1. The appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act, Cap. 63A. The particulars were that on the 4th day of July 2023 at (particulars withheld) in Nyakach sub-county within Kisumu County, intentionally and unlawfully caused his penis to penetrate the vagina of E.A.O. a child aged 11 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, Cap. 63A, the particulars being that on the 4th day of July 2023 at (particulars withheld) in Nyakach sub-county within Kisumu County, intentionally and unlawfully touched the vagina of E.A.O. a child aged 11 years with his penis.
3. The appellant pleaded not guilty to both the main and the alternative charges and the case proceeded to full trial. At the trial, the prosecution called seven (7) witnesses to support its case.
The Prosecution Case
4. The minor testified as PW1 and she gave sworn evidence after the court conducted a voire dire examination on the minor. She stated that she was 11 years old and a grade 4 pupil. It was her testimony that on 4/7/2023, she left her house to go to her grandmother's house when she met with the accused and the accused asked her to go to his house later at night. That later at 8:00 pm, she went to the accused’s house and found him seated on the ground. That he took her to his bedroom, placed her on his bed, climbed onto it, and then removed her skirt and blouse as well as her pant. That the accused then lay on top of her, removed his penis and inserted it into her vagina, and defiled her thrice.
5. It was further her evidence that she slept at the accused’s house till 5.00 am when the Appellant woke her up and asked her to leave. That when she got home that morning, she told her mother what happened and her mother told her not to go to school so that they could go and report the incident to the police. That at the police station, she was interrogated and later taken to the hospital for treatment.
6. The minor told the court that that was not the first time the accused was defiling her. It was her testimony that she had been to the Appellant’s house five times and that the first time the Appellant gave her Kshs. 20/=, the second time, he gave her Kshs50/= while the third time, he gave her Kshs100/=.
7. She identified the Appellant in court as Baba Hassan and asserted that he was the one who defiled her.
8. PW2, B.A.O., was the minor's mother. She gave evidence and told the court that the minor E.A.O. is her daughter and that she was born on 29.09.2011. She showed the court a copy of her daughter's birth certificate, confirming the same to the court marked MFI 1. It was further her testimony that on 04.07.2023, the Appellant herein went to her house at night and asked her for a sack. That she told him that she had no sack and the Appellant then left and told her that he would return back to his house to eat. That at the time, the subject minor was at her home, boiling some water. That the minor brought her the water but disappeared thereafter. PW2 told the court that the minor herein usually slept with her sister Z in the kitchen and that on that day, Z woke up in the middle of the night and saw that she was missing. Z alerted PW2, asking for EAO’s whereabouts. That PW2 went to the kitchen to check but did not find her. They then searched the entire compound that night but did not find her. That it was not until 5:00 am that they heard the minor return. On confronting her, the minor told them she was coming from Baba Hassan’s (Appellant) house who had defiled her and asked her not to tell anyone about it. That she had been to the Appellant’s house on five previous occasions, and that he had defiled her on all those occasions.
9. That together with the minor’s father, they then reported the matter to the Authorities. That the accused was later arrested by the Area Chief and taken to Pap-Onditi Police Station. That she then accompanied the minor to the hospital where the minor was taken for treatment.
10. PW3 (J.O.A) was the minor’s father. He also testified, telling the court substantially the same facts as the minor’s mother, PW2. PW4 (J.O.) is the minor’s uncle. He told the court that on 5.7.2023, his brother PW3 informed him that the Appellant had defiled the minor in question and asked him to assist in the arrest. That together with the area Assistant Chief, they went to the Appellant’s house and got him arrested, whereupon the Appellant was later taken to Pap-Onditi Police Station. PW5 (L.A.) is the area Assistant Chief, she testified that upon being notified, she proceeded to the Appellant's house and found the Appellant next to his house, but already arrested by the members of the Public. Together with the Area Chief, they then escorted the Appellant to the police station.
11. Bruce Odongo, a Clinician at Nyakach Sub-County who examined and treated the victim herein testified as PW6. He produced in court as evidence, the p3 form in respect of the minor and told court that the victim, E. A. O., a minor aged 11 years old was taken to the facility on 5/7/2023 and seen at 10:30 am. That the minor reported that she had been defiled by a person known to him on 4.7.2023 and that the perpetrator did not use a condom. That from past medical history, the minor had a creamish discharge. The victim was in fair general condition; not jaundiced or pale. Her clothes were clean. She had not taken a shower. On examination of her genitalia, the hymen was broken but not of recent. There was a creamish-like discharge that was smelly; the labia majora and minora were all intact and had no bruises. From the laboratory investigations, the pregnancy test (PT) that was done was negative; UDRL for syphilis was negative; Hepatitis B was negative. A high vaginal swab was done whose appearance was clear. There were puss cells seen under the microscope. There were no spermatozoa; epithelial cells were seen. Urinalysis was done and showed presence of leucocytes stating an active infection. That an impression of defilement was arrived at. The victim was put on emergency contraceptives; given PEP drugs and put on STI treatment drugs to treat the infection. According to PW6, the approximate age of injuries was twelve (12) hours; Nature of offence was defilement. The degree of injury was harm. On additional remarks; the perpetrator had started defiling the minor sometimes earlier on. The witness produced the treatment notes; PRC form and P3 form as PEX 2, 3, and 4 respectively, and the laboratory request form as PEX 5.
12. PW6 also told court that the Appellant was also examined at the facility on 5.7.2023 having been taken to the facility with a history of having defiled a person on 4.7.2023. That on examination, everything was normal. He was uncircumcised; and had no discharge. The laboratory test done on him was UDR for syphilis which was negative; Hepatitis was negative; urinalysis was negative. He was put on STI treatment and also put on PEP. On the p3 form, it was filled out on 5/7/2023. On the state of his clothing, they were clean and well-kept. On generaI medical history, the perpetrator had done sexual gender-based violence (SGBV) at 10:00 pm. He was calm. There were no injuries. He had not received any treatment. The witness produced the p3 form of the perpetrator, his laboratory request form and p3 forms as PEX 6, 7and 8 respectively.
13. PW7 was PC Dennis Juma, a police officer attached to Pap-Onditi police station at the gender-based desk informed the court that he is the investigating officer herein. that on 5/7/2023 at around 8:00 am, the OCS of the said station assigned him a defilement case to investigate. The parents of the victim together with the area Chief took the accused to the station claiming that he had defiled the victim the entire night. That he began investigations by taking both the survivor and perpetrator to hospital for examination then recorded their statements and issued them with p3 forms. He told the court that he visited the scene and established that the perpetrator had been luring the survivor to his house for sex for about five times. That this was the sixth incident when the parents discovered. That after investigations, he charged the accused with the offence of defilement.
14. At the close of the prosecution’s case, the Appellant was placed on his defence, the trial court having found that the prosecution had established a prima facie case.
The Defence case
15. On being put on his defence, the appellant gave sworn evidence but did not call any witnesses. He testified that on 5.7.2023 at around 10:30 pm going to 5:00 pm, he was sleeping in his house when he heard a knock on his door. He went to open and saw PW3, the minor’s father with two of his brothers. That on opening the door, they entered his house and asked for the minor. That when he went out for a short call, he saw a crowd of people, amongst them was the Area Chief who followed him to the house and asked him to bring out the child. That he told the Chief that she was not there, upon which the Chief conducted a search of the house but did not find the child. That the chief later called the father of the child who told him the minor was already at home. The chief later went to the minor’s home but did not return with her alleging that there were contradictory stories as to whether or not he had slept with the minor. That he was taken to the police station where he was arrested and put in cells and later charged with the offence of defilement, which he denied.
16. He told the court that he had not been issued with the minor’s statement. He asserted that allegations against him were false and that in his opinion, the family of the minor were plotting against him to have him put in jail so they could herd their cattle on his land. He added that he is the only surviving child at his home and that all his siblings and parents are dead. They told court that they had had a good relationship before with the family.
17. Upon considering the evidence adduced by both the prosecution and the defence, the learned magistrate found that the prosecution had proved its case beyond reasonable doubt. The court convicted the appellant and sentenced him to 25 years imprisonment.
The Appeal
18. The appellant being dissatisfied with the decision of the trial court, filed this petition of appeal dated 23rd August 2024 wherein he listed the following grounds of appeal; -
i. That the trial learned magistrate erred both in law and fact by meting a mandatory sentence despite the weak circumstances of the case at hand.
ii. That the trial learned magistrate erred both in law and fact by meting a very harsh and excessive sentence not proportional to the circumstances of the case.
iii. That the trial learned magistrate erred in law and fact by failing to consider both the appellant's defense and mitigations.
iv. That the trial learned magistrate erred both in law and fact by convicting and sentencing the appellant by acting on wrong principles.
19. It is therefore his prayer that the appeal be allowed, the sentence set aside, and/or reviewed and be substituted with the least punitive punishment.
20. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
21. The Appellant filed submissions on 7.12.2024 wherein he submitted on six issues. First, he did contend that the prosecution did not prove penetration. That there was no medical evidence adduced to confirm that the appellant herein ever penetrated the vagina of the complainant. He submitted that the medical examination conducted on the genitals of both the Appellant and the complainant revealed no spermatozoa, despite that the same was conducted within 24 hours of the alleged offence and none of them had taken bath. That if there were spermatozoa, the same would have been matched to confirm if the Appellant had actually had sex, and therefore penetrated the vagina of the complainant.
22. It was further the Appellant’s submissions that from the clinical officer’s testimony, there were no injuries to the vagina of the complainant as the labia majora and minora had no bruises; and that the hymen was broken but not recent.
23. Secondly, it was submitted that the age of the complainant was not proven since there was no documentary or medical evidence adduced to confirm that the complainant was a minor aged 11 years as alleged on the charge sheet. That there was no medical age assessment report or birth certificate produced as an exhibit to confirm the age of the complainant. According to the Appellant, while the complainant alleged that she was 11 years old, her mother testified that she was born on 29.9.2011, making the complainant 13 years old. He relied on the case of Kaingu Kasomo v Republic – Criminal Appeal No. 504 of 2020 (UR) on the significance of the need to prove the age of a victim of sexual assault.
24. Third, the Appellant submitted that medical evidence adduced at trial did not corroborate the complainant's case. He submitted that while the medical examination (urinalysis) done on the complainant by the clinical officer (PW6) revealed that the complainant had an active infection, the same test done on the Appellant by PW6 on the same day revealed that the Appellant had no infection.
25. It was therefore the Appellant’s argument that if the complainant had an infection, the same would have been found in the Appellant. The Appellant maintained that the trial court misdirected itself in basing its conviction on the fact that both the Appellant and the complainant had been put on STI treatment. The Appellant asserted that his treatment was simply a precautionary measure since he had no infection at the time.
26. Fourth, the Appellant submitted that his trial was not fair as required under Article 50(2) of the Constitution since he was not allowed to close his case and tender his submissions before the court proceeded to write its judgment; that the court presumed the appellant guilty of the offence he was facing even before writing the judgment since his bond was canceled midstream without giving any reason; that the prosecution failed to supply all the witness statements and any documents that they intended to rely on at the trial and that the magistrate failed to ascertain if the same had been supplied by the prosecution before commencing the trial, contrary to the express provisions of Article 50(4)(b) of the Constitution.
27. Fifth, it was the Appellant’s submissions that the prosecution’s case against him was not proved beyond reasonable doubt as required by the law. According to the Appellant, the prosecution failed to call a crucial witness, that is, the complainant’s younger sister (Z.A) who allegedly informed PW2 and PW3 that the complainant had spent a night away from the house where she slept with her said younger sister.
28. Finally, the Appellant submitted that the trial magistrate failed to consider the Appellant’s mitigation while passing the sentence to the Appellant. That the court failed to consider that the Appellant was a first offender, thereby imposing a sentence which was manifestly high in the circumstances.
29. It was therefore the Appellant’s prayer that the appeal be allowed, the conviction and sentence be set aside and the appellant be set free.
The Respondent’s Submissions
30. The Respondent filed submissions dated 20th November 2024. On the age of the complainant, the Respondent submitted that it was proved that the age of the complainant at the time she was defiled was 11 years old. That the mother of the minor victim, PW2 testified on 30.11.2023 that the minor was born on 29.09.2011. The birth certificate was marked as PMFI 1. That this was corroborated by the evidence of PW6, medical evidence contained in the P3 form which was produced as exhibit 4.
31. Reading proof of penetration, I have noted that the submissions provided by the Respondent do not relate to the facts of the instant case. The Counsel for the Respondent appears to have ‘copy-pasted’ submissions from a different case altogether. I will therefore conclude no submissions have been made by the Respondent on the issue of penetration and treat it as such in my analysis and findings section of this judgment.
32. The Respondent nevertheless concludes by urging this court to find that the appeal lacks merit and should therefore be dismissed, the conviction and sentence passed on the Appellant upheld.
Analysis and Determination
33. In dealing with this appeal, this court is fully cognizant of its duty as the first appellate court as expressed by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
34. Further in the case of Okeno Vs R (1972) EA 32 the court stated as follows on the duty of the first appellate court: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
35. This court is equally aware that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, the court (Mativo, J, as he then was) expressed himself on the issue as hereunder: -
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
36. What amounts to reasonable doubt has been clarified by the Court of Appeal in the case of Moses Nato Raphael vs. Republic [2015] eKLR as follows; -
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated: -
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
37. Guided by the above general principles, I now turn to the instant appeal. The appellant argued that the learned trial magistrate erred in both matters of law and fact by failing to find that the critical ingredients of the offence were not established against the appellant, thereby leaving the conviction unsafe.
i) Whether the ingredients of the offence of defilement were proven.
38. This court notes that the appellant was charged with the offence of defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act, Cap. 63A Laws of Kenya. The said provisions provide as follows: -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
39. In a charge for defilement, the following ingredients of the offence must be proved; the age of the complainant, proof of penetration, and positive identification of the assailant. The Court of Appeal in Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the issue of proof of age; -
“... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victim's age it has to be credible and reliable.”
40. The above position by the Kenyan Court of Appeal is similar to that held by its counterpart, the Ugandan Court of Appeal in the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000 that; -
“In defilement cases medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian, and by observation and common sense.”
41. To prove the age of the complainant, the prosecution produced called PW1, the complainant who testified on 24.08.2023 and told court that she was 11 years old, though she could not at the time remember her date of birth. The complainant's mother also testified as PW2 and told court that the complainant is her daughter and was born on 29.09.2011. The mother showed the court a birth certificate, which though marked (PMFI 1), but was not formally produced in court as an exhibit. I also note that the prosecution relied on the evidence of PW6, the clinical officer who testified that the complainant was 11 years old. Again, no age Assessment Report was produced in court as an exhibit.
42. I have carefully considered the evidence on record regarding the age of the complainant and I find that contrary to the Appellant’s arguments, the age of the complainant was proved by the prosecution to the standards required in law. From the authorities cited above, it is clear that age can be proved by among others, the “oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In the instant case, the evidence of the minor on her age was corroborated by the oral evidence of her mother. It was immaterial that the birth certificate was not formally produced in court.
43. The appellant in his submissions attacked the prosecution case on the basis that from the evidence availed by the prosecution, there were inconsistencies as to the age of the victim. That while the victim testified that she was 11 years old, her mother’s testimony that she was born on 29.9.2011, revealed that she was 13 years old.
44. While the court agrees with the Appellant that there were some inconsistencies in the evidence tendered as to the age of the victim, the court finds that the said inconsistency is minor and therefore not material enough to affect the credibility of the witnesses and cannot vitiate a trial. This view is supported by the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) where Mativo J (as he then was) stated that “Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case.
45. That minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. For it to be material, the inconsistency or contradiction must be one that creates doubt in the mind of the trial court that an accused is entitled to benefit from.
46. The proof of age of the victim in a defilement case is critical since the sentence to be imposed depends on the age of the victim. In Hadson Ali Mwachongo Vs R the Court of Appeal underscored this point when it stated that “The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
47. In this case, this court is satisfied that the age of the victim was proved to the required standards by the prosecution and that the victim was aged 11 years at the material time.
48. Regarding proof of penetration, the court notes that penetration is defined under Section 2 of the Sexual Offences Act as “[t]he partial or complete insertion of the genital organs of a person into the genital organs of another person.”
49. Penetration can be proved through the victim’s sole testimony or through the victim’s testimony corroborated by medical evidence. (See Bassita Hussein vs. Uganda, Supreme Court Criminal Appeal No. 35 of 1995) In this case, the Prosecution presented evidence on the question of penetration when PW1, the complainant testified as follows: -
“The Accused placed me on his bed……He removed my clothes…...then he lay on top of me. He removed his penis and inserted it inside my vagina then defiled me. He defiled me thrice. I had been to his place five times…..”
50. The Appellant in his submissions argued that penetration was not proved. That the basis upon which the trial court arrived at his conviction was flawed. That the conviction was not supported by evidence.
51. I have carefully perused the trial court’s judgment and note that the court in convicting the Appellant stated as follows; -
“Having considered all the above together with the evidence placed before me; I find prosecution to have proved its case against the accused herein beyond reasonable doubt on the main charge as opposed to the alternative charge against the accused herein for the following reasons; -
“1. ………….
2. ……………
3. Prosecution availed as exhibits the p3 forms in respect of both the minor and the accused herein that showed presence of leucocytes from urinalysis done on each of them an indication of an active infection (STI) i.e sexually transmitted infection in respect of both of them to which they were given medication to heal the same. From the history of the said p3 form in respect of the survivor herein, she alleged to have been defiled by a person known to her from 10:00 pm on 4/7/2023 to 5:00 am on 5/7/2023.”
“4. Prosecution availed PRC form and treatment notes as exhibits in respect of the survivor herein that contained the same information captured in the p3 form on record that showed the survivor's hymen as having been broken though not of recent and presence of a creamish foul-smelling discharge that could have been as a result of the sexually transmitted infection suffered by the survivor in the process; [Emphasis added].
52. From a review of the judgment, I agree with the Appellant’s submissions that the evidence on record does not support the finding by the trial magistrate that “both the minor and the accused herein had showed presence of leucocytes from urinalysis done on each of them an indication of an active infection (STI)…..”
53. From the testimony of PW6 (the Clinical Officer), it is clear that while the urinalysis test conducted on the minor revealed the presence of leucocytes, the same test (urinalysis) conducted on the Appellant was negative.
54. Further, I note from the evidence submitted by the prosecution that while the clinical officer (PW6) stated in his testimony to court that “an impression of defilement was reached”, there is no basis in the clinical officer’s evidence for that finding. From the evidence of the clinical officer, on examination of the minor’s genitalia, it was revealed that the hymen was broken but not of recent. There was a creamish-like discharge that was smelly; the labia majora and minora were all intact and had no bruises. That from the laboratory investigations, the pregnancy test (PT) that was done was negative; UDRL for syphilis was negative; Hepatitis B was negative. A high vaginal swab was done whose appearance was clear. There were puss cells seen under the microscope. There were no spermatozoa; epithelial cells were seen.
55. From the evidence of the clinical officer, it is clear that there was no evidence that could prove penetration on or about 4th July 2023 when the offence was alleged to have been committed. This therefore left the prosecution with only the evidence of the minor (PW1) to prove penetration.
56. While it is true that the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence and that the absence of a medical report to support the fact of rape is not decisive (see Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa), Section 124 of the Evidence Act requires that conviction is only to be made on the basis of such uncorroborated evidence if the court, for reasons to be recorded in the proceedings, is satisfied that the alleged victim is telling the truth.
57. Section 124 of the Evidence Act provides as follows; -
“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.” [emphasis is added].
58. Unfortunately, it is apparent from the record, that the trial court did not comply with the provisions of Section 124, particularly the clause that; -
“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, (emphasis added) the court is satisfied that the alleged victim is telling the truth.”
59. In the instant case, this court finds that the omission on the part of the trial court to indicate reasons why the court was satisfied that the complainant (being the sole witness) was telling the truth, as required under Section 124 of the Evidence Act, was fatal and therefore makes the conviction unsafe.
Determination
60. Accordingly, the appeal against conviction is successful and is hereby allowed. The conviction is quashed and sentence set aside and substituted thereof with an order that the Appellant be set at liberty unless otherwise lawfully held under another warrant.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
………………….for the Appellant
………………for the Respondent