(Being an appeal from the judgment and sentence of Hon. David Odhiambo, SRM in Shanzu Magistrates Court Sexual Offence (SO) Case No. E028 of 2023 delivered on 6/4/2023)
J U D G M E N T
1. The appellant, Edward Kimani was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the charge were that the appellant on 4/1/2020 at Nguu Tatu area, Bamburi location in Kisauni Sub-County, within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of E.M. a child aged 11 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he intentionally and unlawfully touched the vagina of E.M. a child aged 11 years with his penis.
3. The prosecution called 4 witnesses to support the charge. PW 1, E.S. is the complainant who testified that she was aged 14 years at the time she gave her evidence on 5/10/2021. She said the appellant defiled her on two consecutive days, 4/1/2020 and 5/1/2020 in his house. PW 2, Miriam Kimemia is a village elder is a village elder at Timboni, Ziwa la Ng’ombe area. She is also a para-legal trained by Muhuri. She was the one to whom the complainant reported on 26/1/2020 that the appellant had defiled her. PW 3 Dr. Abdulaziz Mohammed who produced the P3 form and PRC forms on behalf of his colleague Dr. Nafisa Seif who completed them and he was away on study leave. PW 4, PC Fatuma Zari was the investigating officer in the case.
4. Upon being placed on his defence the appellant gave sworn evidence and called one witness DW 2, Justus Kombo Chirando, his area village elder. He denied that he committed the offence and said that this was a frame up by the complainant and her mother with whom he has had long standing differences.
5. After the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 30 years imprisonment.
6. The appellant was aggrieved by the decision of the trial court and in his memorandum of appeal dated 12/5/2023 has set out the following grounds of appeal inelegantly drafted but grounds all the same.:
a. The learned trial magistrate erred in law and in fact to hold for the appellant. (I don’t understand this one).
b. The learned trial magistrate erred in law and in fact by awarding appellant to serve 35 (sic) years in prison. (The sentence meted out was 30 years imprisonment).
c. The learned trial magistrate erred in law and in fact in failing to appreciate the manifest contradicting evidence.
d. The learned trial magistrate erred in law and in fact in convicting the appellant on unclear facts.
e. The learned trial magistrate erred in law and in fact in failing to find the truth evidence from a neutral people instead relied on the fabrication statements.
f. The sentence was manifestly excessive.
7. The appeal was opposed by the respondent who filed grounds of opposition dated 4/9/2024 even as the record shows that the respondent’s submissions were filed on 5/1/2024, some eight months before. The grounds are essentially that the prosecution proved a case of defilement of a child under the age of fifteen years by establishing the age of the complainant, the fact of penetration and the identity of the perpetrator, that the trial court guaranteed the appellant’s right to a fair trial and considered his defence and the sentenced meted out was proper and not excessive and finally that the pre-trial period spent in custody by the appellant was considered while meting out the sentence.
8. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court’s own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. The issue for determination is whether on the evidence on record the trial court reached the correct verdict to convict the appellant for the offence of defilement of a child aged between 11 and 15 years and whether upon conviction the trial court meted the correct sentence upon the appellant.
12. The prosecution case was almost entirely depended on the evidence recounted by the complainant PW 1, E.N. a 14-year-old girl. She said the appellant is her cousin and a neighbour and therefore well known to her. DW 2, their village elder said that their homes are like 50 metres apart. PW 1 said had delayed to go to school and at that age she was in class 3 and proceeding to class 4 that year. Her evidence was that on 4/1/2020 during morning hours she was at home alone when the appellant asked her to assist him to get hold of a pig. She obliged and assisted him but after that he got hold of her and pushed her into his room. He blocked her mouth with a lesso (loin cloth) such that she could not scream. He then tied her hands with another lesso. He pulled down her panties and pushed up the dress she was wearing. He removed his pair of trousers and engaged in sexual intercourse with her. She felt pain and bled. He threatened to kill her if she told anyone. She went home, threw away the blood-soaked panties, showered and put on fresh clothes. She did not tell anyone about the incident.
13. The incident recurred the following day at 10.00 a.m. This time, the complainant’s mother was at home when the appellant called her. The complainant said that she did not want to go but her mother insisted. She went and after they had driven the pigs to their sty the appellant dragged her to his room again. He put her on his bed and blocked her mouth with a lesso, pulled down her panties and raised her skirt up. He inserted his private parts in hers and she felt pain and he removed it. He also put his private parts in her anus while she was facing down. She felt pain but did not bleed. She then took her clothes and went home. She did not find her mother. She wiped herself and noticed a whitish substance. She did not tell anyone of that incident.
14. The complainant said that she went to school the following day and escaped. She then said that she was sent away for lack of school fees. She stayed home for one day. While her brother was taking her back to school, she escaped and went to Bombolulu to look for the village elder.
15. PW 2 said that she met the complainant and other girls from her area who reported to her that they were looking for her to take the complainant who was lost. The complainant had slept at the home of one of the girls. The complainant who had a bag with clothes inside told PW 2 that she had left home because her elder brother had refused to cook food and their mother had travelled upcountry to Ukambani. She subsequently narrated to her the incident of the appellant defiling her. PW 2 called the complainant’s father who told her that they stay at Kwa Vikwateni which is far from where they were. She however never came to meet the father but PW 2 later met the complainant’s mother. After the complainant had narrated the incidents of defilement to her, PW 2 reported the matter to the police together with the complainant and also took her for medical attention.
16. PW 4, said the report was made at the Kiembeni police station on 27/1/2020. She recorded witness statements including that of the complainant who narrated to her the incidents of her defilement by the appellant. She referred her to hospital where the P3 form and PRC form were completed. She had the accused person arrested and charged with the offence. She produced the complainant’s certificate of birth showing that she was borne on 4/8/2008.
17. In his defence, the appellant denied that he committed the offence as alleged by the complainant. He said that the complainant’s mother is his aunt. He said his family and that of the complainant do not talk due to differences and so he could not have called the complainant to go and assist him with the pigs. They have had disputes ever since the complainant’s family moved to the area where they stay. He narrated several disputes some of which had been reported to the village elder and others to the police. He said the complainant had at one point stolen money from his house and when questioned, she denied but later the complainant’s brother confided in him that she indeed was the one who stole the money. He said he was beaten on two occasions by by people instigated by the complainant’s mother. In one of the incidents they demanded that he vacates the place he was staying. He had reported the matter to the police. In the other incident, they beat him up together with his wife after he reported to the police that the complainant’s brother had broken a water pipe. He was shortly thereafter arrested on allegations of defiling the complainant. He said that on 4/1/2020 he had been visited by his sister’s children and they spent the day at his home and no incident as related by the complainant happened.
18. DW 2, confirmed that indeed, the appellant and the complainant’s mother had had several conflicts in the year 2019. In one incident, the complainant’s brother called Mwanzia together with other men attempted to invade the appellant’s parcel of land. The appellant’s wife also reported to him in another incident that the complainant had taken money from their house. When DW 2 questioned the complainant, she denied but later the wife told him that the complainant had admitted taking the money and she returned it. He also said that the complainant’s mother had at one time reported to him that the complainant had gone to school but not come back home. She later returned on her own.
19. I have carefully examined and re-evaluated the evidence by the prosecution and the defence, which was relied on by the trial court to arrive at its decision as well as the submissions by the appellant and the grounds of opposition and submissions by the respondent in this appeal.
20. Learned counsel for the appellant faulted the issue of proof of the complainant’s age stating that whereas the complainant testified that she was 14 years old, the charge sheet indicated that she was 11 years old. Learned counsel thus submitted that the charge was defective for that reason.
21. The submission by learned counsel on the disparity between the age of the complainant as stated in the charge sheet as 11 years and the evidence of the complainant that she was 14 years old is correct. However, it did not render the charge sheet defective in any way even when the submissions by learned counsel are considered. First, the disparity was resolved by production of the certificate of birth which showed the date of birth as 4/8/2008 thereby making the complainant at the time of the alleged commission of the offence on 4/5/2020 to have been just about 11½ years old. The charge sheet indicated the age of the complainant as at the time of the alleged commission of the offence on 4/5/2020 to be 11 years old. That discrepancy was not material as to render the charge defective because the complainant remained a child as provided for under section 8(1) of the Act. The disparity would only be relevant at the point of sentencing and even then, not so as to render the charge defective because a sentence that falls within the range of the age proved would be properly rendered by the court. The complainant testified on 5/10/2021 when she was about 12 years and 2 months old. But she said she was 14 years old. That again was not a material discrepancy as would render the charge defective for the same reasons stated above.
22. On penetration, learned counsel for the appellant submits that penetration was not proved. I will consider this issue at the end.
23.
24. On the ingredient of identification of the perpetrator of the alleged offence, the appellant does not contest the fact that he is well known by the complainant. His contention is that he was not the one who committed the offence. He therefore calls upon this court to critically re-evaluate the complainant’s evidence and find that on the issue of identification her evidence was not credible and therefore was incapable of proving the charge.
25. The age of the complainant was proved by the complainant’s evidence which was corroborated by evidence of her birth certificate which showed her date of birth as 4/8/2008 thereby making her just about 11½ years on 4th and 5th January 2020 when the incidents allegedly happened. She was therefore a child as she was below 18 years of age as submitted by learned counsel for the respondent. The learned trial magistrate stated in his judgment that the certificate of birth was produced by the complainant’s mother but that is not true because the complainant’s mother never even recorded a statement with the police as testified by the investigating officer, leave alone testifying in court. It was however produced by the investigating officer PW 4 when she testified even though the complainant had not referred to it. All the same, the issue of age is not contested and therefore not an issue in this appeal.
26. The complainant’s evidence that her vaginal and anal orifices were penetrated was corroborated by the medical evidence contained in the P3 form and PRC forms produced by PW 3 Dr. Abdulaziz Mohammed who produced them on behalf of his colleague Dr. Nafisa Seif who was away on study leave. The evidence was that the complainant’s hymen was broken and she had a healed laceration around the anal orifice.
27. On the final issue of identification of the perpetrator of the alleged offence, the trial court record shows that the only witness who testified on the identity of the alleged perpetrator of the offence was the complainant who gave sworn evidence.
28. Learned counsel for the respondent submits that no corroboration is required if the evidence of the child witness is sworn. He cites the Criminal Procedure Bench Book, 2018 where the issue is discussed and various cases cited.
29. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been determined by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
30. The High Court came to that finding relying on other cases, among them that of the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
31. From the above exposition of the law on the how the court should treat the evidence of the victim in a sexual offence case where the complainant is the only witness on any of the ingredients of the offence, the court is enjoined to evaluate the evidence and determine whether there was corroboration and even if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
32. The learned trial magistrate found that the dispute between the complainant’s mother and the appellant had no bearing on the credibility of the evidence tendered by the complainant and thus her evidence was believable. So, was the complainant a witness of truth on the issue of identification of the perpetrator of the offence as the appellant herein?
33. In the case of Ndungu Kimani vs Republic [1979] 282 wherein it was held:
“We lay down the minimum standard as follows: The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not straight forward person and raise suspicion about his trust worthiness or do or say something which should indicate to court that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.”
34. The most immediate person who would have corroborated the evidence of the complainant that on the material morning the appellant called her and she went to assist him to gather his pigs and therefore the chain of events leading him to defile her was probable was her mother because the complainant said that her mother is the one who insisted that she goes even when she did not want to due to what the appellant had allegedly done to her the previous day.
35. The trial court needed to pause here and see whether these questions arising from the complainant’s evidence received satisfactory answers. First, there is evidence from both the prosecution, that is the complainant, the village elder and the investigating officer that there was serious animosity between the complainant’s mother and the appellant. How would a mother in such a situation insist that her young daughter goes to assist her adversary to gather pigs. It was not presented to the court that the issue of gathering pigs was so urgent or critical and that only the complainant would have gone to assist the appellant. Second, according to her testimony, the complainant had allegedly just had a worst experience at the hands of the appellant the previous day. She did not say that her mother, for whatever reason literally forced her to go to assist the complainant the following day. She only said the mother insisted that she goes. Why did she not outrightly decline? Was this not the most opportune moment for her to reveal to her mother her alleged ordeal in the hands of the appellant the previous day? If the incident had happened and in the manner alleged, was she not still raw both emotionally and physically in her private parts? It is my summation that under normal circumstances, a child of the complainant’s age and understanding would not agree to go and help the appellant again.
36. Then there is the issue of how long she allegedly took with the complainant. The issue of gathering pigs into their sty does not seem to have taken such a long time that her mother would have left her without inquiring where she was before she left to wherever the complainant alleges that she left.
37. All these are questions that would have been put to the mother to respond to assist the court to come to a fair verdict in this case. The learned trial magistrate did not give any attention to these questions before finding that the complainant was a witness of truth.
38. Another area in which the complainant’s evidence comes into question is her personal conduct as a child. There is her evidence that she escaped from school which she quickly attempted to correct and say she was sent away for lack of fees. But the issue was confirmed that it would have been escaping and not being sent away when she subsequently said that she escaped from her brother who was taking her back to school the following day. Simply put, she did not want to be in school, but why not?
39. Then there is the aspect of where she went to after that. She made it appear that she was looking for the village elder to report the alleged incidents. But the place where she made the report was miles away from her home and many days later. It is not clear when she left escaped from her brother and went away. But she only met the village elder PW 2 of a far-off village on 26/1 2020, three weeks after the alleged incident and after leaving home. When they met the village elder the first information she was given was that the complainant was lost. That explains how far she had gone from her home. She had a bag with clothes inside. She told PW 2 that she had left home because her brother had refused to cook food. In her evidence in court, she never mentioned that she escaped home because her brother had refused to make food. She afterwards changed the story to that of the appellant defiling her. PW 2 says that the complainant was consistently going to the toilet. She did not explain why she thought that was unusual. The complainant had spent the night at the friend’s house. But where had she been on all the other days since she left home about three weeks before? Wherever she had been with her bag of clothes, it means her evidence that she had escaped while being taken back to school was not honest because why would she carry clothes when going to school? Her brother was not called to shed light on that issue and support her evidence in any way.
40. Most importantly, if the complainant had been sexually assaulted since the medical evidence showed that she had some healed laceration around her anal orifice, the question is, when was that inflicted and by whom? Without the question of where she had been for the 21 days since she left home being answered, it cannot be the case that the evidence would irresistibly point to the appellant as the perpetrator. She had left home by escaping during school days and she had no explanation why. She was away for long and by the time PW 2 came by her, it is not clear where she had been and what had happened to her. She is simply not a witness whom one cannot fault her testimony.
41. The trial court indicated that it believed the testimony of the complainant as she was able to express herself consistently. Expressing oneself consistently is not equivalent to being honest and truthful. Even lies can be repeated consistently in order to create a semblance of truth. In that situation however, the court must warn itself of the danger of basing a conviction upon the uncorroborated evidence of the complainant. The learned trial magistrate did not warn herself of the dangers of relying on the uncorroborated evidence of the complainant and neither did it expressly state that she was a witness of truth in the proceedings. The failure to direct himself in that manner means he did not proceed correctly in evaluating the evidence. There were many loopholes in the complainant’s evidence that would make her an incredible witness. There are several pertinent issues that arise from the evidence of the complainant that lead to the conclusion that she could not have been very honest in her testimony on the identity of the person who defiled her.
42. There is no explanation why the complainant’s mother and brother did not even record statements with the police leave alone not testifying in the matter. That calls for making an adverse inference that if they had been called, their evidence would not have been in favour of the case for the prosecution.
43. To me, the appellant turns out to be a victim of circumstances. The complainant’s story was not difficult to weave. She is a cousin of the appellant and they are neigbours. She is able to know so much about him, and his lifestyle. She was well aware that the appellant had deep differences with her mother. She refused to go to school and escaped from home without permission. Somehow, she could not stay away forever so she had to go back home but before that she had to find an explanation. She sought out a village elder whom she first told that she had escaped from home allegedly due to her brother’s mistreatment, something she never said even in her evidence. Then she changed the story to bring in the issue of defilement probably after the village elder had questioned her why she was visiting the toilet so frequently. She cast her net around and unfortunately it captured the appellant.
44. I am not convinced that the complainant was a witness of truth upon whose evidence could be relied upon alone to found a conviction for the appellant.
45. I wish to go back to the issue of whether or not penetration was proved. Even though the medical evidence showed that there was penetration of the complainant’s genitalia, both front and back, the same is not conclusive that it was by the appellant who was the perpetrator. There is evidence that the penetration could have been done between the time she escaped from home to the time she came by the village elder. The probability that the penetration could have been done other than on the date given by the complainant as the one that the appellant allegedly defiled her cannot be ruled out.
46. I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that an important ingredient of the offence of defilement, the identity of the perpetrator, has not been proved beyond a reasonable doubt. The complainant’s evidence could not simply be believed with so many questions unanswered.
47. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
48. The offence the appellant was charged with carries a very severe sentence of mandatory minimum twenty years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
49. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the identification of the appellant as the perpetrator of the offence.
50. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Delivered, signed and dated, signed on the Virtual Platform, Teams, this 28th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson h/b for Etropia court assistant.
ANDAYI W. FRANCIS
JUDGE
J U D G M E N T
1. The appellant, Edward Kimani was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the charge were that the appellant on 4/1/2020 at Nguu Tatu area, Bamburi location in Kisauni Sub-County, within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of E.M. a child aged 11 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he intentionally and unlawfully touched the vagina of E.M. a child aged 11 years with his penis.
3. The prosecution called 4 witnesses to support the charge. PW 1, E.S. is the complainant who testified that she was aged 14 years at the time she gave her evidence on 5/10/2021. She said the appellant defiled her on two consecutive days, 4/1/2020 and 5/1/2020 in his house. PW 2, Miriam Kimemia is a village elder is a village elder at Timboni, Ziwa la Ng’ombe area. She is also a para-legal trained by Muhuri. She was the one to whom the complainant reported on 26/1/2020 that the appellant had defiled her. PW 3 Dr. Abdulaziz Mohammed who produced the P3 form and PRC forms on behalf of his colleague Dr. Nafisa Seif who completed them and he was away on study leave. PW 4, PC Fatuma Zari was the investigating officer in the case.
4. Upon being placed on his defence the appellant gave sworn evidence and called one witness DW 2, Justus Kombo Chirando, his area village elder. He denied that he committed the offence and said that this was a frame up by the complainant and her mother with whom he has had long standing differences.
5. After the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 30 years imprisonment.
6. The appellant was aggrieved by the decision of the trial court and in his memorandum of appeal dated 12/5/2023 has set out the following grounds of appeal inelegantly drafted but grounds all the same.:
a. The learned trial magistrate erred in law and in fact to hold for the appellant. (I don’t understand this one).
b. The learned trial magistrate erred in law and in fact by awarding appellant to serve 35 (sic) years in prison. (The sentence meted out was 30 years imprisonment).
c. The learned trial magistrate erred in law and in fact in failing to appreciate the manifest contradicting evidence.
d. The learned trial magistrate erred in law and in fact in convicting the appellant on unclear facts.
e. The learned trial magistrate erred in law and in fact in failing to find the truth evidence from a neutral people instead relied on the fabrication statements.
f. The sentence was manifestly excessive.
7. The appeal was opposed by the respondent who filed grounds of opposition dated 4/9/2024 even as the record shows that the respondent’s submissions were filed on 5/1/2024, some eight months before. The grounds are essentially that the prosecution proved a case of defilement of a child under the age of fifteen years by establishing the age of the complainant, the fact of penetration and the identity of the perpetrator, that the trial court guaranteed the appellant’s right to a fair trial and considered his defence and the sentenced meted out was proper and not excessive and finally that the pre-trial period spent in custody by the appellant was considered while meting out the sentence.
8. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
9. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court’s own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
10. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
11. The issue for determination is whether on the evidence on record the trial court reached the correct verdict to convict the appellant for the offence of defilement of a child aged between 11 and 15 years and whether upon conviction the trial court meted the correct sentence upon the appellant.
12. The prosecution case was almost entirely depended on the evidence recounted by the complainant PW 1, E.N. a 14-year-old girl. She said the appellant is her cousin and a neighbour and therefore well known to her. DW 2, their village elder said that their homes are like 50 metres apart. PW 1 said had delayed to go to school and at that age she was in class 3 and proceeding to class 4 that year. Her evidence was that on 4/1/2020 during morning hours she was at home alone when the appellant asked her to assist him to get hold of a pig. She obliged and assisted him but after that he got hold of her and pushed her into his room. He blocked her mouth with a lesso (loin cloth) such that she could not scream. He then tied her hands with another lesso. He pulled down her panties and pushed up the dress she was wearing. He removed his pair of trousers and engaged in sexual intercourse with her. She felt pain and bled. He threatened to kill her if she told anyone. She went home, threw away the blood-soaked panties, showered and put on fresh clothes. She did not tell anyone about the incident.
13. The incident recurred the following day at 10.00 a.m. This time, the complainant’s mother was at home when the appellant called her. The complainant said that she did not want to go but her mother insisted. She went and after they had driven the pigs to their sty the appellant dragged her to his room again. He put her on his bed and blocked her mouth with a lesso, pulled down her panties and raised her skirt up. He inserted his private parts in hers and she felt pain and he removed it. He also put his private parts in her anus while she was facing down. She felt pain but did not bleed. She then took her clothes and went home. She did not find her mother. She wiped herself and noticed a whitish substance. She did not tell anyone of that incident.
14. The complainant said that she went to school the following day and escaped. She then said that she was sent away for lack of school fees. She stayed home for one day. While her brother was taking her back to school, she escaped and went to Bombolulu to look for the village elder.
15. PW 2 said that she met the complainant and other girls from her area who reported to her that they were looking for her to take the complainant who was lost. The complainant had slept at the home of one of the girls. The complainant who had a bag with clothes inside told PW 2 that she had left home because her elder brother had refused to cook food and their mother had travelled upcountry to Ukambani. She subsequently narrated to her the incident of the appellant defiling her. PW 2 called the complainant’s father who told her that they stay at Kwa Vikwateni which is far from where they were. She however never came to meet the father but PW 2 later met the complainant’s mother. After the complainant had narrated the incidents of defilement to her, PW 2 reported the matter to the police together with the complainant and also took her for medical attention.
16. PW 4, said the report was made at the Kiembeni police station on 27/1/2020. She recorded witness statements including that of the complainant who narrated to her the incidents of her defilement by the appellant. She referred her to hospital where the P3 form and PRC form were completed. She had the accused person arrested and charged with the offence. She produced the complainant’s certificate of birth showing that she was borne on 4/8/2008.
17. In his defence, the appellant denied that he committed the offence as alleged by the complainant. He said that the complainant’s mother is his aunt. He said his family and that of the complainant do not talk due to differences and so he could not have called the complainant to go and assist him with the pigs. They have had disputes ever since the complainant’s family moved to the area where they stay. He narrated several disputes some of which had been reported to the village elder and others to the police. He said the complainant had at one point stolen money from his house and when questioned, she denied but later the complainant’s brother confided in him that she indeed was the one who stole the money. He said he was beaten on two occasions by by people instigated by the complainant’s mother. In one of the incidents they demanded that he vacates the place he was staying. He had reported the matter to the police. In the other incident, they beat him up together with his wife after he reported to the police that the complainant’s brother had broken a water pipe. He was shortly thereafter arrested on allegations of defiling the complainant. He said that on 4/1/2020 he had been visited by his sister’s children and they spent the day at his home and no incident as related by the complainant happened.
18. DW 2, confirmed that indeed, the appellant and the complainant’s mother had had several conflicts in the year 2019. In one incident, the complainant’s brother called Mwanzia together with other men attempted to invade the appellant’s parcel of land. The appellant’s wife also reported to him in another incident that the complainant had taken money from their house. When DW 2 questioned the complainant, she denied but later the wife told him that the complainant had admitted taking the money and she returned it. He also said that the complainant’s mother had at one time reported to him that the complainant had gone to school but not come back home. She later returned on her own.
19. I have carefully examined and re-evaluated the evidence by the prosecution and the defence, which was relied on by the trial court to arrive at its decision as well as the submissions by the appellant and the grounds of opposition and submissions by the respondent in this appeal.
20. Learned counsel for the appellant faulted the issue of proof of the complainant’s age stating that whereas the complainant testified that she was 14 years old, the charge sheet indicated that she was 11 years old. Learned counsel thus submitted that the charge was defective for that reason.
21. The submission by learned counsel on the disparity between the age of the complainant as stated in the charge sheet as 11 years and the evidence of the complainant that she was 14 years old is correct. However, it did not render the charge sheet defective in any way even when the submissions by learned counsel are considered. First, the disparity was resolved by production of the certificate of birth which showed the date of birth as 4/8/2008 thereby making the complainant at the time of the alleged commission of the offence on 4/5/2020 to have been just about 11½ years old. The charge sheet indicated the age of the complainant as at the time of the alleged commission of the offence on 4/5/2020 to be 11 years old. That discrepancy was not material as to render the charge defective because the complainant remained a child as provided for under section 8(1) of the Act. The disparity would only be relevant at the point of sentencing and even then, not so as to render the charge defective because a sentence that falls within the range of the age proved would be properly rendered by the court. The complainant testified on 5/10/2021 when she was about 12 years and 2 months old. But she said she was 14 years old. That again was not a material discrepancy as would render the charge defective for the same reasons stated above.
22. On penetration, learned counsel for the appellant submits that penetration was not proved. I will consider this issue at the end.
23.
24. On the ingredient of identification of the perpetrator of the alleged offence, the appellant does not contest the fact that he is well known by the complainant. His contention is that he was not the one who committed the offence. He therefore calls upon this court to critically re-evaluate the complainant’s evidence and find that on the issue of identification her evidence was not credible and therefore was incapable of proving the charge.
25. The age of the complainant was proved by the complainant’s evidence which was corroborated by evidence of her birth certificate which showed her date of birth as 4/8/2008 thereby making her just about 11½ years on 4th and 5th January 2020 when the incidents allegedly happened. She was therefore a child as she was below 18 years of age as submitted by learned counsel for the respondent. The learned trial magistrate stated in his judgment that the certificate of birth was produced by the complainant’s mother but that is not true because the complainant’s mother never even recorded a statement with the police as testified by the investigating officer, leave alone testifying in court. It was however produced by the investigating officer PW 4 when she testified even though the complainant had not referred to it. All the same, the issue of age is not contested and therefore not an issue in this appeal.
26. The complainant’s evidence that her vaginal and anal orifices were penetrated was corroborated by the medical evidence contained in the P3 form and PRC forms produced by PW 3 Dr. Abdulaziz Mohammed who produced them on behalf of his colleague Dr. Nafisa Seif who was away on study leave. The evidence was that the complainant’s hymen was broken and she had a healed laceration around the anal orifice.
27. On the final issue of identification of the perpetrator of the alleged offence, the trial court record shows that the only witness who testified on the identity of the alleged perpetrator of the offence was the complainant who gave sworn evidence.
28. Learned counsel for the respondent submits that no corroboration is required if the evidence of the child witness is sworn. He cites the Criminal Procedure Bench Book, 2018 where the issue is discussed and various cases cited.
29. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been determined by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
30. The High Court came to that finding relying on other cases, among them that of the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
31. From the above exposition of the law on the how the court should treat the evidence of the victim in a sexual offence case where the complainant is the only witness on any of the ingredients of the offence, the court is enjoined to evaluate the evidence and determine whether there was corroboration and even if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
32. The learned trial magistrate found that the dispute between the complainant’s mother and the appellant had no bearing on the credibility of the evidence tendered by the complainant and thus her evidence was believable. So, was the complainant a witness of truth on the issue of identification of the perpetrator of the offence as the appellant herein?
33. In the case of Ndungu Kimani vs Republic [1979] 282 wherein it was held:
“We lay down the minimum standard as follows: The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not straight forward person and raise suspicion about his trust worthiness or do or say something which should indicate to court that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.”
34. The most immediate person who would have corroborated the evidence of the complainant that on the material morning the appellant called her and she went to assist him to gather his pigs and therefore the chain of events leading him to defile her was probable was her mother because the complainant said that her mother is the one who insisted that she goes even when she did not want to due to what the appellant had allegedly done to her the previous day.
35. The trial court needed to pause here and see whether these questions arising from the complainant’s evidence received satisfactory answers. First, there is evidence from both the prosecution, that is the complainant, the village elder and the investigating officer that there was serious animosity between the complainant’s mother and the appellant. How would a mother in such a situation insist that her young daughter goes to assist her adversary to gather pigs. It was not presented to the court that the issue of gathering pigs was so urgent or critical and that only the complainant would have gone to assist the appellant. Second, according to her testimony, the complainant had allegedly just had a worst experience at the hands of the appellant the previous day. She did not say that her mother, for whatever reason literally forced her to go to assist the complainant the following day. She only said the mother insisted that she goes. Why did she not outrightly decline? Was this not the most opportune moment for her to reveal to her mother her alleged ordeal in the hands of the appellant the previous day? If the incident had happened and in the manner alleged, was she not still raw both emotionally and physically in her private parts? It is my summation that under normal circumstances, a child of the complainant’s age and understanding would not agree to go and help the appellant again.
36. Then there is the issue of how long she allegedly took with the complainant. The issue of gathering pigs into their sty does not seem to have taken such a long time that her mother would have left her without inquiring where she was before she left to wherever the complainant alleges that she left.
37. All these are questions that would have been put to the mother to respond to assist the court to come to a fair verdict in this case. The learned trial magistrate did not give any attention to these questions before finding that the complainant was a witness of truth.
38. Another area in which the complainant’s evidence comes into question is her personal conduct as a child. There is her evidence that she escaped from school which she quickly attempted to correct and say she was sent away for lack of fees. But the issue was confirmed that it would have been escaping and not being sent away when she subsequently said that she escaped from her brother who was taking her back to school the following day. Simply put, she did not want to be in school, but why not?
39. Then there is the aspect of where she went to after that. She made it appear that she was looking for the village elder to report the alleged incidents. But the place where she made the report was miles away from her home and many days later. It is not clear when she left escaped from her brother and went away. But she only met the village elder PW 2 of a far-off village on 26/1 2020, three weeks after the alleged incident and after leaving home. When they met the village elder the first information she was given was that the complainant was lost. That explains how far she had gone from her home. She had a bag with clothes inside. She told PW 2 that she had left home because her brother had refused to cook food. In her evidence in court, she never mentioned that she escaped home because her brother had refused to make food. She afterwards changed the story to that of the appellant defiling her. PW 2 says that the complainant was consistently going to the toilet. She did not explain why she thought that was unusual. The complainant had spent the night at the friend’s house. But where had she been on all the other days since she left home about three weeks before? Wherever she had been with her bag of clothes, it means her evidence that she had escaped while being taken back to school was not honest because why would she carry clothes when going to school? Her brother was not called to shed light on that issue and support her evidence in any way.
40. Most importantly, if the complainant had been sexually assaulted since the medical evidence showed that she had some healed laceration around her anal orifice, the question is, when was that inflicted and by whom? Without the question of where she had been for the 21 days since she left home being answered, it cannot be the case that the evidence would irresistibly point to the appellant as the perpetrator. She had left home by escaping during school days and she had no explanation why. She was away for long and by the time PW 2 came by her, it is not clear where she had been and what had happened to her. She is simply not a witness whom one cannot fault her testimony.
41. The trial court indicated that it believed the testimony of the complainant as she was able to express herself consistently. Expressing oneself consistently is not equivalent to being honest and truthful. Even lies can be repeated consistently in order to create a semblance of truth. In that situation however, the court must warn itself of the danger of basing a conviction upon the uncorroborated evidence of the complainant. The learned trial magistrate did not warn herself of the dangers of relying on the uncorroborated evidence of the complainant and neither did it expressly state that she was a witness of truth in the proceedings. The failure to direct himself in that manner means he did not proceed correctly in evaluating the evidence. There were many loopholes in the complainant’s evidence that would make her an incredible witness. There are several pertinent issues that arise from the evidence of the complainant that lead to the conclusion that she could not have been very honest in her testimony on the identity of the person who defiled her.
42. There is no explanation why the complainant’s mother and brother did not even record statements with the police leave alone not testifying in the matter. That calls for making an adverse inference that if they had been called, their evidence would not have been in favour of the case for the prosecution.
43. To me, the appellant turns out to be a victim of circumstances. The complainant’s story was not difficult to weave. She is a cousin of the appellant and they are neigbours. She is able to know so much about him, and his lifestyle. She was well aware that the appellant had deep differences with her mother. She refused to go to school and escaped from home without permission. Somehow, she could not stay away forever so she had to go back home but before that she had to find an explanation. She sought out a village elder whom she first told that she had escaped from home allegedly due to her brother’s mistreatment, something she never said even in her evidence. Then she changed the story to bring in the issue of defilement probably after the village elder had questioned her why she was visiting the toilet so frequently. She cast her net around and unfortunately it captured the appellant.
44. I am not convinced that the complainant was a witness of truth upon whose evidence could be relied upon alone to found a conviction for the appellant.
45. I wish to go back to the issue of whether or not penetration was proved. Even though the medical evidence showed that there was penetration of the complainant’s genitalia, both front and back, the same is not conclusive that it was by the appellant who was the perpetrator. There is evidence that the penetration could have been done between the time she escaped from home to the time she came by the village elder. The probability that the penetration could have been done other than on the date given by the complainant as the one that the appellant allegedly defiled her cannot be ruled out.
46. I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that an important ingredient of the offence of defilement, the identity of the perpetrator, has not been proved beyond a reasonable doubt. The complainant’s evidence could not simply be believed with so many questions unanswered.
47. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
48. The offence the appellant was charged with carries a very severe sentence of mandatory minimum twenty years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
49. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the identification of the appellant as the perpetrator of the offence.
50. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Delivered, signed and dated, signed on the Virtual Platform, Teams, this 28th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Vallerie h/b for Mr. Ngiri for the respondent
Johnson h/b for Etropia court assistant.
ANDAYI W. FRANCIS
JUDGE