Penetration proven, DNA not necessary - court affirms man's sentence in defilement case

On August 19, 2021, Mohamed Swaleh Salim was found guilty of defiling a 16-year-old girl by the Magistrate’s Court in Lamu and sentenced to 15 years in jail.

He was charged and convicted under section 8(1) as read with section 8(4) of the Sexual Offences Act, Cap 63A which provides that a person who commits an act that causes penetration with a child is guilty of an offence termed defilement…and is liable upon conviction to imprisonment for a term of not less than 15 years.

Dissatisfied with the judgment of the trial court, Salim appealed to the High Court at Garsen on January 25, 2022.

He raised nine grounds of appeal, including that no DNA testing was conducted to prove that he was responsible for impregnating the minor.

While sentencing him, the court had relied only on the evidence of the minor and was convinced that the complainant was truthful.

It held that there was no need for a DNA test as the child was yet to be born and that the prosecution had proved the main charge beyond a reasonable doubt.

The court in Garsen dismissed his appeal, holding that all the ingredients of the offence of defilement, namely the age of the victim, penetration, and positive identification of the perpetrator, were proved.

It said that a DNA test was not necessary since all that the court was concerned with was whether there was penetration and not impregnation.

A DNA test would only have been conducted if it was the only way by which penetration would have been established.

The Judge accordingly upheld both the conviction and sentence, saying although the complainant was said to be mentally unstable, she was forthright and firm that it was the appellant who impregnated her, thus leaving no room that anyone else would have done it.

Dissatisfied, Salim appealed the decision yet again on his second and last appeal at the Court of Appeal in Malindi.

He argued that the medical evidence adduced was erroneous, incomplete, and unreliable and asked the court to quash his conviction and set aside the sentence.

The appeal was heard on November 19, 2024, after which the court upheld Salim’s conviction and 15-year sentence.

The appellant submitted that the trial court denied him right to a fair hearing.

He said he was not allowed adequate time and facilities to prepare for his defence, including requesting that a DNA test be conducted.

Salim argued that his request for a DNA test was with a view to assist the court in determining if he committed the offence or not.

He added that scientific evidence would have offered adequate material to enable him prepare for his defence.

The Appeal Court found that it was not factual that the appellant was not accorded a fair hearing.

The court said that the record shows that the proper procedure of undertaking a criminal trial was followed, being that the charges were read to him in a language he understood, he pleaded not guilty, he was informed of his right to appoint an advocate; he was granted bond, he was supplied with the charge sheet, witness statements, and all documentary evidence that he required.

The court addressed itself on two issues: whether the offence of defilement was proved beyond reasonable doubt and whether DNA evidence was necessary to prove the appellant’s guilt or innocence.

The court said the prosecution established three key ingredients to prove defilement, namely the age of the complainant, penetration of the complainant’s genital organs, and identification and/or recognition of the perpetrator.

“The appellant’s defence was that he needed a DNA test to be conducted so that it could be established that he was the one who impregnated the complainant. He did not attempt to refute that he defiled the complainant,” the court ruled.

The court further held that a DNA test is not a mandatory requirement prior to charging an accused person with an offence of sexual assault, which includes defilement.

“The use of the word ‘may’ under Section 36(1) of the Sexual Offences Act implies that it is only on a need basis that a DNA test can be ordered. All that the prosecution was required to prove was the act of penetration, which was proved to the required standard,” the court said.

“We likewise find that the ground of appeal raised by the appellant that he was not accorded a fair trial merely because no DNA evidence, as primary evidence, was tendered cannot hold.

“We hasten to add that it matters not whether the complainant may have been impregnated by someone else. The fact that the appellant purports to have had sexual intercourse with the minor complainant amounts to defilement.”

As to whether the appellant was identified as the perpetrator, the court said that the complainant repeatedly told almost all the prosecution witnesses that the appellant was the perpetrator and was indeed responsible for her pregnancy.

The court ruled out the possibility that the complainant confused him with any other person.

“In her evidence-in chief, she stated that she knew the appellant since she used to see him in the village, which means that she knew him by way of acquaintance, which, in our view, stands out as one of the best modes of identification.

“In conclusion, we find that the prosecution proved its case beyond reasonable doubt and hereby uphold the judgment of the High Court of Kenya at Garsen (Githinji, J.) delivered on May 23, 2023.”

The ruling was rendered by Justices K.I Laibuta, Ngenye-Macharia and W. Korir.