This amended appeal emanates from the decision of Hon. Ole Kewua (CM) delivered on 4th March, 2024. The appellant was charged with the Offence of Defilement Contrary to Section 8(1) as read with Section 8(3) of the Sexual Offence Act No.3 of 2006. He initially filed a Petition of Appeal at the time he had not been furnished with trial proceedings. He now prays to canvass the following grounds of appeal: -
A) That the trial magistrate erred in law and facts when he convicted the appellant based on a charge sheet that was fatally defective as it did not accord with the evidence gathered during investigations and that tendered in court thus prejudice of the Appellant herein.
B) That, the trial magistrate erred in law and facts when he convicted the appellant based on the evidence of the minor where voire dire examination was improperly taken making -her evidence illegally admitted thus prejudicing the appellant herein.
C) That, the trial magistrate erred in law and facts when he convicted the appellant based on prosecution case whose key ingredients to wit penile penetration of the complainant's genitalia and identification of the appellant with the offence were not conclusively proved to warrant a conviction.
D) That, the trial magistrate erred in law and facts when he convicted the appellant where essential witnesses were not called, the prosecutions witnesses were incredible and contradictory, where there were family squabbles leaving gaping holes in the prosecution's evidence that were filled during judgement to the prejudice of the Appellant herein.
E) That, the trial magistrate erred in law and facts when he sentenced the appellant to a mandatory custodial sentence which was harsh and excessive based on the overall circumstances of the case.
Brief facts
On 18th January, 2023 the accused was charged with the offence of defilement contrary to section 8 (1) read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.
The particulars of this offence were that on diverse dates between November 2022 and January 2023 at Itheuni area in Matungulu sub county within Machakos County, Charles Katiko Kioko intentionally and unlawfully caused his penis to penetrate the vagina of N.N. a child aged 13 years.
On 26th February, 2024, the accused was convicted of the offence of defilement and on 4th March, 2024 sentenced to 20 years’ imprisonment.
The matter proceeded for hearing of both the prosecution and defence case.
The prosecution called six witnesses.
PW1 (the complainant, then aged about 14 years and in Class 8) testified that the appellant (her grandfather/relative) defiled her in the kitchen at the grandmother’s home while she was cooking. She described him telling her to remove her clothes, bending her over, inserting his penis into her vagina, and holding her mouth. She told her younger brother, who reported to an aunt; the matter reached the police after the mother’s death. She was taken to hospital.
PW2 (Monica Wawusi Munao), PW3 (Elizabeth Mueni Munyao) and PW4 (Irene Kioko) gave evidence of reports made to them by the complainant and/or her brother Raymond after the mother’s death, leading to reports to the chief and police. They described family relations and denied personal grudges.
PW5 (Clinical Officer Mercyline Obiko) examined the complainant on 16th January, 2023 at Kangundo Level 4 Hospital. She noted normal external genitalia, a torn hymen, foul-smelling discharge and a urinary tract infection. She produced the P3 form, treatment notes and laboratory results as exhibits. On cross-examination she stated there was no blood because it was “over two years” since the defilement.
PW6 (the investigating officer) received the report on 16th January, 2023, recorded statements, facilitated age assessment (produced as Exhibit 4 showing the complainant was 13 years) and caused the appellant’s arrest. She testified that the brother witnessed the incident and that the offence occurred “weeks earlier” or a long time before reporting.
In his defence, the appellant gave a sworn statement. He denied the charge and attributed it to a family dispute. After the complainant’s mother (a relative) fell ill and later died in January 2023, PW2 demanded that the children be released to the deceased’s husband; he refused. He alleged threats and that the charges were fabricated to settle scores. He stated he had no grudge against the minor.
Appellant submissions
On ambiguous charges, the appellant submits that he was grossly prejudiced when the charges did not specify the dates when the alleged offence was committed. The alleged charges were rendered ambiguous for lack of being specific as required by section 137 of the CPC. PW5 Dr, Mercyline Obiko testified that she examined the minor on 16/01/2023 where the history of sexual violation was alleged to be on November 2022. Upon cross examination, she stated that at the time of examination, it was over 2 years since the minor was defiled. The minor, PW1 Natasha Ndewa Musyoki (NNM)a standard 8 pupil aged 14 years alleged it was in early 2023 but could not remember the month. She only alleged of a single sexual act that happened in the kitchen. She told her younger brother who reported to her Auntie, who reported to the police.
According to PW3 Elizabeth Mueni Munyao who NNM referred as Auntie, the matter was reported to her by PW2 where upon confirming from the minor immediately reported to the chief at Tala. The police pursued and arrested the appellant. She alleged Raymond is the one who reported to PW2. PW2 Monica Wawusi Munao on the other hand claimed that NNM came to her after her mother died but was subsequently collected the following morning, It was NNM’s brother who reported to her that NNM had been defiled by the appellant. She alleged the matter was on a date she could not remember when children were going to school. NMM told her children had gone to school.
PW4 Irene Kioko similarly alleged the offence was in January 2023 on a day NNM messed and burnt vegetables when Raymond (not a witness) was sent to the shopping. It was according to NNM when she was cooking porridge to her deceased mother.
According to PW6 PC (W) Trivonia Mwanyolo, the investigating officer the matter was reported on 16th January, 2023, the investigation carried out and the appellant arraigned in court for the offence on 18th January, 2023. All the evidence suggest that it was not difficult to ascertain with clarity if and when the minor was allegedly defiled.
In the case of Dennis Sundo Mokera vs Republic, Criminal Appeal No. E012 of 2022, the minor testified she was defiled on 10th April, 2021 and not as specified in the charge sheet as diverse dates between 2019 and April 8 2021. The Judge relied on the decision of Peter Ngure Mwangi V Republic [2014] eKLR, Court of Appeal Decision in Benara Ombuna V Rep [2019] eKLR and other decisions to conclude that uncertainties in the dates of the alleged offence as testified by the complainant denies the accused person the clarity and specific of tendering his defence thus making the trial unfair.
Section 134 of the CPC demands that the charge shall contain a statement of specific offence or offences the accused is charged with together with such reasonable information as to the nature of the offence charged.
On improperly done voire dire examination, PW1 NNM testified under oath without the court establishing whether she understood the meaning of an oath before embarking on her intelligence to testify and tell the truth. The proceedings indicate she was 14 years old thus a minor under 14 years at the time of giving evidence. The legal procedures thus demanded that a proper voire dire examination was crucial before her evidence could be legally accepted. How did the magistrate conclude that PW1 could understand the nature of an Oath without first conducting a voir dire and asking her if she understood the meaning of an oath?
The court of Appeal gave guidance on how a voir dire examination should be conducted in JOHNSON MUIRURI VS REPUBLIC 1983} KLR 447 at page 448-450 as follows:
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses. In PETER KARIGA KIUME CRIMINAL ~ APPEAL NO. 77 OF 1982 (unreported) we said:
“ Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voir dire examination whether the child understands the nature of an oath in which even his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is collaborated by material evidence in support thereof implicating him (SECTION 19, OATHS AND STATUTORY DECLARATIONS ACT, CAP 15, LAWS OF KENYA.
The appellant submits that the key elements of defilement namely penile penetration, age and identification with the offence were not proved. The trial magistrate relied on the evidence of PW1 narrating how she was defiled and held that
this evidence was corroborated by PW5 Dr. Mercyline who testified the hymen was broken. According to PW5, Treatment notes (PEXZ), Lab Test (PEX3) and the P3 (PEX1) the medical, examination took place on 16/01/2023 at 8:50 PM at Kangundo level 4 hospital where upon examination she observed normal genital externally, Torned hymen, false smelly discharge, she was infected urinary and was put on treatment on 16/01/2023. She deduced that the minor was defiled based on the fact that the hymen was torned. Upon Cross examination, PWS admitted that blood was not available because it was over 2 years since she was defiled. Moreover, PW6 the I/O testified that the offence happened a long time.
The appellant submits that the medical examination did not prove recent penile penetration as alleged. A broken hymen is not a conclusive prove of penile penetration.
On reliability of prosecution witnesses, PW1 she testified that the appellant had assaulted (beat) her mother. Her evidence against the appellant might be motivated by revenge and malice. Her testimony is contracted on material facts by other witnesses. PW6 alleged that the brother (Raymond) witnessed the incident while she was emphatic that the brother was sent for shopping and she is the one who told him of the incident after which he reported to the aunt. This makes reports made to the police , untruthful.
Moreover, PW2, PW3 and PW4 all gave hearsay accounts based on the testimony of PW1 and Raymond (not called as a witness) at the time when family relations were sour. PW2 testified that she had been assaulted by the appellant. PW3 testified that the appellant was the favourite of her grandmother depicting existence of siblings’ rivalry. She was the daughter of PW2 who alleged she had been assaulted by the appellant. PW4 a sister in-law to the deceased (mother to PW1 is sister to her husband) admitted on evidence that the grandmother chased her after appellant was charged. PW6 the I/O, confirmed that the wife of the appellant had a case which was handled by another police officer. The decision to cross examine along this line suggested numerous family disagreements surrounding siblings.
On the whether the sentence was harsh, the appellant persuades this court to find that the mandatory sentence of 20 years for an offence of defilement under section 8(3) with circumstances as depicted by the present case is harsh excessive and unequitable. It does not consider the accused mitigating circumstances and the circumstances surrounding the alleged offence including possibilities that the charges were meant to settle family scores.
Respondent submissions
The respondent submits they satisfied the ingredients of the offence of defilement under section 8 (1) as read with section 8(3) of the Sexual Offences Act to the required standards.
Penetration, PW1’s evidence was corroborated by the clinical officer Dr. Mercyline Obiko PW5 who testified that upon examining the complainant, she noted that the complainant had a torn hymen and a urinary tract infection in addition to smelly discharge. This evidence was adduced vide the treatment notes, PRC form and laboratory tests which were produced before the court as exhibit.
They submit that the trial learned magistrate correctly relied the evidence of the complainant by invoking the provisions of section 124 of the Evidence Act which evidence need not be corroborated by another witness. The same was properly corroborated vide ample medical evidence presented before the court.
Identification of the offender. The Respondent submits that PW1, the complainant herein positively identified the Appellant as the perpetrator as they lived together and he was also her uncle. In addition, the evidence of Monica Watusi PW2 and Elizabeth Munyao, PW3 corroborate the occurrence of the incident. PW2 stated that she had been informed by one Raymond that the complainant had been defiled by the Appellant. She enquired the samé from the complainant who confirmed the same and stated she was going to inform her mother save that she passed away the next day before she could so. PW3 was informed by her mother PW2 and further interrogated the minor who stated that she had burnt vegetables while cooking and the Appellant then told her to have sex with her to rectify the mistake. PC Mwanyolo PW6 confirmed that the minor was defiled after she mistakenly burned the vegetables.
Age of the victim. The respondent submits that the age of the complainant was sufficiently proven as PW6 produced before court an Age Assessment Report as exhibit 4 depicting that she was 13 years.
On whether the voir dire was properly conducted, the respondent submit that trial Magistrate conducted the voir dire examination and was able to establish that the minor understood the difference between a lie and the truth. It was on this basis that she was administered a sworn oath.
On whether the charge sheet was defective, the respondent submits that the incidents occurred over a period of time between November 2022 and January 2023 does not invalidate the fact that it did happen as did the alternative charge of committing an indecent act. The alleged discrepancy is in there being diverse dates of the occurrence of the offence.
In the case of Njuguna V R, [2002] llr No. 3735 (CAR) the Appellate Court spelt out that in considering whether a defect in a charge sheet is fatal stated: “We think, like the Learned Judges of the High Court did, that stating in a Charge Sheet a lesser amount than the amount which was actually stolen was no more than an irregularity in the Charge Sheet and it did not render the Charge Defective. It was an irregularity curable under the above quoted section of the Criminal Procedure Code and the appellant did not point out any sort of prejudice which the irregularity could occasion to him.
On the defence, the Appellant does not dispute his relation to the complainant. He stated that he was threatened by PW2 to release the complainant the husband of her late mother which he refused forming the bone of contention.
On whether the sentence was excessive, the respondent submits that the sentence imposed therein was lawful. The Sexual Offences Act under section 8(3) state as follows: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
Issue
1. Whether the charge sheet was fatally defective
2. Whether voire dire was properly conducted
3. Whether the ingredients of the offence of defilement were proved.
Analysis
This being a first appeal, the court is under a duty to re-evaluate the evidence afresh, subject it to a fresh and exhaustive examination, and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. See Okeno v Republic [1972] EA 32 and Pandya v Republic [1957] EA 336.
Whether the charge sheet was fatally defective
Section 134 of the Criminal Procedure Code requires a charge to contain a statement of the specific offence together with such particulars as are necessary to give reasonable information as to the nature of the offence. The test is substantive rather than formal. Whether the defect prejudiced the accused so that he did not understand the charge or was unable to prepare a defence (see Peter Ngure Mwangi v Republic [2014] eKLR; Benard Ombuna v Republic [2019] eKLR)
The charge alleged diverse dates between November 2022 and January 2023. The complainant spoke of a single incident in early 2023 while cooking porridge/vegetables. The clinical officer recorded a history of November 2022 yet on cross-examination stated the incident was over two years earlier. The investigating officer described the offence as having occurred “a long time” or weeks earlier.
While “diverse dates” may be appropriate where a pattern of abuse is alleged and the complainant cannot remember the exact days, here the evidence pointed to a single incident whose timing was at odd with the charge and hence inconsistent. The variance occasioned prejudice and rendered the charge defective.
Whether voire dire was properly conducted
A child of tender years must be subjected to voire dire under section 19 of the Oaths and Statutory Declarations Act. The court must first determine whether the child understands the nature of an oath; if not, whether the child possesses sufficient intelligence and understands the duty of speaking the truth (see Johnson Muiruri v Republic [1983] KLR 447). The questions and answers, or at least the court’s findings, should appear on the record.
The complainant was assessed as 13 years in January 2023 and testified later as a 14-year-old. The respondent asserts that voire dire established she understood the difference between truth and lies and that she was sworn. The appellant contends the record does not show the court first ascertained understanding of the nature of an oath.
Failure to conduct a proper voire dire does not automatically vitiate the conviction if there is other sufficient evidence. However, where the conviction rests substantially on the minor’s evidence, the procedural shortcoming is material and must be weighed with the other weaknesses in the prosecution case.
Whether the ingredients of the offence were proved
The three ingredients of defilement are: (i) age of the victim; (ii) penetration; and (iii) identification of the perpetrator.
Age was proved by the age-assessment report (Exhibit 4) showing 13 years. Identification is not seriously disputed; the appellant is a known relative (grandfather/uncle) living in the same homestead.
Penetration is defined in section 2 of the Sexual Offences Act as partial or complete insertion of the genital organ of one person into that of another. The complainant gave a clear account of penile penetration. Under the proviso to section 124 of the Evidence Act, the court may convict on the evidence of the victim alone in a sexual offence if, for reasons to be recorded, it is satisfied the victim is telling the truth.
Medical evidence by PW5 showed a torn hymen, foul discharge and urinary infection. However, a torn or absent hymen is not conclusive proof of penile penetration. Scientific and medical evidence establishes that hymens may be absent from birth or ruptured by non-sexual causes.
In the case of P. K.W VS Republic [2012] eKLR it was held that the broken hymen was not sufficient to prove that the minor had been defiled.
The PW5, clinical officer, evidence that the incident was “over two years” earlier further undermines any claim of recent penetration consistent with the charge period. No spermatozoa or other forensic linkage was recovered.
The prosecution case is further weakened by material contradictions: whether the younger brother Raymond witnessed the act (as the investigating officer stated) or was merely told by the complainant and later reported (as the complainant and other witnesses stated); and the timing inconsistencies already noted. Raymond, an essential potential eye-witness was not called to testify in court.
The defence of a family dispute over the custody of the children after the mother’s death was raised and not effectively displaced. Several prosecution witnesses acknowledged strained family relations. While a grudge does not automatically discredit a complainant, in the context of the contradictions and gaps it contributes to reasonable doubt.
Taking the evidence as a whole, the prosecution failed to prove penile penetration by the appellant beyond reasonable doubt. The conviction is unsafe.
Sentence
Section 8(3) of the Sexual Offences Act provides that a person who commits defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
The Supreme Court has held that the minimum sentences prescribed under the Sexual Offences Act are constitutional and that courts have no discretion to impose a sentence below the statutory floor (Republic v Joshua Gichuki Mwangi, Petition No. E018 of 2023 [2024] KESC 34 (KLR)
Had the conviction stood, the sentence of 20 years would have been lawful.
My finding is that the appeal succeeds on the grounds relating to the defective charge, the quality of the evidence on penetration, material contradictions, and the overall failure of the prosecution to prove its case beyond reasonable doubt.
The appeal is upheld. The appellant is to be released unless lawfully held.
It is so ordered.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT
A) That the trial magistrate erred in law and facts when he convicted the appellant based on a charge sheet that was fatally defective as it did not accord with the evidence gathered during investigations and that tendered in court thus prejudice of the Appellant herein.
B) That, the trial magistrate erred in law and facts when he convicted the appellant based on the evidence of the minor where voire dire examination was improperly taken making -her evidence illegally admitted thus prejudicing the appellant herein.
C) That, the trial magistrate erred in law and facts when he convicted the appellant based on prosecution case whose key ingredients to wit penile penetration of the complainant's genitalia and identification of the appellant with the offence were not conclusively proved to warrant a conviction.
D) That, the trial magistrate erred in law and facts when he convicted the appellant where essential witnesses were not called, the prosecutions witnesses were incredible and contradictory, where there were family squabbles leaving gaping holes in the prosecution's evidence that were filled during judgement to the prejudice of the Appellant herein.
E) That, the trial magistrate erred in law and facts when he sentenced the appellant to a mandatory custodial sentence which was harsh and excessive based on the overall circumstances of the case.
Brief facts
On 18th January, 2023 the accused was charged with the offence of defilement contrary to section 8 (1) read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.
The particulars of this offence were that on diverse dates between November 2022 and January 2023 at Itheuni area in Matungulu sub county within Machakos County, Charles Katiko Kioko intentionally and unlawfully caused his penis to penetrate the vagina of N.N. a child aged 13 years.
On 26th February, 2024, the accused was convicted of the offence of defilement and on 4th March, 2024 sentenced to 20 years’ imprisonment.
The matter proceeded for hearing of both the prosecution and defence case.
The prosecution called six witnesses.
PW1 (the complainant, then aged about 14 years and in Class 8) testified that the appellant (her grandfather/relative) defiled her in the kitchen at the grandmother’s home while she was cooking. She described him telling her to remove her clothes, bending her over, inserting his penis into her vagina, and holding her mouth. She told her younger brother, who reported to an aunt; the matter reached the police after the mother’s death. She was taken to hospital.
PW2 (Monica Wawusi Munao), PW3 (Elizabeth Mueni Munyao) and PW4 (Irene Kioko) gave evidence of reports made to them by the complainant and/or her brother Raymond after the mother’s death, leading to reports to the chief and police. They described family relations and denied personal grudges.
PW5 (Clinical Officer Mercyline Obiko) examined the complainant on 16th January, 2023 at Kangundo Level 4 Hospital. She noted normal external genitalia, a torn hymen, foul-smelling discharge and a urinary tract infection. She produced the P3 form, treatment notes and laboratory results as exhibits. On cross-examination she stated there was no blood because it was “over two years” since the defilement.
PW6 (the investigating officer) received the report on 16th January, 2023, recorded statements, facilitated age assessment (produced as Exhibit 4 showing the complainant was 13 years) and caused the appellant’s arrest. She testified that the brother witnessed the incident and that the offence occurred “weeks earlier” or a long time before reporting.
In his defence, the appellant gave a sworn statement. He denied the charge and attributed it to a family dispute. After the complainant’s mother (a relative) fell ill and later died in January 2023, PW2 demanded that the children be released to the deceased’s husband; he refused. He alleged threats and that the charges were fabricated to settle scores. He stated he had no grudge against the minor.
Appellant submissions
On ambiguous charges, the appellant submits that he was grossly prejudiced when the charges did not specify the dates when the alleged offence was committed. The alleged charges were rendered ambiguous for lack of being specific as required by section 137 of the CPC. PW5 Dr, Mercyline Obiko testified that she examined the minor on 16/01/2023 where the history of sexual violation was alleged to be on November 2022. Upon cross examination, she stated that at the time of examination, it was over 2 years since the minor was defiled. The minor, PW1 Natasha Ndewa Musyoki (NNM)a standard 8 pupil aged 14 years alleged it was in early 2023 but could not remember the month. She only alleged of a single sexual act that happened in the kitchen. She told her younger brother who reported to her Auntie, who reported to the police.
According to PW3 Elizabeth Mueni Munyao who NNM referred as Auntie, the matter was reported to her by PW2 where upon confirming from the minor immediately reported to the chief at Tala. The police pursued and arrested the appellant. She alleged Raymond is the one who reported to PW2. PW2 Monica Wawusi Munao on the other hand claimed that NNM came to her after her mother died but was subsequently collected the following morning, It was NNM’s brother who reported to her that NNM had been defiled by the appellant. She alleged the matter was on a date she could not remember when children were going to school. NMM told her children had gone to school.
PW4 Irene Kioko similarly alleged the offence was in January 2023 on a day NNM messed and burnt vegetables when Raymond (not a witness) was sent to the shopping. It was according to NNM when she was cooking porridge to her deceased mother.
According to PW6 PC (W) Trivonia Mwanyolo, the investigating officer the matter was reported on 16th January, 2023, the investigation carried out and the appellant arraigned in court for the offence on 18th January, 2023. All the evidence suggest that it was not difficult to ascertain with clarity if and when the minor was allegedly defiled.
In the case of Dennis Sundo Mokera vs Republic, Criminal Appeal No. E012 of 2022, the minor testified she was defiled on 10th April, 2021 and not as specified in the charge sheet as diverse dates between 2019 and April 8 2021. The Judge relied on the decision of Peter Ngure Mwangi V Republic [2014] eKLR, Court of Appeal Decision in Benara Ombuna V Rep [2019] eKLR and other decisions to conclude that uncertainties in the dates of the alleged offence as testified by the complainant denies the accused person the clarity and specific of tendering his defence thus making the trial unfair.
Section 134 of the CPC demands that the charge shall contain a statement of specific offence or offences the accused is charged with together with such reasonable information as to the nature of the offence charged.
On improperly done voire dire examination, PW1 NNM testified under oath without the court establishing whether she understood the meaning of an oath before embarking on her intelligence to testify and tell the truth. The proceedings indicate she was 14 years old thus a minor under 14 years at the time of giving evidence. The legal procedures thus demanded that a proper voire dire examination was crucial before her evidence could be legally accepted. How did the magistrate conclude that PW1 could understand the nature of an Oath without first conducting a voir dire and asking her if she understood the meaning of an oath?
The court of Appeal gave guidance on how a voir dire examination should be conducted in JOHNSON MUIRURI VS REPUBLIC 1983} KLR 447 at page 448-450 as follows:
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses. In PETER KARIGA KIUME CRIMINAL ~ APPEAL NO. 77 OF 1982 (unreported) we said:
“ Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voir dire examination whether the child understands the nature of an oath in which even his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is collaborated by material evidence in support thereof implicating him (SECTION 19, OATHS AND STATUTORY DECLARATIONS ACT, CAP 15, LAWS OF KENYA.
The appellant submits that the key elements of defilement namely penile penetration, age and identification with the offence were not proved. The trial magistrate relied on the evidence of PW1 narrating how she was defiled and held that
this evidence was corroborated by PW5 Dr. Mercyline who testified the hymen was broken. According to PW5, Treatment notes (PEXZ), Lab Test (PEX3) and the P3 (PEX1) the medical, examination took place on 16/01/2023 at 8:50 PM at Kangundo level 4 hospital where upon examination she observed normal genital externally, Torned hymen, false smelly discharge, she was infected urinary and was put on treatment on 16/01/2023. She deduced that the minor was defiled based on the fact that the hymen was torned. Upon Cross examination, PWS admitted that blood was not available because it was over 2 years since she was defiled. Moreover, PW6 the I/O testified that the offence happened a long time.
The appellant submits that the medical examination did not prove recent penile penetration as alleged. A broken hymen is not a conclusive prove of penile penetration.
On reliability of prosecution witnesses, PW1 she testified that the appellant had assaulted (beat) her mother. Her evidence against the appellant might be motivated by revenge and malice. Her testimony is contracted on material facts by other witnesses. PW6 alleged that the brother (Raymond) witnessed the incident while she was emphatic that the brother was sent for shopping and she is the one who told him of the incident after which he reported to the aunt. This makes reports made to the police , untruthful.
Moreover, PW2, PW3 and PW4 all gave hearsay accounts based on the testimony of PW1 and Raymond (not called as a witness) at the time when family relations were sour. PW2 testified that she had been assaulted by the appellant. PW3 testified that the appellant was the favourite of her grandmother depicting existence of siblings’ rivalry. She was the daughter of PW2 who alleged she had been assaulted by the appellant. PW4 a sister in-law to the deceased (mother to PW1 is sister to her husband) admitted on evidence that the grandmother chased her after appellant was charged. PW6 the I/O, confirmed that the wife of the appellant had a case which was handled by another police officer. The decision to cross examine along this line suggested numerous family disagreements surrounding siblings.
On the whether the sentence was harsh, the appellant persuades this court to find that the mandatory sentence of 20 years for an offence of defilement under section 8(3) with circumstances as depicted by the present case is harsh excessive and unequitable. It does not consider the accused mitigating circumstances and the circumstances surrounding the alleged offence including possibilities that the charges were meant to settle family scores.
Respondent submissions
The respondent submits they satisfied the ingredients of the offence of defilement under section 8 (1) as read with section 8(3) of the Sexual Offences Act to the required standards.
Penetration, PW1’s evidence was corroborated by the clinical officer Dr. Mercyline Obiko PW5 who testified that upon examining the complainant, she noted that the complainant had a torn hymen and a urinary tract infection in addition to smelly discharge. This evidence was adduced vide the treatment notes, PRC form and laboratory tests which were produced before the court as exhibit.
They submit that the trial learned magistrate correctly relied the evidence of the complainant by invoking the provisions of section 124 of the Evidence Act which evidence need not be corroborated by another witness. The same was properly corroborated vide ample medical evidence presented before the court.
Identification of the offender. The Respondent submits that PW1, the complainant herein positively identified the Appellant as the perpetrator as they lived together and he was also her uncle. In addition, the evidence of Monica Watusi PW2 and Elizabeth Munyao, PW3 corroborate the occurrence of the incident. PW2 stated that she had been informed by one Raymond that the complainant had been defiled by the Appellant. She enquired the samé from the complainant who confirmed the same and stated she was going to inform her mother save that she passed away the next day before she could so. PW3 was informed by her mother PW2 and further interrogated the minor who stated that she had burnt vegetables while cooking and the Appellant then told her to have sex with her to rectify the mistake. PC Mwanyolo PW6 confirmed that the minor was defiled after she mistakenly burned the vegetables.
Age of the victim. The respondent submits that the age of the complainant was sufficiently proven as PW6 produced before court an Age Assessment Report as exhibit 4 depicting that she was 13 years.
On whether the voir dire was properly conducted, the respondent submit that trial Magistrate conducted the voir dire examination and was able to establish that the minor understood the difference between a lie and the truth. It was on this basis that she was administered a sworn oath.
On whether the charge sheet was defective, the respondent submits that the incidents occurred over a period of time between November 2022 and January 2023 does not invalidate the fact that it did happen as did the alternative charge of committing an indecent act. The alleged discrepancy is in there being diverse dates of the occurrence of the offence.
In the case of Njuguna V R, [2002] llr No. 3735 (CAR) the Appellate Court spelt out that in considering whether a defect in a charge sheet is fatal stated: “We think, like the Learned Judges of the High Court did, that stating in a Charge Sheet a lesser amount than the amount which was actually stolen was no more than an irregularity in the Charge Sheet and it did not render the Charge Defective. It was an irregularity curable under the above quoted section of the Criminal Procedure Code and the appellant did not point out any sort of prejudice which the irregularity could occasion to him.
On the defence, the Appellant does not dispute his relation to the complainant. He stated that he was threatened by PW2 to release the complainant the husband of her late mother which he refused forming the bone of contention.
On whether the sentence was excessive, the respondent submits that the sentence imposed therein was lawful. The Sexual Offences Act under section 8(3) state as follows: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
Issue
1. Whether the charge sheet was fatally defective
2. Whether voire dire was properly conducted
3. Whether the ingredients of the offence of defilement were proved.
Analysis
This being a first appeal, the court is under a duty to re-evaluate the evidence afresh, subject it to a fresh and exhaustive examination, and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. See Okeno v Republic [1972] EA 32 and Pandya v Republic [1957] EA 336.
Whether the charge sheet was fatally defective
Section 134 of the Criminal Procedure Code requires a charge to contain a statement of the specific offence together with such particulars as are necessary to give reasonable information as to the nature of the offence. The test is substantive rather than formal. Whether the defect prejudiced the accused so that he did not understand the charge or was unable to prepare a defence (see Peter Ngure Mwangi v Republic [2014] eKLR; Benard Ombuna v Republic [2019] eKLR)
The charge alleged diverse dates between November 2022 and January 2023. The complainant spoke of a single incident in early 2023 while cooking porridge/vegetables. The clinical officer recorded a history of November 2022 yet on cross-examination stated the incident was over two years earlier. The investigating officer described the offence as having occurred “a long time” or weeks earlier.
While “diverse dates” may be appropriate where a pattern of abuse is alleged and the complainant cannot remember the exact days, here the evidence pointed to a single incident whose timing was at odd with the charge and hence inconsistent. The variance occasioned prejudice and rendered the charge defective.
Whether voire dire was properly conducted
A child of tender years must be subjected to voire dire under section 19 of the Oaths and Statutory Declarations Act. The court must first determine whether the child understands the nature of an oath; if not, whether the child possesses sufficient intelligence and understands the duty of speaking the truth (see Johnson Muiruri v Republic [1983] KLR 447). The questions and answers, or at least the court’s findings, should appear on the record.
The complainant was assessed as 13 years in January 2023 and testified later as a 14-year-old. The respondent asserts that voire dire established she understood the difference between truth and lies and that she was sworn. The appellant contends the record does not show the court first ascertained understanding of the nature of an oath.
Failure to conduct a proper voire dire does not automatically vitiate the conviction if there is other sufficient evidence. However, where the conviction rests substantially on the minor’s evidence, the procedural shortcoming is material and must be weighed with the other weaknesses in the prosecution case.
Whether the ingredients of the offence were proved
The three ingredients of defilement are: (i) age of the victim; (ii) penetration; and (iii) identification of the perpetrator.
Age was proved by the age-assessment report (Exhibit 4) showing 13 years. Identification is not seriously disputed; the appellant is a known relative (grandfather/uncle) living in the same homestead.
Penetration is defined in section 2 of the Sexual Offences Act as partial or complete insertion of the genital organ of one person into that of another. The complainant gave a clear account of penile penetration. Under the proviso to section 124 of the Evidence Act, the court may convict on the evidence of the victim alone in a sexual offence if, for reasons to be recorded, it is satisfied the victim is telling the truth.
Medical evidence by PW5 showed a torn hymen, foul discharge and urinary infection. However, a torn or absent hymen is not conclusive proof of penile penetration. Scientific and medical evidence establishes that hymens may be absent from birth or ruptured by non-sexual causes.
In the case of P. K.W VS Republic [2012] eKLR it was held that the broken hymen was not sufficient to prove that the minor had been defiled.
The PW5, clinical officer, evidence that the incident was “over two years” earlier further undermines any claim of recent penetration consistent with the charge period. No spermatozoa or other forensic linkage was recovered.
The prosecution case is further weakened by material contradictions: whether the younger brother Raymond witnessed the act (as the investigating officer stated) or was merely told by the complainant and later reported (as the complainant and other witnesses stated); and the timing inconsistencies already noted. Raymond, an essential potential eye-witness was not called to testify in court.
The defence of a family dispute over the custody of the children after the mother’s death was raised and not effectively displaced. Several prosecution witnesses acknowledged strained family relations. While a grudge does not automatically discredit a complainant, in the context of the contradictions and gaps it contributes to reasonable doubt.
Taking the evidence as a whole, the prosecution failed to prove penile penetration by the appellant beyond reasonable doubt. The conviction is unsafe.
Sentence
Section 8(3) of the Sexual Offences Act provides that a person who commits defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
The Supreme Court has held that the minimum sentences prescribed under the Sexual Offences Act are constitutional and that courts have no discretion to impose a sentence below the statutory floor (Republic v Joshua Gichuki Mwangi, Petition No. E018 of 2023 [2024] KESC 34 (KLR)
Had the conviction stood, the sentence of 20 years would have been lawful.
My finding is that the appeal succeeds on the grounds relating to the defective charge, the quality of the evidence on penetration, material contradictions, and the overall failure of the prosecution to prove its case beyond reasonable doubt.
The appeal is upheld. The appellant is to be released unless lawfully held.
It is so ordered.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANT