1. The appellant ALEX MUTHIANI MUSYOKA was charged with the offence of Incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 28th May 2021 at Nthiani Village, Yekanga Sub-Location Kanthuni Location, Kathonzweni Sub-County within Makueni County, the Appellant, being a male person, intentionally and unlawfully caused his penis to penetrate the vagina of E.M.M aged 13 years, a child who was to his knowledge his daughter.
2. In the alternative, he was charged with the offence of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the same day, at the same time and place, the appellant intentionally and unlawfully touched the vagina of E.M.M with his penis who was to his knowledge his daughter, a child aged 13 years.
3. The appellant pleaded not guilty and after a full trial, he was convicted on the main charge and sentenced to 20 years’ imprisonment.
4. Aggrieved by that decision, the appellant filed this appeal on the following grounds;
a) That he pleaded not guilty to the offence.
b) The honorable trial magistrate failed both in law and facts by not considering the evidence adduced against him whether it was voluntary of guided evidence.
c) The honorable trial magistrate failed both in law and facts by not evaluating thoroughly the evidence if he was incredible and a doubtful witness.
d) The honorable trial magistrate failed both in law and facts by rejecting his defense statement.
e) The honorable trial magistrate failed both in law and facts by convicting and sentencing him despite inconsistent, insufficient as well as contradictory evidence.
f) The honorable trial magistrate failed both in law and facts by not giving court orders for scientific forensic and DNA tests done from the accused body samples to ascertain whether to ascertain whether it was him who commissioned the offence and not any other person.
When he filed his submissions he argued the following grounds:
a) That the learned trial magistrate erred in law and facts by not considering that the evidence tendered by the prosecution witnesses was irrelevant.
b) That the learned trial magistrate erred in law and facts by not evaluating the defence statement hence dismissing it.
c) That the learned trial magistrate erred in law and facts by not considering the untruths and re-weighing the evidence from both parties hence shifted the burden of proof to the defendant.
d) That the learned trial magistrate erred in law and facts when he omitted section 125 of the Evidence Act which was a vital element in this case.
e) That the learned trial magistrate erred in law and facts when he convicted and sentenced the Appellant on contradictory evidence.
f) That the learned trial magistrate erred in law and facts by convicting on the evidence of the prosecution witnesses which was not proved beyond reasonable doubt.
g) That the learned trial magistrate erred in law and facts when he did not order that section 36(1) of the Sexual Offences Act be considered and implemented in this case so as to gather enough evidence whether it was the appellant who committed the offence and not any other person.
5. The prosecution’s case was that on the night of 28/05/2021, the complainant was sleeping with her siblings aged 3 and 4 years in a house which was separate but near that of the Appellant. That, as they were sleeping in that house which had no lock, their father, the Appellant, went and defiled the complainant. In the morning, the complainant went and informed Damaris who works with Action Aid. Consequently, the Appellant was arrested and prosecuted.
6. The prosecution called 5 witnesses to wit; the complainant (PW1), the complainant’s mother (PW2) Damaris (PW3), the Investigating Officer (PW4) and the Doctor (PW5). The exhibits produced were; Age Assessment Report (P. Ex 1), Lab Results (P. Ex 2), PRC Form (P. Ex 3), and P3 Form (P. Ex 4).
7. The Appellant was found to have a case to answer and was put on his defense. He elected to give unsworn evidence and not to call any witness. He testified that he was from Kathonzweni and his work was repair of telephones. He said that he knew the charge that he was facing and had heard what the witnesses said. He asked for fairness from the court because the offence was not true. He said that he was falsely accused because he has no parents. That after being falsely accused, his wife went to her home with the children. He agreed that the complainant is his daughter and she was already born when he married her mother. That the complainant was living at her mother’s home but on that day, she was at home sleeping with other children. That he did not enter their house. That his wife accused him falsely because she had another man. He prayed to be released so as to go and attend to his customers.
8. The parties elected to canvass the appeal through written submissions and appropriate directions were given.
Submissions by the Appellant
9. The Appellant submitted that the trial magistrate erred by allowing the complainant to testify without any voire dire examination by the court. He relied on John Otieno Oloo -vs-R [2009] eKLR where the Court of Appeal held that “Failure to form an opinion on voire dire examination occasioned a miscarriage of justice.”
10. He also relied on Kiune -vs- R; Criminal Appeal No. 77 of 1982 (UR) where the court stated;
“In any proceedings before any court where a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is not satisfied, his unsworn evidence may be received if in the opinion of the court he or she is possessed with sufficient intelligence and the duty of speaking the truth.”
11. He submitted that the complainant’s evidence was unreliable and it was erroneous for the trial magistrate to rely on it. He cited the example of where the complainant said that her mother was away at the time of the incident and also said that her mother heard her calling. He relied on the case of Ndung’u Kimani -vs- R (1979) KLR 282 where the court stated;
“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward 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 incredible witness which makes it unsafe to accept his evidence.”
12. He submitted that according to the complainant’s evidence, she was sharing a bed with her sisters and PW2 testified that the two children told her about the alleged offence. He contended that the two children were never availed by the prosecution as witnesses and relied on the case of Bukenya & Others -vs- Uganda (1972) EA, 349 where the court stated;
“The prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent, that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case.”
13. He submitted that the complainant relied on moonlight to identify him but it is not clear whether the trial magistrate was furnished with the intensity of the moonlight. He relied on R-vs-Turnbull & Others (1976)3All ER 549 where the court held that; “Mistakes can be made even in cases of recognition and that an innocent witness may nonetheless be mistaken”
14. He submitted that the case rests on circumstantial evidence and relied on Mdoe Gwende -vs- R [2007] eKLR where the court held that;
“Circumstantial evidence should be subjected to thorough scrutiny since it can be easily fabricated.”
15. He submitted that the evidence of PW1 contradicted that of PW2 where PW1 stated that they were sleeping on a bed but PW2 stated that they were sleeping on the floor with rags. He submitted that the benefit of doubt should go to him and relied on Elizabeth Wathengeni Gatimu -vs- R [2015] eKLR where the court stated that; “the accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact that his or her defence was weak.”
16. He submitted that his wife, PW2, submitted that she was suspicious about him hence raising a question as to whether there was bad blood between them.
17. He submitted that the case was based on suspicion and relied on Pharvin Dhalay -vs-R App No. 10 of 1997 where the court stated; “Suspicion remains that, suspicion and that cannot and should never form the basis of a conviction as happened in the present case.”
18. He submitted that PW3 was supposed to avail her identity card in court to prove her profession as a human rights defender. That, if PW3 had found any fault in the charges against him, she would not have been rejected by the police officer who told her to return the child to the clan elders.
19. The Appellant submitted that from recent cases, it has been seen that some people are using the Sexual Offences Act to settle scores, eventually punishing innocent people by taking advantage of the low threshold of a crime under the Act. That this court is mandated to protect both the victim and the defendant and justice should be seen to be done at all times.
20. He submitted that the trial magistrate erred when he concluded that the broken hymen of a girl is only through sexual intercourse. He relied on PKW-vs- Republic [2012] eKLR where court stated;
“[15]. In their analysis of the evidence on record, the two courts below…appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?
[16]. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen.”
21. He submitted that the case ought to have been juxtaposed with his defence which was to the effect that the entire case was a fabrication by PW1 and 2 in order to get back at him due to marital misunderstanding. He submitted that a sexual relationship by a wife to another person other than the husband is a cause of bad blood and harmful mood between the married people.
22. The Appellant submitted that the dismissal of his defence is related to the failure by the trial court to reconcile the numerous contradictions and inconsistencies in the prosecution case. That the whole evidence was unbelievable and the trial court shifted the burden of proof to him.
23. He submitted that the evidence of PW4 was hearsay and it leaves the trial court with no confidence about his duty to investigate. He submitted that the PRC Form shows that the last date of consensual sexual intercourse was not established and wondered whether the I.O was not informed of the same by the complainant.
24. Referring to section 36(1) of the Sexual Offences Act, he submitted that the victim and perpetrator were supposed to be examined before the lapse of 72 hours. That, such omissions rendered the case a mere farce and sham.
25. He submitted that the trial court erred by receiving the prosecution evidence especially PW1. He submitted that the reasons for the amendment of section 124 of the Evidence Act are detailed in J. Heydon Evidence Cases and Materials Second ED-Butterworths London 1984 and they are;
1. (1) that a child’s power of observation and memory are less reliable than adults,
(2), children are prone to live in a make-believe world so that they magnify incidents which happen to them,
(3), children are egocentric and can be easily influenced by adults and other children,
(4), a police officer taking a statement from a child may, without ill will, use leading questions so that the child tends to confuse what actually happened with answers suggested,
(5), children have little notion of duty to speak the truth.
26. He submitted that when the child was taken to Kathonzweni police station, the police officer told PW3 that they had seen nothing from the doctor’s report. He contended that the evidence of PW1, 2, 3 and 4 was not corroborative. He cited Natasha Singh -vs- CB (2013) 5 S.C.C 741 where the court stated;
“Fair trial is the main object of criminal procedure and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society and therefore fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized.”
27. He submitted that the duty of a prosecutor acting on behalf of the republic is not to secure conviction at all costs but to be a minister of justice i.e. to help the court to arrive at a just and fair decision in the circumstances of each case.”
Submissions by the Respondent
28. The State, through Prosecution Counsel Vera Omollo, submitted that the age of the victim was proved to be 13-14 years through the age assessment report dated 04/08/2021 and her testimony as well as the testimony of the victim’s mother.
29. On proof of incest, she submitted that PW1 testified that on numerous occasions, her father-the Appellant-defiled her and she reported to PW2 who was afraid of the Appellant’s and did not take any action. That the Appellant also threatened to kill PW1 if she disclosed the defilement. That the Appellant was well known to PW1 and the P3 and PRC forms noted that the victim’s hymen was broken. She submitted that this element was adequately proved.
30. She submitted that the trial court was right in dismissing the defence because it had no basis in relation to the charges he was facing.
31. That the sentence of 20 years was most lenient as the offence attracts a sentence of life imprisonment. She submitted that the appeal should be dismissed for lack of merit.
32. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses (Okeno –vs- R (1972) EA 32).
33. From the grounds of appeal, the rival submissions and the entire record, the issues for determination are;
a) Whether voire dire was necessary and if yes, whether it was complied with.
b) Whether the case was proved beyond reasonable doubt.
Analysis and determination
Whether voire dire was necessary and if yes, whether it was complied with.
34. The Court of Appeal has repeatedly held that voire dire should be conducted for children below the age of 14 years. In Samuel Warui Karimi -vs- Republic [2016] eKLR, the Court stated that;
“Court decisions regarding the competency of evidence by children of tender years have maintained a higher threshold of 14 years and not 10 years as witnesses of tender years whose evidence must be subjected to voire dire examination……. On our part, we have no good reason to depart from this well-trodden path, as we are in agreement the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. Where the witness as in this case was aged 12 years and that essential step was not taken in a criminal trial, that trial becomes problematic. In the circumstances we find the evidence by the complainant was not properly received thus, the conviction of the appellant becomes unsafe to sustain as she was the complainant and not any other witness.”
35. In this case, the complainant testified that she was 14 years and her mother testified that she gave birth to her on 18/08/2006. The age assessment report shows that her age was assessed to be between 13 and 14 years. Taking the date of birth given by her mother, she was approximately 14 years and 10 months, hence above the age of 14 years.
36. It is however important to note that it is not always that a person of the numerical age of an adult will be found intelligent enough to understand the nature of an oath and the importance of telling the truth
37. Be that as it may the record shows that voire dire was conducted and the trial court recorded as follows;
“I am called E M. I am 14 years and in class six. I attend the AIC church. We are taught to obey God’s commandments. I know it’s wrong to tell a lie. I will speak the whole truth. I know the accused. He is my father.
Court: The witness is intelligent and understands what it means to tell the truth. She is to give a sworn statement.”
38. The court was satisfied that the complainant was intelligent enough to understand the nature of an oath and the importance of telling the truth
Whether the case was proved beyond reasonable doubt
39. Section 20(1) of the Sexual Offences Act provides that;
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
40. The ingredients of the offence can therefore be deduced to be; age of the complainant, proof of consanguinity relationship between the victim and perpetrator, proof of penetration and positive identification of the assailant.
41. With regard to age, the same was sufficiently established to be approximately 14 years and 10 months.
42. On proof of relationship, the complainant testified that the Appellant is her father and the Appellant admitted this fact in his defence.
43. With regard to penetration, the PRC form indicates ‘normal broken hymen’ and the P3 form describes the genitalia as ‘normal findings at the time of examination’. PW5, Dr. Musembi, testified that he examined PW1’s genitalia and observed a normal broken hymen which meant that it was not fresh. Penetration was therefore proved sufficiently.
44. As to whether there was penile penetration of the complainant by the Appellant, the complainant testified that; “We were sleeping in the bedroom in one bed. Our house has no lock. We lock it with a container. As we slept only father came and entered the house. I did not hear him enter. He removed my clothes. I was wearing shirt, pant and blouse. He removed my pant and entered his penis into my vagina…I saw my father. There was a window which was not locked. There was moonlight. I was surprised and asked who it was and he talked telling to silence. I heard him and detected it was him”
45. The Appellant complained about his identification as it was at night and argued that the intensity of the moonlight was not interrogated by the trial court. However, the complainant testified that in addition to the moonlight, she recognized his voice. Indeed, being her father, it is expected that she had known him long enough to recognize his voice even in places that were not well lit.
46. Be that as it may the case for the prosecution case had certain gaps which, if the trial court had applied its mind to the outcome may have been different.
47. The evidence of the complainant and her mother was that the room where the complainant and her siblings were sleeping was not lockable. The risk of it being accessed by anyone who was aware of that fact cannot be overlooked.
48. In addition, I found in the prosecution’s case to inconsistent in some material particulars. The complainant testified that on the night of the offence, her mother was away but on cross examination, she testified that it was the same mother heard her calling and who also saw the Appellant running out. That obvious contradiction was not explained by the prosecution in any way. When PW2 testified her evidence was all about alleged prior defilement incidences with nothing about the night of 28/05/2021(material night). If indeed she was the one who saw the Appellant running out of the complainant’s house, nothing would have been easier than for her to testify about it. If this was the fact, then why would she not testify about it as it would have placed the Appellant at the scene?.
49. More contradiction is emerges from what the complainant told the I.O that her mother was present on the material night as the I.O testified that; “I interrogated the child who informed me that her father had entered the house at night and undressed her and defiled her. That she saw him through the moonlight. That she called her mother and he escaped.” It is trite that the witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person.
50. On the same line is the question as to why the children said to have been in the same room as the complainant on the material night did not testify yet PW2 testified that during the other alleged incidences that, the other children would tell her about it. This brings the evidence of these witnesses into the purview of Bukenya –vs- Uganda (1972) EA, 349 where it was held that;
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.”
51. The testimony of Damaris Nduru Maithia, PW3, narrating what happened on 31/05/2021 after the complainant had gone to her house to reort the alleged defilement added to these gaps that the Prosecution did not fill. She testified that;
“At Kasokea she[complainant] was examined. The records were taken to the police station. After that we went to Kathonzweni police station where the child explained. The police told me that there was no evidence. That they had not seen anything from the doctor’s report. They told me to return the child to the clan elder which I did.”
52. This leads to the medical evidence . The incident allegedly happened on 28th May 2021. The P3 form and PRC form were filled on 26/07/2021 at the Makueni Referral Hospital (MCRH). That was approximately two months after the alleged incident. On 31st May 2021 the medics at Kasokea hospital said that there was no evidence of defilement but their colleagues at MCRH found evidence of penetration.
53. The time lapse raise the query as to what could have happened between 31st May 2021 and 26th July 2021. This disparity between the findings at Kasokea and MCRH is not minor because if the Appellant was accused of defiling PW1 on 28/05/2021 but the examination shortly thereafter did not reveal anything significant, then who was responsible for subsequent penetration if at all?
54. The record shows that the I.O testified that when he asked PW3 to avail the child, PW3 told him that the child had escaped to Wote. That means that the whereabouts of PW1 were not been accounted for between the time she was examined at Kasokea and the time she was examined at MCRH. It is not clear whether PW1 escaped while in the custody of PW3 or from the clan elder where she had been taken by PW3 after examination at Kasokea. The prosecution had a duty to explain this gap.
55. From the record it would also appear that the complainant had other issues. She testified that she had moved out of three schools because the ‘mapepo’ spirits of her uncle’s wife had told her to drop out but they did not tell her where to go. Perhaps this was something the prosecution needed to follow up, as it seems to speak to what the police told PW3 about taking the child to the elders, but more importantly to the vulnerabilities of the complainant which could have been addressed through a P&C file.
56. In my view the trial court appeared to have missed out on the contradictions in the case for the prosecution The trial court stated as follows;
“PW2 corroborated the complainant to the extent that on that night the accused went out saying that he had gone to attend a call of nature and overstayed. She heard the distress call from the complainant and when she asked the accused he denied any wrongdoing.”
57. Respectfully, PW2 did not make any reference to 28th May 2021 in her evidence and there was nothing upon which to draw that conclusion on the part of the trail court.
58. From the foregoing it is evident that the case for the prosecution was riddled with gaps which the prosecution did not fill and had the trial court applied its mind on the evidence, it would have emerged that the case did not meet the threshold of without a reasonable doubt to support the conviction.
59. The lack of investigations stands out. It is nigh that the ODPP insists on top notch investigations in sexual offence matters from the investigating agencies. There should be no rush to charge. The ODPP ought to enhance the collaboration with the Directorate of Children Services to ensure that P&C files are always opened for the victims so that in the vent that investigations need to take long, then the welfare of the victim is safeguarded, their rights are protected. Even in the vent that the matter is dismissed, they are well prepared for the outcome and are not traumatized.
60. All that said, having considered all the evidence on record, the alleged circumstances of the offence, the submissions, I am arrive at the conclusion that the conviction was unsafe and is not sustainable.
61. The appeal is allowed.
62. The conviction quashed, the sentence set aside.
63. The appellant be set at liberty unless otherwise legally held.
64. Right of Appeal 14 days
Dated, signed and delivered in open court this 21st March 2025
Mumbua T Matheka
Judge
In the presence of:
Appellant
Chrispol Court Assistant
Mr. Kazungu for State