the wound and the medical explanation of similar wounds, which raised doubts as to penetration. Judgement HCCRA NO. E054 OF 2023 3

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8. The Trial Magistrate erred in law and fact by failing to note that the investigating officer never visited the alleged scene of crime, which was crucial, and that the complainant’s description differed from the actual scene. 9. The Trial Magistrate erred in law and fact by misquoting DW1, who was the Sunday school teacher, despite qualifications produced showing he was always with the children until picked by their parents, and instead noting different sentiments. 10. The Trial Magistrate erred in law and fact by failing to appreciate discrepancies in the dates within prosecution documents and the lack of justifiable reasons for the inconsistencies, together with the presentation of the accused in court beyond the mandatory 24-hour timeline after arrest. 11. The Trial Magistrate erred in law and fact by failing to note the evidential gaps, contradictions, inconsistencies, inadequacies, and material discrepancies in the prosecution Judgement HCCRA NO. E054 OF 2023 4

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case, which raised material doubts that ought to have been resolved in favour of the Appellant. 3. The appeal was canvassed by way of written submissions. Counsel for the Appellant by his submissions dated 17th April, 2025 identified the central issue is to be whether the appeal ought to be allowed. 4. On the law governing first appeals, counsel relied on Okeno v Republic [1972] EA 32, for the holding that a first appellate court ought to re-evaluate the trial evidence afresh and draw its own conclusions. Other authorities cited included Pandya v R [1957] EA 336, Shantilal M. Ruwala v R [1957] EA 570, and Peters v Sunday Post [1958] EA 424. 5. Counsel argued that the prosecution failed to prove penetration beyond reasonable doubt and taking issue with the medical evidence he termed it inconclusive. Because, the Post Rape Care (PRC) and Gender Violence Recovery Centre (GVRC) reports noted merely anal cracks without confirming penile penetration. Whereas constipation or hemorrhoids could have been the possible cause for the fissures. Moreover, no laboratory tests (swabs, blood, urine) were conducted, while treatment notes from Oloolua Dispensary and P3 form were not Judgement HCCRA NO. E054 OF 2023 5

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produced by the maker. Counsel citing KW v Republic [2019] eKLR; David Jefwa Kalu v Republic Cr. App. No. 133/03 and Julius Karisa Charo v Republic [2005] eKLR. 6. Attacking the complainant’s testimony as contradictory and lacking detail, counsel asserted that his claims of being rendered unconscious during the alleged acts, made it impossible to attest to penetration or identify the perpetrator. Here citing authorities such as Machakos Criminal Appeal No. 60 of 2014 Julius Kioko Kivuva v Republic to highlight the importance of sensory detail in proving penetration. And further asserting that PW1 and PW2, (the complainant’s parents) gave inconsistent accounts, also highlighting delay in seeking medical attention, discrepancies in dates, and failure by the investigating officer to visit the scene or explain inconsistencies in the charge sheet and OB numbers. Thus argued that contradictions and inconsistencies in the prosecution case must be resolved in the Appellant’s favour, as held in Ndung’u Kimanyi v Republic [1979] KLR 282, Rankrishan Pandya v Republic [1957] EA 339, and Pius Arap Maina v Republic [2013] eKLR. Judgement HCCRA NO. E054 OF 2023 6

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7. Returning to the medical evidence, counsel asserted that relevant witnesses contradicted each other on what constituted a “fresh wound’’; that the PRC report indicated that there were two perpetrators, yet only the Appellant was charged, creating doubt as to identity; and that no DNA or STI evidence was produced. Moreover, that defence witnesses, including DW1 (a Sunday School teacher), had testified that the Appellant was not a Sunday school teacher and that Sunday school children were under supervision until collected by their parents. Whereas the Appellant confirmed he was a youth leader, and not a Sunday school teacher, and pointed to possible bias from individuals facilitating the complainant’s case. 8. Emphasising the standard of proof beyond reasonable doubt as reiterated in Philip Nzaka Watu v Republic [2016] eKLR, Stephen Nguli Mulili v Republic [2014] eKLR, and Lord Denning’s dictum in Miller v Ministry of Pensions [1947] 2 All ER 372, counsel stated that fanciful possibilities could not sustain a conviction. 9. Stating further that the complainant’s claim that the Appellant was his Sunday School teacher was rebutted by DW1, and citing decisions such as Andrew Onyangu Matendechere & 2 others v Republic Judgement HCCRA NO. E054 OF 2023 7

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[2017] eKLR, Erick Onyango Odeng v Republic [2014] eKLR, the Nigerian case of Bakare v State (1987) 1 NWLR, counsel reiterated the presumption of innocence and argued that grave contradictions undermine the prosecution case given the requirement of proof beyond reasonable doubt. 10. Attacking the sentence of 20 years, counsel highlighted that the Appellant was a child at the time of the alleged offence. Citing EK Alias E v Republic (Criminal Appeal E031 of 2023) [2024] KEHC 1065 (KLR), for the holding that mandatory minimum sentences under the Sexual Offences Act were unconstitutional and that courts retain discretion in sentencing. More so where due to delay in prosecution of a case, an accused attained the age of majority during the pendency of his case. 11. In addition, calling to his aid the English case of R v Ahmed [2023] EWCA Crim 281, for the proposition that youth sentencing guidelines applied to offences committed as a child regardless of age at sentencing, and absent good reason. In addition citing the Sentencing Policy Guidelines 2023 on diminished culpability of children due to developmental immaturity. Judgement HCCRA NO. E054 OF 2023 8

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12. Thus, counsel urged the court to allow the appeal, quash the conviction, and set aside the sentence. 13. The Respondent did not file submissions despite being given ample time to do so. Analysis and Determination 14. The court has considered the grounds of appeal, submissions by the Appellant, and the entire record of the lower court. As the first appellate court the court is obligated to re-evaluate, the evidence adduced before the trial court with a view to arriving at its own independent conclusions. As stated in Okeno -vs- Republic (1972) E.A 32, ” 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 finding and conclusion; 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 Judgement HCCRA NO. E054 OF 2023 9

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has had the advantage of hearing and seeing the witnesses, see Peters Vs. Sunday Post (1958) EA. 424.” 15. Three ingredients constitute the offence of defilement, namely, age of the victim, penetration, and identity of the perpetrator. The court is called upon to determine whether the prosecution proved these elements beyond reasonable doubt. 16. The prosecution case through six witnesses was as follows. In the material period, Mary Wanjiku (PW1), the mother of DKM (PW3) resided in Oloolua with her family, including PW4, then aged 11 years per birth certificate (Exh.1), and her husband and father to PW4, one FMW (PW2). They were members of PCEA church Oloolua where PW4 regularly attended Sunday School. 17. On 23.12.2019 at about 7:00a.m., PW4 woke her up complaining of pain in his anal region, and she noted that he was frequenting the toilet. She took him to Oloolua Dispensary, where a Dr. Mburu examined him and privately advised that the minor had been sodomized, as evidenced by anal cracks. He advised her to interview the complainant. Judgement HCCRA NO. E054 OF 2023 10

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18. On the doctor's advice, PW1 upon returning home had spoken privately to PW4 and he then disclosed that the Appellant, a Brigade teacher at church, had been taking him to a different room after church, removing his trousers, and penetrating his anus. Which had been repeated on separate occasions since 2018 to the last incident on 24.11.2019. That he had used threats against him and threatened to kill his parents if PW4 ever disclosed the happenings to anyone. 19. PW1 upon hearing this, returned to Oloolua Dispensary and was referred to Ngong Hospital, then reported at Ngong Police Station. Eventually, she took the son to Nairobi Women's Hospital, where PW4 was examined. It was noted that his anal region appeared tender, and with fissures as documented in the GVRC and PRC forms produced as Exh.2 and 3. Subsequently, he was examined and the P3 form Exh.4 was completed by Grace Irukan (PW3), a clinical officer at the Ngong Sub-County Hospital. PW1 confirmed that she knew the Appellant well as a fellow congregant at church where he was eventually arrested. 20. During cross-examination, PW1 conceded she had not personally observed the anal fissures although the minor had earlier on 19.12.2019 made a similar complaint regarding anal pain when passing Judgement HCCRA NO. E054 OF 2023 11

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stool; that she had not taken any steps then, but that on 23.12.2019, PW4 complained that the pain had become more intense; that PW4 had had surgery when he was about 6 years old in respect to one undescended testicle and suffered no pain thereafter. 21. Further, PW1 stated that she and PW4 attended the same church from 9.00am to 1.00pm; that she had not observed any injuries on the minor’s head; that she had noticed since 2018 his tendency to sit on one side of his bottom; that Oloolua Dispensary being poorly equipped referred her to the sub-county Hospital at Ngong and; that she interviewed the minor and did not chastise him to open up. 22. Finally, PW1 denied attempts to extort money from the Appellant's family or church to settle the matter and asserted that on the contrary, it was the church and Appellant’s mother who attempted to induce her with money in order to withdraw the case, attempts that she rejected. 23. According to PW2, PW4 had complained to him concerning penile pain in November 2019 and was taken to Oloolua Dispensary for treatment. When on 23.12.2019, he learned that the minor had complained of anal pain, he asked his wife PW1 to take him back to the Judgement HCCRA NO. E054 OF 2023 12

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dispensary and was later notified on phone by his wife that the minor had been found to have been sodomized. Narrating the subsequent medical referrals and report to police, he testified that on 31.12.2019 after the spotting of the Appellant at church, police officers from Oloolua Police Station arrested him. In cross-examination, he stated he had not observed anything peculiar in the minor’s behaviour prior to November 2019, could not recall the exact date when he first complained of pain. 24. PW3 testified that she holds a diploma in clinical medicine and surgery and a higher diploma in reproductive health. She examined the minor and completed the P3 form (Exh.4) on 30.12.2019. The complainant alleged he had been sodomized more than five times since 2018 by someone known to him, a Brigade teacher at PCEA Church, Oloolua. Her examination revealed an anal fissure /crack on the lateral margin without active bleeding, although the anal sphincter was intact and there was no visible discharge. The complainant allegedly informed PW3 that the last assault incident was on 24.11.2019, and in her opinion, the fissure was consistent with penile anal sex. Judgement HCCRA NO. E054 OF 2023 13

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25. In cross-examination, she confirmed that the anal fissure was not fresh and not bleeding at the time of examination, with fresh wounds typically being about 24 hours old; that there was no inner tear or anal swelling, or head injuries noted. Stating that she took the minor’s history, examined him and completed the P3 form, PW3 acknowledged that constipation could also cause anal tears. 26. PW4, aged 14 years at the time of giving evidence testified following a voire dire examination in which the court found him to be possessed of sufficient intelligence and to understand the meaning of an oath. His testimony was as follows. Sometimes in 2018, while in the church compound the Appellant who was his Brigade teacher had led him behind the room reserved for the disabled, instructed him to remove his trousers and bend over, before he inserted his penis into his anus, the first of many repeated incidents, including in the Brigade room within the church. 27. He said the Appellant had repeatedly threatened to kill him if he revealed the incidents to anyone, and that because he was his Brigade teacher, he felt unable to refuse whenever the Appellant had motioned or called him to accompany him to the secluded spaces in the church Judgement HCCRA NO. E054 OF 2023 14

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compound where the assaults happened. PW4 further stated that he eventually developed anal pain and could not sit properly. 28. He confided in his mother concerning the pain, after which he was examined and treated at Oloolua Dispensary, but upon his mother questioning him, did not reveal the sexual abuse initially, eventually revealing to her what the Appellant had done to him. The matter having been reported at Ngong Police Station, he was eventually examined and treated at Nairobi Women's Hospital. In court, the witness identified the Appellant as the person who had sexually assaulted him. 29. PW4 was cross-examined at some length by the defence counsel. He reiterated that regarding the incidents described which occurred on almost every Sunday between 2018 and November 2019 in a locked room, the Appellant would beckon him to go with him and knock his head against a wall, sometimes causing loss of consciousness before he was defiled. However, during the last occasion on 24.11.2019 he was not struck and remained conscious; that on that day, he opened the door and ran away, though no one witnessed him doing so. He confirmed he had undergone a prior testicular surgery but Judgement HCCRA NO. E054 OF 2023 15

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experienced no pain from it. Further stating that Sunday church usually ended at 1.00pm, he said that the Brigade room was in the same compound as the church. 30. When questioned during re-examination, PW4 maintained that the Appellant was his Brigade teacher, so he had obeyed his instructions when summoned after church, having been asked to stay behind to go with him; and that once together he would be ordered to remove his trousers and bend over and the Appellant would insert his penis into his anus; that on occasions when he passed out during the incident, he would come round to find himself naked; that he was not always physically assaulted, and sometimes the abuse occurred while he was conscious, including the final incident. 31. A clinical Officer at Nairobi Women’s Hospital, Dr. Njuguna testified as PW5. He stated that he holds a diploma in medicine and surgery. In the absence of objection by the defence, he was allowed to produce the PRC and GVRC forms (Exh.2 & 3) on behalf of a colleague, Thomas Maina, who was on unpaid leave. Stating that he had worked with him over 2 years, hence familiar with his colleague's handwriting and signature, the witness confirmed that PW4 was Judgement HCCRA NO. E054 OF 2023 16

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examined on 24.12.2019, complaining of pain when opening the bowel for long calls in past four days and history of pain and a reported sexual assault. 32. On examination, the complainant was calm, had changed clothes, and had no physical injury noted apart from an anal crack/fissure which was not bleeding and that while the skin surrounding was torn the muscle responsible for holding stool was not affected. Adding that the finding was consistent with the anal fissure/tear, and that no sexually transmitted infection was found in lab tests. 33. In cross-examination, PW5 clarified the complainant presented on 24.12.2019 (not 23rd), that the age of the anal tear could not be precisely estimated, that the complainant's prior testicular surgery was unrelated to the anal region findings, that no clothing was presented as evidence, no head injuries were noted, and no DNA was collected. He acknowledged that constipation could cause anal fissure. 34. The investigating officer was CPl Scolastica Omari (PW6) attached to Kiserian Police Station's gender office and was assigned the case on 23.12.2019, by which time the suspect had already been arrested. She recorded statements from the witnesses. She stated that Judgement HCCRA NO. E054 OF 2023 17

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PW4 alleged the abuse occurred between 2018 and 24.11.2019 at the church, and was perpetrated by a Brigade/Sunday school teacher whom he had identified as the person who on several occasions would ask him to remain behind after other children left before sexually abusing him. She noted the contents of the completed P3 form. 35. In cross-examination, she acknowledged discrepancies between the OB number recorded on the police file (6/23/12/019) and that appearing on the charge sheet (OB60/5/1/2020), attributing this to a typographical/editing error, and confirmed no bloodstained clothing was recovered as evidence. In re-examination, she maintained that the incident period was between 2018 and 24.11.2019 and that the OB discrepancy was a clerical error. 36. At the close of the prosecution case, the trial court ruled that the prosecution had established a prima facie case, and proceeded to place the Appellant on his defence. The Appellant elected to make a sworn statement and called one witness Grace Wanjiru (DW1), a Sunday school teacher at PCEA Oloolua Church. 37. According to DW1, both PW4 and the Appellant were known to her, the former as a Sunday School pupil and the Appellant as a youth Judgement HCCRA NO. E054 OF 2023 18

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member. Stating that the Sunday School Brigade, and youth groups operated separately with distinct sessions and premises (Sunday School structures being wooden, youth premises being iron sheet), she denied having heard of any prior complaint against the Appellant. 38. In cross-examination, she conceded that Sunday School ran from 10:00 – 10:30 a.m., when children are picked up by their parents, and that she could not say what happened after they were picked up, nor could she speak to what occurred in the youth section since the Appellant was not her student. 39. On his part, the Appellant testified that in 2018 he was 17 years old, in Form 3 as a day-scholar at Oloolua Secondary School, and attended church at PCEA Oloolua where, he was a member of the youth team and later vice-chairperson of the youth team; and that he attended youth church every Sunday from 10.00am, and thereafter youth meetings. He described the youth group's sessions as separate from Sunday School's (which served two age bands, 0–10 and 10–14 years), each meeting at different venues and times. He stated he was never a Sunday School teacher, did not personally know the Judgement HCCRA NO. E054 OF 2023 19

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complainant, and that the youth and Sunday School groups never met after their respective services. 40. During cross-examination, he said that he did not have documentary evidence of his 2018 commissioning as a youth leader, though he asserted his position reflected his good character. He said he used to see PW4 and his mother who was a hawker in church, that the Brigade team involved children aged between 10-14, but he had never led the Brigade team. He said there were no differences between him and PW1, but suggested that his school teacher, Mrs. Mwaura, the Christian Union (CU) patron had fabricated the case against him due to a personal grudge, after he resigned from CU leadership role, to focus on his studies. He maintained he would leave children behind after service around 11:00a.m. as he had no further business at church thereafter. 41. From the evidence adduced at the trial, there was no dispute that the Appellant, the complainant, PW4 and his mother, PW1 all attended the same church, namely PCEA Oloolua, and were known to one another. There was further no dispute that they all regularly attended church on Sunday, and that while the Appellant attended the Judgement HCCRA NO. E054 OF 2023 20

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youth service, PW1 attended the regular adult service, while PW4 attended Sunday School Brigade. The issue in dispute is whether the Appellant defiled the minor on the dates stated. 42. Concerning the age element, PW1 produced PW4’s birth certificate (Exh. 1) confirming he was born on 23rd July 2008, making him 11 years old at the time of the alleged offences and 14 at the time of testifying. This was not a matter in contention and the court is satisfied that the prosecution proved this ingredient beyond reasonable doubt. 43. The issue most contested was penetration. The court has reviewed evidence by PW1, PW4 and PW5 in that regard. The Appellant's submissions attacked PW1’s account based on his claim of temporary unconsciousness during some of the incidents. While this may raise a legitimate question as to the complainant's ability to describe what happened except through retrospective reconstruction, the minor described that this occurred after the Appellant took him to the room where the assault happened and got him to undress and hit him, before penetrating him and he would eventually come round to find himself naked. Judgement HCCRA NO. E054 OF 2023 21

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44. However, he was resolute that the passing out happened only on some occasions, not all, and from his account, neither the first and last incidents, equally described in detail, were among them. He was crossexamined at length and acquitted himself well. The passing out does not undermine his account of the incidents when the minor was fully conscious. 45. PW4 gave a consistent, first-hand account of repeated assault at the hands of the Appellant between 2018 and November 2019, culminating in the incident of 24th November 2019, which he described as the last occasion and the one in which he was fully conscious throughout and from which he fled. On this occasion, in particular, his account was neither obscured by passing out nor dependent on reconstruction; he directly narrated the act of penetration. There was no medical evidence in support of physical injury on PW4 other than the anal fissure, and it may well be that what he described as loss of consciousness was more was akin to a psychological shut down in the form of dissociation caused by fear and trauma, because here PW4 was able to reconstruct events. Judgement HCCRA NO. E054 OF 2023 22

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46. That said, the minor's evidence on sexual assault was supported by medical evidence, first by PW3, who completed the P3 form Exh 4 on 30.12.2019, after examining the minor. She noted that the anal fissure was fresh, but not bleeding at the time of examination, and consistent with penile penetration although constipation could also cause such a tear. PW5, who produced the PRC/GVRC reports on behalf of his colleague, testified to a fresh anal tear, not actively bleeding, consistent with penile penetration. He conceded that the exact age of a wound cannot be scientifically pinpointed and that no DNA evidence was collected. 47. The Appellant has attacked these findings as contradictory and irreconcilable. That, with respect, is to miss the actual contents of the reports which this court has reviewed. The PRC (Exh. 3) indicates that the presentation was late, meaning that the incident in question had not happened on the day of examination as the history showed that the alleged date of incident was 24.11.2019 (not 24.12.2019 as the trial court seemingly erroneously recorded at line no.1 of page 25 of the typed record of PW5’s evidence), whereas the examination was done on 24.12.2019. The PRC notes describe the injuries, as follows: Judgement HCCRA NO. E054 OF 2023 23

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‘’Anus: Anal Crack Noted on Lateral Margins … Fresh Crack Not Actively bleeding Comments: Examination findings is highly consistent with anal fissure and alleged penile anal presentation in Late Presentation”. 48. The above findings are repeated on the portion of the PCR marked MAP (with drawings) and in addition the comments: ‘’5. Anal crack fresh -though not actively bleeding. No visible swelling. Anal crack/Sphincter intact’’ As for the P3 form completed on 30.12.2019 by PW3 (and produced as Exh. 4 at the trial, contrary to submissions by the Appellant’s counsel on this appeal) after examining PW4, section B indicates the approximate age of PW4’s injuries as ‘more than one year, last incident 1 month ago and probable type of weapon causing injuries sustained as sexual assault (soddomy) (sic). Whereas section C of the P3 form describes the injuries as follows: Anal crack on lateral margins, fresh though not bleeding - No visible swelling Anal sphincter intact .‘’ Judgement HCCRA NO. E054 OF 2023 24

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49. Despite her descriptions of the crack in the P3 form, during cross- examination, PW3 stated that the wound was not fresh and was not bleeding at the time of examination, that a fresh wound would have been within 24 hours, adding that her assessment was made a while back. Obviously, by the time she examined PW4 the last incident was a month earlier, hence if resulting from that incident would according to PW3’s time frame of 24 hours not be a fresh wound. 50. The findings in PW3’s P3 form are uncannily similar to those in the GVRC/PRC forms completed at Nairobi Women’s Hospital. It may well be that PW3 mechanically copied the description in the PRC (Exh.3) in her own P3 form while there is no doubt that she examined PW4 and confirmed the anal crack. As for PW5, he was reluctant to give any time frame for the description of fresh crack or wound, stating it all depended on healing times and that the healing of a wound can be described but not its age. It is to be noted that the complainant was seen at Nairobi Women’s Hospital where Exh. 2 and 3 were prepared, some six days before seeing PW3. 51. It appears from answers given by PW3 and PW5 during cross- examination, that varying professional opinions offered as to the age of Judgement HCCRA NO. E054 OF 2023 25

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the anal crack and what the term fresh wound/injury meant to the two clinical officers. On the whole, however, both reports bear the same history of penetration as given to them by the subject of examination, PW4, and that the anal crack or fissure was noted, and that it was not actively bleeding. Both reports confirm that the injury was consistent with penile penetration, whereas PW1 had stated that as early as 19.12.2019 PW4 had complained of anal pain to her and she had noticed changes in his seating posture. 52. Although both PW3 and PW5 conceded that such anal injuries could result from constipation, no such suggestion was made to PW4 during cross-examination. Nor can such a proposition stand in light of the evidence of PW4 as to how he sustained the injury. On the contrary, it appears possible that the anal injury sustained may not have healed in the month following the last assault, precisely because of subsequent natural bowel movement, especially as PW1 stated that PW4 complained to her of pain in the anal region during long calls. 53. The medical evidence by PW3 and PW5 in my considered view read as a whole, goes to corroborate the consistent testimony by PW4 and ought not to be swept aside merely because of minor descriptive Judgement HCCRA NO. E054 OF 2023 26

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discrepancies that do not detract from the core fact that injuries were consistent with penile penetration were noted on the anal region of PW4, a month since his stated last sexual assault. Penetration as defined in Section 2 of the Sexual Offences Act, is the complete or partial insertion of a genital organ into the genital organs of another person. And as held in Mohamed Bachero v Republic [2015] eKLR, even the slightest penetration suffices. While medical evidence proving injury during alleged penetration may buttress the prosecution case, it is not the only sure proof of penetration. 54. Thus, as the trial court correctly observed in its judgment, the proviso to Section 124 of the Evidence Act allows the court to return a conviction for a sexual offence on the sole testimony of a victim, so long as the court, for recorded reasons, is satisfied that the victim is truthful. Evidently, the trial court which saw and heard PW4 testify was so satisfied and recorded its reasons in its judgment and this court defers to that finding. The evidence tendered by the prosecution consistently points to penile anal penetration of the minor in the stated period, and the trial court was justified in reaching the conclusions it did in that regard. Judgement HCCRA NO. E054 OF 2023 27

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55. Regarding identification of the perpetrator, this was not a fleeting encounter involving a stranger but involved repeated encounters between two people admittedly known to each other, rendering the identification of the Appellant by PW4 more reliable and satisfactory. See Anjononi v Republic [1980] KLR 59 or Wamunga v Republic [1989] KLR 424. 56. The complainant said he knew the Appellant well as his Brigade teacher at church, and whether or not he was his teacher, the complainant, a child, regarded the Appellant as such for whatever reason, including the fact that he was in his own words, a youth leader in the church. He was an active member of the church involved in youth leadership and church activities hence visible. All the incidents occurred in the daytime on Sundays at the church compound. 57. And whereas there may have been people in the compound on Sundays as the Appellant emphasised, this does not exclude the opportunity for a person like him who seemingly knew his way around the church compound and activities, intent on preying on a child like PW4, to pick the perfect opportunity to lure the child into a room or area conducive for covert the execution of his intentions. It is a fact of Judgement HCCRA NO. E054 OF 2023 28

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life that sexual offences usually occur in hiding, secluded, secret or private spaces and opportunity stealthily selected and exploited for the purpose by the calculating perpetrator. Nothing therefore turns on the evidence by DW1 or the Appellant as to the issue of opportunity. 58. Both PW1 and PW2 confirmed they knew the Appellant personally from the same church. The Appellant admittedly knew both PW4 and his mother whom he described as a hawker, as members of his church. There was no evidence of any ill will between PW4, his mother and the Appellant. What reason would motivate a child, shown as otherwise reluctant to confide in his mother except due to consistent anal pain, to make false allegations of such grave nature against the Appellant, out of all youth in the church? 59. As noted by the trial court, the Appellant upon being placed on his defence while describing his church positional roles and attendances as a youth did not expressly address the offence. His defence in sum was an indirect denial based on the allegation that as a youth he had no opportunity to meet with Sunday School Brigade children. However, he confirmed prosecution evidence that in fact all services occurred on the same day and church compound, even though there were Judgement HCCRA NO. E054 OF 2023 29

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designated meeting venues for youth and children. He admitted during cross-examination that he had no differences with PW1 and was hard pressed to state why his teacher, Mrs. Mwaura, whom he blamed for his woes, would hatch a scheme to falsely implicate him. That defence was completely displaced by the overwhelming prosecution evidence, and properly rejected by the trial court. 60. Concerning the discrepancies in dates and OB numbers, the trial court found that these were adequately explained as clerical or typographical errors by PW6, and do not, in my assessment, go to the root of the prosecution case. 61. On the complaint concerning a second, undisclosed witness statement by PW4 allegedly not disclosed to the defence, and its impact on the fair trial rights under Article 50(2)(j) of the Constitution, the trial court record of proceedings on 21.07.2022 merely indicates that the middle of re-examination of PW4 by the prosecution, the defence counsel interjected that the prosecution was apparently using a different statement than was in their possession. The matter was not pursued as a formal complaint, nor request made for supply of the alleged other statement, and re-examination resumed and concluded. Judgement HCCRA NO. E054 OF 2023 30

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The matter was not raised thereafter on that date or again before the trial concluded. Thus, on the face of the proceedings the statement by the defence cannot be read to convey more than merely raising an objection to the line of re-examination adopted by the prosecution. 62. Reviewing the evidence tendered at the trial, this court agrees with the trial court’s finding that the offence of Defilement contrary to Section 8(1) as read with Section 8(2) was proved beyond reasonable doubt and the conviction was well founded. The appeal against conviction therefore fails. 63. Turning to the sentence of 15 years imprisonment, the trial court noted that the Appellant was 17 years old at the time of the offence, and had subsequently attained the age of majority during the next year, during the pendency of the trial. The trial court, in its sentencing remarks, correctly recognized that despite the mandatory sentence of life imprisonment prescribed in Section 8(2) of Sexual Offences Act, it had discretion in sentencing him as guided by the Court of Appeal decision in JKK vs Republic (2013) eKLR. See also Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023) [2024] KESC 34 (KLR) where the Supreme Court reiterated that mandatory Judgement HCCRA NO. E054 OF 2023 31

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or minimum sentences under the Act are lawful and that the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR applied only to the offence of murder, and specifically not to sexual offences . 64. The trial court correctly considered the seriousness of the offence and prescribed mandatory sentence, the dilemma arising from the Appellant’s age during the offence and at conviction, and available sentencing options under the Children Act and Probation of Offenders Act, before settling on what it considered as the appropriate sentence, taking guidance from the decision of the Court of appeal in JKK -VsRepublic (2013) eKLR where the court dealt with a similar dilemma as follows: "The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the remarks by the Judge, he was about 17 years when he was first arraigned in court in March 2009, it is now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be subjected to any of the sentences provided for under the Children Act. The Judgement HCCRA NO. E054 OF 2023 32

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purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest. A death sentence or life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his omission or lack of judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his 15 mistakes, which can only happen after serving a custodial sentence” Judgement HCCRA NO. E054 OF 2023 33

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Similarly the same Court in DKC v Republic [2014] eKLR stated that: "Whatever the case, life imprisonment is not provided for under the Children Act, but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner. We think that due to the gravity of the offence, and the current age of the appellant, he cannot be released to the society without being brought to terms with the consequences of his action or omissions by a custodial sentence. It is for this reason that we are inclined to allow the appeal against the life sentence imposed by the trial court and substitute it with imprisonment for а period of 10 years from the date of conviction. We therefore allow the appeal to the extent that the life sentence imposed on the appellant is substituted with ten years imprisonment." 65. In the more recent decision, namely, Kiti v Republic [2023] KEСА 1403 (KLR) the Court of Appeal stated regarding Section 239(1) of the Children’s Act that: Judgement HCCRA NO. E054 OF 2023 34

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"Whereas the above provision appears to offer a remedy to the child offender, the twist weaves its way in, when at the time the trial is concluded, like in this instance, the child has transitioned into a young adult and cannot benefit from the sentencing options available. We are persuaded that this was the situation the trial court encountered, when it opted to fall back on Section 25 (2) of the Penal Code. And now that the provision has been declared unconstitutional, what screams out for an answer is whether the court is so helpless as to stand aside and say "too bad, you were a child, now you are an adult, no penalty fits your category, go home and sin no more!" Far be it that such a situation would prevail; indeed if the objective of the Constitutional provisions and even the Children Act is to prevent children who are in conflict with the law from being subjected to long imprisonments and detention in harsh conditions as was well captured by the court in J.K.K v R 17 [2013] eKLR, then that purpose must be preserved in Judgement HCCRA NO. E054 OF 2023 35

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instances where the need for correction and rehabilitation of a young offender remains, even as the Court takes into account the over-arching objective which is preservation of the life of the child and his best interest. It is desirable that a message be sounded out that children who commit serious crimes, and transit into adulthood at time of conviction, cannot walk home scot-free; and whereas, it is indeed in their best interest that they must not be treated like adults; yet in the absence of a penalty commensurate with the objectives in meting out a sentence, then the measure of last resort contemplated in Article 53 (2) of the Constitution must become applicable." 66. This means that while a sentence of death or life imprisonment cannot be meted against a convict, who is an adult at the time of sentence, but who was a minor at the time of the offence, if such a person had committed a serious offence, he ought to be made to bear the consequences of his conduct. 67. In this case, the Appellant committed a serious offence of Defilement over a period of one year against a child six years his junior, Judgement HCCRA NO. E054 OF 2023 36

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exposing him to gross physical abuse and trauma. The diabolical nature of the repeated and egregious sexual abuse of the minor by the Appellant is manifested by the fact that it was carried out within the church premises, and by a person who held himself out as a faithful youth leader and committed church member. 68. The trial court would have abdicated its duty if it were to release the Appellant back to the society without him being brought to bear the consequences of his actions, to introspect, and hopefully commence his journey of rehabilitation. Society, and particularly boys' lives would otherwise have been at risk if the Appellant were to be placed on a non-custodial sentence before proper rehabilitation. The prevailing high incidence of sexual violence against boys and girls in the country militates against such a sentence. A substantial custodial sentence was therefore appropriate. 69. The Court of Appeal in MMM -vs Republic (2022) КЕСА 1055 KLR sentenced an adult appellant, who was aged 16 years when he defiled and murdered a minor, to 25 years imprisonment. The Appellant herein was out on bail during the entire trial. In the circumstances, this court considers the sentence of 20 years imprisonment to be Judgement HCCRA NO. E054 OF 2023 37

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proportionate to the offence and finds no justification to interfere with the trial court’s exercise of discretion in sentencing. The sentence is upheld. 70. In the result, the court finds no merit in the appeal against conviction and sentence, and dismisses the appeal in its entirety. It is so ordered. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 30TH DAY OF JULY 2026 C.MEOLI JUDGE In the presence of: For the State: Ms.Kihumba For the Appellant: Mr. Nabede Appellant: Present C/A: Lepatei Judgement HCCRA NO. E054 OF 2023 38

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