' This appeal arises from the judgment of the trial court, Hon. W Kugwa (RM) given on 7.11.2023 E018 of 2022. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006.
The particulars of the offense were that the Appellant, on 22.03.2022 at Menyinkwa area in Kisii central subcounty within Kisii County intentionally caused his genital organs namely a penis to penetrate the genital organs, namely a vagina of LKO, a girl aged 15 years.
There was an alternative count of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offense were that the Appellant, on 22.03.2022 at Menyinkwa area in Kisii central subcounty within Kisii County intentionally touched the anus of LKO, a girl aged 15 years.
The Appellant was arraigned, and he denied the charges. A plea of not guilty was consequently recorded. He was not granted bond. The court’s mind was unnecessarily poisoned by allegations of another case, wherein he had not been convicted. The court in denying the appellant bond believed the occurrence of this matter as a fact thus violating the sanctity of the principle that no one should be condemned unheard. The Appellant enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that an accused is guilty. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme court of Canada explained the standard of proof as doth:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”
The trial court heard a total of 4 prosecution witnesses and the Appellant. The court considered the evidence and rendered judgment, where she found the Appellant guilty and sentenced him to 10 years imprisonment. The Appellant, aggrieved, lodged this appeal. the grounds of appeal are written in a language that this court may not wish to repeat the same.
The net effect of the appellant’s appeal was that that the trial magistrate erred in law and fact by sentencing the appellant to ten years’ imprisonment despite the offence of defilement not having been proved beyond reasonable doubt. It was further argued that the conviction was improper, as it was based on scanty and questionable investigations that could not sustain a conviction. Though indicated as an appeal touching on sentence, it is fully an appeal on conviction only.
The court directed that the matter be disposed of by way of written submissions, which were duly filed by both parties. The prosecution filed a notice of enhancement of sentence together with their submissions. However, the same was not brought to the attention of the appellant.
Evidence
PW1, the complainant, testified that she was born on 19.03.2007. She stated that on 22.03.2022, she left her home and went to the appellant’s residence, which she knew. She said she took a motorbike to the said place. It was her testimony that she went there with the intention of engaging in sexual intercourse with the appellant, which she alleged they did. She further stated that at about 2:00 p.m., the appellant was recalled to work at Mashauri area but returned at 3:00 p.m., when they allegedly engaged in sexual intercourse again. According to her, they later went out to buy food, returned at about 7:00 p.m., and thereafter spent the night together until the following morning. this last part is crucial for the determination of the appeal.
On the following day, at about 11:00 a.m., the complainant’s father, accompanied by other persons, went to the appellant’s house. Upon their arrival, the complainant concealed herself under the bed while the appellant hid beneath the couch. The group opened the door open and found the complainant hiding under the bed. her evidence was that this was not the only occasion on which she had engaged in sexual intercourse with the appellant.
The complainant was thereafter escorted to Kisii Teaching and Referral Hospital for examination and subsequently taken to the police station. In cross examination, she stated that she had gone to the appellant’s house on 22.03.2022, after he had informed her of his residence the previous day. She further indicated that there were neighbours present at the appellant’s house. Both the complainant and the appellant were eventually apprehended by her father together with the unknown persons who accompanied the father.
PW2 was the complainant’s father who worked at Kisii county as occupational safety and health officer. on 22.03,2022, he received a call from their little daughter, MA that her sister, the complainant herein was not in the house from 10.00 am/ he stated given that they have another defilement case, she must be with the appellant. they did investigations with Marienga who called the appellant’s employer. they proceeded to the appellant’s house and found it locked. he asked the landlady to allow the break the same. they found them hiding the appellant was behind sofa while the complainant was in the bedroom. they were taken with the policing community to the police station. the appellant was charged and the complaint taken to Kisii Teaching and Referral Hospital.
On cross-examination, he stated that they came with 2 community police who did not make a statement. One Farah was directed to the appellant’s place by the Appellant’s employer. He stated that the landlady gave permission to break into the house.
On cross-examination, he stated that he was accompanied by two community policing members who, however, did not record any statement. He added that one Farah was directed to the appellant’s residence by the appellant’s employer, and further stated that the landlady gave permission for the appellant’s house to be broken into. There was no indication on the role of Farah and the statement by the alleged landlady. It was also not clear the raison d''être for not involving the police to maintain the chain of custody of the appellant and recovery of any evidence at the scene. It appears the witness preferred gangland style of arrest. this will however, have profound effect on the decision.
PW3, the clinical officer, Stanley Mathinda from KTRH, testified that he examined the complainant on 5.09.2023. He stated that the complainant reported that the appellant had allegedly defiled her on 22.03.2022. Upon examination, he observed the presence of pus cells but found no evidence of penetration. PW3 was not cross-examined.
PW4 was CPL Reina Magoma of Kisii police station. She stated that on 23.03.2022 a case of defilement was reported by the complainant’s father. The appellant was reported missing on 22.03.2022 that she had gone to spent the night at the appellant’s house. On cross examination, she stated that she did not visit the scene of crime and the complainant and the appellant were brought to the station.
The court, upon considering the evidence on record, found the appellant to have a case to answer. Section 211 of Criminal Procedure Code was complied with. The appellant opted to give sworn evidence.
The Appellant gave sworn evidence. He stated that on 22.03.2022 he was at work at Menyinkwa at around 1500 hours he worked until the next day 23.03.2022 when for him at work. This was the complainant’s father and two other people. He was asked to accompany them to a parked car. They arrested him and took him to the police station. the two people identified themselves as community policing officers. he was taken to court the following day. he denied the charges. he stated that the complainant stated that he was at his house in Menyinkwa, but his house is at Riverside.
The Appellant further stated that he had another case involving the same complainant. He denied being found in a house at Menyinkwa and asserted instead that his residence was at Riverside near Kisii University. He complained that the two people who arrested him were never called as witnesses during the trial. His testimony was not subjected to cross-examination. the court shall revert on this shortly.
Submissions
The Respondent filed submissions dated 1.09.2024 that the conviction was safe as all ingredients were proved. They submitted that the age of the complainant was proved to be 15 years. They stated that the child was the only witness to the offence hence section 124 applied. This was not factually correct, but it was their submissions. Reliance was placed on the case of Kassim Ali V republic [2006] KECA 156 (KLR) .
They concluded that the perpetrator was identified by the appellant it was their case that a minimum age of 10 years will have sufficed.
The Appellant did not file submissions. he requested the court to review evidence and make a finding.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 held 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.
On a first appeal , the appellant is entitled to a fresh and exhaustive re-evaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court''s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court''s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate''s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
Section 8(1)(a) (1) and (3) of the Sexual Offences Act under which the Appellant was convicted provides as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) N/a
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(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.
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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:-
“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.”
The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. the section reads as follows:
“382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up to 20 years in prison or even 15 years depending on the age the court found the complainant to be. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence.
The appellant maintained that he was framed. There are witnesses who were mentioned and had no horse in the race. The father was said to be with two men. These men were never called. The appellant stated that he was at work. The complainant stained to place him in the house outcome. The arresting persons were said to be community policing. They were known. Could there have been reasons they were not called.
The state relied on the case of Kassim Ali V republic [supra] . This case is still good law and binding on this court. Unfortunately, the learned state counsel and the court misapprehended the evidence. The said case was in respect to the absence of medical evidence and not medical evidence showing absence of penetration. In the case, the court of appeal, held as hereunder:
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
However as we have said above, the appellant was acquitted, wrongly in our view, of the offence of rape. He was convicted of the alternative charge of indecent assault which we now consider.
The same principles of law stated in Chila V Republic apply to the offence of indecent assault on females.
In the present case, there was concurrent findings of fact that the complainant was indecently assaulted by the appellant. Like the trial magistrate the superior court found:
“the evidence of complainant clear truthful and consistent.
In a nut shell absence of a medical report is not a deceive factor. However, presence of a report, contradicting the complainant is prima facie evidence that the offence did not occur. The medical report was to the effect that penetration did not occur. This was not absence of medical evidence but presence of exculpatory evidence. For example, if penetration was not proved, or was actually disproved, how can the court find an appellant liable?
The court of appeal was dealing with a case of rape, where medical evidence could not be secured. that case does not cover a situation where the defence evidence is cogent and the medical evidence proves that there was no penetration. Section 124 of the evidence is a rule of evidence and not a bid to overthrow the concept of the burden of proof. in the said case, the appellate court addressed the circumstantial evidence that led to the foregoing conclusion as follows:
The complainant reported the offence to the police immediately and identified the appellant without hesitation when he arrived at the police booth. The complainant’s evidence was consistent with the report she made to CPL. Lydia Chizi Mambo (P.W.3), the investigating officer immediately after the assault. The torn clothes of the appellant were produced as exhibits in court.
In this case the two courts below were satisfied that the complainant’s evidence was consistent and truthful. Thus, the complainant’s evidence proved the appellant’s guilt to the required degree.
Moreover the complainant’s evidence was sufficiently corroborated by circumstantial evidence as the superior court correctly found.
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
In this case there were two witnesses who gave the evidence on penetration. They were the medical report and the minor. The minor alleged that she went for sex in the appellant’s house. The appellant denied this. This is where the court invoked section 124 of the evidence act. The court, in my view wrongly proceeded as if, the said section overrides Article 50 of the Constitution. Section 124 is a rule of evidence and not a rule on the standard of proof. It is not automatic that the court must just believe the complainant.
The evidence of the complainant was contradicted by medical evidence. Pus could not have formed when examination was on the same day. The medical evidence directly contradicted the minor’s evidence. The evidence also differed with the account given by the appellant. That account was not contradicted. The same with the medical evidence. The two pieces of evidence render the account by pw1 and pw2 false. When thee medical evidence shows prior infection and no evidence of penetration, then the court must proceed with facts as established. The evidence from the prosecution witness three, was clear that there was no penetration. The defence evidence was to the same effect. The prosecution believed the truth of that evidence and no attempt was made to cross examine the appellant.
That is why the truth should always be recorded and reasons for so believing. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows:
“Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.”
This was a sexual offence when the first condition was met. However, the second and third conditions were not met . The victim was not the only witness. There was medical evidence and there was circumstantial evidence that could be produced. In the absence of the production of circumstantial evidence available, then the court was wrong. Thirdly, and more crucially, there was no evidence and reasons recorded for believing the Complainant to be saying the truth. PW1 and PW2 Differed on fundamental aspects. Was there an opening of the house or a break in. The only neutral witness was the clinical officer. He found no evidence of penetration. The element of penetration was lost. This was not evidence of partial penetration. It is that there was no evidence of penetration at all. The complainant was taken to the hospital immediately. It is not possible to have pus cells result from intercourse on the same day. It is expected that was to be inflammation.
There was no evidence from the medical aspect that there was no penetration. Without penetration, the offence fails.
This was a criminal case involving a sexual offence. However, the rest of the limbs were not proved. The complainant was not the only witness. There are other witnesses who allegedly found the complainant and the appellant in the Appellant’s house. there was also medical evidence. the court did not record a single reason for believing the complainant. the court did not believe the truth of the witness but only observed the demeanor. the reasons to be records are basically circumstantial evidence and not a shopping list of reasons.
This case is whether the prosecution proved its case to the required standard. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that;
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. according to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
The standard of proof required in such cases was addressed by B rennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:-
“ The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
the court treated the issue of penetration perfunctorily. she gave no reason why she differed with medical evidence that there was no penetration.
further, the appellant gave evidence an alibi as the evidence. For part of the time. The rest of the time he was at home. There was alleged to be a landlady who broke down the door. This evidence was not even corroborated by the complainant. The complaint tendered evidence that the father and the unknown persons opened the door. This is major contradiction. The alleged storming in the appellant’s residence was through the help of the employer to trace the appellant. The landlady who allegedly gave consent was not also called. in other words, none of the independent witnesses were called.
On the other hand, the defence evidence was that he was called to the roadside and arrested. There was said to be a prior case which led to suspicions. It is also the evidence of prior differences. Was it not proper to call the arresting persons, to shed more light. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
The law as it presently stands is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even where some of those witnesses may give evidence adverse to the prosecution’s case. This obligation ensures that the trial is conducted fairly and that the court is placed in a position to consider all relevant facts before reaching a conclusion. Failure to call material witnesses may result in an incomplete picture of the events, potentially undermining the prosecution’s case and affecting the court’s assessment of the evidence as a whole. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:
“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
The court had also discussed the question of In Keter v Republic [2007] 1 EA 135 the court held
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The particulars of the offense were that the Appellant, on 22.03.2022 at Menyinkwa area in Kisii central subcounty within Kisii County intentionally caused his genital organs namely a penis to penetrate the genital organs, namely a vagina of LKO, a girl aged 15 years.
There was an alternative count of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offense were that the Appellant, on 22.03.2022 at Menyinkwa area in Kisii central subcounty within Kisii County intentionally touched the anus of LKO, a girl aged 15 years.
The Appellant was arraigned, and he denied the charges. A plea of not guilty was consequently recorded. He was not granted bond. The court’s mind was unnecessarily poisoned by allegations of another case, wherein he had not been convicted. The court in denying the appellant bond believed the occurrence of this matter as a fact thus violating the sanctity of the principle that no one should be condemned unheard. The Appellant enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that an accused is guilty. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme court of Canada explained the standard of proof as doth:-
“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”
The trial court heard a total of 4 prosecution witnesses and the Appellant. The court considered the evidence and rendered judgment, where she found the Appellant guilty and sentenced him to 10 years imprisonment. The Appellant, aggrieved, lodged this appeal. the grounds of appeal are written in a language that this court may not wish to repeat the same.
The net effect of the appellant’s appeal was that that the trial magistrate erred in law and fact by sentencing the appellant to ten years’ imprisonment despite the offence of defilement not having been proved beyond reasonable doubt. It was further argued that the conviction was improper, as it was based on scanty and questionable investigations that could not sustain a conviction. Though indicated as an appeal touching on sentence, it is fully an appeal on conviction only.
The court directed that the matter be disposed of by way of written submissions, which were duly filed by both parties. The prosecution filed a notice of enhancement of sentence together with their submissions. However, the same was not brought to the attention of the appellant.
Evidence
PW1, the complainant, testified that she was born on 19.03.2007. She stated that on 22.03.2022, she left her home and went to the appellant’s residence, which she knew. She said she took a motorbike to the said place. It was her testimony that she went there with the intention of engaging in sexual intercourse with the appellant, which she alleged they did. She further stated that at about 2:00 p.m., the appellant was recalled to work at Mashauri area but returned at 3:00 p.m., when they allegedly engaged in sexual intercourse again. According to her, they later went out to buy food, returned at about 7:00 p.m., and thereafter spent the night together until the following morning. this last part is crucial for the determination of the appeal.
On the following day, at about 11:00 a.m., the complainant’s father, accompanied by other persons, went to the appellant’s house. Upon their arrival, the complainant concealed herself under the bed while the appellant hid beneath the couch. The group opened the door open and found the complainant hiding under the bed. her evidence was that this was not the only occasion on which she had engaged in sexual intercourse with the appellant.
The complainant was thereafter escorted to Kisii Teaching and Referral Hospital for examination and subsequently taken to the police station. In cross examination, she stated that she had gone to the appellant’s house on 22.03.2022, after he had informed her of his residence the previous day. She further indicated that there were neighbours present at the appellant’s house. Both the complainant and the appellant were eventually apprehended by her father together with the unknown persons who accompanied the father.
PW2 was the complainant’s father who worked at Kisii county as occupational safety and health officer. on 22.03,2022, he received a call from their little daughter, MA that her sister, the complainant herein was not in the house from 10.00 am/ he stated given that they have another defilement case, she must be with the appellant. they did investigations with Marienga who called the appellant’s employer. they proceeded to the appellant’s house and found it locked. he asked the landlady to allow the break the same. they found them hiding the appellant was behind sofa while the complainant was in the bedroom. they were taken with the policing community to the police station. the appellant was charged and the complaint taken to Kisii Teaching and Referral Hospital.
On cross-examination, he stated that they came with 2 community police who did not make a statement. One Farah was directed to the appellant’s place by the Appellant’s employer. He stated that the landlady gave permission to break into the house.
On cross-examination, he stated that he was accompanied by two community policing members who, however, did not record any statement. He added that one Farah was directed to the appellant’s residence by the appellant’s employer, and further stated that the landlady gave permission for the appellant’s house to be broken into. There was no indication on the role of Farah and the statement by the alleged landlady. It was also not clear the raison d''être for not involving the police to maintain the chain of custody of the appellant and recovery of any evidence at the scene. It appears the witness preferred gangland style of arrest. this will however, have profound effect on the decision.
PW3, the clinical officer, Stanley Mathinda from KTRH, testified that he examined the complainant on 5.09.2023. He stated that the complainant reported that the appellant had allegedly defiled her on 22.03.2022. Upon examination, he observed the presence of pus cells but found no evidence of penetration. PW3 was not cross-examined.
PW4 was CPL Reina Magoma of Kisii police station. She stated that on 23.03.2022 a case of defilement was reported by the complainant’s father. The appellant was reported missing on 22.03.2022 that she had gone to spent the night at the appellant’s house. On cross examination, she stated that she did not visit the scene of crime and the complainant and the appellant were brought to the station.
The court, upon considering the evidence on record, found the appellant to have a case to answer. Section 211 of Criminal Procedure Code was complied with. The appellant opted to give sworn evidence.
The Appellant gave sworn evidence. He stated that on 22.03.2022 he was at work at Menyinkwa at around 1500 hours he worked until the next day 23.03.2022 when for him at work. This was the complainant’s father and two other people. He was asked to accompany them to a parked car. They arrested him and took him to the police station. the two people identified themselves as community policing officers. he was taken to court the following day. he denied the charges. he stated that the complainant stated that he was at his house in Menyinkwa, but his house is at Riverside.
The Appellant further stated that he had another case involving the same complainant. He denied being found in a house at Menyinkwa and asserted instead that his residence was at Riverside near Kisii University. He complained that the two people who arrested him were never called as witnesses during the trial. His testimony was not subjected to cross-examination. the court shall revert on this shortly.
Submissions
The Respondent filed submissions dated 1.09.2024 that the conviction was safe as all ingredients were proved. They submitted that the age of the complainant was proved to be 15 years. They stated that the child was the only witness to the offence hence section 124 applied. This was not factually correct, but it was their submissions. Reliance was placed on the case of Kassim Ali V republic [2006] KECA 156 (KLR) .
They concluded that the perpetrator was identified by the appellant it was their case that a minimum age of 10 years will have sufficed.
The Appellant did not file submissions. he requested the court to review evidence and make a finding.
Analysis
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 held 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.
On a first appeal , the appellant is entitled to a fresh and exhaustive re-evaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court''s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court''s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate''s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
Section 8(1)(a) (1) and (3) of the Sexual Offences Act under which the Appellant was convicted provides as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) N/a
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(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.
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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:-
“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.”
The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. the section reads as follows:
“382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up to 20 years in prison or even 15 years depending on the age the court found the complainant to be. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence.
The appellant maintained that he was framed. There are witnesses who were mentioned and had no horse in the race. The father was said to be with two men. These men were never called. The appellant stated that he was at work. The complainant stained to place him in the house outcome. The arresting persons were said to be community policing. They were known. Could there have been reasons they were not called.
The state relied on the case of Kassim Ali V republic [supra] . This case is still good law and binding on this court. Unfortunately, the learned state counsel and the court misapprehended the evidence. The said case was in respect to the absence of medical evidence and not medical evidence showing absence of penetration. In the case, the court of appeal, held as hereunder:
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
However as we have said above, the appellant was acquitted, wrongly in our view, of the offence of rape. He was convicted of the alternative charge of indecent assault which we now consider.
The same principles of law stated in Chila V Republic apply to the offence of indecent assault on females.
In the present case, there was concurrent findings of fact that the complainant was indecently assaulted by the appellant. Like the trial magistrate the superior court found:
“the evidence of complainant clear truthful and consistent.
In a nut shell absence of a medical report is not a deceive factor. However, presence of a report, contradicting the complainant is prima facie evidence that the offence did not occur. The medical report was to the effect that penetration did not occur. This was not absence of medical evidence but presence of exculpatory evidence. For example, if penetration was not proved, or was actually disproved, how can the court find an appellant liable?
The court of appeal was dealing with a case of rape, where medical evidence could not be secured. that case does not cover a situation where the defence evidence is cogent and the medical evidence proves that there was no penetration. Section 124 of the evidence is a rule of evidence and not a bid to overthrow the concept of the burden of proof. in the said case, the appellate court addressed the circumstantial evidence that led to the foregoing conclusion as follows:
The complainant reported the offence to the police immediately and identified the appellant without hesitation when he arrived at the police booth. The complainant’s evidence was consistent with the report she made to CPL. Lydia Chizi Mambo (P.W.3), the investigating officer immediately after the assault. The torn clothes of the appellant were produced as exhibits in court.
In this case the two courts below were satisfied that the complainant’s evidence was consistent and truthful. Thus, the complainant’s evidence proved the appellant’s guilt to the required degree.
Moreover the complainant’s evidence was sufficiently corroborated by circumstantial evidence as the superior court correctly found.
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
In this case there were two witnesses who gave the evidence on penetration. They were the medical report and the minor. The minor alleged that she went for sex in the appellant’s house. The appellant denied this. This is where the court invoked section 124 of the evidence act. The court, in my view wrongly proceeded as if, the said section overrides Article 50 of the Constitution. Section 124 is a rule of evidence and not a rule on the standard of proof. It is not automatic that the court must just believe the complainant.
The evidence of the complainant was contradicted by medical evidence. Pus could not have formed when examination was on the same day. The medical evidence directly contradicted the minor’s evidence. The evidence also differed with the account given by the appellant. That account was not contradicted. The same with the medical evidence. The two pieces of evidence render the account by pw1 and pw2 false. When thee medical evidence shows prior infection and no evidence of penetration, then the court must proceed with facts as established. The evidence from the prosecution witness three, was clear that there was no penetration. The defence evidence was to the same effect. The prosecution believed the truth of that evidence and no attempt was made to cross examine the appellant.
That is why the truth should always be recorded and reasons for so believing. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows:
“Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.”
This was a sexual offence when the first condition was met. However, the second and third conditions were not met . The victim was not the only witness. There was medical evidence and there was circumstantial evidence that could be produced. In the absence of the production of circumstantial evidence available, then the court was wrong. Thirdly, and more crucially, there was no evidence and reasons recorded for believing the Complainant to be saying the truth. PW1 and PW2 Differed on fundamental aspects. Was there an opening of the house or a break in. The only neutral witness was the clinical officer. He found no evidence of penetration. The element of penetration was lost. This was not evidence of partial penetration. It is that there was no evidence of penetration at all. The complainant was taken to the hospital immediately. It is not possible to have pus cells result from intercourse on the same day. It is expected that was to be inflammation.
There was no evidence from the medical aspect that there was no penetration. Without penetration, the offence fails.
This was a criminal case involving a sexual offence. However, the rest of the limbs were not proved. The complainant was not the only witness. There are other witnesses who allegedly found the complainant and the appellant in the Appellant’s house. there was also medical evidence. the court did not record a single reason for believing the complainant. the court did not believe the truth of the witness but only observed the demeanor. the reasons to be records are basically circumstantial evidence and not a shopping list of reasons.
This case is whether the prosecution proved its case to the required standard. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that;
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. according to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
The standard of proof required in such cases was addressed by B rennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:-
“ The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
the court treated the issue of penetration perfunctorily. she gave no reason why she differed with medical evidence that there was no penetration.
further, the appellant gave evidence an alibi as the evidence. For part of the time. The rest of the time he was at home. There was alleged to be a landlady who broke down the door. This evidence was not even corroborated by the complainant. The complaint tendered evidence that the father and the unknown persons opened the door. This is major contradiction. The alleged storming in the appellant’s residence was through the help of the employer to trace the appellant. The landlady who allegedly gave consent was not also called. in other words, none of the independent witnesses were called.
On the other hand, the defence evidence was that he was called to the roadside and arrested. There was said to be a prior case which led to suspicions. It is also the evidence of prior differences. Was it not proper to call the arresting persons, to shed more light. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
The law as it presently stands is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even where some of those witnesses may give evidence adverse to the prosecution’s case. This obligation ensures that the trial is conducted fairly and that the court is placed in a position to consider all relevant facts before reaching a conclusion. Failure to call material witnesses may result in an incomplete picture of the events, potentially undermining the prosecution’s case and affecting the court’s assessment of the evidence as a whole. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:
“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
The court had also discussed the question of In Keter v Republic [2007] 1 EA 135 the court held
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