(Being an appeal from the original conviction and sentence by Hon.L. N. Wasikei, Senior Principal Magistrate, in Garsen Senior Principal Magistrate’s Court Sexual Offence Case No. E016 of 2021 delivered on 3/6/2024)
JUDGMENT
1. The Appellant herein was charged in count 1 with the offence of gang defilement contrary to section 10 of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on diverse dates between 22 nd and 25 th July 2021 at Bula Manyatta ECD School in Ngao location in Tana Delta sub county within Tana River in association with Osman Abdikadir alias Osman Noor intentionally caused his penis to penetrate the vagina of R.I. (herein referred to as the complainant), a child aged 16 years.
2. The Appellant was further charged in count 3 jointly with the above said Osman Abdikadir with the offence of attempt to procure abortion contrary to section 158 of the Penal Code. The particulars of the offence were that on the same dates, time and place as in count 1 they jointly with intent to procure miscarriage unlawfully and by use of force caused R.I. to take poison (drugs) and as a result she lost her pregnancy.
3. The trial court found the Appellant not guilty of the offence of gang defilement but instead convicted him of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced him to serve 15 years imprisonment. He was also convicted of the offence in count 3 and was sentenced to serve 5 years imprisonment. Osman Abdikadir was found not guilty of all the counts and he was acquitted.
4. The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1.The ingredients of defilement were not proved.
2. That the trial court failed to read the mischief of the complainant in falsely implicating the Appellant`s co-accused with the offence as a result of which the co-accused was acquitted.
3. The trial court failed to find that there was no expert evidence that the drugs given to the complainant caused the abortion.
4. That the judgment of the trial court was based on extraneous matters and assumptions.
5. The prosecution called 6 witnesses in the case while the Appellant defended himself and called two witnesses.
Case for prosecution
6. The case for the prosecution was that the complainant was at the material time aged 16 years and was a standard 8 pupil. She was livings with her parents and siblings. Her mother was PW4 in the case while a brother testified as PW3 in the case.
7. It was the evidence of the complainant PW1, in the case, that the Appellant was her boyfriend. That sometimes in the month of June 2021 she engaged in sex with him at a lodging in her home area. After a month she realized that she was pregnant and informed the Appellant.
8. That on the evening of 22/7/2021 at 10pm the complainant left her home for the home of a neighbour for Idd celebrations. That on the way she was abducted by the Appellant and another called Osman. They forced her onto a motor cycle and blindfolded her with a piece of cloth. They rode away with her. They got to a certain place and they uncovered her eyes. They crossed the Tana River on foot and boarded the motor cycle again. She was blindfolded again and was taken to a classroom of an abandoned school in the bush. On getting there the Appellant forced her to take 5 tablets. She became dizzy on taking them and slept. He removed her clothes and inserted his penis into her vagina. Osman was at the time outside the classroom. He entered into the room and defiled her. Thereafter Osman left and she remained behind with the Appellant. They slept till morning. They stayed at the school on the 23/7/2021 but the Appellant went to eat and returned to the school. At night of that day, he defiled her again. They stayed at the school on the whole of 24/7/2021. She was at that time bleeding from her vagina and the Appellant did not defile her. That she bled for 3 days between 22 nd and 24 th July 2021.
9. That on morning of 25/7/2021 the Appellant received a phone call from Osman and she overheard him telling him to move out of the place as the relatives of the complainant were looking for her. That they left the school and headed towards Garsen. While they were on the road a probox vehicle came along. The Appellant closed her eyes and she was put in the vehicle. There were 2 men in the vehicle. They drove upto a petrol station at Minjila in Garsen. The two men opened her eyes and she did not find the Appellant. They asked her to alight. She did so and the vehicle left. She was helped by the petrol station attendants to contact her relatives. She was picked by a certain man, DW4, who took her to his home at Minjila. Her brother Pw3 went there and picked her. She was taken home. They made a report to the police. She was taken to a local dispensary and was later seen at Ngao hospital and her P3 form completed.
10. The mother to the complainant PW4 testified t that the complainant left home at 10 pm to go to the home of a neighbour for Idd celebrations. She did not come back home and she started looking for her. She made a report to the police.
11. The brother to the complainant Abdullahi PW3 testified that the complainant went missing from home on 22/7/2021 and they started to look for her. That on 26/7/2021 he received a phone call from a village elder called Dhahir that the complainant was at his home at Minjila. He, PW3, went and picked her. He took her to a local dispensary and reported to the police. The complainant told him that she was abducted by the Appellant and another called Osman who had defiled her. The two were later arrested.
12. A clinical officer at Ngao sub county hospital PW2 testified that he attended to the complainant at their medical facility on 30/7/2021. She complained of being defiled by two men who were known to her. He examined her and found her with tender vagina openings and bruises and lacerations on both labia. The hymen was absent. A laboratory examination was conducted but no spermatozoa were seen. A pregnancy test was done that revealed that she was pregnant but had aborted at 2 months. There was minimal bleeding at the time. The clinical officer formed the opinion that there was vaginal penetration on her. The clinical officer completed the complainant`s P3 form.
13. The case was investigated by PC Makau PW5 then of Tarasaa police station. His evidence was that he was assigned the case to investigate on 29/7/2021 at which time the Appellants had been arrested and were in custody. He summoned the complainant and she was taken to the police station by her father on 30/7/2021. The OCS recorded their statements. The P3 form for the complainant was completed. The investigating officer visited the school where the incident took place. Photographs of the scene were taken. The complainant availed a birth certificate to the investigating officer. The Appellant and his colleague were arraigned in court on 1/8/2021.
14. During the hearing of the case in court, the investigating officer produced a copy of the birth certificate for the complainant as exhibit, P.Exh. 4. He also produced the photographs of the scene, P.Exh. 3(a) – (e). The clinical officer PW2 produced the P3 form and the treatment notes as exhibits, P.Exh.1 and 2 respectively.
Defence case
15. The Appellant stated in his defence that he was arrested by policemen on accusations he knew nothing about. That he never knew the complainant before and he only came to know her in court. That he was at Hola at the time that the complainant says that he defiled her though he didn`t remember the date he travelled to Hola. Neither did he know his co-accused before and only came to know him in court. He denied that he defied the complainant at a lodging or at a school. He denied that he assisted her to procure an abortion. He said that the charges levelled against him were fabricated.
16. Abdula Bile Malu DW3 testified that he is the chairman of the Wardei community. That on an unspecified day he was called by the owner of a petrol station at Minjila town who ask asked him to go to the petrol station. He went there and found the complainant. He interrogated her and she told him that she had been kidnapped by a woman and two men who were in a car and taken to a house where she stayed for three days. That she could not identify the people. She managed to escape and boarded a probox vehicle that broke down on the way and she hiked a motor bike that brought her to Minjila. He took her to his home at Minjila. He called her relatives who went to his home and piked her.
17. A sister to the Appellant DW4 testified that on the 28/7/2021 she was at Siha Hospital at Hola where she had taken the appellant for treatment as he was sick. That he was arrested before he could be treated.
18. The appeal was canvassed by way of written submissions.
Appellant`s submissions
19. Counsel for the Appellant submitted that the trial court acquitted the Appellant`s co-accused for the reason that the complainant admitted that she was coerced to implicate the co-accused with the offence. Counsel submitted that there is no reason to believe the evidence of the complainant.
20. Counsel submitted that the duty of proving the falsity of the Appellant`s defence of alibi lies on the prosecution as laid down in the case of Karanja v Republic (1983) KLR 501 . Counsel submitted that the trial court failed to consider the Appellant`s alibi that he was at the material time at the home of his sister in Hola. That the defence was corroborated by his witness DW4. That there was no evidence that the Appellant was at the scene where the complainant alleged to have been defiled.
Respondent`s submissions
21. The Respondent on the other hand submitted that the ingredients of the offence of defilement were proved against the Appellant. That the age of the complainant was proved by the birth certificate that was produced in the case which evidence was not controverted by the defence. More so that the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was indeed a minor.
22. The Respondent submitted that the complainant narrated to the trial court how the Appellant inserted his penis into her vagina. That her evidence was corroborated by the clinical officer PW2.
23. It was submitted that the Appellant was a person well known to the complainant. That there could have been no mistake as to his identification which was by way of recognition.
24. It was submitted that the case against the Appellant was proved beyond all reasonable doubt. The Respondent urged the court to find that there is no merit to the appeal and dismiss it.
Analysis and determination
25. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:
“… the duty of the first appellate court is to analyze and reevaluate 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 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 decision”.
26. The prosecution in a criminal case has the duty of proving the case against an accused person beyond all reasonable doubt. The ingredients of the offence defilement that the prosecution is required to prove beyond reasonable doubt are proof of the age of the complainant, proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
27. The trial court made a finding that the complainant was at the material time aged 16 years. The complainant testified that she was of the age of 16 years at the time the offences were committed against her. Her birth certificate was produced in court that showed that she was born on the 4/9/2004 which placed her age in July 2021 at 16 years. The age of the complainant was therefore satisfactorily proved at 16 years.
28. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
29. The trial court made a finding that the evidence of the complainant that she was penetrated into her vagina was corroborated by the medical evidence of the clinical officer PW2 who found her with tenderness on the vaginal opening and bruises and lacerations on both labias. Therefore, that penetration was proved.
30. The court further made a finding that the appellant abducted the complainant, took her to an abandoned school where he drugged her, held her hostage and defiled her for 3 days between 22 nd and 24 th July 2024. The court found that the complainant was a honest and credible witness. The court dismissed the Appellant`s defence that he was at Hola on the days he was accused of defiling the complainant. The court found the offence of defilement to have been proved against the appellant.
31. The charge that the Appellant and his co-accused were facing at the trial court was that of gang rape contrary to section 10 of the Sexual Offences Act. During the hearing the complainant however stated that she was coerced by her brother to implicate the Appellant`s co-accused with the offence. This was despite her stating in her evidence-in chief that after the Appellant had forced her to swallow some tablets and defiled her, he called at his co-accused who was at the time outside the classroom who then entered into the room, removed his clothes and defiled her. She insisted in cross-examination that the Appellant`s co-accused defiled her though she did not see him do so. It is only in re-examination that she confessed that she had in fact implicated the Appellant`s co-accused with the offence because her brother had coerced her to do so. She said that it is the Appellant who defiled her. Was she telling the truth that the Appellant defiled her?
32. The complainant was the sole witness that the Appellant defiled her. She was a child of under the age of 18 years. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for believing the evidence of the child.
33. In the instant case the complainant was a confessed liar. She wrote a statement to the police falsely implicating the Appellant`s co-accused with the offence of defilement. She came to court and lied that the Appellant`s co-accused also defiled her. It is only at the tail end of her evidence that she saw the light and confessed that she had falsely implicated the Appellant`s co-accused with the offence due to coercion from her brother and also for being angry with him for not informing her family that she was being detained at the school. Was she then a credible witness upon whose evidence the court could rely on to convict the Appellant?
34. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 , had the following to say on credibility of witnesses:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
35. The complainant in this case discredited her evidence in admitting that she had falsely implicated the Appellant`s co-Accused with the offence. She is not a trustworthy person and can only be described as a person of doubtful integrity. She almost got the Appellant`s co-accused sent to jail on framed up charges. There is no guarantee that she is also not lying against the Appellant.
36. It was the evidence of the complainant that the Appellant left her at the school and went to eat. It beats reason why she did not escape from the school when she was left all by herself.
37. Further to this, the complainant said in her evidence that when the Appellant gave her the tablets, she started to fill dizzy and slept. She did not explain how she knew that the Appellant penetrated her as she slept. In my view, there was more to this case than the complainant was willing to disclose. The complainant was not a credible witness and as such it was not safe to rely on her evidence to convict the Appellant. The trial court in making a finding that she was a credible witness failed to consider that she lied to the court about the Appellant`s co-accused. Such is not the kind of witness to base a criminal conviction on. The trial court did not properly assess the credibility of the complainant. It cannot therefore be known whether the injuries found on the complainant`s genitalia were out of penial penetration or other causes.
38. The trial court convicted the appellant on the offence of attempting to procure abortion on the ground that the Appellant was her boyfriend. That he forced her to swallow some tablets that made her to bleed for three days from 22 nd to 24 th July 2024. That the clinical officer who examined her found her to have been pregnant for two months but lost the pregnancy due to abortion. That the evidence on record supported the fact that the pills that the Appellant gave the complainant caused her miscarriage. The court accordingly found the Appellant guilty of the offence of attempt to procure abortion.
40. Section 158 of the Penal Code provides as follows:
158. Attempts to procure abortion
Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
41. The ingredients of the offence are:
(1) Intent to procure miscarriage of a woman;
(2) Unlawfully administering or causing the woman to take poison or other noxious thing or use of
(3) Using force of any kind or other means.
42. The complainant in this case stated that the Appellant forced her to take some drugs after which she stared bleeding from her vagina. That when she was examined at the hospital, she was found to have lost the pregnancy.
43. There was no toxicology examination done to ascertain the type of drug that the Appellant was claimed to have forced down the throat of the complainant and whether it was of the kind that could procure abortion. The trial magistrate believed that the complainant was given pills to procure abortion when there was no scientific evidence to prove so. In my consideration the charge of attempt to procure an abortion was not proved.
44. In view of the foregoing, it is my finding that there was no sufficient evidence to prove the charges in Counts 1 and 3 that the Appellant was convicted of. The appeal herein is thus merited. Consequently, the conviction entered by the trial court against the Appellant is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 22 nd day of May, 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant -present virtually at GK Prison Malindi
Court Assistant - Rahma
…
JUDGMENT
1. The Appellant herein was charged in count 1 with the offence of gang defilement contrary to section 10 of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on diverse dates between 22 nd and 25 th July 2021 at Bula Manyatta ECD School in Ngao location in Tana Delta sub county within Tana River in association with Osman Abdikadir alias Osman Noor intentionally caused his penis to penetrate the vagina of R.I. (herein referred to as the complainant), a child aged 16 years.
2. The Appellant was further charged in count 3 jointly with the above said Osman Abdikadir with the offence of attempt to procure abortion contrary to section 158 of the Penal Code. The particulars of the offence were that on the same dates, time and place as in count 1 they jointly with intent to procure miscarriage unlawfully and by use of force caused R.I. to take poison (drugs) and as a result she lost her pregnancy.
3. The trial court found the Appellant not guilty of the offence of gang defilement but instead convicted him of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act and sentenced him to serve 15 years imprisonment. He was also convicted of the offence in count 3 and was sentenced to serve 5 years imprisonment. Osman Abdikadir was found not guilty of all the counts and he was acquitted.
4. The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1.The ingredients of defilement were not proved.
2. That the trial court failed to read the mischief of the complainant in falsely implicating the Appellant`s co-accused with the offence as a result of which the co-accused was acquitted.
3. The trial court failed to find that there was no expert evidence that the drugs given to the complainant caused the abortion.
4. That the judgment of the trial court was based on extraneous matters and assumptions.
5. The prosecution called 6 witnesses in the case while the Appellant defended himself and called two witnesses.
Case for prosecution
6. The case for the prosecution was that the complainant was at the material time aged 16 years and was a standard 8 pupil. She was livings with her parents and siblings. Her mother was PW4 in the case while a brother testified as PW3 in the case.
7. It was the evidence of the complainant PW1, in the case, that the Appellant was her boyfriend. That sometimes in the month of June 2021 she engaged in sex with him at a lodging in her home area. After a month she realized that she was pregnant and informed the Appellant.
8. That on the evening of 22/7/2021 at 10pm the complainant left her home for the home of a neighbour for Idd celebrations. That on the way she was abducted by the Appellant and another called Osman. They forced her onto a motor cycle and blindfolded her with a piece of cloth. They rode away with her. They got to a certain place and they uncovered her eyes. They crossed the Tana River on foot and boarded the motor cycle again. She was blindfolded again and was taken to a classroom of an abandoned school in the bush. On getting there the Appellant forced her to take 5 tablets. She became dizzy on taking them and slept. He removed her clothes and inserted his penis into her vagina. Osman was at the time outside the classroom. He entered into the room and defiled her. Thereafter Osman left and she remained behind with the Appellant. They slept till morning. They stayed at the school on the 23/7/2021 but the Appellant went to eat and returned to the school. At night of that day, he defiled her again. They stayed at the school on the whole of 24/7/2021. She was at that time bleeding from her vagina and the Appellant did not defile her. That she bled for 3 days between 22 nd and 24 th July 2021.
9. That on morning of 25/7/2021 the Appellant received a phone call from Osman and she overheard him telling him to move out of the place as the relatives of the complainant were looking for her. That they left the school and headed towards Garsen. While they were on the road a probox vehicle came along. The Appellant closed her eyes and she was put in the vehicle. There were 2 men in the vehicle. They drove upto a petrol station at Minjila in Garsen. The two men opened her eyes and she did not find the Appellant. They asked her to alight. She did so and the vehicle left. She was helped by the petrol station attendants to contact her relatives. She was picked by a certain man, DW4, who took her to his home at Minjila. Her brother Pw3 went there and picked her. She was taken home. They made a report to the police. She was taken to a local dispensary and was later seen at Ngao hospital and her P3 form completed.
10. The mother to the complainant PW4 testified t that the complainant left home at 10 pm to go to the home of a neighbour for Idd celebrations. She did not come back home and she started looking for her. She made a report to the police.
11. The brother to the complainant Abdullahi PW3 testified that the complainant went missing from home on 22/7/2021 and they started to look for her. That on 26/7/2021 he received a phone call from a village elder called Dhahir that the complainant was at his home at Minjila. He, PW3, went and picked her. He took her to a local dispensary and reported to the police. The complainant told him that she was abducted by the Appellant and another called Osman who had defiled her. The two were later arrested.
12. A clinical officer at Ngao sub county hospital PW2 testified that he attended to the complainant at their medical facility on 30/7/2021. She complained of being defiled by two men who were known to her. He examined her and found her with tender vagina openings and bruises and lacerations on both labia. The hymen was absent. A laboratory examination was conducted but no spermatozoa were seen. A pregnancy test was done that revealed that she was pregnant but had aborted at 2 months. There was minimal bleeding at the time. The clinical officer formed the opinion that there was vaginal penetration on her. The clinical officer completed the complainant`s P3 form.
13. The case was investigated by PC Makau PW5 then of Tarasaa police station. His evidence was that he was assigned the case to investigate on 29/7/2021 at which time the Appellants had been arrested and were in custody. He summoned the complainant and she was taken to the police station by her father on 30/7/2021. The OCS recorded their statements. The P3 form for the complainant was completed. The investigating officer visited the school where the incident took place. Photographs of the scene were taken. The complainant availed a birth certificate to the investigating officer. The Appellant and his colleague were arraigned in court on 1/8/2021.
14. During the hearing of the case in court, the investigating officer produced a copy of the birth certificate for the complainant as exhibit, P.Exh. 4. He also produced the photographs of the scene, P.Exh. 3(a) – (e). The clinical officer PW2 produced the P3 form and the treatment notes as exhibits, P.Exh.1 and 2 respectively.
Defence case
15. The Appellant stated in his defence that he was arrested by policemen on accusations he knew nothing about. That he never knew the complainant before and he only came to know her in court. That he was at Hola at the time that the complainant says that he defiled her though he didn`t remember the date he travelled to Hola. Neither did he know his co-accused before and only came to know him in court. He denied that he defied the complainant at a lodging or at a school. He denied that he assisted her to procure an abortion. He said that the charges levelled against him were fabricated.
16. Abdula Bile Malu DW3 testified that he is the chairman of the Wardei community. That on an unspecified day he was called by the owner of a petrol station at Minjila town who ask asked him to go to the petrol station. He went there and found the complainant. He interrogated her and she told him that she had been kidnapped by a woman and two men who were in a car and taken to a house where she stayed for three days. That she could not identify the people. She managed to escape and boarded a probox vehicle that broke down on the way and she hiked a motor bike that brought her to Minjila. He took her to his home at Minjila. He called her relatives who went to his home and piked her.
17. A sister to the Appellant DW4 testified that on the 28/7/2021 she was at Siha Hospital at Hola where she had taken the appellant for treatment as he was sick. That he was arrested before he could be treated.
18. The appeal was canvassed by way of written submissions.
Appellant`s submissions
19. Counsel for the Appellant submitted that the trial court acquitted the Appellant`s co-accused for the reason that the complainant admitted that she was coerced to implicate the co-accused with the offence. Counsel submitted that there is no reason to believe the evidence of the complainant.
20. Counsel submitted that the duty of proving the falsity of the Appellant`s defence of alibi lies on the prosecution as laid down in the case of Karanja v Republic (1983) KLR 501 . Counsel submitted that the trial court failed to consider the Appellant`s alibi that he was at the material time at the home of his sister in Hola. That the defence was corroborated by his witness DW4. That there was no evidence that the Appellant was at the scene where the complainant alleged to have been defiled.
Respondent`s submissions
21. The Respondent on the other hand submitted that the ingredients of the offence of defilement were proved against the Appellant. That the age of the complainant was proved by the birth certificate that was produced in the case which evidence was not controverted by the defence. More so that the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was indeed a minor.
22. The Respondent submitted that the complainant narrated to the trial court how the Appellant inserted his penis into her vagina. That her evidence was corroborated by the clinical officer PW2.
23. It was submitted that the Appellant was a person well known to the complainant. That there could have been no mistake as to his identification which was by way of recognition.
24. It was submitted that the case against the Appellant was proved beyond all reasonable doubt. The Respondent urged the court to find that there is no merit to the appeal and dismiss it.
Analysis and determination
25. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:
“… the duty of the first appellate court is to analyze and reevaluate 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 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 decision”.
26. The prosecution in a criminal case has the duty of proving the case against an accused person beyond all reasonable doubt. The ingredients of the offence defilement that the prosecution is required to prove beyond reasonable doubt are proof of the age of the complainant, proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
27. The trial court made a finding that the complainant was at the material time aged 16 years. The complainant testified that she was of the age of 16 years at the time the offences were committed against her. Her birth certificate was produced in court that showed that she was born on the 4/9/2004 which placed her age in July 2021 at 16 years. The age of the complainant was therefore satisfactorily proved at 16 years.
28. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
29. The trial court made a finding that the evidence of the complainant that she was penetrated into her vagina was corroborated by the medical evidence of the clinical officer PW2 who found her with tenderness on the vaginal opening and bruises and lacerations on both labias. Therefore, that penetration was proved.
30. The court further made a finding that the appellant abducted the complainant, took her to an abandoned school where he drugged her, held her hostage and defiled her for 3 days between 22 nd and 24 th July 2024. The court found that the complainant was a honest and credible witness. The court dismissed the Appellant`s defence that he was at Hola on the days he was accused of defiling the complainant. The court found the offence of defilement to have been proved against the appellant.
31. The charge that the Appellant and his co-accused were facing at the trial court was that of gang rape contrary to section 10 of the Sexual Offences Act. During the hearing the complainant however stated that she was coerced by her brother to implicate the Appellant`s co-accused with the offence. This was despite her stating in her evidence-in chief that after the Appellant had forced her to swallow some tablets and defiled her, he called at his co-accused who was at the time outside the classroom who then entered into the room, removed his clothes and defiled her. She insisted in cross-examination that the Appellant`s co-accused defiled her though she did not see him do so. It is only in re-examination that she confessed that she had in fact implicated the Appellant`s co-accused with the offence because her brother had coerced her to do so. She said that it is the Appellant who defiled her. Was she telling the truth that the Appellant defiled her?
32. The complainant was the sole witness that the Appellant defiled her. She was a child of under the age of 18 years. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for believing the evidence of the child.
33. In the instant case the complainant was a confessed liar. She wrote a statement to the police falsely implicating the Appellant`s co-accused with the offence of defilement. She came to court and lied that the Appellant`s co-accused also defiled her. It is only at the tail end of her evidence that she saw the light and confessed that she had falsely implicated the Appellant`s co-accused with the offence due to coercion from her brother and also for being angry with him for not informing her family that she was being detained at the school. Was she then a credible witness upon whose evidence the court could rely on to convict the Appellant?
34. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 , had the following to say on credibility of witnesses:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
35. The complainant in this case discredited her evidence in admitting that she had falsely implicated the Appellant`s co-Accused with the offence. She is not a trustworthy person and can only be described as a person of doubtful integrity. She almost got the Appellant`s co-accused sent to jail on framed up charges. There is no guarantee that she is also not lying against the Appellant.
36. It was the evidence of the complainant that the Appellant left her at the school and went to eat. It beats reason why she did not escape from the school when she was left all by herself.
37. Further to this, the complainant said in her evidence that when the Appellant gave her the tablets, she started to fill dizzy and slept. She did not explain how she knew that the Appellant penetrated her as she slept. In my view, there was more to this case than the complainant was willing to disclose. The complainant was not a credible witness and as such it was not safe to rely on her evidence to convict the Appellant. The trial court in making a finding that she was a credible witness failed to consider that she lied to the court about the Appellant`s co-accused. Such is not the kind of witness to base a criminal conviction on. The trial court did not properly assess the credibility of the complainant. It cannot therefore be known whether the injuries found on the complainant`s genitalia were out of penial penetration or other causes.
38. The trial court convicted the appellant on the offence of attempting to procure abortion on the ground that the Appellant was her boyfriend. That he forced her to swallow some tablets that made her to bleed for three days from 22 nd to 24 th July 2024. That the clinical officer who examined her found her to have been pregnant for two months but lost the pregnancy due to abortion. That the evidence on record supported the fact that the pills that the Appellant gave the complainant caused her miscarriage. The court accordingly found the Appellant guilty of the offence of attempt to procure abortion.
40. Section 158 of the Penal Code provides as follows:
158. Attempts to procure abortion
Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
41. The ingredients of the offence are:
(1) Intent to procure miscarriage of a woman;
(2) Unlawfully administering or causing the woman to take poison or other noxious thing or use of
(3) Using force of any kind or other means.
42. The complainant in this case stated that the Appellant forced her to take some drugs after which she stared bleeding from her vagina. That when she was examined at the hospital, she was found to have lost the pregnancy.
43. There was no toxicology examination done to ascertain the type of drug that the Appellant was claimed to have forced down the throat of the complainant and whether it was of the kind that could procure abortion. The trial magistrate believed that the complainant was given pills to procure abortion when there was no scientific evidence to prove so. In my consideration the charge of attempt to procure an abortion was not proved.
44. In view of the foregoing, it is my finding that there was no sufficient evidence to prove the charges in Counts 1 and 3 that the Appellant was convicted of. The appeal herein is thus merited. Consequently, the conviction entered by the trial court against the Appellant is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 22 nd day of May, 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant -present virtually at GK Prison Malindi
Court Assistant - Rahma
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