Samwel Kiberenge v Republic [2013] eKLR
The appellant was also charged with an alternative offence of indecent act with a child contrary to
section 11 (1) of the Sexual Offences Act No. 3 of 2006, allegedly committed on the same day against
the said child.
The appellant was presented before the subordinate court at Bungoma and denied the charges.The
matter proceeded to full hearing with the prosecution calling a total of five (5) witnesses. In his defence,
the appellant tendered sworn evidence and did not call any witnesses.
The brief facts of the case are that NNM, who gave unsworn evidence, told the court that on the
material date she was in the home of her cousin, CN [PW 3], the appellant’s wife at around 8 pm when
the appellant sent CN to the chemist in Bungoma to buy medicine at that odd hour as she was suffering
from malaria and a cough. She had been sent to the appellant's home by her mother PNW [PW 2] to
help in taking care of PW 3’s baby during the school holidays. NNM testified that she was helping take
care of the appellant’s infant son. She further testified that when CN left, the appellant grabbed the child
from her hands and took him to the bedroom. He then grabbed her and put her on the floor, removed her
skirt, biker and had sexual intercourse with her. The appellant thereafter threatened her with death if she
disclosed what he had done to her and, therefore, she did not disclose the incident when she returned to
her parent's home.
When NNM returned to her home, her mother noticed that her walking was awkward and on checking
her private parts she found a smelly discharge. PNM took her to hospital and upon examination by Dr.
Moki, she was found to have been defiled. Dr. Mulianga Ekesa, [PW 5] [Ekesa] who produced the
Medical Examination Report on behalf of Dr Mole under Section 77 of the Evidence Act, testified that the
complainant's private parts were swollen and reddened with a smelly discharge from the urethra. The
examination report revealed that she had a high vagina swab that indicated that she was infected with
gonorrhoea. Police Constable Purity Kawira (PW4) testified that she received a report from Nafula and
recorded the witnesses’ statements. She later arrested the appellant who was taken to the Police
Station at Sio area within Bungoma.
In his defence, the appellant under oath denied the charge and stated that he was framed by his wife,
C, since he had another wife, a fact that she was not happy about.
The trial court considered the evidence and found the appellant guilty as charged, convicted him and
sentenced him to serve thirty (30) years imprisonment on the main charge. Aggrieved by the decision of
the trial court, the appellant filed an appeal which was heard by Justice F.N. Muchemi. The High Court reanalysed and re-evaluated the evidence tendered before the trial court and concluded that the
prosecution case was watertight. Based on its findings, the High Court dismissed the appeal, affirmed
the conviction but found that since NNM was 10 years, the trial court erred in imposing a sentence
of 30 years. In the result, the learned judge in terms of Section 8 (2) of the Sexual Offences Act,
enhanced the sentence to life imprisonment.
Aggrieved by the decision of the High Court, the appellant filed a Memorandum of Appeal on 28th
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