Arising from the judment delivered in Mombasa CM SO NO E081 OF 2022( Hon. Alex Ithuku CM on 21/8/2024.)
Introduction
1. The Appellant was charged and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. E081 OF 2022 Hon. Alex Ithuku CM on 21/8/2024.
2. The particulars are that Fred Ngare on the 3/6/2022 at Miritini area Jomvu sub- county within Mombasa County, intentionally caused his penis to penetrate the vagina of R.A a girl aged 14years.
He was sentenced to 20 years in prison. He was aggrieved by the verdict and filed an appeal.
3. The trial magistrate considered the evidence of the 4 Prosecution witnesses. He was placed on his defence after which the court found that the state had proved its case beyond reasonable doubt, against the respondent for the offence defilement contrary to Section 8(1) as read with Section 8(3) the Sexual Offense Act and under section 215 of the Criminal procedure.
4. The appellant was aggrieved with the conviction and sentence, and he preferred the appeal herein on the following grounds dated the 16/07/2024;
i. That the Learned Magistrate erred fact and in law in finding that the prosecution proved their case beyond reasonable doubt. Yet there were glaring inconsistencies that went to the root of the case.
ii. That the Learned Magistrate erred in law and in fact on relying on the recanted, testimony by the complainant confirmed the alleged incident did not occur at all and was only told by the grandmother to accuse the appellant thereby committing an injustice.
iii. The Learned Magistrate erred in law and in fact to hold that there was vaginal penetration of the complainant in absence of proof of penile penetration i.e. vaginal swab, urine analysis and physical examination did not reveal any penetration.
iv. The learned Magistrate erred in law and in fact in convicting the appellant solely on the reason that he was the only male with access to the house on the 3rd of June 2020. Whereas the Minior’s testimonies as corroborated with her grandmother is that on the 3/6/2022 there were two other male persons namely Bakari (aged 17 years) and Hamisi (aged 21 years) who slept in the same house and room.
v. That the Learned Magistrate erred in law and in fact by ignoring the testimony of a victim in favor of a third party.
vi. That the Learned Magistrate erred in law and in fact in failing to interrogate the revelation and Appellants defense that the defilement brought were falsely lodged as a means of settling scores involving money sent to him by the compliance grandmother.
vii. That the Learned Magistrate erred in law and in fact by making a conviction without considering the causative agent that may have caused the hymen to rupture and not due to sexual penetration.
vii. That's the magistrate erred in law and in fact in convicting the appellant based on vaginal discharge despite the clinical officer not specifying nature of the discharge was not specified, whether it was due to penile vaginal penetration or otherwise.
viii. The learned Magistrate erred in law and in fact by making a conviction against the appellant who was never medically examined even when he requested for it to test the vaginal discharge on the appellant to him causing miscarriage of justice?
ix. That's the Learned Magistrate erred in law and in fact by making a conviction on grounds that the victim's hymen was broken without justifying whether it was ruptured by sexual intercourse or other environmental causes arriving at an unjust decision.
x. That the Learned Magistrate considered irrelevant issues and failed to consider relevant issues, hence arriving at a decision that was erroneous and against the evidence that was placed before him.
xi. That the Learned Honorable Magistrate erred in law and fact in making the findings, which were a total misdirection and legal deviation from the express provision of the law that's committing and injustice.
6. The appellant prayed that the appeal be allowed and the appellant's sentence be revised and reviewed or review downwards .
Prosecution’s case
7.The case of the prosecution is that the complainant PW1, was at the material time a 14-year-old student and staying in Miritini Estate. [the particulars withheld]. She was living with her grandmother, aunt and uncles and her mother was working in Saudia. She was a student at the World Bank Primary school.
8. Her evidence was that the incidence took place on a date she could not recall , but during the holidays sometime in 2022. That she was asleep in the house with her grandmother where they stayed in a one-bedroom house. She normally slept in the sitting room. . Felix ,her stepfather used to stay with them and he used to sleep in the bedroom. Her grandmother used to sleep with her in the living room where they shared a bed.
9. They took supper together and Felix left to sleep in the bedroom. At 2.00AM Felix came and woke her up. He told her to go and sleep with him in the bedroom. She told him that she did not want, and he left but came back and told her that she should go with him to the bedroom or he would tell her mother that she is trying to pursue her to have an affair so she went with him because he threatened to tell her mother. Upon reaching, Felix told her to remove her clothes she had worn a short. She removed the short and he told her to get on the bed. He then came on top of her. He inserted his penis in her vagina.
10. That the grandmother then woke up and went to the toilet and she (pw1) heard movements, and she left the room and went to the sitting room. Her grandmother asked her what they were doing, and she told her that they had done nothing. She did not get the courage to tell her what had happened. Her Grandmother and Rehema took her to the hospital, CF Hospital where the doctor examined her, and they went back home. It was her grandfather who went to the police . She told the police what had happened.
11. She added that Felix is her stepfather and that her mother works in Saudia and that their mum left in 2020 and left them (herself and her younger sister (12)) in custody of Felix. That all along they were staying with Felix and her grandmother used to stay in Lamu but the grandparents were attacked by the Al-Shabaab, that was when she traveled to Mombasa and joined them. Her grandmother had stayed with them for three months.
12. That her younger sister was also asleep on the bed, but no one heard Felix calling her. Before this day, she had no grudge. Neither the grandmother nor their mother had any grudge with Felix, (the accused). She was born in 11/1/2007.
9. Under cross examination she said that she was familiar with the house and that that night she was with her grandmother, her sister Aisha cousin –19 years, Bakari -17 years) and Hamisi- 21 years and that the accused was the only person who used to sleep in the bedroom. The accused came and called her and told her to join him in his bed. The first time she declined, the second time he came and called her again and she and her grandmother were sleeping next to the wall, and no one heard the accused called her.
10. She also admitted that the appellant did not agree with her grandmother over the money that her mother used to send. That her grandmother woke up seeking to know where she was and she started crying and PW3 asked to stop crying. The following day her grandmother took her to left her aunties house where her aunt and grandmother forced her to say that the accused had defiled her and that’s why she was crying on phone. That Boss, her uncle called her mother and said that the frame up was done at Chari’s house and the issue was about the money her mother used to send the accused from Saudia.
11. PW2, Phanice Sawe , was the clinical officer and she holds a diploma in clinical medicine. She filed the P3 form in respect of the complaint on the 9th of June 2022. She received the complainant with history of sexual assault. She was accompanied by her grandmother..
12. Under cross-examination she said that she saw the complainant on 9/6/2022. The PRC was filled on 3/6/2022 and was picked and signed on 9/6/2022. The P3 form was signed after PRC and was sent on 6/6/2022. She had treatment notes showing tests done and she did swabs.
13. PW3 Nduro Mashaka evidence was that her daughter is Amina and the complainant is her granddaughter and that she is from Miritini. That on 3/6/2022 She was asleep and around 2:00 AM. She heard her grandmother laughing in her father's room but not the biological father. The house had two rooms. She used to sleep in the sitting room with the with the complainant. She went to find out what was happening. The room was locked. She got into the toilet. The child got back to their room . The following morning she called her brother. They decided to take the child to the hospital. They took her to the hospital where she was examined and the doctor referred her to Jomvu police station.
14. When she was cross examined she stated that she was living in Lamu before she came to Miritini and that night she was in the room with the three girls and that she heard the complainant laugh and that she did not come to the room. She saw the girl get out of the appellant’s room. She was the one who reported to police, and she recorded her statement on the first day and she was accompanied by her brother .
15. PW4 was no. 104959 PC Elizabeth Mwateti based at Jomvu Police Station. She testified that on 4th June 2022, she (PW4) was minuted to investigate this case. The complainant was brought to the station by the grandmother. She talked to her. This was on the 4th of June 2022 . That the girl said that the accused called her to his room, and he removed her clothes. She was 14 years old. She recorded the statement from the grandmother. The child was examined at Miritini CDF hospital. A P3 form and PRC form were filed. And she visited the scene of crime. She entered the house, and it had one bedroom and a sitting room. She arrested the accused at the police station on the 10th of June 2022 at 7:00 PM.
16. Under cross examination she said PW4 recorded his statement on 12/6/2022. The P3 form was taken to hospital on 4/6/2022 and the complainant and her grandmother were present during the incident, and they were sleeping in the sitting room while he (the accused) was sleeping in the bedroom.
17. The court placed the appellant on his defence and he said he is Felix Ngari alias Mustafa from Malindi a software engineer. In 2021 he was on leave and met a girl called AP who became his girlfriend, and she had 2 kids. One is D and the other is H. He was staying with his brother and used to visit them at Miritini.
18. Around August 2021, she told him that she wanted to travel abroad and in December 2021 she flew to Saudia Arabia and asked him to look after her daughters where he accepted to take care of them. In February,2022 the mother to AP came to visit him and informed AP that they would stay together for some weeks. That she questioned why AP was sending money to him. He offered to surrender the children to their grandmother, but AP refused. On 3/6/2022 he was asleep and that the house had 1 bedroom where he had partitioned the sitting room into a portion and the girls slept in the partition.
19. His door was knocked, and he opened and found the grandmother waking up the boys sleeping on the sitting room. She was claiming that R. had been sleeping with him. He called R who was in her bedroom it was around 3:00a.m. The grandmother used to sleep with the girls. In the morning the complainant said that she was not going to school and that she had a headache, he asked her to stay home. He told her that her grandmother had left. Within 10 minutes the grandmother took away R and they took her to her sister. On 10/6/2022 he was arrested at 8:30pm he was taken to Jomvu police station. His fingerprints were taken and was charged. He denied the charge
20. Under cross examination he said that they are no longer in contact with the mother to the complainant and on the material day the grandmother to the complainant slept in his house. She is the one who made the report, and he did not interfere with the witnesses.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, PPlatt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
25.) Ingredients to prove the offence of defilement.
i.) Age of the victim
ii) penetration
iii) proper identification of the perpetrator
27. The age of the victim
In the case of Hadson Ali Mwachogo v. Republic, the court held that;
‘The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence defilement and forms”
As per the charge sheet (pages D-E of the records of appeal) the minor was 14 years at the time of the alleged offence. A Birth certificate is annexed to the list of exhibits confirming that the Complainant was born on 11/11/2007 thus not contested.
28. Whether there was penetration and the identification of the culprit.
Penetration is defined in Section 2 of the Sexual Offensive Act as the partial or complete insertion of the genital organ of a person into the genital organ of another person
The appellant was well known to the victim and he was the step father and care giver and they were living in the same house.
PW1 testimony against the appellant was that he called her to the bedroom and she went, she removed her clothes and climbed on the bed where Felix (accused person) climbed on top of her and inserted his penis in her vagina.
The trial court believed this evidence as supported by the medical notes.
Analysis.
In as much as thetrial court believed this evidence, I noted some discrepancies. During the cross examination of the witnesses, the issue of a there being a dispute and conflict of interest between the grandmother and the accused person arose. PW1 stated that there was a grudge between the grandmother, PW3, and the appellant. The bone of contention was the money being sent by the PW1’S mother from Saudi Arabia. The grandmother wondered why the money was being sent to the appellant. There was a family meeting over this issue and the appellant even offered to give up custody of the children.
31.Another red flag in this case was the history given by the grandmother to the police and her evidence in court. The investigating officer testified that PW3 told her that she had noted that the granddaughter was sleeping with her step father and this had been going on for 3 months. In other words the appellant and PW1 were having a romantic sexual relationship. PW3 did not mention this on going relationship in her evidence in court . She , the grandmother , testified that on the material night , when she woke up, heard them (PW1 and the Appellant ) laughing while in the bed room and that is when she got up to go check.
This evidence contradicts PW1’s evidence that the appellant threatened her to tell her mother that they had an affair together and she was in pain after the ordeal . She would not be laughing while in pain.
PW1 also testified in court that her grandmother and aunty forced her to say that Felix had defiled her and that's why she was crying on the call to the motherduring the family meeting.
Of course it would be worse if the affair did exist as this was a minor who had been entrusted to the appellant.
I have looked at the medical records.
And upon my independent evaluation of the evidence adduced in supporting of the charge, I'm not satisfied that the prosecution proved its case to the required degree and the conviction was not safe and as a result the court allows the appeal.
The conviction is quashed and the sentence set aside. The appellant may be set at liberty.
The signal to be sent.
File closed.
Dated signed and delivered this 26 th day of JUNE 2025.
WENDY KAGENDO , JUDGE
in the presence of
The appelant and his advocate ms Mwakizozo
Mr.Sirima for the respondent
Bebora court assistant
Introduction
1. The Appellant was charged and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. E081 OF 2022 Hon. Alex Ithuku CM on 21/8/2024.
2. The particulars are that Fred Ngare on the 3/6/2022 at Miritini area Jomvu sub- county within Mombasa County, intentionally caused his penis to penetrate the vagina of R.A a girl aged 14years.
He was sentenced to 20 years in prison. He was aggrieved by the verdict and filed an appeal.
3. The trial magistrate considered the evidence of the 4 Prosecution witnesses. He was placed on his defence after which the court found that the state had proved its case beyond reasonable doubt, against the respondent for the offence defilement contrary to Section 8(1) as read with Section 8(3) the Sexual Offense Act and under section 215 of the Criminal procedure.
4. The appellant was aggrieved with the conviction and sentence, and he preferred the appeal herein on the following grounds dated the 16/07/2024;
i. That the Learned Magistrate erred fact and in law in finding that the prosecution proved their case beyond reasonable doubt. Yet there were glaring inconsistencies that went to the root of the case.
ii. That the Learned Magistrate erred in law and in fact on relying on the recanted, testimony by the complainant confirmed the alleged incident did not occur at all and was only told by the grandmother to accuse the appellant thereby committing an injustice.
iii. The Learned Magistrate erred in law and in fact to hold that there was vaginal penetration of the complainant in absence of proof of penile penetration i.e. vaginal swab, urine analysis and physical examination did not reveal any penetration.
iv. The learned Magistrate erred in law and in fact in convicting the appellant solely on the reason that he was the only male with access to the house on the 3rd of June 2020. Whereas the Minior’s testimonies as corroborated with her grandmother is that on the 3/6/2022 there were two other male persons namely Bakari (aged 17 years) and Hamisi (aged 21 years) who slept in the same house and room.
v. That the Learned Magistrate erred in law and in fact by ignoring the testimony of a victim in favor of a third party.
vi. That the Learned Magistrate erred in law and in fact in failing to interrogate the revelation and Appellants defense that the defilement brought were falsely lodged as a means of settling scores involving money sent to him by the compliance grandmother.
vii. That the Learned Magistrate erred in law and in fact by making a conviction without considering the causative agent that may have caused the hymen to rupture and not due to sexual penetration.
vii. That's the magistrate erred in law and in fact in convicting the appellant based on vaginal discharge despite the clinical officer not specifying nature of the discharge was not specified, whether it was due to penile vaginal penetration or otherwise.
viii. The learned Magistrate erred in law and in fact by making a conviction against the appellant who was never medically examined even when he requested for it to test the vaginal discharge on the appellant to him causing miscarriage of justice?
ix. That's the Learned Magistrate erred in law and in fact by making a conviction on grounds that the victim's hymen was broken without justifying whether it was ruptured by sexual intercourse or other environmental causes arriving at an unjust decision.
x. That the Learned Magistrate considered irrelevant issues and failed to consider relevant issues, hence arriving at a decision that was erroneous and against the evidence that was placed before him.
xi. That the Learned Honorable Magistrate erred in law and fact in making the findings, which were a total misdirection and legal deviation from the express provision of the law that's committing and injustice.
6. The appellant prayed that the appeal be allowed and the appellant's sentence be revised and reviewed or review downwards .
Prosecution’s case
7.The case of the prosecution is that the complainant PW1, was at the material time a 14-year-old student and staying in Miritini Estate. [the particulars withheld]. She was living with her grandmother, aunt and uncles and her mother was working in Saudia. She was a student at the World Bank Primary school.
8. Her evidence was that the incidence took place on a date she could not recall , but during the holidays sometime in 2022. That she was asleep in the house with her grandmother where they stayed in a one-bedroom house. She normally slept in the sitting room. . Felix ,her stepfather used to stay with them and he used to sleep in the bedroom. Her grandmother used to sleep with her in the living room where they shared a bed.
9. They took supper together and Felix left to sleep in the bedroom. At 2.00AM Felix came and woke her up. He told her to go and sleep with him in the bedroom. She told him that she did not want, and he left but came back and told her that she should go with him to the bedroom or he would tell her mother that she is trying to pursue her to have an affair so she went with him because he threatened to tell her mother. Upon reaching, Felix told her to remove her clothes she had worn a short. She removed the short and he told her to get on the bed. He then came on top of her. He inserted his penis in her vagina.
10. That the grandmother then woke up and went to the toilet and she (pw1) heard movements, and she left the room and went to the sitting room. Her grandmother asked her what they were doing, and she told her that they had done nothing. She did not get the courage to tell her what had happened. Her Grandmother and Rehema took her to the hospital, CF Hospital where the doctor examined her, and they went back home. It was her grandfather who went to the police . She told the police what had happened.
11. She added that Felix is her stepfather and that her mother works in Saudia and that their mum left in 2020 and left them (herself and her younger sister (12)) in custody of Felix. That all along they were staying with Felix and her grandmother used to stay in Lamu but the grandparents were attacked by the Al-Shabaab, that was when she traveled to Mombasa and joined them. Her grandmother had stayed with them for three months.
12. That her younger sister was also asleep on the bed, but no one heard Felix calling her. Before this day, she had no grudge. Neither the grandmother nor their mother had any grudge with Felix, (the accused). She was born in 11/1/2007.
9. Under cross examination she said that she was familiar with the house and that that night she was with her grandmother, her sister Aisha cousin –19 years, Bakari -17 years) and Hamisi- 21 years and that the accused was the only person who used to sleep in the bedroom. The accused came and called her and told her to join him in his bed. The first time she declined, the second time he came and called her again and she and her grandmother were sleeping next to the wall, and no one heard the accused called her.
10. She also admitted that the appellant did not agree with her grandmother over the money that her mother used to send. That her grandmother woke up seeking to know where she was and she started crying and PW3 asked to stop crying. The following day her grandmother took her to left her aunties house where her aunt and grandmother forced her to say that the accused had defiled her and that’s why she was crying on phone. That Boss, her uncle called her mother and said that the frame up was done at Chari’s house and the issue was about the money her mother used to send the accused from Saudia.
11. PW2, Phanice Sawe , was the clinical officer and she holds a diploma in clinical medicine. She filed the P3 form in respect of the complaint on the 9th of June 2022. She received the complainant with history of sexual assault. She was accompanied by her grandmother..
12. Under cross-examination she said that she saw the complainant on 9/6/2022. The PRC was filled on 3/6/2022 and was picked and signed on 9/6/2022. The P3 form was signed after PRC and was sent on 6/6/2022. She had treatment notes showing tests done and she did swabs.
13. PW3 Nduro Mashaka evidence was that her daughter is Amina and the complainant is her granddaughter and that she is from Miritini. That on 3/6/2022 She was asleep and around 2:00 AM. She heard her grandmother laughing in her father's room but not the biological father. The house had two rooms. She used to sleep in the sitting room with the with the complainant. She went to find out what was happening. The room was locked. She got into the toilet. The child got back to their room . The following morning she called her brother. They decided to take the child to the hospital. They took her to the hospital where she was examined and the doctor referred her to Jomvu police station.
14. When she was cross examined she stated that she was living in Lamu before she came to Miritini and that night she was in the room with the three girls and that she heard the complainant laugh and that she did not come to the room. She saw the girl get out of the appellant’s room. She was the one who reported to police, and she recorded her statement on the first day and she was accompanied by her brother .
15. PW4 was no. 104959 PC Elizabeth Mwateti based at Jomvu Police Station. She testified that on 4th June 2022, she (PW4) was minuted to investigate this case. The complainant was brought to the station by the grandmother. She talked to her. This was on the 4th of June 2022 . That the girl said that the accused called her to his room, and he removed her clothes. She was 14 years old. She recorded the statement from the grandmother. The child was examined at Miritini CDF hospital. A P3 form and PRC form were filed. And she visited the scene of crime. She entered the house, and it had one bedroom and a sitting room. She arrested the accused at the police station on the 10th of June 2022 at 7:00 PM.
16. Under cross examination she said PW4 recorded his statement on 12/6/2022. The P3 form was taken to hospital on 4/6/2022 and the complainant and her grandmother were present during the incident, and they were sleeping in the sitting room while he (the accused) was sleeping in the bedroom.
17. The court placed the appellant on his defence and he said he is Felix Ngari alias Mustafa from Malindi a software engineer. In 2021 he was on leave and met a girl called AP who became his girlfriend, and she had 2 kids. One is D and the other is H. He was staying with his brother and used to visit them at Miritini.
18. Around August 2021, she told him that she wanted to travel abroad and in December 2021 she flew to Saudia Arabia and asked him to look after her daughters where he accepted to take care of them. In February,2022 the mother to AP came to visit him and informed AP that they would stay together for some weeks. That she questioned why AP was sending money to him. He offered to surrender the children to their grandmother, but AP refused. On 3/6/2022 he was asleep and that the house had 1 bedroom where he had partitioned the sitting room into a portion and the girls slept in the partition.
19. His door was knocked, and he opened and found the grandmother waking up the boys sleeping on the sitting room. She was claiming that R. had been sleeping with him. He called R who was in her bedroom it was around 3:00a.m. The grandmother used to sleep with the girls. In the morning the complainant said that she was not going to school and that she had a headache, he asked her to stay home. He told her that her grandmother had left. Within 10 minutes the grandmother took away R and they took her to her sister. On 10/6/2022 he was arrested at 8:30pm he was taken to Jomvu police station. His fingerprints were taken and was charged. He denied the charge
20. Under cross examination he said that they are no longer in contact with the mother to the complainant and on the material day the grandmother to the complainant slept in his house. She is the one who made the report, and he did not interfere with the witnesses.
Analysis and Determination
It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32 . In this case the court stated-;
“The duty of the 1 st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-
The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “ an appellant on a 1 st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, PPlatt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
25.) Ingredients to prove the offence of defilement.
i.) Age of the victim
ii) penetration
iii) proper identification of the perpetrator
27. The age of the victim
In the case of Hadson Ali Mwachogo v. Republic, the court held that;
‘The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence defilement and forms”
As per the charge sheet (pages D-E of the records of appeal) the minor was 14 years at the time of the alleged offence. A Birth certificate is annexed to the list of exhibits confirming that the Complainant was born on 11/11/2007 thus not contested.
28. Whether there was penetration and the identification of the culprit.
Penetration is defined in Section 2 of the Sexual Offensive Act as the partial or complete insertion of the genital organ of a person into the genital organ of another person
The appellant was well known to the victim and he was the step father and care giver and they were living in the same house.
PW1 testimony against the appellant was that he called her to the bedroom and she went, she removed her clothes and climbed on the bed where Felix (accused person) climbed on top of her and inserted his penis in her vagina.
The trial court believed this evidence as supported by the medical notes.
Analysis.
In as much as thetrial court believed this evidence, I noted some discrepancies. During the cross examination of the witnesses, the issue of a there being a dispute and conflict of interest between the grandmother and the accused person arose. PW1 stated that there was a grudge between the grandmother, PW3, and the appellant. The bone of contention was the money being sent by the PW1’S mother from Saudi Arabia. The grandmother wondered why the money was being sent to the appellant. There was a family meeting over this issue and the appellant even offered to give up custody of the children.
31.Another red flag in this case was the history given by the grandmother to the police and her evidence in court. The investigating officer testified that PW3 told her that she had noted that the granddaughter was sleeping with her step father and this had been going on for 3 months. In other words the appellant and PW1 were having a romantic sexual relationship. PW3 did not mention this on going relationship in her evidence in court . She , the grandmother , testified that on the material night , when she woke up, heard them (PW1 and the Appellant ) laughing while in the bed room and that is when she got up to go check.
This evidence contradicts PW1’s evidence that the appellant threatened her to tell her mother that they had an affair together and she was in pain after the ordeal . She would not be laughing while in pain.
PW1 also testified in court that her grandmother and aunty forced her to say that Felix had defiled her and that's why she was crying on the call to the motherduring the family meeting.
Of course it would be worse if the affair did exist as this was a minor who had been entrusted to the appellant.
I have looked at the medical records.
And upon my independent evaluation of the evidence adduced in supporting of the charge, I'm not satisfied that the prosecution proved its case to the required degree and the conviction was not safe and as a result the court allows the appeal.
The conviction is quashed and the sentence set aside. The appellant may be set at liberty.
The signal to be sent.
File closed.
Dated signed and delivered this 26 th day of JUNE 2025.
WENDY KAGENDO , JUDGE
in the presence of
The appelant and his advocate ms Mwakizozo
Mr.Sirima for the respondent
Bebora court assistant