(Being an appeal against the judgment and conviction of Hon. R. M. Amwayi (SRM) delivered on 15th December 2022 in Kaloleni Principal Magistrate’s Court Criminal Case No. E016 of 2022)
A. Introduction
1. The Appellant, Carlos Stephen Kithunga, was charged, tried, and convicted before the Principal Magistrate’s Court at Kaloleni in Criminal Case No. E616 of 2022 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to twenty (20) years imprisonment.
2. Being dissatisfied with the said conviction and sentence, the Appellant filed the instant appeal before this Court, raising multiple grounds challenging the procedural integrity of the trial, the evaluation of evidence, the medical findings, and the dismissal of his defence.
B. Background
3. The prosecution's case at the trial court was that on the 15th day of May 2022 at about 10:00 p.m. at Kwa Makingi area in Rabai Sub-County, Kilifi County, the Appellant unlawfully caused his male genital organ to penetrate the female genital organ of U.D.R., a minor aged 14 years.
4. The matter was reported to the police on May 16, 2022, by the complainant's mother, leading to the issuance of a P3 form, medical examination, and subsequent arrest and arraignment of the Appellant. Upon the close of the prosecution's case, the Appellant was placed on his defence pursuant to Section 211 of the Criminal Procedure Code, elected to give sworn testimony, and raised an alibi/grudge defence, which was ultimately rejected by the trial magistrate.
C. Grounds of Appeal
5. The Appellant's amended memorandum of appeal challenges the trial court's judgment on the following primary grounds:
6. Ground 1: That the trial court failed to conduct a proper voire dire examination of the minor complainant (PW1) pursuant to Section 19(1) of the Oaths and Statutory Declaration Act, rendering the trial a nullity.
7. Ground 2: That the medical evidence adduced did not support the allegations or particulars of defilement.
8. Ground 3: That the Appellant's constitutional fair hearing rights under Article 50(2) were violated, specifically concerning language and interpretation records.
9. Ground 4: That the trial court ignored material contradictions and discrepancies in the evidence of prosecution witnesses contrary to Section 163(1)(c) of the Evidence Act, pointing to police negligence.
10. Ground 5: That the trial court erred in law and fact by failing to properly consider and evaluate his alibi and defence evidence.
D. Submissions by Parties
Appellant's Submissions:
11. The Appellant contends that the prosecution failed to prove its case beyond reasonable doubt in violation of Sections 109 and 110 of the Evidence Act.
12. He argues that the trial court failed to record the requisite opinion on the minor's intelligence during the voire dire examination, rendering her evidence irregular.
13. He further submits that the medical evidence presented by the clinician (PW4) and the mother (PW2) introduced irreconcilable contradictions regarding active bleeding, pregnancy, and abortion timeline versus the charge sheet. Citing authorities such as John Kinyua Nathan v. Rep [2017] eKLR , RMM v. Republic [2019] eKLR , and David Njuguna Wairimu v. Rep [2010] KLR 282 , the Appellant urges the court to re-evaluate the evidence, quash the conviction, and set aside the sentence.
Respondent's Submissions:
14. The Respondent opposes the appeal and has filed a cross-appeal seeking to uphold the conviction and sentence. Relying on Okeno v. R [1977] EALR 32 and Mark Oiruri Mose v. R [2013] eKLR , the Respondent asserts that the trial court properly evaluated the evidence.
15. On the ingredients of defilement ( George Opondo Olunga v. Republic [2016] eKLR and Daisy Chepkoech v. Republic [2022] eKLR ), the Respondent submits that the complainant's age (14 years) was proved via a birth certificate (P. Exhibit 1), penetration was proved by PW1 and medical evidence (P. Exhibit 2, 4, & 5), and positive identification by recognition was established as they were known to each other ( Anjononi & Others v. Republic [1980] KLR 59 ).
16. The Respondent maintains that any contradictions were minor and did not affect the core substance of the case ( Richard Munene v. Republic [2018] eKLR ; Erick Onyango Ondeng’ v. Republic [2014] eKLR ), and that the Appellant's defence was correctly dismissed as a mere denial.
E. Summary of Evidence Adduced at the Trial Court
PW1 (U.D.R., the Complainant):
15. The 14-year-old complainant testified in a clear and consistent manner regarding the events leading to the charge. She informed the trial court that she knew the Appellant well as her romantic boyfriend since May 2022.
16. She detailed that on the night of May 15, 2022, at around 10:00 p.m., she left her home and went directly to the Appellant's house located at the Kwa Makingi area. Upon arrival, she entered the house, undressed, and engaged in consensual sexual intercourse with the Appellant multiple times during the course of the night.
17. She further explained how communication was established using her mother's mobile phone to coordinate with the Appellant, and recounted the physical complications, pain, and subsequent medical interventions that followed the incident.
PW2 (Alice Ngumabao, Complainant's Mother):
18. The complainant's mother testified that the minor was born on August 5, 2007, a fact corroborated by the production of a formal birth certificate. She stated that on the night of the incident, she discovered the complainant missing at midnight as she found the house locked from inside.
19. Upon further inquiries, she established that the minor had been communicating with the Appellant using her mobile phone, where the Appellant's contact details and call history were retrieved.
20. PW2 further testified that she took the complainant to Mariakani Sub-County Hospital after discovering she was bleeding, where the minor was admitted for two weeks, received a blood transfusion, and was diagnosed as being 10 weeks pregnant due to a complete abortion resulting from the ordeal.
PW3 (PC Ann Njiru):
21. The investigating officer who received the report from the mother, issued the P3 form, escorted the complainant to the hospital, and processed the arrest.
PW4/PW5 (Chigulu Mwangolo, Clinical Officer):
22. Examined the minor between May 17 and May 24, 2022. Observed a broken hymen, loose sphincter vaginal muscles, and active bleeding.
23. Confirmed via laboratory and ultrasound scan reports that the complainant had suffered a complete abortion, verifying penetration.
DW1 (Carlos Stephen Kithunga):
24. The Appellant gave a sworn statement denying the charge and claiming he was framed due to a local dispute concerning a motorcycle operation.
F. Issues for Determination
25. Upon careful consideration of the record of appeal, the grounds raised, and the rival submissions, the following issues emerge for determination:
i) Whether the trial court conducted a proper voire dire examination of the minor complainant (PW1) in compliance with Section 19 of the Oaths and Statutory Declaration Act.
ii) Whether the prosecution proved all the essential ingredients of defilement (age, penetration, and identity/perpetrator responsibility) beyond reasonable doubt.
iii) Whether there were fatal contradictions in the prosecution's case and whether the Appellant's defence was wrongfully rejected.
G. Legal analysis
26. As the first appellate court, my duty is to re-evaluate, analyze, and re-examine the evidence tendered before the trial court afresh and arrive at my own independent conclusion, while making due allowance for the fact that the trial magistrate had the advantage of seeing and hearing the witnesses ( Okeno v. R [1977] EALR 32 ; David Njuguna Wairimu v. Rep [2010] KLR 282 ).
a. Whether the trial court conducted a proper voire dire examination of the minor complainant (PW1) in compliance with Section 19 of the Oaths and Statutory Declaration Act.
27. The record shows that PW1 was 14 years old at the material time. Under Section 19 of the Oaths and Statutory Declaration Act, when a child of tender years is called as a witness, the court must conduct an inquiry into the child's intelligence and understanding of the nature of an oath.
28. A critical evaluation of the trial record reveals that the mandatory legal threshold regarding recording the court’s opinion on the child's intelligence and comprehension of truth was deficiently handled.
29. However, as established by the Court of Appeal in John Kinyua Nathan v. Rep [2017] eKLR and RMM v. Republic [2019] eKLR , a child of tender years is not inherently incompetent to testify, but the procedural safeguards are designed to test reliability.
b. Whether the prosecution proved all the essential ingredients of defilement (age, penetration, and identity/perpetrator responsibility) beyond reasonable doubt.
30. To sustain a conviction for defilement under Section 8(1) of the Sexual Offences Act, the prosecution must prove three conjunctive elements: the age of the victim (being a minor), penetration, and the identity of the perpetrator ( George Opondo Olunga v. Republic [2016] eKLR ; Daisy Chepkoech v. Republic [2022] eKLR ).
i. Age of the Victim:
31. The birth certificate produced shows that the complainant was born on 05/08/2007. The Birth Certificate was conclusive evidence on the age of the complainant hence proving this ingredient that the complainant was aged 14 years old as at the time of the alleged offence. The complainant’s mother also confirmed that the complainant was aged 14 years old. The complainant's age was therefore proved by the prosecution.
ii. Penetration:
32. PW1’s direct and compelling testimony detailing how she went to the Appellant's house, undressed, and had sexual intercourse with him was cogently corroborated by the medical evidence of PW4 (the clinical officer) and P. Exhibits 2, 4, and 5, which confirmed a broken hymen, clinical findings of a complete abortion, and physical trauma consistent with sexual penetration.
iii. Identification of the Perpetrator:
33. The complainant (PW1) testified extensively that the accused person was well known to her as her boyfriend, and she clearly described visiting his house on the night of May 15, 2022.
34. This account was corroborated by her mother (PW2), who confirmed the minor left home at night and that mobile phone communication records successfully retrieved the Appellant's contact details.
35. This established direct and positive identification by recognition ( Anjononi & Others v. Republic [1980] KLR 59 ).
c. Whether there were fatal contradictions in the prosecution's case and whether the Appellant's defence was wrongfully rejected.
36. The Appellant argued that material contradictions existed between the evidence of PW2, PW3, and PW4 regarding bleeding and medical reports.
37. However, applying the principles in Erick Onyango Ondeng’ v. Republic [2014] eKLR and Richard Munene v. Republic [2018] eKLR , minor or peripheral discrepancies do not displace the core substance of the prosecution’s case where the direct testimony and medical findings unequivocally link the accused to the offence.
38. Furthermore, the trial court properly evaluated the Appellant's defence under Section 211 of the CPC, finding it to be a bare denial disconnected from the concrete evidence establishing his presence and culpability.
H. Disposition and final orders
39. Having re-evaluated the evidence on record, I find that the prosecution proved the charge of defilement against the Appellant beyond any reasonable doubt.
40. Consequently, the appeal filed is hereby dismissed.
41. The conviction entered and the sentence of twenty (20) years imprisonment imposed by the trial court on 15 th December 2022 in Kaloleni Principal Magistrate’s Court Criminal Case No. E016 of 2022 are hereby affirmed.
42. It is so ordered.
DATED, SIGNED, AND DELIVERED AT MALINDI THIS 22 ND DAY OF SEPTEMBER, 2026.
C. AKAIGWA
JUDGE
A. Introduction
1. The Appellant, Carlos Stephen Kithunga, was charged, tried, and convicted before the Principal Magistrate’s Court at Kaloleni in Criminal Case No. E616 of 2022 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to twenty (20) years imprisonment.
2. Being dissatisfied with the said conviction and sentence, the Appellant filed the instant appeal before this Court, raising multiple grounds challenging the procedural integrity of the trial, the evaluation of evidence, the medical findings, and the dismissal of his defence.
B. Background
3. The prosecution's case at the trial court was that on the 15th day of May 2022 at about 10:00 p.m. at Kwa Makingi area in Rabai Sub-County, Kilifi County, the Appellant unlawfully caused his male genital organ to penetrate the female genital organ of U.D.R., a minor aged 14 years.
4. The matter was reported to the police on May 16, 2022, by the complainant's mother, leading to the issuance of a P3 form, medical examination, and subsequent arrest and arraignment of the Appellant. Upon the close of the prosecution's case, the Appellant was placed on his defence pursuant to Section 211 of the Criminal Procedure Code, elected to give sworn testimony, and raised an alibi/grudge defence, which was ultimately rejected by the trial magistrate.
C. Grounds of Appeal
5. The Appellant's amended memorandum of appeal challenges the trial court's judgment on the following primary grounds:
6. Ground 1: That the trial court failed to conduct a proper voire dire examination of the minor complainant (PW1) pursuant to Section 19(1) of the Oaths and Statutory Declaration Act, rendering the trial a nullity.
7. Ground 2: That the medical evidence adduced did not support the allegations or particulars of defilement.
8. Ground 3: That the Appellant's constitutional fair hearing rights under Article 50(2) were violated, specifically concerning language and interpretation records.
9. Ground 4: That the trial court ignored material contradictions and discrepancies in the evidence of prosecution witnesses contrary to Section 163(1)(c) of the Evidence Act, pointing to police negligence.
10. Ground 5: That the trial court erred in law and fact by failing to properly consider and evaluate his alibi and defence evidence.
D. Submissions by Parties
Appellant's Submissions:
11. The Appellant contends that the prosecution failed to prove its case beyond reasonable doubt in violation of Sections 109 and 110 of the Evidence Act.
12. He argues that the trial court failed to record the requisite opinion on the minor's intelligence during the voire dire examination, rendering her evidence irregular.
13. He further submits that the medical evidence presented by the clinician (PW4) and the mother (PW2) introduced irreconcilable contradictions regarding active bleeding, pregnancy, and abortion timeline versus the charge sheet. Citing authorities such as John Kinyua Nathan v. Rep [2017] eKLR , RMM v. Republic [2019] eKLR , and David Njuguna Wairimu v. Rep [2010] KLR 282 , the Appellant urges the court to re-evaluate the evidence, quash the conviction, and set aside the sentence.
Respondent's Submissions:
14. The Respondent opposes the appeal and has filed a cross-appeal seeking to uphold the conviction and sentence. Relying on Okeno v. R [1977] EALR 32 and Mark Oiruri Mose v. R [2013] eKLR , the Respondent asserts that the trial court properly evaluated the evidence.
15. On the ingredients of defilement ( George Opondo Olunga v. Republic [2016] eKLR and Daisy Chepkoech v. Republic [2022] eKLR ), the Respondent submits that the complainant's age (14 years) was proved via a birth certificate (P. Exhibit 1), penetration was proved by PW1 and medical evidence (P. Exhibit 2, 4, & 5), and positive identification by recognition was established as they were known to each other ( Anjononi & Others v. Republic [1980] KLR 59 ).
16. The Respondent maintains that any contradictions were minor and did not affect the core substance of the case ( Richard Munene v. Republic [2018] eKLR ; Erick Onyango Ondeng’ v. Republic [2014] eKLR ), and that the Appellant's defence was correctly dismissed as a mere denial.
E. Summary of Evidence Adduced at the Trial Court
PW1 (U.D.R., the Complainant):
15. The 14-year-old complainant testified in a clear and consistent manner regarding the events leading to the charge. She informed the trial court that she knew the Appellant well as her romantic boyfriend since May 2022.
16. She detailed that on the night of May 15, 2022, at around 10:00 p.m., she left her home and went directly to the Appellant's house located at the Kwa Makingi area. Upon arrival, she entered the house, undressed, and engaged in consensual sexual intercourse with the Appellant multiple times during the course of the night.
17. She further explained how communication was established using her mother's mobile phone to coordinate with the Appellant, and recounted the physical complications, pain, and subsequent medical interventions that followed the incident.
PW2 (Alice Ngumabao, Complainant's Mother):
18. The complainant's mother testified that the minor was born on August 5, 2007, a fact corroborated by the production of a formal birth certificate. She stated that on the night of the incident, she discovered the complainant missing at midnight as she found the house locked from inside.
19. Upon further inquiries, she established that the minor had been communicating with the Appellant using her mobile phone, where the Appellant's contact details and call history were retrieved.
20. PW2 further testified that she took the complainant to Mariakani Sub-County Hospital after discovering she was bleeding, where the minor was admitted for two weeks, received a blood transfusion, and was diagnosed as being 10 weeks pregnant due to a complete abortion resulting from the ordeal.
PW3 (PC Ann Njiru):
21. The investigating officer who received the report from the mother, issued the P3 form, escorted the complainant to the hospital, and processed the arrest.
PW4/PW5 (Chigulu Mwangolo, Clinical Officer):
22. Examined the minor between May 17 and May 24, 2022. Observed a broken hymen, loose sphincter vaginal muscles, and active bleeding.
23. Confirmed via laboratory and ultrasound scan reports that the complainant had suffered a complete abortion, verifying penetration.
DW1 (Carlos Stephen Kithunga):
24. The Appellant gave a sworn statement denying the charge and claiming he was framed due to a local dispute concerning a motorcycle operation.
F. Issues for Determination
25. Upon careful consideration of the record of appeal, the grounds raised, and the rival submissions, the following issues emerge for determination:
i) Whether the trial court conducted a proper voire dire examination of the minor complainant (PW1) in compliance with Section 19 of the Oaths and Statutory Declaration Act.
ii) Whether the prosecution proved all the essential ingredients of defilement (age, penetration, and identity/perpetrator responsibility) beyond reasonable doubt.
iii) Whether there were fatal contradictions in the prosecution's case and whether the Appellant's defence was wrongfully rejected.
G. Legal analysis
26. As the first appellate court, my duty is to re-evaluate, analyze, and re-examine the evidence tendered before the trial court afresh and arrive at my own independent conclusion, while making due allowance for the fact that the trial magistrate had the advantage of seeing and hearing the witnesses ( Okeno v. R [1977] EALR 32 ; David Njuguna Wairimu v. Rep [2010] KLR 282 ).
a. Whether the trial court conducted a proper voire dire examination of the minor complainant (PW1) in compliance with Section 19 of the Oaths and Statutory Declaration Act.
27. The record shows that PW1 was 14 years old at the material time. Under Section 19 of the Oaths and Statutory Declaration Act, when a child of tender years is called as a witness, the court must conduct an inquiry into the child's intelligence and understanding of the nature of an oath.
28. A critical evaluation of the trial record reveals that the mandatory legal threshold regarding recording the court’s opinion on the child's intelligence and comprehension of truth was deficiently handled.
29. However, as established by the Court of Appeal in John Kinyua Nathan v. Rep [2017] eKLR and RMM v. Republic [2019] eKLR , a child of tender years is not inherently incompetent to testify, but the procedural safeguards are designed to test reliability.
b. Whether the prosecution proved all the essential ingredients of defilement (age, penetration, and identity/perpetrator responsibility) beyond reasonable doubt.
30. To sustain a conviction for defilement under Section 8(1) of the Sexual Offences Act, the prosecution must prove three conjunctive elements: the age of the victim (being a minor), penetration, and the identity of the perpetrator ( George Opondo Olunga v. Republic [2016] eKLR ; Daisy Chepkoech v. Republic [2022] eKLR ).
i. Age of the Victim:
31. The birth certificate produced shows that the complainant was born on 05/08/2007. The Birth Certificate was conclusive evidence on the age of the complainant hence proving this ingredient that the complainant was aged 14 years old as at the time of the alleged offence. The complainant’s mother also confirmed that the complainant was aged 14 years old. The complainant's age was therefore proved by the prosecution.
ii. Penetration:
32. PW1’s direct and compelling testimony detailing how she went to the Appellant's house, undressed, and had sexual intercourse with him was cogently corroborated by the medical evidence of PW4 (the clinical officer) and P. Exhibits 2, 4, and 5, which confirmed a broken hymen, clinical findings of a complete abortion, and physical trauma consistent with sexual penetration.
iii. Identification of the Perpetrator:
33. The complainant (PW1) testified extensively that the accused person was well known to her as her boyfriend, and she clearly described visiting his house on the night of May 15, 2022.
34. This account was corroborated by her mother (PW2), who confirmed the minor left home at night and that mobile phone communication records successfully retrieved the Appellant's contact details.
35. This established direct and positive identification by recognition ( Anjononi & Others v. Republic [1980] KLR 59 ).
c. Whether there were fatal contradictions in the prosecution's case and whether the Appellant's defence was wrongfully rejected.
36. The Appellant argued that material contradictions existed between the evidence of PW2, PW3, and PW4 regarding bleeding and medical reports.
37. However, applying the principles in Erick Onyango Ondeng’ v. Republic [2014] eKLR and Richard Munene v. Republic [2018] eKLR , minor or peripheral discrepancies do not displace the core substance of the prosecution’s case where the direct testimony and medical findings unequivocally link the accused to the offence.
38. Furthermore, the trial court properly evaluated the Appellant's defence under Section 211 of the CPC, finding it to be a bare denial disconnected from the concrete evidence establishing his presence and culpability.
H. Disposition and final orders
39. Having re-evaluated the evidence on record, I find that the prosecution proved the charge of defilement against the Appellant beyond any reasonable doubt.
40. Consequently, the appeal filed is hereby dismissed.
41. The conviction entered and the sentence of twenty (20) years imprisonment imposed by the trial court on 15 th December 2022 in Kaloleni Principal Magistrate’s Court Criminal Case No. E016 of 2022 are hereby affirmed.
42. It is so ordered.
DATED, SIGNED, AND DELIVERED AT MALINDI THIS 22 ND DAY OF SEPTEMBER, 2026.
C. AKAIGWA
JUDGE