(Being an appeal from the conviction and sentence of Hon. Wanjiru M.N. (SRM) in Gichugu Magistrates Court S.O. Case No. 007 of 2021 delivered on 24/2/2023)
Background
1. The appellant, Daniel Kariuki Mwaniki alias Samuel Waweru Mwaniki was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 28/11/2021 at Kianyaga village, Raimu sub-location in Kirinyaga East Sub-County within Kirinyaga County unlawfully and intentionally caused his penis to penetrate into the vagina of S. M. I. a child aged 16 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he unlawfully and intentionally caused his penis to come into contact with the vagina of S. M. I. a child aged 16 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 10 years imprisonment.
Grounds of appeal
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his petition dated 8/3/2023. The grounds contain arguments and so I will only pick the aspects of each ground that are pertinent:
a. The learned trial magistrate erred in law and fact by convicting the appellant on insufficient and inadmissible evidence.
b. The learned trial magistrate erred in law and fact by relying on untruthful, unreliable, contradictory and uncorroborated evidence of the complainant and the rest of the prosecution witnesses.
c. The learned trial magistrate erred in law and fact for not finding that the complainant’s evidence was not corroborated by medical evidence and no sufficient evidence was tendered to positively identify the appellant as the perpetrator of the alleged offence which in any case was not proved to have been committed against the complainant.
d. The learned trial magistrate erred in law and fact for not properly considering the appellant’s defence and dismissing it without offering any reasons.
e. The learned trial magistrate erred in law and fact for finding that DW 4, the appellant’s wife was also a minor at the time she got a child with the appellant and used the same evidence to convict and sentence the appellant.
f. The learned trial magistrate erred in law and fact for not finding that the appellant was framed by PW 1 the complainant in order to protect the real offender who was identified in court proceedings but was never interrogated by the police, charged or called as a witness.
g. The sentence of 10 years imprisonment was harsh, unfair and unreasonable.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside and he be set at liberty.
Submissions
6. The appeal was canvassed through written submissions filed by the appellant’s and respondent’s counsel.
7. Learned counsel for the appellant submits that the information the complainant gave to her mother, the investigating officer and the clinical officer was contradictory, untruthful, unreliable and not corroborated. He has set out the evidence as testified by each of these witnesses as captured above.
8. Learned counsel submits that the learned trial magistrate considered irrelevant facts in arriving at her decision in this case by finding that the appellant had a habit of engaging in sexual acts with minors from the fact that DW 4, Hilda Muthoni, his wife was also a minor at the time she bore their child which was not supported with evidence.
9. Learned counsel for the respondent submits that the charge of defilement was proved beyond a reasonable doubt with the prosecution showing that the complainant was sixteen years old at the time of the alleged defilement. That the complainant testified that she had sexual intercourse with the appellant whom she positively identified and the clinical confirming that penetration had occurred.
10. Learned counsel also submitted that the appellant’s defence had not been ignored by the trial court as the appellant did not deny knowledge of the complainant.
Duty of this court
11. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
12. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called three witness.
13. PW 1, S.M.I. was the complainant. She was 16 years old on the date of the alleged offence having been born on 8/8/2006 according to her evidence, that of her mother and the certificate of birth produced in evidence. She was a student in secondary school in form 2 at the time. It was unnecessary for the court to conduct a voire dire examination of her as it did. She said the appellant was her boyfriend from March 2021 and they visited each other often. On 28/11/2021, a Sunday, she left their home at night and went to meet the appellant on the road. They went to the appellant’s rented premises and spent the night together. They engaged in sexual intercourse. It was not the first time. The appellant went out and came back later in the day and told her that her mother was looking for her. He told her to go to his home and she did. She stayed there without bathing until Wednesday when her mother went there for her with their block leader. She was taken for medical examination the following day. After that, she recorded her statement with the police. The appellant was arrested afterwards.
14. In cross-examination, PW 1 said that she did not get to know the appellant by any other name other than Samuel Kariuki. That she knew him by his nickname. She said that she left church and used a motorcycle to town and while she was leaving, she met with the appellant.
15. PW 2, C.N.M. the complainant’s mother testified that on the material day she left church with PW 1 and went to town where she left her. PW 1 did not return home that evening. She started searching for her the following day. She met the appellant with his sister and asked them if they had seen PW 1. The appellant told her that he had never seen her and they had never met since they moved from Rwambiti but she could go look for her at mama Njamba’s. PW 2 went there but did not find the complainant. She reported to the police.
16. On Wednesday she met one Christine, a shopkeeper who sent her to where PW 1 had been staying. PW 2 went and to the block leader and came back with him who went to a homestead and found PW 1 there. PW 1 was arrested and taken to the police station. PW 2 left her there for interrogation. She took her to hospital the following day.
17. According to PW 2, at the hospital, it was confirmed that PW 1 had engaged in sexual intercourse and sperms were seen. The appellant called her on Friday for them to talk. She arranged with the investigating officer and they laid an ambush. The appellant showed up with his mother and he was arrested.
18. In cross-examination, PW 2 said that Christine told her that her daughter had been staying in the appellant’s house. She however did not know if the appellant lived there. She said she knew the appellant’s sister Jane but did not know him personally. Initially she had said that she knew him by seeing him around. She said that the appellant rides a boda-boda. She said that the appellant went to meet her with his mother who also admitted that he had been with the complainant.
19. PW 3, Dr. Nelly Nyaga is a clinical officer at Kianyaga hospital. She was the one who examined the complainant on 2/12/2021 and completed her P3 form and PRC form. She said the complainant was in company of her mother and a police officer. She had no complaint when she saw her. The complainant told PW 3 that she had been at Elias Njamba, her boyfriend’s house where she was found and taken to the hospital for examination. According to PW 3 there were no significant findings arising from the examination of the complainant’s genitalia in relation to the alleged defilement. The complainant had an urinary tract infection for which she was treated. However, the complainant’s hymen was not intact and it had an old scar. Examination results of all other systems returned normal results.
20. In cross-examination, PW 3 said reiterated that the complainant told her that she had been at Njamba’s and she did not say that she was having sexual intercourse with him.
21. PW 4, PC Dorcas Nyaga was the investigating officer in the case. She took the statements of the witnesses and had the appellant arrested and charged for the offence.
22. According to the investigating officer, the information she got from the complainant was that she was picked by one Elias Kinyau Njamba a boda boda rider and they went to the complainant's home where she picked a few of her clothes and left with Elias. On the way, they met the complainant’s mother, PW 2 near a school. PW 2 tried to flaf them down to stop but they did not but went their way. PW 2 went home to wait for PW 1 but she did not return. The mother did not report the disappearance of PW 1. The complainant told the investigating officer that she had slept at her friend Elizabeth’s home. PW 1 also told the investigating officer that she was a virgin. She took her to hospital where PW 1 said that she had been staying and engaging in sexual intercourse with Elias Njamba. The mother said she had found her at Samuel Waweru’s home.
23. The following day when the investigating officer took the complainant’s story, she changed her story and said that she had been with and had sex with one Samuel Waweru and that she had been lying earlier about Njamba.
24. PW 4 said that they went to Samuel’s home but did not find him. They also went to Elias’ home and he was not there. Elias’ father confirmed that on 28th the complainant had been there and asked about Elias and left. The people at Samuel’s home said that they had never seen the complainant.
25. PW 4 said that she arrested the appellant from their home and the complainant identified him as the person she had been with.
26. In cross-examination, the investigating officer said that she was aware that what the complainant stated at the police station and in hospital were different. She said she did not arrest Njamba as he ran away. PW 4 further said that she had spoken to the appellant’s mother and she said she had never seen the complainant at her home.
27. PW 4 further said that the complainant told PW 4 that the appellant’s name was Samuel but PW 4 later learnt the he was Daniel.
28. DW 1, Daniel Kariuki Mwaniki the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said he knew the complainant as she used to visit his friend Elias Kinyua alias Njamba, their neighbor and they used to be together.
29. DW 1 said further that in spite of the complainant saying that she knew him for five to six months, she did not even know his name. He said he is married with a wife and child. He said that the complainant’s mother lied about his arrest as he was arrested from their home and not at a hotel. He said the block leader who was alleged to have picked the complainant from their home did not record a statement.
30. DW 1 said that the complainant had lied about being with him.
31. In cross-examination, the appellant denied that he was known as Samuel. He said that Elias is a fellow student of PW 1.
32. DW 2, Mary Keriko Kinyua is the appellant’s mother. She said that she did not know the complainant or her mother and that the complainant was not found at her home. She said she asked the block leader about it and he denied knowledge of the same. She said that the appellant is married and she stays with his wife.
33. DW 3, Jane Waruguru is the appellant’s sister. She said that the complainant was not known to her and she had never seen her. On the day the complainant was allegedly taken from their home she was there but the complainant was not there.
34. In cross-examination she said that on the date of arrest she got home and was informed that the appellant had been arrested.
35. DW 4, Hilda Muthoni is the appellant’s wife and they live together. She was 18 years old having been born on 19/9/2002. She had a child born on 12/4/2022 when she was 17 years old. She said that the charges against the appellant were false as the complainant was not found at their home. She said that when the appellant was arrested she was on the farm with his mother.
Analysis
36. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court reached a correct conclusion in its finding that the prosecution had proved its case against the appellant beyond a reasonable doubt.
37. Learned counsel for the appellant submits that the issue for determination is whether the offence of defilement was proved beyond a reasonable doubt, and if so, whether the appellant was proved to be the person who committed it. I agree.
38. Section 8(1) and 8(4) of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
39. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
40. The learned trial magistrate set out the essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them.
41. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 16 years through the certificate of birth produced in evidence as well as the evidence of the complainant and that of her mother. That finding was correct and is upheld.
42. The contentious issues are whether there was evidence to prove identification of the appellant as the perpetrator of the alleged defilement and whether penetration was proved.
43. From my consideration of the evidence before the trial court, I find that the complainant was the only witness on the elements of identification of the perpetrator of the alleged defilement and of penetration. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
44. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behoves the court first to determine whether there is any other evidence besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it.
45. If there is no other evidence besides that of the victim the court then has to go further and indicate that it is relying on the evidence of the victim alone and record in the proceedings that the victim has told the truth.
46. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
47. Was there corroboration of the complainant’s evidence of identification and penetration?
48. The complainant’s mother alleged that she found her at the appellant’s mother’s home and that the appellant had called her for a discussion over the issue and that she went to see her with his mother.
49. PW 2 said that she was directed to where her daughter was by one Christine and then she took the block leader and went and found her at the appellant’s mother’s home. Neither the said Christine nor the block leader were made available to testify in spite of them being the ones who allegedly assisted PW 2 to find the complainant. There is no indication from the investigating officer that she even summoned either of them to record a statement. These witnesses were crucial to confirm whether indeed the complainant had been and was found at the home of the appellant. The inference that ensues is that if called, they would have given evidence that was unfavourable to the prosecution’s case. This will become apparent in the ensuring consideration of the evidence. In the case of Bukenya -vs- Uganda [1972] EA 549, the Court of Appeal held that a failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution case, and acquit the accused person. I find herein that the failure to call these two material witnesses weakened the prosecution’s case.
50. PW 2’s evidence that the appellant was arrested at a hotel while he was in company of his mother, DW 2, where they had gone to meet her to discuss the issue was discounted by the arresting who was also the investigating officer who said he arrested the appellant from his mother’s home. This major contradiction in the prosecution’s evidence was not resolved.
51. The learned trial magistrate found that the version by PW 1 of what transpired on 28/11/2021 was not disputed by the appellant. Clearly that was a wrong assessment of the evidence. PW 1 said in evidence that she was with the appellant at his rented house. The appellant denied that he was ever with the complainant on that evening and night. He called DW 1, DW 2 and DW 3 all who said that she was not with her. It caanot be said that such evidence was not disputed.
52. But more fundamentally, the complainant herself told the clinical officer and the investigating officer that she was with one Elias Njamba on that evening and night. She also mentioned another person called Samuel Waweru, which name the investigating officer from wherever, christened the appellant and took him for trial with until the appellant protested. The charge was then amended to make it his alias name. It was the appellant’s contention and which I find quite logical that the complainant could not allege that she had befriended him for six months and yet did not know his proper name.
53. The learned trial magistrate also found that identification of the appellant as the perpetrator of the alleged defilement had been proved by way of recognition. That the appellant had confirmed that he used to see the complainant with his neighbor and friend Njamba. On the appellant’s contention that he was not a boyfriend of the complainant because she did not even know his name, the learned trial magistrate found that it was not strange for one to give a false name which another would know them as. I do not understand how the learned trial magistrate arrived at such a conclusion unless it was a supposition which is not allowed in a trial like this.
54. It is true as found by the learned trial magistrate that the two were not strangers. But that the appellant was the one who perpetrated the alleged defilement needed further and better interrogation.
55. The appellant vehemently denied that he had any association with the complainant leave alone being her boyfriend. He denied that he was with her on the material night and the subsequent days. His witnesses supported that evidence.
56. As submitted by learned counsel for the appellant the complainant gave materially contradictory stories of the person she was with and who engaged in sexual intercourse with her. To the clinical officer and the investigating officer, she said that she was with Elias Njambi. A day later, she changed the story to say that she was with the appellant. What I find most disturbing is that the investigating officer and even the learned trial magistrate gave no regard to this issue. That a witness who jumps from one story to another can be believed as being honest and truthful was a finding by the learned trial magistrate not based on evidence on record. This is a school girl who left home and even picked her clothes without her mother’s permission. Her mother spotted her being ferried on a motor cycle by the ferry person she told the clinical officer and the investigating officer that she was with. Her mother flagged her down but she ignored her and went her way. She stayed away for three days. In that regard, her evidence must be given very careful scrutiny. On that basis, the complainant was clearly an untruthful witness whose evidence should not have been believed by the learned trial magistrate to found a conviction for the appellant.
57. I am tempted to believe that the complainant’s mother found her daughter at another man’s home. She called that young man and had discussions about the issue over tea at a hotel as she said. Whatever they agreed must have pleased the complainant's mother. They probably even agreed that the culprit young man goes into hiding because the investigating officer said that he had vanished, unlike the appellant who had no reason to and was available all the time. However, since the complainant’s mother had reported the case to the police and her daughter was a student, she had to save face. She most probably went home and agreed with her daughter that they turn to the appellant as the complainant, for whatever reason. After all the appellant was a close neighbor and friend of Elias Njamba and was recently married to another young girl. It would be quite easy to implicate him as the culprit.
58. The learned trial magistrate failed completely to give credence to the strong evidence tendered by the appellant and corroborated by his witnesses that he was not at all involved in the alleged defilement of the complainant. She went off tangent to rely on irrelevant issues of the marriage of the appellant to DW 4. The appellant had not been found guilty of marrying an underage girl. The appellant may as well have a defence under section 8(5) of the Sexual Offences Act for his relationship with DW 4. The learned trial magistrate also found that the appellant did not live with his wife in the rented house in town. I have looked at the evidence tendered and I have not found where any witness said so.
59. On the issue of penetration, the learned trial magistrate found that the medical documents showed that that PW 1 had been penetrated. She went on to berate the clinical officer for finding that the complainant had a raptured hymen but with an old scar and why she had not found evidence to corroborate the act of recent sexual activity by the complainant such as spermatozoa yet the complainant had said that they had unprotected sexual intercourse. The learned trial magistrate remarked, “she (the clinical officer) should have been put to task to explain how genital organs would appear if there was recent sexual activity for one who is not a virgin and how much time it would take to look like the genitals of another non virgin who has not had recent sexual activity.” Such a remark can lead one to think that the learned trial magistrate was bent on looking for evidence to convict the appellant of the offence. She kept observing in her judgment that the clinical officer was not led to explain one issue or the other that could have established recent sexual activity. That was not an impartial consideration of the evidence on record.
60. As stated above, the only positive finding of penetration in the medical evidence tendered was that the complainant’s genital organ had a broken hymen with an old scar. The treatment notes and the P3 form both indicate that the complainant had an old scar of a broken hymen in her genital organ. Consequently, it could not be the case that the evidence of her broken hymen alone would be taken as corroboration of her allegation that the appellant or any other person for that matter had engaged in penetrative sexual intercourse with her on 28/11/2021. This is not to say that it could not be the case that someone did engage in sexual intercourse with her but that the broken hymen alone could not be evidence to support her evidence of recent sexual intercourse.
61. The learned trial magistrate was therefore not correct in her finding that there was corroboration of the complainant’s evidence of penetration by way of the medical evidence. That means the only evidence of penetration was the word of the complainant.
62. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
63. In this case, the court could rely on the complainant’s uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
64. The learned trial magistrate indicated in the judgment that she found the complainant to be truthful when she was testifying. I have found above that she was not.
65. Yet again, there is no indication that the learned trial magistrate warned herself of the danger of relying on the uncorroborated evidence of the complainant. I find that the learned trial magistrate failed to direct herself appropriately before basing her finding that penetration of the complainant’s genitalia had been proved upon the sole evidence of the complainant alone.
66. The appellant presented a defence denying the allegations by the complainant. The learned trial magistrate found that the evidence was not consistent but that I find was a wrong assessment. The appellant was throughout insisting that he never had any association with the complainant and that he had not been w
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Background
1. The appellant, Daniel Kariuki Mwaniki alias Samuel Waweru Mwaniki was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 28/11/2021 at Kianyaga village, Raimu sub-location in Kirinyaga East Sub-County within Kirinyaga County unlawfully and intentionally caused his penis to penetrate into the vagina of S. M. I. a child aged 16 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he unlawfully and intentionally caused his penis to come into contact with the vagina of S. M. I. a child aged 16 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 10 years imprisonment.
Grounds of appeal
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his petition dated 8/3/2023. The grounds contain arguments and so I will only pick the aspects of each ground that are pertinent:
a. The learned trial magistrate erred in law and fact by convicting the appellant on insufficient and inadmissible evidence.
b. The learned trial magistrate erred in law and fact by relying on untruthful, unreliable, contradictory and uncorroborated evidence of the complainant and the rest of the prosecution witnesses.
c. The learned trial magistrate erred in law and fact for not finding that the complainant’s evidence was not corroborated by medical evidence and no sufficient evidence was tendered to positively identify the appellant as the perpetrator of the alleged offence which in any case was not proved to have been committed against the complainant.
d. The learned trial magistrate erred in law and fact for not properly considering the appellant’s defence and dismissing it without offering any reasons.
e. The learned trial magistrate erred in law and fact for finding that DW 4, the appellant’s wife was also a minor at the time she got a child with the appellant and used the same evidence to convict and sentence the appellant.
f. The learned trial magistrate erred in law and fact for not finding that the appellant was framed by PW 1 the complainant in order to protect the real offender who was identified in court proceedings but was never interrogated by the police, charged or called as a witness.
g. The sentence of 10 years imprisonment was harsh, unfair and unreasonable.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside and he be set at liberty.
Submissions
6. The appeal was canvassed through written submissions filed by the appellant’s and respondent’s counsel.
7. Learned counsel for the appellant submits that the information the complainant gave to her mother, the investigating officer and the clinical officer was contradictory, untruthful, unreliable and not corroborated. He has set out the evidence as testified by each of these witnesses as captured above.
8. Learned counsel submits that the learned trial magistrate considered irrelevant facts in arriving at her decision in this case by finding that the appellant had a habit of engaging in sexual acts with minors from the fact that DW 4, Hilda Muthoni, his wife was also a minor at the time she bore their child which was not supported with evidence.
9. Learned counsel for the respondent submits that the charge of defilement was proved beyond a reasonable doubt with the prosecution showing that the complainant was sixteen years old at the time of the alleged defilement. That the complainant testified that she had sexual intercourse with the appellant whom she positively identified and the clinical confirming that penetration had occurred.
10. Learned counsel also submitted that the appellant’s defence had not been ignored by the trial court as the appellant did not deny knowledge of the complainant.
Duty of this court
11. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
12. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called three witness.
13. PW 1, S.M.I. was the complainant. She was 16 years old on the date of the alleged offence having been born on 8/8/2006 according to her evidence, that of her mother and the certificate of birth produced in evidence. She was a student in secondary school in form 2 at the time. It was unnecessary for the court to conduct a voire dire examination of her as it did. She said the appellant was her boyfriend from March 2021 and they visited each other often. On 28/11/2021, a Sunday, she left their home at night and went to meet the appellant on the road. They went to the appellant’s rented premises and spent the night together. They engaged in sexual intercourse. It was not the first time. The appellant went out and came back later in the day and told her that her mother was looking for her. He told her to go to his home and she did. She stayed there without bathing until Wednesday when her mother went there for her with their block leader. She was taken for medical examination the following day. After that, she recorded her statement with the police. The appellant was arrested afterwards.
14. In cross-examination, PW 1 said that she did not get to know the appellant by any other name other than Samuel Kariuki. That she knew him by his nickname. She said that she left church and used a motorcycle to town and while she was leaving, she met with the appellant.
15. PW 2, C.N.M. the complainant’s mother testified that on the material day she left church with PW 1 and went to town where she left her. PW 1 did not return home that evening. She started searching for her the following day. She met the appellant with his sister and asked them if they had seen PW 1. The appellant told her that he had never seen her and they had never met since they moved from Rwambiti but she could go look for her at mama Njamba’s. PW 2 went there but did not find the complainant. She reported to the police.
16. On Wednesday she met one Christine, a shopkeeper who sent her to where PW 1 had been staying. PW 2 went and to the block leader and came back with him who went to a homestead and found PW 1 there. PW 1 was arrested and taken to the police station. PW 2 left her there for interrogation. She took her to hospital the following day.
17. According to PW 2, at the hospital, it was confirmed that PW 1 had engaged in sexual intercourse and sperms were seen. The appellant called her on Friday for them to talk. She arranged with the investigating officer and they laid an ambush. The appellant showed up with his mother and he was arrested.
18. In cross-examination, PW 2 said that Christine told her that her daughter had been staying in the appellant’s house. She however did not know if the appellant lived there. She said she knew the appellant’s sister Jane but did not know him personally. Initially she had said that she knew him by seeing him around. She said that the appellant rides a boda-boda. She said that the appellant went to meet her with his mother who also admitted that he had been with the complainant.
19. PW 3, Dr. Nelly Nyaga is a clinical officer at Kianyaga hospital. She was the one who examined the complainant on 2/12/2021 and completed her P3 form and PRC form. She said the complainant was in company of her mother and a police officer. She had no complaint when she saw her. The complainant told PW 3 that she had been at Elias Njamba, her boyfriend’s house where she was found and taken to the hospital for examination. According to PW 3 there were no significant findings arising from the examination of the complainant’s genitalia in relation to the alleged defilement. The complainant had an urinary tract infection for which she was treated. However, the complainant’s hymen was not intact and it had an old scar. Examination results of all other systems returned normal results.
20. In cross-examination, PW 3 said reiterated that the complainant told her that she had been at Njamba’s and she did not say that she was having sexual intercourse with him.
21. PW 4, PC Dorcas Nyaga was the investigating officer in the case. She took the statements of the witnesses and had the appellant arrested and charged for the offence.
22. According to the investigating officer, the information she got from the complainant was that she was picked by one Elias Kinyau Njamba a boda boda rider and they went to the complainant's home where she picked a few of her clothes and left with Elias. On the way, they met the complainant’s mother, PW 2 near a school. PW 2 tried to flaf them down to stop but they did not but went their way. PW 2 went home to wait for PW 1 but she did not return. The mother did not report the disappearance of PW 1. The complainant told the investigating officer that she had slept at her friend Elizabeth’s home. PW 1 also told the investigating officer that she was a virgin. She took her to hospital where PW 1 said that she had been staying and engaging in sexual intercourse with Elias Njamba. The mother said she had found her at Samuel Waweru’s home.
23. The following day when the investigating officer took the complainant’s story, she changed her story and said that she had been with and had sex with one Samuel Waweru and that she had been lying earlier about Njamba.
24. PW 4 said that they went to Samuel’s home but did not find him. They also went to Elias’ home and he was not there. Elias’ father confirmed that on 28th the complainant had been there and asked about Elias and left. The people at Samuel’s home said that they had never seen the complainant.
25. PW 4 said that she arrested the appellant from their home and the complainant identified him as the person she had been with.
26. In cross-examination, the investigating officer said that she was aware that what the complainant stated at the police station and in hospital were different. She said she did not arrest Njamba as he ran away. PW 4 further said that she had spoken to the appellant’s mother and she said she had never seen the complainant at her home.
27. PW 4 further said that the complainant told PW 4 that the appellant’s name was Samuel but PW 4 later learnt the he was Daniel.
28. DW 1, Daniel Kariuki Mwaniki the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said he knew the complainant as she used to visit his friend Elias Kinyua alias Njamba, their neighbor and they used to be together.
29. DW 1 said further that in spite of the complainant saying that she knew him for five to six months, she did not even know his name. He said he is married with a wife and child. He said that the complainant’s mother lied about his arrest as he was arrested from their home and not at a hotel. He said the block leader who was alleged to have picked the complainant from their home did not record a statement.
30. DW 1 said that the complainant had lied about being with him.
31. In cross-examination, the appellant denied that he was known as Samuel. He said that Elias is a fellow student of PW 1.
32. DW 2, Mary Keriko Kinyua is the appellant’s mother. She said that she did not know the complainant or her mother and that the complainant was not found at her home. She said she asked the block leader about it and he denied knowledge of the same. She said that the appellant is married and she stays with his wife.
33. DW 3, Jane Waruguru is the appellant’s sister. She said that the complainant was not known to her and she had never seen her. On the day the complainant was allegedly taken from their home she was there but the complainant was not there.
34. In cross-examination she said that on the date of arrest she got home and was informed that the appellant had been arrested.
35. DW 4, Hilda Muthoni is the appellant’s wife and they live together. She was 18 years old having been born on 19/9/2002. She had a child born on 12/4/2022 when she was 17 years old. She said that the charges against the appellant were false as the complainant was not found at their home. She said that when the appellant was arrested she was on the farm with his mother.
Analysis
36. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court reached a correct conclusion in its finding that the prosecution had proved its case against the appellant beyond a reasonable doubt.
37. Learned counsel for the appellant submits that the issue for determination is whether the offence of defilement was proved beyond a reasonable doubt, and if so, whether the appellant was proved to be the person who committed it. I agree.
38. Section 8(1) and 8(4) of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
S.8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
39. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
40. The learned trial magistrate set out the essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them.
41. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 16 years through the certificate of birth produced in evidence as well as the evidence of the complainant and that of her mother. That finding was correct and is upheld.
42. The contentious issues are whether there was evidence to prove identification of the appellant as the perpetrator of the alleged defilement and whether penetration was proved.
43. From my consideration of the evidence before the trial court, I find that the complainant was the only witness on the elements of identification of the perpetrator of the alleged defilement and of penetration. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
44. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behoves the court first to determine whether there is any other evidence besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it.
45. If there is no other evidence besides that of the victim the court then has to go further and indicate that it is relying on the evidence of the victim alone and record in the proceedings that the victim has told the truth.
46. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
47. Was there corroboration of the complainant’s evidence of identification and penetration?
48. The complainant’s mother alleged that she found her at the appellant’s mother’s home and that the appellant had called her for a discussion over the issue and that she went to see her with his mother.
49. PW 2 said that she was directed to where her daughter was by one Christine and then she took the block leader and went and found her at the appellant’s mother’s home. Neither the said Christine nor the block leader were made available to testify in spite of them being the ones who allegedly assisted PW 2 to find the complainant. There is no indication from the investigating officer that she even summoned either of them to record a statement. These witnesses were crucial to confirm whether indeed the complainant had been and was found at the home of the appellant. The inference that ensues is that if called, they would have given evidence that was unfavourable to the prosecution’s case. This will become apparent in the ensuring consideration of the evidence. In the case of Bukenya -vs- Uganda [1972] EA 549, the Court of Appeal held that a failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution case, and acquit the accused person. I find herein that the failure to call these two material witnesses weakened the prosecution’s case.
50. PW 2’s evidence that the appellant was arrested at a hotel while he was in company of his mother, DW 2, where they had gone to meet her to discuss the issue was discounted by the arresting who was also the investigating officer who said he arrested the appellant from his mother’s home. This major contradiction in the prosecution’s evidence was not resolved.
51. The learned trial magistrate found that the version by PW 1 of what transpired on 28/11/2021 was not disputed by the appellant. Clearly that was a wrong assessment of the evidence. PW 1 said in evidence that she was with the appellant at his rented house. The appellant denied that he was ever with the complainant on that evening and night. He called DW 1, DW 2 and DW 3 all who said that she was not with her. It caanot be said that such evidence was not disputed.
52. But more fundamentally, the complainant herself told the clinical officer and the investigating officer that she was with one Elias Njamba on that evening and night. She also mentioned another person called Samuel Waweru, which name the investigating officer from wherever, christened the appellant and took him for trial with until the appellant protested. The charge was then amended to make it his alias name. It was the appellant’s contention and which I find quite logical that the complainant could not allege that she had befriended him for six months and yet did not know his proper name.
53. The learned trial magistrate also found that identification of the appellant as the perpetrator of the alleged defilement had been proved by way of recognition. That the appellant had confirmed that he used to see the complainant with his neighbor and friend Njamba. On the appellant’s contention that he was not a boyfriend of the complainant because she did not even know his name, the learned trial magistrate found that it was not strange for one to give a false name which another would know them as. I do not understand how the learned trial magistrate arrived at such a conclusion unless it was a supposition which is not allowed in a trial like this.
54. It is true as found by the learned trial magistrate that the two were not strangers. But that the appellant was the one who perpetrated the alleged defilement needed further and better interrogation.
55. The appellant vehemently denied that he had any association with the complainant leave alone being her boyfriend. He denied that he was with her on the material night and the subsequent days. His witnesses supported that evidence.
56. As submitted by learned counsel for the appellant the complainant gave materially contradictory stories of the person she was with and who engaged in sexual intercourse with her. To the clinical officer and the investigating officer, she said that she was with Elias Njambi. A day later, she changed the story to say that she was with the appellant. What I find most disturbing is that the investigating officer and even the learned trial magistrate gave no regard to this issue. That a witness who jumps from one story to another can be believed as being honest and truthful was a finding by the learned trial magistrate not based on evidence on record. This is a school girl who left home and even picked her clothes without her mother’s permission. Her mother spotted her being ferried on a motor cycle by the ferry person she told the clinical officer and the investigating officer that she was with. Her mother flagged her down but she ignored her and went her way. She stayed away for three days. In that regard, her evidence must be given very careful scrutiny. On that basis, the complainant was clearly an untruthful witness whose evidence should not have been believed by the learned trial magistrate to found a conviction for the appellant.
57. I am tempted to believe that the complainant’s mother found her daughter at another man’s home. She called that young man and had discussions about the issue over tea at a hotel as she said. Whatever they agreed must have pleased the complainant's mother. They probably even agreed that the culprit young man goes into hiding because the investigating officer said that he had vanished, unlike the appellant who had no reason to and was available all the time. However, since the complainant’s mother had reported the case to the police and her daughter was a student, she had to save face. She most probably went home and agreed with her daughter that they turn to the appellant as the complainant, for whatever reason. After all the appellant was a close neighbor and friend of Elias Njamba and was recently married to another young girl. It would be quite easy to implicate him as the culprit.
58. The learned trial magistrate failed completely to give credence to the strong evidence tendered by the appellant and corroborated by his witnesses that he was not at all involved in the alleged defilement of the complainant. She went off tangent to rely on irrelevant issues of the marriage of the appellant to DW 4. The appellant had not been found guilty of marrying an underage girl. The appellant may as well have a defence under section 8(5) of the Sexual Offences Act for his relationship with DW 4. The learned trial magistrate also found that the appellant did not live with his wife in the rented house in town. I have looked at the evidence tendered and I have not found where any witness said so.
59. On the issue of penetration, the learned trial magistrate found that the medical documents showed that that PW 1 had been penetrated. She went on to berate the clinical officer for finding that the complainant had a raptured hymen but with an old scar and why she had not found evidence to corroborate the act of recent sexual activity by the complainant such as spermatozoa yet the complainant had said that they had unprotected sexual intercourse. The learned trial magistrate remarked, “she (the clinical officer) should have been put to task to explain how genital organs would appear if there was recent sexual activity for one who is not a virgin and how much time it would take to look like the genitals of another non virgin who has not had recent sexual activity.” Such a remark can lead one to think that the learned trial magistrate was bent on looking for evidence to convict the appellant of the offence. She kept observing in her judgment that the clinical officer was not led to explain one issue or the other that could have established recent sexual activity. That was not an impartial consideration of the evidence on record.
60. As stated above, the only positive finding of penetration in the medical evidence tendered was that the complainant’s genital organ had a broken hymen with an old scar. The treatment notes and the P3 form both indicate that the complainant had an old scar of a broken hymen in her genital organ. Consequently, it could not be the case that the evidence of her broken hymen alone would be taken as corroboration of her allegation that the appellant or any other person for that matter had engaged in penetrative sexual intercourse with her on 28/11/2021. This is not to say that it could not be the case that someone did engage in sexual intercourse with her but that the broken hymen alone could not be evidence to support her evidence of recent sexual intercourse.
61. The learned trial magistrate was therefore not correct in her finding that there was corroboration of the complainant’s evidence of penetration by way of the medical evidence. That means the only evidence of penetration was the word of the complainant.
62. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
63. In this case, the court could rely on the complainant’s uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
64. The learned trial magistrate indicated in the judgment that she found the complainant to be truthful when she was testifying. I have found above that she was not.
65. Yet again, there is no indication that the learned trial magistrate warned herself of the danger of relying on the uncorroborated evidence of the complainant. I find that the learned trial magistrate failed to direct herself appropriately before basing her finding that penetration of the complainant’s genitalia had been proved upon the sole evidence of the complainant alone.
66. The appellant presented a defence denying the allegations by the complainant. The learned trial magistrate found that the evidence was not consistent but that I find was a wrong assessment. The appellant was throughout insisting that he never had any association with the complainant and that he had not been w
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