The Court of Appeal in Eldoret has upheld the conviction and life sentence of a 65-year-old man found guilty of defiling an eight-year-old girl, bringing to an end a legal battle that has lasted over a decade.
Joseph Kiptoo, who had been entrusted with the care of children while their mother attended a funeral, was convicted of the offense in 2015 and sentenced to life imprisonment.
His latest appeal challenging the conviction and the mandatory sentence was dismissed by a three-judge bench comprising Justices John Mativo, Mwaniki Gachoka, and Weldon Korir.
The court described Kiptoo’s actions as a betrayal of trust.
“The accused was entrusted with the children and took advantage to defile the girl of 8 years,” the trial magistrate had noted. “Being a man of 65 years, he should have known better.”
The incident happened on December 28, 2012, in Aturei Village, Wareng District.
The young girl, referred to as FC to protect her identity, was home under Kiptoo’s care.
The court heard that he carried her from the kitchen and sexually assaulted her.
The following day, she confided in a friend while herding cows, telling her she was in pain and that Kiptoo had done “bad manners” to her.
This disclosure set off a chain of reports involving the friend’s guardian, the girl’s mother and the police.
Medical examination conducted at Moi Teaching and Referral Hospital revealed a torn hymen and the presence of epithelial cells, evidence the court found sufficient to confirm penetration.
“The complainant in her testimony stated that the appellant defiled her and she felt pain,” the High Court had earlier ruled.
“The P3 form was duly produced... Penetration need not be complete.”
The Court of Appeal said both the trial court and the High Court correctly assessed the evidence.
“We are satisfied, just like the two courts below, that the evidence presented by the prosecution successfully proved that the complainant was defiled,” the appellate court ruled.
Kiptoo, who has maintained his innocence throughout, claimed that he was framed.
In his defence, he said he was away in Aldai on the material day, attending a ceremony and was arrested upon return by people he did not know.
“The offence is not true. When I returned, I met people I did not know. They apprehended and took me to the police station,” he told the trial court.
However, the court dismissed this as a mere denial.
“His defense did not dislodge or cast reasonable doubts on the prosecution evidence,” the Court of Appeal ruled.
The identity of the perpetrator was never in question. Kiptoo had worked for the family for two years and was well known to the complainant, who identified him by name.
“There was no issue of mistaken identity,” the appellate judges ruled. “We agree with the two courts below... the identification by way of recognition was free from error.”
Kiptoo also questioned the validity of the life sentence, arguing that the mandatory sentence under section 8(2) of the Sexual Offences Act was unconstitutional as it denied courts discretion based on individual circumstances.
He cited Article 50(2)(p) of the Constitution, which guarantees the right to the benefit of the least severe sentence where penalties change after the commission of the offence.
But the court found no merit in the argument.
Referring to the Supreme Court’s 2024 ruling in the judges stated: “The sentences prescribed by Section 8 of the Sexual Offences Act are lawful and remain lawful so long as the said provision remains in the statute.”
On the complainant’s age, Kiptoo had challenged inconsistencies, while the charge sheet and medical report stated she was eight, the girl said she was nine, and her mother said she was born in 2005.
However, a birth certificate produced in court showed she was born on March 20, 2005, making her seven years and nine months at the time of the incident.
The appellate court ruled that this discrepancy was minor and not fatal to the prosecution’s case.
“There is ample evidence to confirm that... the complainant’s age was within the purview of section 8(2),” the court ruled.
On the question of penetration, the court noted that the girl’s account was supported by the medical evidence, finding no fault.
The appellate court also noted that the man was well known to the girl, as he was working at her home, and the recognition of his face was free from error.
“We are persuaded that the appellant’s defence was considered by the two courts below and both courts were persuaded, as we are, that his defence did not dislodge or cast reasonable doubts on the prosecution evidence. We therefore affirm the finding by the two courts below on conviction,” the judges ruled.
On the question of whether the life sentence imposed on Kiptoo was constitutional, the Court of Appeal turned to a recent ruling by the Supreme Court.
In that case, the apex court drew a clear distinction between mandatory death sentences for murder and the minimum sentences set under laws like the Sexual Offences Act.
The Supreme Court explained that while Muruatetu had declared the mandatory death penalty for murder unconstitutional, it did not apply to minimum sentences in other statutes.
“The sentence imposed by the trial court... was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid," the judges ruled. "We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”
Citing this authority, the Court of Appeal affirmed Kiptoo’s life sentence, declaring that the appeal had no merit and was dismissed in its entirety.
