(Being an appeal against the conviction and sentence by Hon. David O. Odhiambo (SRM) on 29 th August 2024 in Mombasa Chief Magistrate’s Court Criminal Case E120 of 2021, Republic v Dennis Ndege Mos
Background
The appellant, Dennis Ndege Mose, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars being that Dennis Ndugu Mose, on the 27 th day of August 2021 at Migadini Area in Changamwe sub-county within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of TAW a girl aged 15 years old.
In the alternative count, the appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars being that Dennis Ndugu Mose, on the 27 th day of August 2021 at Migadini Area in Changamwe sub-county within Mombasa County, intentionally and unlawfully caused his penis to rub the vagina of TAW a girl aged 15 years old.
The trial magistrate considered the evidence of the five prosecution witnesses and the sworn statement of the appellant and convicted the appellant who was sentenced to serve 20 years in prison.
The appellant was aggrieved by the conviction and sentence and he sought leave to appeal herein on the following amended grounds: -
THAT the learned trial magistrate erred in law and fact by not observing that the circumstances governed by the crime scene were not conducive for positive identification
THAT the learned trial magistrate erred in law and fact for not appreciating that the issue of penetration was not established as to who penetrated the minor through penetrative investigation by the prosecution particularly on medication
THAT the learned trial magistrate erred in law and fact for not noting that the process used to establish the age of the victim was not legal and procedural
THAT the learned trial magistrate failed to observe that the prosecution case was not proved beyond reasonable doubt due to some inconsistencies featured in it
THAT the learned trial magistrate failed to note that the minor had intellectual disability which obviously hindered her mind to account for what exactly transpired a situation supported by the doctor.
THAT the learned magistrate failed to consider my defence evidence out of any legal stand, that as the prosecution failed to water it down
The appellant prayed that the appeal be allowed, conviction quashed and sentence set aside. The appeal was canvassed by way of written submissions.
Prosecution case
PW1, an aunt of the complainant, testified that the complainant was born on 7th December 2005 and had been staying with her for three months. It was her testimony that on 27th August 2021, she came from work at 7pm and didn’t find the complainant at home. The complainant had said she went to buy potatoes. PW1 sent her children to look for her, but they didn’t find her. The complainant returned at 9pm looking sad. PW1 stated that the accused introduced himself as Kevo and took the complainant to a building under construction, about 100 metres away. They went to the building but didn’t find anyone, only a black nylon on the floor where the complainant had been made to lie. PW1 stated that the said Kevo had sex with the complainant. As they were leaving the building, they met a man whom the complainant identified as Kevo, the one who had defiled her. They arrested the man, but he ran away before the police could arrive. They then reported to the police and took the complainant to the hospital for treatment (Exh. 2), where she was issued with a PRC form (Exh. 3) and P3 form (Exh. 4). A few days later, Kevo was seen in Magongo and was arrested. It was her testimony that the complainant had a psychological problem (Exh. 5).
On cross-examination by the accused, PW1 stated that the appellant had deceived the complainant that his name was Kevo. She stated that the appellant moved out of the house where he was staying after the incident. She added that a phone was recovered inside the incomplete building, and people were calling and asking for the accused, though she didn’t know if the phone belonged to him. She added that the complainant informed her that she had been forced into the building by three people, but it was the accused who defiled her.
PW2, Peter Dede a clinical psychologist from Port Reitz Hospital, stated that he examined the complainant and found she was suffering from intellectual disability, which affected her studies and communication skills. He prepared a report (Exh. 5) to help her parents move her from a regular school to a special school.
On cross-examination by the accused, PW2 stated that he was only concerned with the mental status of the complainant. He reiterated that the complainant was taken to him thrice, and he found she had intellectual disability. The report was meant to move her from a regular school to a special school.
PW3, TAW, testified that on 27th August 2021 at 6pm, she was sent to buy potatoes. She went to the shop but didn’t find the potatoes. On her way back, she met people around a building under construction. The men covered her face, and she lost consciousness. She woke up and found the accused on top of her, and she was naked. She added that the accused was also naked. She stated that she had a red t-shirt (Exh. 6), black trouser (Exh. 7), and pink panty (Exh. 8). She stated that the accused had inserted his penis into her vagina. She then went home and told her aunt what had happened. They went to the incomplete building and found the accused, who ran away upon seeing them. The accused was caught but escaped when asked what he had done to the complainant. She was then taken to the police station and to the hospital for examination. It was her testimony that the accused had told her his name was Kevin and that he loved her. She stated that the accused used to send her cousin to greet her,
On cross-examination by the accused, PW3 stated that the incident happened around 6pm and that two people held her and covered her mouth. She couldn’t raise an alarm because she had lost consciousness. She felt pain after the incident and took long to reach home. She stated that she was attacked by three people and didn’t know if her aunt had a grudge with the accused. She used to see the accused before the incident but didn’t know his name. She added that she didn’t know the people who were with the accused.
On re-examination, PW3 stated that she wasn’t told what to say in court and that she didn’t know if her aunt had a grudge with the accused, as they had never spoken.
PW4, PC Melody Hassan (104720) from Chaani Police Station, was the investigation officer. She stated that the complainant was taken to the police station by her aunt. On interrogation, the complainant told her that she had been sent to buy potatoes and on her way home, she was called by the accused. Her face was covered, and she lost consciousness. It was her testimony that the complainant woke up inside an incomplete building, found herself naked, and the accused was on top of her. She added that the person who covered her face was different from the one who defiled her (the accused). She took the aunt to the scene, and when the accused saw them, he ran away but was well known in the area and was properly identified. She then sent them to the hospital for examination. On 9th September 2021, she was informed the accused had been spotted in Magongo and arrested him. She added that the complainant had mental incapacity but was able to identify the accused, who had told her his name was Kevo. She visited the scene, which was on the first floor of an incomplete building.
On cross-examination by the accused, PW4 stated that the incident happened at 6pm, and a report was made the same day around 9pm. The accused was arrested days later after being identified by the complainant and her aunt. She admitted she didn’t conduct a DNA test. She stated that a phone belonging to the accused was recovered at the scene but it was not taken to Safaricom to establish ownership.
PW5, Dr. Khadija Bashir from Coast General Hospital, produced the P3 form for the complainant, filled by someone she didn’t know but asserted it was genuine as it had the institution’s stamp. She also produced a PRC form, which showed the complainant had been dragged by people, lost consciousness, and woke up to find a man on top of her. She stated the complainant had a broken hymen with fresh scars, bruises on her genitalia, and whitish discharge. The outer genitalia were inflamed with bruises. Treatment notes showed the complainant was attacked by three men, dragged to a construction site, and defiled. She had tenderness on the left cheek. The hymen was broken with fresh scars, and slight bruises around the genitalia indicated penile penetration.
On cross-examination by the accused, PW5 stated the complainant reported being attacked by three unknown men but was defiled by one. She went to the hospital the same day and hadn’t changed clothes. The whitish discharge wasn’t clear if it belonged to a male or female.
Defence Case
In his defence, the accused explained how he left his rural home in Kisii on 7th September 2021 and arrived in Mombasa on 10th September 2021 after the bus he was travelling in developed mechanical problems. He stated that shortly before they reached Mombasa, the bus was stopped at a road block in a place he did not know and the police ordered those who did not have face masks to get out of the bus. He stated that he was among the people who did not have face masks and they were taken to the police station and the OCS asked for Sh.5,000 from everyone in order to be released. He stated that everyone paid money and was released except him and he was told that he would be taken to the court. He stated that he was shocked when he was charged for defilement when he was arraigned in court. He added that he was a visitor in Mombasa. He added that the phone which was allegedly found at the scene was not his. He also added that he asked for DNA test to be done on him but the same was not done.
Appellant’s Written Submissions
The Appellant submitted that the circumstances surrounding the crime scene were not conducive for a positive identification. That the victim, PW3 TERRY, suffered from an intellectual disability, which significantly impaired her ability to identify her assailant accurately. They opined that the evidence of the victim’s condition affected her cognitive functions, including memory and communication.
That PW3 TERRY testified that she was accosted by two unknown men, yet she later allegedly identified the Appellant as "Kevo." therefore this inconsistency raises serious doubts about the reliability of her identification. Furthermore, the incident occurred at night, and the victim took an unusually long time (one hour) to walk a distance of 100 meters, further undermining her credibility.
The prosecution failed to provide a proper description of the assailant in the first report, and no corroborative evidence was adduced to link the Appellant to the offence. The reliance on the victim’s testimony alone, given her disability and the contradictory evidence, renders the identification unsafe.
While the fact of penetration is not disputed, the prosecution failed to establish that the Appellant was the perpetrator. The victim’s inability to identify her assailant, coupled with the lack of forensic evidence (e.g., DNA analysis of the black nylon spread at the scene or the victim’s clothing), creates reasonable doubt.
That the prosecution’s case rested solely on the victim’s unreliable testimony, which was further tainted by her intellectual disability. Without corroborative evidence, the conviction under Section 8(1) and 8(3) of the Sexual Offences Act cannot stand.
That the prosecution failed to prove the victim’s age conclusively and the birth certificate presented was merely marked for identification (MFI-1) and not formally admitted as an exhibit. They pointed out that in the case of Indes Ral Sharma v. Reginam (1983) 19 E.A.C.A. 310, it was stated that a document marked for identification cannot be treated as evidence unless properly proved and admitted.
That the trial court’s reliance on judicial notice under Section 60 of the Evidence Act was misplaced, as the document’s authenticity and the signatory’s credentials were not verified. The age of the victim, being a critical element in defilement cases, was not proved beyond reasonable doubt.
That the Appellant’s defence was not adequately considered. The prosecution’s case was riddled with inconsistencies, and the Appellant’s alibi was not disproved. The trial magistrate erred in dismissing the defence without proper evaluation.
Analysis and Determination
This being the first appellate court, I am guided by the principles in D avid Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
After considering the ground of appeal, records from the trial court and the appellant’s written submissions, issues for determination are as follows:-
Whether the circumstances surrounding the crime scene were conducive for proper identification
Whether the appellant was properly identified as the penetrator
Whether the age of the victim was properly verified in court
Whether there were material inconsistencies in the prosecution’s evidence
Whether the complainant’s intellectual disability hindered her ability to account for what exactly happened on 27th August 2021
Whether the appellant’s defence was considered in the judgment of the trial magistrate
Whether the circumstances surrounding the crime scene were conducive for proper identification
THE CRIME SCENE
28. The court notes that the minor was able to take the mother to the place where she was defiled. Further the presence of a black nylon paper at the scene was as the minor had told the mother and this shows she had been there before and she was telling the truth.
PW1 stated that the appellant ran away from her and the complainant when they returned to the crime scene with the compllainant, which strongly indicates a guilty conscience.
Further, the presence of a mobile phone tied the at the crime appellant strongly points to the fact that the appellant was indeed in the vicinity. This is corroborated by the fact that the appellant was enquired about by people calling the mobile phone.
Whether the appellant was properly identified as the penetrator
In R v. Turnbull [1976] 3 All ER 549, it was held that;-
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.
PW3 testified that when she regained consciousness, she found the appellant on top of her. She testified that she had seen the appellant before, that he even sent her cousin to greet her, therefore the appellant was not unknown to her.
Penetration was also proved by the PRC form presented to the court by PW5.
Whether the age of the victim was properly verified
The prosecution through PW1, confirmed the age of the complainant through her birth certificate dated 7th December 2005 as 15 years old at the time the offence occurred.
In the case of Mwalango Chichoro vs R, Mombasa Criminal Appeal no. 24 of 2015, the Court of Appeal held that:-
“the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by 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. It has even been held in a long line of decisions from the high court that age can also be proved by observation and common sense”.
The appellant as well did not contest the authenticity of the birth certificate throughout the trial proceedings.
Therefore this court establishes that the prosecution proved the age of the victim beyond reasonable doubt.
Whether there were material inconsistencies in the prosecution’s evidence
The Appellant highlighted contradictions within the prosecution's case. These inconsistencies included:
Discrepancies in the complainant’s account, specifically her initial claim of an attack by three men versus her subsequent assertion that the appellant alone was responsible for the penetration.
Contrasting testimonies between PW1, who alleged the appellant lured the complainant to the scene, and PW3 (the complainant), who described being dragged by three assailants.
In the case of Erick Onyango Ondeng’ v Republic [2014] eKLR, it was held that;-
Only "grave and fundamental" inconsistencies could invalidate a conviction, and minor discrepancies in peripheral details are insufficient to undermine the core prosecution narrative.
In the case of Philip Nzaka Watu v Republic [2016] eKLR it was held that contradictions unrelated to the identification of the accused or the act of penetration are immaterial.
This court analysed the inconsistencies and determined that they pertained to secondary details and are minor. The complainant consistently identified the appellant as the perpetrator of the penetration, and this was supported by medical evidence (PW5’s testimony) confirming the penetration. The contradictions are not significant and do not cast doubt on the appellant’s guilt. Ultimately, this court has concluded that no material inconsistencies existed within the prosecution’s evidence.
Whether the complainant's intellectual disability hindered her ability to account for events
The Appellant raised the issue of the Complainant's intellectual disability and its potential impact on her ability to provide reliable testimony.
PW2, identified as a clinical psychologist, testified that the Complainant suffered from an intellectual disability that affected her communication skills. However, PW2 also affirmed the Complainant's capacity to understand and recount events.
In Republic v Mwangi [1983] KLR 327, the court held that a witness’s mental disability does not automatically render their testimony unreliable if they demonstrate coherence and consistency.
Mutunga v Republic [2007] eKLR emphasized that Section 124 of the Evidence Act permits reliance on a vulnerable witness’s testimony if the court is satisfied of its truthfulness.
Analyzing the evidence, the trial magistrate had the opportunity to assess the Complainant’s testimony directly and found it credible, notwithstanding her disability. The Complainant’s identification of the Appellant and her detailed account of the attack were noted for their consistency.
Whether the appellant’s defence was considered in the judgement of the trial magistrate
It is evident that the trial court considered the appellant’s defence in its judgment as shown on page 7 of the record. The appellant stated that he was not in Mombasa County at the time of the offence. The appellant claims the prosecution “watered down” his defence so that the learned magistrate would not consider it, but the prosecution did not even have enough time to verify his alibi. Furthermore, the learned magistrate considered the contradictions brought forward by the appellant but dismissed them due to the contradictions not being fatal. Therefore the ground of appeal herein fails.
I find that;-
The circumstances of identification were sufficiently reliable.
The appellant was properly identified as the one who penetrated
The complainant's age was conclusively proved.
There were no material inconsistencies in the prosecution’s case.
The complainant’s intellectual disability did not impair her testimony.
The trial magistrate adequately considered the appellant’s defense.
Based on the foregoing analysis of the evidence on record, I find that the appeal lacks merit and is accordingly dismissed.
It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 29 th day of MAY 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPELLANT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
Background
The appellant, Dennis Ndege Mose, was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars being that Dennis Ndugu Mose, on the 27 th day of August 2021 at Migadini Area in Changamwe sub-county within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of TAW a girl aged 15 years old.
In the alternative count, the appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars being that Dennis Ndugu Mose, on the 27 th day of August 2021 at Migadini Area in Changamwe sub-county within Mombasa County, intentionally and unlawfully caused his penis to rub the vagina of TAW a girl aged 15 years old.
The trial magistrate considered the evidence of the five prosecution witnesses and the sworn statement of the appellant and convicted the appellant who was sentenced to serve 20 years in prison.
The appellant was aggrieved by the conviction and sentence and he sought leave to appeal herein on the following amended grounds: -
THAT the learned trial magistrate erred in law and fact by not observing that the circumstances governed by the crime scene were not conducive for positive identification
THAT the learned trial magistrate erred in law and fact for not appreciating that the issue of penetration was not established as to who penetrated the minor through penetrative investigation by the prosecution particularly on medication
THAT the learned trial magistrate erred in law and fact for not noting that the process used to establish the age of the victim was not legal and procedural
THAT the learned trial magistrate failed to observe that the prosecution case was not proved beyond reasonable doubt due to some inconsistencies featured in it
THAT the learned trial magistrate failed to note that the minor had intellectual disability which obviously hindered her mind to account for what exactly transpired a situation supported by the doctor.
THAT the learned magistrate failed to consider my defence evidence out of any legal stand, that as the prosecution failed to water it down
The appellant prayed that the appeal be allowed, conviction quashed and sentence set aside. The appeal was canvassed by way of written submissions.
Prosecution case
PW1, an aunt of the complainant, testified that the complainant was born on 7th December 2005 and had been staying with her for three months. It was her testimony that on 27th August 2021, she came from work at 7pm and didn’t find the complainant at home. The complainant had said she went to buy potatoes. PW1 sent her children to look for her, but they didn’t find her. The complainant returned at 9pm looking sad. PW1 stated that the accused introduced himself as Kevo and took the complainant to a building under construction, about 100 metres away. They went to the building but didn’t find anyone, only a black nylon on the floor where the complainant had been made to lie. PW1 stated that the said Kevo had sex with the complainant. As they were leaving the building, they met a man whom the complainant identified as Kevo, the one who had defiled her. They arrested the man, but he ran away before the police could arrive. They then reported to the police and took the complainant to the hospital for treatment (Exh. 2), where she was issued with a PRC form (Exh. 3) and P3 form (Exh. 4). A few days later, Kevo was seen in Magongo and was arrested. It was her testimony that the complainant had a psychological problem (Exh. 5).
On cross-examination by the accused, PW1 stated that the appellant had deceived the complainant that his name was Kevo. She stated that the appellant moved out of the house where he was staying after the incident. She added that a phone was recovered inside the incomplete building, and people were calling and asking for the accused, though she didn’t know if the phone belonged to him. She added that the complainant informed her that she had been forced into the building by three people, but it was the accused who defiled her.
PW2, Peter Dede a clinical psychologist from Port Reitz Hospital, stated that he examined the complainant and found she was suffering from intellectual disability, which affected her studies and communication skills. He prepared a report (Exh. 5) to help her parents move her from a regular school to a special school.
On cross-examination by the accused, PW2 stated that he was only concerned with the mental status of the complainant. He reiterated that the complainant was taken to him thrice, and he found she had intellectual disability. The report was meant to move her from a regular school to a special school.
PW3, TAW, testified that on 27th August 2021 at 6pm, she was sent to buy potatoes. She went to the shop but didn’t find the potatoes. On her way back, she met people around a building under construction. The men covered her face, and she lost consciousness. She woke up and found the accused on top of her, and she was naked. She added that the accused was also naked. She stated that she had a red t-shirt (Exh. 6), black trouser (Exh. 7), and pink panty (Exh. 8). She stated that the accused had inserted his penis into her vagina. She then went home and told her aunt what had happened. They went to the incomplete building and found the accused, who ran away upon seeing them. The accused was caught but escaped when asked what he had done to the complainant. She was then taken to the police station and to the hospital for examination. It was her testimony that the accused had told her his name was Kevin and that he loved her. She stated that the accused used to send her cousin to greet her,
On cross-examination by the accused, PW3 stated that the incident happened around 6pm and that two people held her and covered her mouth. She couldn’t raise an alarm because she had lost consciousness. She felt pain after the incident and took long to reach home. She stated that she was attacked by three people and didn’t know if her aunt had a grudge with the accused. She used to see the accused before the incident but didn’t know his name. She added that she didn’t know the people who were with the accused.
On re-examination, PW3 stated that she wasn’t told what to say in court and that she didn’t know if her aunt had a grudge with the accused, as they had never spoken.
PW4, PC Melody Hassan (104720) from Chaani Police Station, was the investigation officer. She stated that the complainant was taken to the police station by her aunt. On interrogation, the complainant told her that she had been sent to buy potatoes and on her way home, she was called by the accused. Her face was covered, and she lost consciousness. It was her testimony that the complainant woke up inside an incomplete building, found herself naked, and the accused was on top of her. She added that the person who covered her face was different from the one who defiled her (the accused). She took the aunt to the scene, and when the accused saw them, he ran away but was well known in the area and was properly identified. She then sent them to the hospital for examination. On 9th September 2021, she was informed the accused had been spotted in Magongo and arrested him. She added that the complainant had mental incapacity but was able to identify the accused, who had told her his name was Kevo. She visited the scene, which was on the first floor of an incomplete building.
On cross-examination by the accused, PW4 stated that the incident happened at 6pm, and a report was made the same day around 9pm. The accused was arrested days later after being identified by the complainant and her aunt. She admitted she didn’t conduct a DNA test. She stated that a phone belonging to the accused was recovered at the scene but it was not taken to Safaricom to establish ownership.
PW5, Dr. Khadija Bashir from Coast General Hospital, produced the P3 form for the complainant, filled by someone she didn’t know but asserted it was genuine as it had the institution’s stamp. She also produced a PRC form, which showed the complainant had been dragged by people, lost consciousness, and woke up to find a man on top of her. She stated the complainant had a broken hymen with fresh scars, bruises on her genitalia, and whitish discharge. The outer genitalia were inflamed with bruises. Treatment notes showed the complainant was attacked by three men, dragged to a construction site, and defiled. She had tenderness on the left cheek. The hymen was broken with fresh scars, and slight bruises around the genitalia indicated penile penetration.
On cross-examination by the accused, PW5 stated the complainant reported being attacked by three unknown men but was defiled by one. She went to the hospital the same day and hadn’t changed clothes. The whitish discharge wasn’t clear if it belonged to a male or female.
Defence Case
In his defence, the accused explained how he left his rural home in Kisii on 7th September 2021 and arrived in Mombasa on 10th September 2021 after the bus he was travelling in developed mechanical problems. He stated that shortly before they reached Mombasa, the bus was stopped at a road block in a place he did not know and the police ordered those who did not have face masks to get out of the bus. He stated that he was among the people who did not have face masks and they were taken to the police station and the OCS asked for Sh.5,000 from everyone in order to be released. He stated that everyone paid money and was released except him and he was told that he would be taken to the court. He stated that he was shocked when he was charged for defilement when he was arraigned in court. He added that he was a visitor in Mombasa. He added that the phone which was allegedly found at the scene was not his. He also added that he asked for DNA test to be done on him but the same was not done.
Appellant’s Written Submissions
The Appellant submitted that the circumstances surrounding the crime scene were not conducive for a positive identification. That the victim, PW3 TERRY, suffered from an intellectual disability, which significantly impaired her ability to identify her assailant accurately. They opined that the evidence of the victim’s condition affected her cognitive functions, including memory and communication.
That PW3 TERRY testified that she was accosted by two unknown men, yet she later allegedly identified the Appellant as "Kevo." therefore this inconsistency raises serious doubts about the reliability of her identification. Furthermore, the incident occurred at night, and the victim took an unusually long time (one hour) to walk a distance of 100 meters, further undermining her credibility.
The prosecution failed to provide a proper description of the assailant in the first report, and no corroborative evidence was adduced to link the Appellant to the offence. The reliance on the victim’s testimony alone, given her disability and the contradictory evidence, renders the identification unsafe.
While the fact of penetration is not disputed, the prosecution failed to establish that the Appellant was the perpetrator. The victim’s inability to identify her assailant, coupled with the lack of forensic evidence (e.g., DNA analysis of the black nylon spread at the scene or the victim’s clothing), creates reasonable doubt.
That the prosecution’s case rested solely on the victim’s unreliable testimony, which was further tainted by her intellectual disability. Without corroborative evidence, the conviction under Section 8(1) and 8(3) of the Sexual Offences Act cannot stand.
That the prosecution failed to prove the victim’s age conclusively and the birth certificate presented was merely marked for identification (MFI-1) and not formally admitted as an exhibit. They pointed out that in the case of Indes Ral Sharma v. Reginam (1983) 19 E.A.C.A. 310, it was stated that a document marked for identification cannot be treated as evidence unless properly proved and admitted.
That the trial court’s reliance on judicial notice under Section 60 of the Evidence Act was misplaced, as the document’s authenticity and the signatory’s credentials were not verified. The age of the victim, being a critical element in defilement cases, was not proved beyond reasonable doubt.
That the Appellant’s defence was not adequately considered. The prosecution’s case was riddled with inconsistencies, and the Appellant’s alibi was not disproved. The trial magistrate erred in dismissing the defence without proper evaluation.
Analysis and Determination
This being the first appellate court, I am guided by the principles in D avid Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
After considering the ground of appeal, records from the trial court and the appellant’s written submissions, issues for determination are as follows:-
Whether the circumstances surrounding the crime scene were conducive for proper identification
Whether the appellant was properly identified as the penetrator
Whether the age of the victim was properly verified in court
Whether there were material inconsistencies in the prosecution’s evidence
Whether the complainant’s intellectual disability hindered her ability to account for what exactly happened on 27th August 2021
Whether the appellant’s defence was considered in the judgment of the trial magistrate
Whether the circumstances surrounding the crime scene were conducive for proper identification
THE CRIME SCENE
28. The court notes that the minor was able to take the mother to the place where she was defiled. Further the presence of a black nylon paper at the scene was as the minor had told the mother and this shows she had been there before and she was telling the truth.
PW1 stated that the appellant ran away from her and the complainant when they returned to the crime scene with the compllainant, which strongly indicates a guilty conscience.
Further, the presence of a mobile phone tied the at the crime appellant strongly points to the fact that the appellant was indeed in the vicinity. This is corroborated by the fact that the appellant was enquired about by people calling the mobile phone.
Whether the appellant was properly identified as the penetrator
In R v. Turnbull [1976] 3 All ER 549, it was held that;-
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.
PW3 testified that when she regained consciousness, she found the appellant on top of her. She testified that she had seen the appellant before, that he even sent her cousin to greet her, therefore the appellant was not unknown to her.
Penetration was also proved by the PRC form presented to the court by PW5.
Whether the age of the victim was properly verified
The prosecution through PW1, confirmed the age of the complainant through her birth certificate dated 7th December 2005 as 15 years old at the time the offence occurred.
In the case of Mwalango Chichoro vs R, Mombasa Criminal Appeal no. 24 of 2015, the Court of Appeal held that:-
“the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by 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. It has even been held in a long line of decisions from the high court that age can also be proved by observation and common sense”.
The appellant as well did not contest the authenticity of the birth certificate throughout the trial proceedings.
Therefore this court establishes that the prosecution proved the age of the victim beyond reasonable doubt.
Whether there were material inconsistencies in the prosecution’s evidence
The Appellant highlighted contradictions within the prosecution's case. These inconsistencies included:
Discrepancies in the complainant’s account, specifically her initial claim of an attack by three men versus her subsequent assertion that the appellant alone was responsible for the penetration.
Contrasting testimonies between PW1, who alleged the appellant lured the complainant to the scene, and PW3 (the complainant), who described being dragged by three assailants.
In the case of Erick Onyango Ondeng’ v Republic [2014] eKLR, it was held that;-
Only "grave and fundamental" inconsistencies could invalidate a conviction, and minor discrepancies in peripheral details are insufficient to undermine the core prosecution narrative.
In the case of Philip Nzaka Watu v Republic [2016] eKLR it was held that contradictions unrelated to the identification of the accused or the act of penetration are immaterial.
This court analysed the inconsistencies and determined that they pertained to secondary details and are minor. The complainant consistently identified the appellant as the perpetrator of the penetration, and this was supported by medical evidence (PW5’s testimony) confirming the penetration. The contradictions are not significant and do not cast doubt on the appellant’s guilt. Ultimately, this court has concluded that no material inconsistencies existed within the prosecution’s evidence.
Whether the complainant's intellectual disability hindered her ability to account for events
The Appellant raised the issue of the Complainant's intellectual disability and its potential impact on her ability to provide reliable testimony.
PW2, identified as a clinical psychologist, testified that the Complainant suffered from an intellectual disability that affected her communication skills. However, PW2 also affirmed the Complainant's capacity to understand and recount events.
In Republic v Mwangi [1983] KLR 327, the court held that a witness’s mental disability does not automatically render their testimony unreliable if they demonstrate coherence and consistency.
Mutunga v Republic [2007] eKLR emphasized that Section 124 of the Evidence Act permits reliance on a vulnerable witness’s testimony if the court is satisfied of its truthfulness.
Analyzing the evidence, the trial magistrate had the opportunity to assess the Complainant’s testimony directly and found it credible, notwithstanding her disability. The Complainant’s identification of the Appellant and her detailed account of the attack were noted for their consistency.
Whether the appellant’s defence was considered in the judgement of the trial magistrate
It is evident that the trial court considered the appellant’s defence in its judgment as shown on page 7 of the record. The appellant stated that he was not in Mombasa County at the time of the offence. The appellant claims the prosecution “watered down” his defence so that the learned magistrate would not consider it, but the prosecution did not even have enough time to verify his alibi. Furthermore, the learned magistrate considered the contradictions brought forward by the appellant but dismissed them due to the contradictions not being fatal. Therefore the ground of appeal herein fails.
I find that;-
The circumstances of identification were sufficiently reliable.
The appellant was properly identified as the one who penetrated
The complainant's age was conclusively proved.
There were no material inconsistencies in the prosecution’s case.
The complainant’s intellectual disability did not impair her testimony.
The trial magistrate adequately considered the appellant’s defense.
Based on the foregoing analysis of the evidence on record, I find that the appeal lacks merit and is accordingly dismissed.
It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 29 th day of MAY 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPELLANT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT