Sunday Gichana Alias Joseph Akala v Republic

ii. That, the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standards in law. iii. That, the trial court erred in both law and facts by not considering that the case was fabricated one with so many contradictions which should not secure a conviction but rather a total acquittal. iv. That, the prosecution case was not proved beyond reasonable doubt. v. That, the P3 form, PRC form and treatment notes form details show no defilement and does not point at me the sole perpetrator of the present offence. vi. That, penetration was not proved. vii. That, my identity was doubtful that, viii. That, the burden of proof was shifted to the appellant. ix. That, my arrest was improper. x. That, the complainant was un-credible witness. xi. That, the lower court demonstrated that they were biased and prejudicial against the appellant. xii. That, the sentence meted upon I the appellant is harsh and excessive regarding to the circumstances of the case. xiii. That, the present case was shoddily investigated. xiv. That, the medical evidence did not support complainant's contention. xv. That, I wish to be present during the hearing of this appeal. He therefore urged the court to quash the conviction and sentence. Prosecution’s case 6. The prosecution lined a total of 4 witnesses. 7. PW1 J.B, the complainant upon voire dire examination gave unsworn statement and stated that she was 9 years, goes to [Particulars withheld] Primary School in grade 3 and lives with her mother and brother. 8. She said that on a Friday at about 1.00pm, she was going back to school when she met Sunday who she had not known before. That Sunday told her his name and asked her to go and call for him a lady who was in the farm. She refused and Sunday (the Appellant) held her hand and led her to the maize plantation where he removed her clothes and did to her tabia mbaya by inserting his thing for urinating in her thing for urinating. His thing for urinating was big. After that, the Appellant told her to go to school and not to tell anyone. 9. That she went to school and did not tell her mother about it. After school, she went home and saw blood in her biker. That the mother saw the blood in the biker the following day and took her to two different hospitals where she was treated. 10. That when she saw Sunday on Sunday when she went to throw away garbage, she informed her mother who raised an alarm and Sunday was arrested by a mob. He was later taken by the police. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 2

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11. On cross examination, she confirmed that the incident took place on Friday in the month of April and that the appellant was the one who defiled her and he had told her not to scream. She also did not tell her mother when she went back home because she was afraid. 12. PW2, NM, the mother of the complainant testified that the complainant was born in 2014. That on 19th April 2023 when she came home from work, the complainant did not tell her anything. That the following day, she saw blood in the complainants’ biker. She then took her to Ginono Hospital where she was examined and the doctor informed her that the daughter had been defiled. She was treated and stitched in the vagina because of a tear. 13. That the complainant informed her that she could identify the person who defiled her. On 24th April, 2023 the complainant identified the Appellant when she went to throw garbage and informed her. She then screamed and the Appellant started running. Many people came and arrested him. the police then went and took him to the station. 14. On cross examination, she stated that the Appellant was arrested on 24th April 2023 on a Sunday, that she checked the complainant the following day. She further stated that she was not present at the scene of crime and only relied on the statement of the complainant and that the Appellant was the one who defiled the complainant. 15. PW3, George Omondi Oluoch Clinical Officer from Kuria West Sub County Hospital testified that he re-examined the complainant on 24th April 2023 after she treated at Metropolitan Hospital at Isebania. The complainant was brought in with a history of defilement by a person known to her. 16. On examination, the complainant looked sick, was in pain and had a fresh perennial tear at 6 .00Oclock. The wound was fresh and had been stitched. Bloody foul-smelling discharge was also observed. Spermatozoa were seen in the urinalysis test and he concluded that the complainant had been defiled. The complainant was treated and referred for further medication. It was also his testimony that he filled the P3 and PRC forms which he produced as PEX 2,3,4 and 5 17. On cross examination he stated that he did not treat the Appellant and that the complainant was 8 years old as per the information given to him by the complainant’s mother. That he noted spermatozoa on treatment notes and P3 form and that he treated the complainant on 24th April 2023 and examined her the same day. He further stated that the spermatozoa were seen on microscopic examination at the Metropolitan Hospital where the complainant was seen on 20th April 2023 after she was defiled on 19th April 2023. He also stated that the complainant informed him that she knew the person who defiled her. 18. PW5, No. 245536 PC Merceline Achieng testified that she took over the matter from her colleague who had been transferred. That the mother of the complainant reported that she had been defiled on her way back to by the Appellant who took her and led her into a maize planation, defiled her, told her not to tell anyone and told her to go back to school. 19. That the following day when the mother was preparing the complainant to go to school, she discovered blood stains in her uniform. The mother questioned her but she declined to say anything. She then took the child to the hospital where she told the doctor that she was defiled by a person known to her. The complainant was treated and stitched then referred to the police station. 20. It was her further testimony that on 23rd April 2023 the OCS Kehancha Police station received a call that the suspect had been arrested by a mob at Ntunyingi. That police officers went for him and found that the mob had beaten him and he sustained injuries. He was taken to the hospital and treated and later charged with the offence of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 3

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21. On cross examination, she confirmed that complainant was 9 years as per the birth certificate, that the Appellant was taken to the hospital on the same day and that the mob told police that the Appellant’s name was Sunday Gichana. She also confirmed that the Appellant was arrested on 23rd April 2023 wearing the same clothes he was wearing on the date of incident. 22. When placed on his defence the Appellant gave sworn statement and said that he was Joseph Akala that he was a gold miner from Kehancha. That on 19th April 2023 at about 5.00pm while at his place of work in [Particulars withheld] village when a middle-aged lady emerged from behind him shouting to someone to stop him. That he was walking faster and due to his speed, the woman shouted to two men who ere ahead of him to stop him. He stopped and the woman started to explain to the crowd that was attracted by her screams that he was the one who defiled her daughter. The charged crowd then started beating him but he was rescued by the police and taken to the hospital. 23. It was also his testimony that his name is not Sunday Gichana but Joseph Akala of ID number 29xxxxx238 and that the complainant must have identified him mistakenly due to the clothes he was wearing. He denied committing the offence. 24. On cross examination by the State Counsel, he confirmed that he had a similar case, SO E020 of 2023, that the complainant gave false testimony in court. He further stated that the complainants’ mother shouted. He said he works at a mine and that he did not know the complainant’s mother. He also denied that his name is Sunday Gichana and that the police had told him to plead with the name Sunday Gichana. Analysis And Determination 25. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held 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 (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” 26. Having re-evaluated the evidence adduced at the trial court and having considered the submissions filed by parties and the grounds of appeal, the issues for determination are:a. Whether the offence of defilement was proved beyond reasonable doubt. b. Whether the prosecution evidence was riddled with contradictions c. Whether the court shifted the burden of proof upon the Appellant before the prosecution discharged their burden to prove his guilt d. Whether the Trial Court was biased in its finding against the Appellant e. Whether the sentence was excessive and harsh in the circumstances https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 4

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27. 28. Whether the offence of defilement was proved beyond reasonable doubt, Section 8(1) and (2) of the Sexual Offences Act which provides thus; 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 aged eleven years or less shall upon conviction be sentenced to imprisonment for life. For the prosecution to attain conviction for the offence of defilement they have to prove the following elements:Age of the victim Penetration Positive identification of the perpetrator Age of the victim 29. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “ 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.” 30. From the record the complainants’ mother stated that she was born in 2014. PW4 stated that she received birth certificate in the cause of investigation and produced it as Ex P1. The said Certificate of Birth shows that the Complainant was born on 15th December, 2014. This then means that the complainant was 9 years at the time of the offence. This court agrees with the findings of the Trial Court that the age of the victim was sufficiently proved. On the element of penetration, 31. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person. 32. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: “ the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims’ evidence and corroborated by medical evidence or other evidence.” 33. In this case, the P3 form indicates that the victim’s hymen was freshly broken with visible hymenal remnants and perineum tear at 6 O’clock coupled with foul smelling vaginal discharge. She had to be stitched. Laboratory examination showed presence of spermatozoa as was confirmed by PW3. The complainant also testified that the Appellant inserted his thing for urinating in her thing for urinating and did tabia mbaya to her and she started bleeding. Blood stains were found by her mother in her biker, indicating fresh hymen tear. The findings in the P3 and the PRC forms indicated that the complainant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 5

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had fresh injury to her vagina caused by a blunt object. The court thus finds that the evidence on record corroborated the testimony of the complainant enough to prove penetration beyond reasonable doubt. Whether the perpetrator of the offence was identified as the Appellant 34. The Complainant identified the Appellant as the person who defiled her. In her testimony, she narrated how the Appellant asked her to go and call a girl who was in the farm and when she refused, he held her hand and led her to the maize plantation. While there, the Appellant removed her clothes and inserted his thing for urinating into her thing of urinating, then did to her tabia mbaya and she bled. The Appellant then told her to go home and warned her not to tell her mother. True to the warning, the complainant never told her mother, who only found about the ordeal the following morning in her blood stained biker. The complaint also testified that the Appellant told her his name was Sunday. At the Police Station, the complainant confirmed to the police that she could identify the person who defiled her. On 24th April, 2023 the complainant saw the Appellant and identified him because he had not changed the clothes he was wearing on the day of the incident. The mother of the complainant testified that she was saw the biker of the complainant was blood stained and when she inquired from her, she declined to say anything. It was only while at the hospital that the Complainant informed the Clinical Officer that she could identify the person who defiled her. 3.5 The key defense raised by the Accused is one of mistaken identity and misnomer. The Court must carefully evaluate the circumstances of identification in accordance with the guidelines set out in R. v. Turnbull [1977] QB 224 and Ogeto v. Republic [2004] KLR. 36. The evidence in court demonstrates that the incident occurred at around 1:00 PM in broad daylight. PW1 spent significant time with the assailant—he spoke to her, walked with her into a maize plantation, and committed the act. These conditions provided favorable opportunity and duration for positive visual recognition. 37. Furthermore, PW1 subsequently recognized the Accused in person while throwing out garbage and immediately alerted her mother, leading to his apprehension. The Investigating Officer (PW5) confirmed that the Accused was wearing the same clothes described by the complainant when apprehended. 38. Regarding the defense argument on name discrepancy (Joseph Akala vs. Sunday Gichana), the law is settled that physical visual identification takes precedence over a name given during an assault. 39. In Karani v. Republic [2010] eKLR, the Court of Appeal held that what matters is the positive identification of the physical person of the accused, not the name he choses to call himself or what others named him. The assailant told the child his name was "Sunday," but it was his physical person that PW1 positively recognized on the street. The Accused's claim that he was singled out merely because of his attire is unpersuasive given the positive recognition by the child in clear daylight. 40. Minor discrepancies regarding exact dates (e.g., whether the Friday fell on 19th April or 21st April) are minor narrative variances typical in testimonies from a child and do not prejudice the Accused or undermine the core res gestae evidence (Section 382, Criminal Procedure Code; Philip Nzaro v. Republic [1991] eKLR) 41. The complainant confirmed that she had not known the Appellant before. The Appellant also confirmed that he had not known the complainant’s mother before. This court is thus convinced that the complainant had no reasons to lie against the Appellant as to the person who defiled her. Identification of the Appellant was thus beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 6

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42. Having proved all the three elements of the offence of the offence of defilement, this Court is in agreement agree with the Trial court’s findings regarding the Appellant’s guilt for the offence of defilement. The conviction was safe. 43. On the credibility of the minor’s evidence, the Trial Magistrate conducted voire dire examination and found that the child did not understand the meaning and importance of an oath and ordered that she gives unsworn testimony but the Appellant was allowed to cross examine her. The Trial Magistrate said that he had the opportunity of observing the demeanor of the minor during her testimony and did not find anything that would have suggested that she was not saying the truth. Being that the appellate court did not see or hear the witnesses testify and considering the Appellant put questions to the minor which she answered effectively the Appellant’s claim that the Complainant was not a credible witness cannot be sustained. There is also nothing in the submissions and the record of the Trial Court to suggest that the court was biased against the Appellant. 44. On whether investigations were shoddy, the court deals only with evidence that is presented before it for determination of a charge against an accused person. 45. Regarding the 30-year imprisonment imposed by the trial court, Section 8(2) of the Sexual Offences Act provides 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. 46. The sentence of 30 years imprisonment is therefore lawful and lenient considering the age of the child who was like his own daughter and therefore he stood in position of a parent. This Court finds no reasons to interfere with the sentence. 47. Consequently, the appeal against both conviction and sentence lacks merit and is accordingly dismissed. In consideration of Section 333(2) of the Criminal Procedure Code the Appellant’s sentence will run from the date he was arraigned in court considering he was never released on bond and the Trial Magistrate did factor the said period. For avoidance of doubt the Appellant was arraigned in court on 24th April 2023.Rightof appeal 14 days is explained accordingly. It is so ordered. JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI THIS 6TH DAY OF AUGUST 2026 JUDGE In The Presence of:Victor and Calvince - Court Assistants Appellant – P/P Held at Kibos Maximum Prison Ms. Wainaina Counsel for the Respondent. ANNE ONGI’NJO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12693/eng@2026-08-06 7

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