Tembea & 2 others v Republic [2023] KEHC 25660 (KLR)

Tembea & 2 others v Republic (Criminal Appeal E032 of 2022) [2023] KEHC 25660 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25660 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E032 of 2022

A. Ong’injo, J

November 20, 2023

Between

Ali Omar Tembea

1st Appellant

Khasim Pamba

2nd Appellant

Hassan Hussein

3rd Appellant

and

Republic

Respondent

(Being an appeal against the judgment of Hon. Sandra Ogot (SRM) delivered on 24th November 2021 in Msambweni Senior Resident Magistrates Court S. O. Case No. 22 of 2020, Republic v Ali Omar Tembea alias Mr. Nice, Hassan Hussein alias Bendera and Khasim Pamba)

Judgment

Background 1. The Appellant, Ali Omar Tembea alias Mr. Nice, Hassan Hussein Alias Bendera and Khasim Pamba were charged with the offence of gang defilement contrary to Section 10 of the Sexual Offences Act No. 3 of 2006.

2. Particulars were that Ali Omar Tembea alias Mr. Nice, Hassan Hussein Alias Bendera and Khasim Pamba on the 23rd day of September 2019 in Vanga Location, Kwale County, the three accused persons jointly with others not before the court intentionally and unlawfully caused their penis penetrate the vagina of MA without her consent, a child aged 13 years.

3. In the alternative, they were also charged with indecent act with a minor contrary to Section 11 (1) of the Sexual Offences Act.

4. The appellants were found guilty of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act and convicted on the charge of defilement. He was convicted and sentenced to serve 20 years imprisonment.

5. The 1st appellant was aggrieved by the decision of the trial court and filed the petition of appeal on the following amended grounds of appeal filed on 7th October 2022 together with written submissions: -1. That the learned trial court magistrate erred in law and fact by convicting and sentencing me to 20 years imprisonment on unsubstantiated evidence of the minor.2. Ground 2 similar to ground 1. 3.That the learned trial court magistrate erred in law and fact by failing to take into consideration that there were massive contradictions and inconsistencies between the minor’s evidence and the doctor’s evidence.4. That the learned trial court magistrate erred in law and fact by relying on one piece of evidence of the law that is Section 124 of the Evidence Act without taking into consideration that corroboration is still needful in such circumstances.5. That the learned trial court magistrate erred in law and fact by relying on the evidence of the minor who did not voluntarily give evidence but was coerced to say so by the aunt and that there was no nexus between what happened to her and me the appellant.6. That the learned trial court magistrate erred in law and fact by not considering that even if there were fresh bruises and lacerations they not have been caused by the appellant because the minor was defiled by 5 people as per the doctor.7. That the learned trial court magistrate erred in law and fact by failing to consider my mitigation address.8. That the learned trial court magistrate erred in law and fact by discounting and not considering in detail my defence evidence.9. That the learned trial court magistrate erred in law and fact by giving a manifestly harsh and excessive sentence.

6. The 2nd appellant was aggrieved by the decision of the trial court and filed the petition of appeal on the following grounds filed on 16th February 2022 by M. A. Mwinyi Advocates: -1. That the Honourable Magistrate erred in law and fact in failing to disclose in what language the charges were read out to the accused person.2. That the Honourable Magistrate erred in law and fact as the proceedings do not indicate whether the charges were read out to each accused person individually and whether they were required to plead individually.3. That the Honourable Magistrate erred in law and fact since even after consolidation the court did not require each accused person to plead individually.4. That the Honourable Magistrate erred in law and fact by convicting the appellant when it was not made clear when and where the victim was raped as the exact date is not discernible from the victim’s testimony.5. That the Honourable Magistrate erred in law and fact in proceeding with PW1 in the absence of the accused persons, alternatively it did not give the accused person an opportunity to cross examine PW1’s testimony.6. That the Honourable Magistrate erred in law and fact by not taking directions under Section 200 of the CPC after PW1 testified before the new judicial officer proceeded with the trial from where it had reached.7. That the Honourable Magistrate erred in law and fact by convicting the appellant based on an equivocal medical report that was ambiguous as to time and frequency of assault.8. That the Honourable Magistrate erred in law and fact by convicting the appellant yet there was no conclusive evidence that the appellant defiled the victim.9. That the Honourable Magistrate erred in law and fact in convicting the appellant where there was no medical evidence linking the appellant to the victim at all.10. That the Honourable Magistrate erred in law and fact by ignoring the fact that no PRC Form was ever filled of produced in these proceedings.11. That the Honourable Magistrate erred in law and fact by failing to consider that there was no sign or evidence of penetration which was fundamental to these trine.12. That the Honourable Magistrate erred in law and fact by proceeding to trial yet the charges as drafted are ambiguous and the victim could not testify as to the exact date of the incident nor was the medical evidence conclusive enough to discern the date of the incident.

7. The 3rd appellant was aggrieved by the decision of the trial court and filed the petition of appeal on the following amended grounds filed on 9th February 2022: -1. That the trial court erred in law by failing to conduct a voire dire examination on the minor complainant.2. That the trial court failed to see that the prosecution failed to call for medical evidence to corroborate the victim’s evidence.3. That the trial court erred in law by failing to see that devoid of medical evidence the prosecution relied solely on the victim’s evidence to convict.4. That the trial court erred in both law and fact by failing to see that the investigating officer in the matter did not testify.5. That the trial court erred in law by imposing an illegal sentence in light of the charges levelled against me.

Prosecution’s Case 8. PW1, Stembo Mangale, the Chairman of [Particulars Withheld] Village testified that on 24th September 2019 at 1. 00 pm, Nyanje called and told him that the complainant had been raped and he was required to go there urgently. That on arrival he found the child was lying down in Nyanje’s house and there were other women at the scene including Nzara. That the child told him that 5 people had raped her and she gave their names as Aga Khan, Ali Omar, Hassan Hussein, Boni, and Bwirira.

9. The chairman said that the child was living with her sibling but on the material night she was alone when the 5 men went to the house. PW1 said that the child’s mother had passed on. That when he called the Children Officer, he was advised to take her to Jengo Patrol Base where the child was questioned and the police took her to Lunga Lunga. That at Lunga Lunga Police Station, PW1 was told to look for the father of the complainant and when he was found PW1 escorted to the police Station.

10. Police officers at Lunga Lunga told PW1 to look for the culprits and who were known to him as they hailed from his village. He said that he was able to arrest the two suspects who were then in court Ali Omar and Hassan Hussein but three of them escaped. PW1 informed the court that the child told him that it was not the first time that she was being defiled and that the suspects went often but that day they went all of them. That the child was very weak at the time and she was sleeping and was not able to speak and eat. In cross examination, PW1 said that when the complainant mentioned the 2nd accused, he kept on running and that they looked for him 4 times and he was nowhere.

11. PW2, MA. the complainant, said she could not recall how old she was. She said that she was defiled by the accused persons in court. That she was at home alone and it was at night. She said that she was seated outside and Mwirina (pointing at the 3rd accused) went and took her on a bicycle and told her to wear clothes as they were going to a disco and that she wore clothes and left with him. That instead of going to the disco, he took her to his home, removed her panty and defiled her. That when he was done, he left her on the road alone. That she went back home and her father reprimanded her and told her not to be leaving home at night. That she told her father that she had been defiled but her father said she should tell her aunt who took her to hospital. That the 3rd accused told her that if she told anyone about it, he would cut her up using a panga.

12. PW2 also said that the 1st accused also defiled her on the same night she was defiled by the 3rd accused. That she was seated outside and her father was not around and that the 1st accused took her to his home and defiled her. That she went back home alone and slept. That the 2nd accused touched her breasts and defiled her during the day when she had gone to fetch water and that the defilement happened in the thicket.

13. PW3, Suleiman Jerumani Mwamzandi, a Clinical Officer at Lunga Lunga Hospital said that he filled the P3 Form and from the treatment notes, the complainant was seen on 26. 9.2019 at 5. 55 pm and examination said she had a history of being defiled by a gang of men known to her. That she was taken to the doctor by her aunt and the first doctor to see her said she looked sick. That she was examined and sent for lab work. That PW3 saw her on 27. 9.2019 and took fresh history. That the complainant said she was 10 years old but not schooling. That she said she was defiled by a group of 5 persons on different days. That she reported to her aunt who took her to the village chairman then to the police station. That she was referred to Vanga Hospital Centre where she was examined first and some investigations done. That HIV test was –ve and that her urine had pus cells. That she was given antibiotics and referred to Lunga Lunga Hospital.

14. PW3 examined the complainant’s vagina which had bruises on the labia minora with lacerations on the labia minora at 9 o’clock, hymen was broken, there was whitish discharge, pregnancy, HIV, syphilis, and Hep A & B were negative. Urinalysis showed pus cells and lucosites, an indication of bacterial infection, high vaginal swab showed pus cells and epithelial cells which was a sign of infection. That there was no yeast formed there yet and no STI. That PW3 filled the P3 on 27. 9.2019 and he formed the opinion that the injuries could be caused by defilement. That because bruises and lacerations were fresh, the last insertion by a penis was recent. He produced the treatment notes and the P3 Form as Exhibit 1 and 2 respectively. That age assessment was done on 30. 9.2019 at Lunga Lunga Hospital and it was established that the child was 13 years old. PW3 produced the age assessment as Exhibit 3.

15. PW4, No. 66111 Corporal Ochieng Otieno from Jego Patrol Base said he took over the file from Corporal Githinji who has since been transferred to Nairobi. That PW4 took over the file in April 2021 and perused it and that Githinji told him three accused persons were charged and that the minor MA. had been defiled on 23. 9.2019. That the complainant had identified the people as regular customers to her father’s business and identified the three accused persons by their names. That the accused had defiled the minor on different dates and times.

16. That the investigating officer told PW4 that Bwirisa was the first to rape the complainant having pretended that he was taking her to Vanga but along the way he raped her and returned her home. That the 2nd accused Bwirisa found the complainant at their home during evening hours, took advantage of her father’s absence and took her to his house and defiled her. That Ali Omar also took advantage of the minor and took her to the bush and defiled her. That the complainant reported to the father but the father was reluctant and told her he did not want to disagree with the villagers. That the complainant then told her aunt NT who took her to the village Chairman Stembo where they reported and were referred to the police post. That they were referred to Vanga and to Lunga Lunga Hospital for treatment. That Ali Omar and father of the complainant were first arrested and the others were arrested later. That PW4 saw documents proving age of the complainant which was age assessment and that she was 13 years old at the time.

17. PW5, TT said that on 24. 9.2019, the child went to her at about 9. 00 am and told her that she was being killed by men in Migombani as they were defiling her too much and that the names of the men she mentioned included Bwirira, Mr. Nice, Bendera, Gakani, Dula, and Boni. That they went and took her to the forest and had sex with her while the others looked on, and that each one of them had sex with her. That however, the complainant did not say whether it was one time or different times. That the men went to defile her when she was alone at home and the father had gone to sell fish. That five men had sex with her and by the time one was left, she was already so tired and said she needed a break and ran to Mr. Nice’s place who is like a grandfather to her and that Mr. Nice too did her, and that is when she went to Tsembe village Chairman. That before PW5 took her, he saw that she looked frustrated, helpless and could not walk and that PW5 had to carry her but did not check her private parts.

18. PW5 informed court that she went to their neighbour Nyango and told him about it and that Nyango called the Chairman. That the Chairman said they should go to Jogo and were then sent to Vanga Hospital and given medicine to swallow and for oral application for her vagina. That they were then sent to Lunga Lunga Hospital. PW5 identified the 3 accused persons and that the rest of the assailants took off. She said that she knew them all as they come from the same village and use the same market, and that she had no issues with them.

Defence Case 19. DW1, Ali Omar Tembea, gave sworn statement that he knew AM as well as the daughter and that they are neighbours. He said that they used to have shamba disputes as A would enter his shamba and walk and when DW1 asked why, he would threaten him. That he was arrested at home in Vanga and told that he would know the reason for his arrest ahead. That he said he knew nothing about defilement of a child and was taken to Lunga Lunga Police Station. That DW1 refused to sit at a Kikao with them because they wanted money and that he refused to give them. That they had issues with the shamba and that DW1 is told “nitakuonesha” when he asked why they entered his shamba. He said that he knew nothing about the charges.

20. DW2, Hassan Hussein alias Bandera gave sworn evidence and said he knew A and used to see him but never really interacted with him. That he also used to see his daughter. That on 4. 11. 2019, officers went looking for him at night and that they knocked on the door and when he asked why they were there, they told him that he would know the reasons ahead. That they took him to the station and interrogated him about the girl, and that he denied knowledge of any wrongdoing. He said that he was taken to Lunga Lunga Police Station that night and that he did not see anyone he knew at the station that night. DW2 said he knew the chairman and that he used to take fish orders to him every day but he never paid the debt and DW2 used to follow up on it. That DW2 informed Mama Mdogo that he lives with and decided to let it go. He said that he denied doing anything to the minor and that it was from the debt that the chairman said “nitakuonesha” that is why all this happened.

21. DW3, Kassim Pamba gave sworn statement that he did not know A or her daughter and that he saw her the first time in court. He said that at the time of arrest in December 2019, he was at home asleep from 9. 00 pm to 4. 00 am and someone knocking woke them up. That they were the police and that he opened. That they took him to their base after determining his identity and asked him about an incident that occurred and he said he did not know. That they asked if he knew Hussein Hassan and he said they were both from the same area but lived in different places.

22. DW3 further testified that Mr. Nice is a customer who sometimes buys his fish. That the Chairman and the Shangazi of the girl went and confirmed that they knew him because the girl mentioned that he was among those that hurt her and that he denied the charges. That the Chairman said he knew his family and they could try and resolve at home and asked for five thousand they resolve. That DW3 said he had no money and was not paying for something he did not do. He said he has never seen Gakani and Boni and that he had no issues with the Chairman and the Shangazi.

23. This appeal was canvassed by way of written submissions.

1st Appellant’s Submissions 24. The 1st appellant’s submissions consolidated all the grounds and argued them together. He submitted that he was charged based on the complaint made by the complainant’s aunt and not the complainant’s own statement. He argued that he was not informed in advance of the kind of evidence that the complainant was going to adduce since there was no statement from the complainant. He said that the evidence given by the complainant was prejudicial to him as it was evidence that had not been brought to his attention prior to the hearing. He said it was not clear from the evidence of the complainant when he defiled the complainant. He also said it was not clear from the complainant’s evidence who defiled her last.

25. The 1st appellant claimed that there were material contradictions in the evidence of PW2 and PW3 as it was not established by PW3 the person responsible for the alleged defilement and penetration by the appellant was not corroborated. He said that the contradiction went to the root of the case and it brings to question the issue of whether the complainant was in fact defiled on a date which the defilement took place. The appellant also questioned whether a child of 13 years who had been defiled by 5 people can walk comfortably too far without signs of traumatic experience.

26. The 1st appellant alleged that the fact that the complainant never screamed nor bled while being defiled goes to the credibility of her evidence and creates the impression that she was not truthful as she could not even remember the date when the alleged defilement was committed. He further relied on the holding in Petition No. 97 of 2021 Edwin Wachira and Others v Republic where the court declared the mandatory minimum sentences in sexual offences and the courts had discretion to impose a more severe or lesser sentence other than the 20 years imprisonment. He said that considering his age of 78 years, the sentence imposed on him was manifestly harsh and excessive and should be reduced to a less severe punishment. He also urged the court to consider the time that he spent in remand according to Section 333(2) of the CPC.

2nd Appellant’s Submissions 27. The 2nd appellant’s counsel submitted that the clinical officer PW2 said he could not tell who defiled the complainant as his duty was to confirm if she had been defiled. He also argued there was no shred of medical report or forensic evidence that in concrete terms links the victim’s defilement to the appellant.

28. On whether the appellant was positively identified as the assailant, counsel argued that the appellant was convicted on the testimony of the complainant that was filled with inconsistencies and there was no to her evidence that corroborated her testimony. It was questioned therefore on whether she was telling the truth as required under Section 124 of the Evidence Act.

29. There was also contradiction as to when the complainant was taken to hospital, on whether it was after the 2nd appellant had defiled her or it was after all the assailants had defiled her. It was argued that from the complainant’s evidence it was not known whether the complainant was defiled by the 2nd appellant in his house in Vanga, whether she was defiled by the roadside, or whether she was defiled during the day or during the night. It was contended that with all the versions given by the complainant and all the witnesses, it was her to settle for one version of the story. It was submitted that the prosecution’s case is pegged on inconsistencies and discrepancies which goes to the root of the case that raise overwhelming doubt that should be resolved in favour of the appellant.

30. It was finally submitted that the particulars of the offence as contained in the charge sheet do not correspond with the testimony of respective witnesses and that this contradictions and/or discrepancies render the charge sheet defective. This court therefore is urged to allow the appeal.

3rd Appellant’s Submissions 31. The 3rd appellant’s submissions are that when he was arraigned in court on 6. 12. 2019 and jointly charged with the 2nd and 1st appellants. It is not indicated that he took plea as provided under Section 207 of the Criminal Procedure Code and therefore the appeal ought to succeed as there was a miscarriage of justice and as such the proceedings that followed are a nullity and not curable under Section 382 of the CPC.

32. The 3rd appellant’s counsel also argued that the appellant was not given a fair hearing as envisaged under Section 208 of the CPC and Article 50 (2)(b), (f) and (k) of the Constitution as PW1 never testified in the presence of the 3rd appellant and the order that the matter starts de novo when the 3rd appellant was joined to the 1st and 2nd appellant was not complied with. He argued that this was a grave anomaly which goes to the root of the constitutional right of the 3rd appellant herein and the proceedings should be nullified and the charges dismissed.

33. The 3rd appellant also submitted that the evidence on record and the documents relied on were so much at variance that those were mere allegations framed to implicate the appellants. It was submitted that due to the unbelievable narrative and contradictions the evidence on record was not safe to convict the accused persons of these serious charges and therefore the appeal should be allowed and the conviction and sentence set side.

Analysis and Determination 34. This being the first appellate court, it is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

35. After considering the grounds of appeal, records of the trial court and submissions by the appellants, the issues for determination are: -1. Whether the charge was defective.2. Whether voire dire examination was conducted.3. Whether the trial magistrate proceeded with PW1 in the absence of accused persons and whether it gave accused persons an opportunity to cross-examine her.4. Whether there were massive contradictions between the minor’s and doctor’s evidence and whether the minor was coerced by her aunt.5. Whether the Investigating Officer testified.6. Whether a PRC Form was filled and produced in the proceedings and whether medical evidence was needed to corroborate the victim’s evidence in accordance with Section 124 of the Evidence Act.7. Whether the trial magistrate complied with Section 200 of the Criminal Procedure Code before proceeding with the trial as the new judicial officer.8. Whether all the ingredients of the offence of defilement were proved to the required standard.9. Whether the trial magistrate considered the appellant’s mitigation.10. Whether the trial magistrate considered the appellants’ defence.11. Whether the sentence was harsh/excessive/illegal.

Whether the charge was defective 36. It was submitted that the charge sheet as drafted did not disclose the date and/or day the defilement was committed by the appellant, that there existed serious discrepancies in the testimony of witnesses and that the offence as contained in the charge sheet did not correspond with the testimony of the respective witnesses which render the charge sheet defective.

37. The Court of Appeal dealt with the issue of defective charge sheet in Benard Ombuna v Republic (2019) eKLR as follows: -“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”

38. Under Section 382 of the Criminal Procedure Code, courts are guided on whether the defects are curable or justice could still be met with the defects as follows: -“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. It follows therefore that the court in determining whether a defect caused injustice has to have regard whether the objection should have been raised at an earlier stage in the proceedings.” (Emphasis mine).

39. On perusal of the trial court file, this court finds that on 16. 6.2021 after the complainant testified, the prosecution counsel made an application to court to ammend the charge sheet as from the evidence, the appellants were to be charged individually for defilement and not gang rape. On 23. 6.2021, the prosecution counsel indicated to court that the charge sheet had been amended. The amended charge sheet was read out to each appellant in Swahili, a language they understood and they all replied ‘si kweli’. Plea of not guilty was then entered by court. Minor discrepancies as to the exact date when the offence occurred does not bring about confusion as to the nature of the charges preferred and an inability for the appellants to put up appropriate defence. The ground of appeal herein therefore fails.

Whether voire dire examination was conducted 40. Voire dire examination was conducted on 5. 11. 2019 on the complainant where the trial court noted that she understood the importance of telling the truth but did not understand the nature of oath. Therefore, she did not give sworn evidence.

Whether the trial magistrate proceeded with PW1 in the absence of accused persons and whether it gave accused persons an opportunity to cross-examine her 41. The 3rd accused person took plea on 3. 12. 2019, and PW1 and PW2 recalled on 16. 6.2021. It is therefore not true that the trial magistrate proceeded with PW1 in the absence of the appellants. Had it been that the 3rd accused said ‘true’ and was convicted, then one can say the plea was not unequivocal. In this case, the matter proceeded and all appellants cross examined witnesses and defended themselves.

Whether there were massive contradictions between the minor’s and doctor’s evidence and whether the minor was coerced by her aunt 42. The complainant testified that she informed her father that she had been defiled and that her father told her to speak to her aunt who took her to hospital. PW5, her aunt said that the complainant went and told her that men in Migombani were defiling her too much. That they informed the village Chairman who advised them to go to Vanga Hospital and that they were then sent to Lunga Lunga Hospital. PW3, the Clinical Officer at Lunga Lunga Hospital examined the complainant and formed the opinion that the injuries sustained in the vagina of the complainant were caused by an act of defilement and because bruises and lacerations were fresh, the insertion by a penis was recent.

43. The Court of Appeal in the case of Erick Onyango Ondeng’ v Republic (2014) eKLR as follows: -Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at “about 7 pm” in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA, Crim. App. No 139 of 2001, [2003] UGCA, 6 it is not very 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.”

44. This court therefore finds that the contradictions alleged by the appellants are minor and do not go to the substance of the prosecution’s case.

Whether the Investigating Officer testified 45. PW4, No. 66111 Corporal Ochieng’ Otieno, the investigating officer testified that he took over investigations April 2021 from Corporal Githinji who had been transferred to Nairobi. He said that Corporal Githinji briefed him about the case and he also perused the file. On cross examination, PW4 said that Corporal Githinji recorded statements of all the witnesses. This court therefore finds that the ground that the investigating officer failed to testify has no basis.

Whether a PRC Form was filled and produced in the proceedings and whether medical evidence was needed to corroborate the victim’s evidence in accordance with Section 124 of the Evidence Act 46. Njuguna, J. in John Njiru Njue v Republic (2020) eKLR held as follows: -“… it is the position in law that medical evidence is not the only evidence that can prove defilement. The same can also be proven by oral or circumstantial evidence … failure to produce the PRC forms cannot vitiate the proceedings herein.”

47. PW3, Suleiman Jerumani Mwamzandi, the Clinical Officer at Lunga Lunga Hospital on cross examination by Ms. Wanjiku Advocate about production of the PRC Form said that it was not negligence on their part that they did not have the forms then. He said that the forms were supplied at the national level, and that while the incident occurred in 2019 the hospital had upgraded to level 4 in 2018. That therefore the forms were still not there. This court observes that PW3 had however produced a P3 Form which he had filled on 27. 9.2019 as well as treatment notes which were proof of penetration.

48. PW1 the village Chairman and PW5 the aunt to the complainant were witnesses as to condition of the complainant following the ordeal she went through at night. This court finds that even though the PRC Form was not produced, the P3 Form and the evidence of prosecution witnesses were sufficient.

Whether the trial magistrate complied with Section 200 of the Criminal Procedure Code before proceeding with the trial as the new judicial officer 49. Section 200 (3) of the Criminal Procedure Code provides: -Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

50. On 1. 7.2020 when the appellants appeared before Hon. S. A. Ogot (SRM) who took over from the previous trial magistrate, he asked the appellants whether they wanted to begin afresh or continue from where they reached. All the appellants indicated that they wanted to continue from where they had left off. On 23. 6.2021 before the amended charge sheet was read out to the appellants, the trial court complied with Section 200 of the CPC where the appellants said they wanted to continue from where they had reached.

Whether all the ingredients of the offence of defilement were proved to the required standard 51. PW2 gave names of the suspects who had repeatedly defiled her in the absence of her father who used to go fishing at night leaving her alone and on the material night the assailants went and defiled her in turns. PW3 the clinical officer at Lunga Lunga Hospital said that he found hymen broken, there were lacerations on the labia minora, there was whitish discharge, and bruises and lacerations were fresh. That the fresh bruises and lacerations were evidence of penetration.

52. On the age of the complainant, PW3 testified that an age assessment for the complainant was done on 30. 9.2019 at Lunga Lunga Hospital and it was established that the complainant was 13 years old. PW3 produced the Age Assessment Report as Exhibit 3.

53. The complainant identified the appellants as among the assailants who defiled her. She testified that the 2nd appellant, alias Bwirira, defiled her first then the 1st appellant, aka Mr. Nice, and then the 3rd appellant, aka Bendera. The complainant said that all the accused persons were neighbours and this was confirmed by PW1, Stembo Mangale, who was the village chairman.

Whether the trial magistrate considered the appellant’s mitigation 54. On 24th November 2021, the appellants presented their mitigation which was noted by court as follows: -Accused 1 – I didn’t do itAccused 2 – I am an orphan. I have family children and wife. I have never been charged before.Accused 3 – I have 3 kids and their mum isn’t able to look after them. I ask for court’s sympathy.

55. The trial magistrate then sentenced them to 20 years imprisonment which the appellants deserved as they showed no mercy to the minor child. It is therefore not true that the trial magistrate failed to consider their mitigation.

Whether the trial magistrate considered the appellants’ defence 56. Contrary to the appellants’ position that their defence was not considered in detail, this court upon perusal of the trial court records finds that the learned magistrate on pages 63, 64 and 68 of the trial court judgment gave due consideration to the appellants’ defence. The decision thereof was therefore correct.

Whether the sentence was harsh/excessive/illegal 57. Section 8 (3) of the Sexual Offences Act provides: -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.

58. The appellants were sentenced to 20 years imprisonment which they considered to be a maximum sentence and that the trial court had the discretion to impose a lesser sentence proportionate to the criminal culpability of the offenders concerned. That the sentence was therefore harsh/excessive/illegal in light of the charges levelled against them.

59. In the case of Francis Nkunja Tharamba v Republic (2012) eKLR, it was held as follows: -“…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.”

60. Sentencing is within the trial court’s discretion. After considering the evidence of the prosecution and defence witnesses, the trial court established that what was done to the complainant was wicked and shameful. That the child was treated like garbage and she was too traumatized to speak at some things. That the complainant was continuously sexually abused and the three appellants were among the assailants. That a happy childhood was taken from the complainant in the worst possible manner and that the trial court established that the prosecution proved all ingredients of the offence of defilement beyond reasonable doubt. This court therefore finds no reason to interfere with the sentence as the same was befitting of the offence.

61. In conclusion, the appeal has no merit and is dismissed. 14 days right of appeal explained.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 20TH DAY OF NOVEMBER 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentNo appearance for Mr. Bosire Advocate for the 2nd Appellant1st Appellant present in person2nd Appellant present in person3rd Appellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGECourt:Copy of judgment to be supplied to applicants and the state by the registry.HON. LADY JUSTICE A. ONG’INJOJUDGE20. 11. 2023