BACKGROUND
1. The Appellant was convicted of the charge of defilement of a child with mental incapacity contrary to Section 7 of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the 10th day of March 2018 at Kimori Location in Muranga County within the Republic of Kenya, he unlawfully and intentionally caused his penis to penetrate the vagina of V.W. a child aged 17 years.
2. He was charged in the alternative with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 10th day of March 2018 at Kimori location in Muranga County, he unlawfully and intentionally committed an indecent act touching the vagina of V.W. a child aged 17 years. The Appellant was found guilty and sentenced to serve 10 years’ imprisonment.
3. The Appellant, being aggrieved by the said decision has lodged this appeal in which he raised thirteen (13) grounds;
a. That the trial court erred in law and fact by basing the conviction on evidence that did not establish the elements of the offence pursuant to section 7 of the SOA.
b. The trial court erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt in spite of the glaring lack of evidence,
c. The trial court based the conviction on a defective charge sheet,
d. The trial court failed to appreciate that the prosecution case was marred with inconsistencies,
e. The trial court convicted the Appellant, yet the prosecution did not call crucial witnesses nor give reasons why they were not called,
f. That the trial court erred in law and fact in convicting the Appellant on fabricated evidence, yet the DNA report exonerated the Appellant as the father of the child, the product of the alleged defilement.
g. The trial court disregarded the appellant’s plausible defence
h. The trial court meted the minimum sentence without considering his mitigation.
i. The trial court relied on contradictory evidence
j. The trial court did not take into account that no identification parade was conducted.
k. That the P3 did not support the charges.
l. That crucial witnesses were not called, (Repeated at ‘e’)
m. The sentence was excessive.
Duty of the First Appellate Court
4. It is the duty of the first appellate court to re-evaluate and reconsider afresh the evidence on record so as to arrive at its own conclusion while bearing in mind that it did not have the opportunity to observe the demeanor, of the witnesses. These Guiding principles are found in the cases of Okeno versus R (1972) EA 32 , Njoroge Versus R (1987) eKLR 19, Kiilu and another versus R 2005 1 KLR 174 amongst others.
Evidence
5. During trial, the prosecution called 4 witnesses to testify against the appellant. The appellant called 2 witnesses. PW1 the complainant testified that she had gone to fetch water at the river when she met the appellant who told her they were going to the banana plantation.
6. After fetching water, they went to the banana plantation and the appellant told her to lie down and if she refused, he would kill her. Then she lay down, and he got inside. That the Appellant put his thing called ‘kasusu’ into her. The record shows that she pointed at her groin area to demonstrate what she meant. That she went home and did not tell anyone and now (at the time of giving evidence) she was pregnant. She did not know how many months pregnant she was.
7. PW1 was cross-examined as to her relationship with one Sare and whether she lay with him in Captain’s house. She denied the relationship as she did any insinuation that she had been coached to frame the appellant.
8. PW2; NM, the mother of the victim testified that her daughter was born on 10th July 2001 but she used to suffer from convulsions and she also had some mental challenges. In May 2018, she noted that PW1’s feeding habits had changed and she suspected that she was pregnant. That she asked PW1 who was responsible and PW1 said it was Mburu.
9. She then reported at Makuyu Police Station and took PW1 to the hospital where it was confirmed that indeed Pw1 was pregnant and expected to deliver in November. She also denied having heard of any relationship between PW1 and one Sare.
10. PW3 was Moses Karinga Michuki a clinician from Maragua sub-county hospital who examined the victim on 6th June 2018. He testified that the victim was indeed pregnant. He found that there was no hymen, it was not freshly broken’ and he concluded that there was defilement.
11. PW4 was PC (W) Antonia Adhiambo, who took over the file from PC(W) Kiptum. She produced the report from the EEG centre and the birth certificate PEXT 1. Under cross-examination, she testified that a DNA test was done on the child but it was negative. The complainant identified the Appellant as the perpetrator.
12. The Appellant was put on his defence. He gave a sworn statement and denied the offence. He testified that he works at construction sites and at the time of the alleged he was away at work. The Appellant maintained that the charges are fabricated as the victim who is mentally challenged could have implicated him falsely since the victim”s family used to fetch water from their (Appellant’s) farm. That the victim’s family demanded money from him and his father and when the money was not forthcoming he was charged. He called one Samuel Mwangi Kariuki (DW2) to confirm they were working at a site in Jerusalem Maroke Thika at the time of the alleged offence.
ANAYSIS AND DETERMINATION
13. This being the first Appellate Court. I am expected to subject the entire evidence adduced before the trial Court to fresh evaluation and analysis. This I do while bearing in mind that I never had the opportunity to hear the witnesses and observe their demeanour. The principles that apply in the first Appellate Court are set out in the case of Okeno Vs Republic [1972] EA 32 where it was stated as follows: -
“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. 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’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)”
14. In view of the above I have perused the lower court record. I have considered the evidence adduced before the trial Court and wish to consider whether the ingredients for the offence was proved beyond reasonable doubt.
15. Section 7 of the sexual offences act states that any person who intentionally commits rape or an indecent act with another within the view of a family member, or a child or person with mental disabilities is guilty of an offence and is liable upon conviction,to imprisonment for a term which shall not be less than 10years.
16. Section 2 (1) of the Sexual Offences Act defines A person with a mental disability to mean a person affected by any mental disability irrespective of its cause, whether temporary or permanent and for purposes of this act includes a person affected by such mental disability to the extent that he or she ,at the time of the alleged commission of the offence in question was;
a. unable to appreciate the nature and reasonably foreseeable consequences of any act described under this act
b. able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation
c. unable to resist the commission of any such act; or
d. unable to communicate his or her unwillingness to participate in such an act.
17. 12. The 3rd ground of appeal is that the trial court based its conviction on a defective charge sheet. They did not elaborate on the alleged defect and neither did they submit on the same. From a look at the charge sheet, it is however apparent that the aspect of mental incapacity is not captured in the particulars of the offence. Indeed that was a defect in the charge that ought to have been rectified.
18. The ingredients of the offence of defilement under section 7 of the sexual offences act would therefore include those that were well stated in the case of Dominic Kibet Mwareng v Republic [2013] eKLR, by Ndolo J. :
“The critical ingredients forming the offence of defilement are;
i. age of the complainant,
ii. Proof of penetration
iii. Positive identification of the
iv. mental incapacity
Age
19. In Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
20. In proof of the complainant’s age, PW4 produced the victim’s birth certificate (exhibit 1) which showed that she was born on 10th July 2001. The birth certificate proves the victim was 17 years old at the time of the offence. And, therefore a child. The Age the complainant was proved beyond reasonable doubt.
MENTAL INCAPACITY
21. The awake EEG recording showed a background of medium voltage bilaterally reactive 9-10 hz alpha rhythms posteriorly.
22. Low amplitude 15 to 18 hz beta activities were recorded over the fronto-central areas bilaterally.
23. Some 5-7 hz theta waves were seen over the fronto region.
24. The impression recorded was EEG record is normal. The maker was not called as a witness so the findings were not elaborated. The P3, the treatment notes and the mother’s evidence however mention that she was mentally challenged.
25. There was no attempt to explain or interpret these findings and this was mostly because of the way the charge sheet was drawn. The trial court also conducted a voire dire but again did not make any finding on the mental ability of the child. For that reason, the court finds that the mental incapacity was not proved
Penetration
26. The P3 form produced showed that PW1 was normal, no bruises, her virginity and hymen was long broken. The trial court properly found that the broken hymen and the fact that the girl conceived confirmed that her genitalia was penetrated. Of course these days there are other ways of conceiving apart from sexual interactions but the circumstances of this case in the rural set up and with someone who is challenged rule out modern fertility approaches.
Identification
27. The prosecution must prove beyond reasonable doubt that the appellant is the one who penetrated the complainant – and therefore committed the offence of defilement. PW1, the complainant testified that she had sexual intercourse with the Appellant on only one occasion in the month of August 2014 which resulted in her pregnancy. DNA examination was done on, after the birth of the child. The results excluded the Appellant from being the father of the child born out of the alleged defilement.
28. DNA testing provides a scientific proof of biological parenthood of a person. In cases of defilement, the fact that the victim became pregnant as a result of sexual intercourse with a child is proof of penetration and the identity of the culprit. Except, it is a different thing altogether if the pregnancy is conceived through other modern fertilization and conception methods. Of great evidentiary importance, however, is that in criminal cases, defilement or rape, DNA result that proves a person to be the biological father of a child conceived through defilement is proof of penetration by the person so found to be the biological father of the child
29. I wish, however, to disabuse the appellant of the notion that, because he was excluded by DNA results, he did not defile the victim. He may have caused penetration of the child at another time which did not result in a pregnancy and so not covered by the DNA result. Nonetheless, such must be proved through other evidence as required.
30. I however take note of the fact that the complainant testified that it is the Appellant who first had sex with her and that she was certain that he was the father of the child. The DNA results is contrary to her testimony; this aspect of her testimony casts doubt on credibility of the testimony. See the case of Eliud Ouma Agwara v Republic [2016] eKLR, where Makau J, stated as follows:
“The DNA results having not connected the appellant with the complainant's child as a result of the alleged result of defilement and the complainant having not connected the appellant with any other previous act of defilement or having not stated that she has had an earlier encounter with another person who could in view of the DNA results be said to be the father of the child, meaning the age of pregnancy and the child should have related to the incident and results should have confirmed the Appellant was the father of the child. The appellant should have been accorded the benefit of doubt. The trial Court fell into an error when it held that DNA results could never be a defence in an offence of defilement as the Court did not properly evaluate and analyze the evidence which prosecution was relying upon thus as a result the defilement of the complainant she became pregnant meaning the age of pregnancy and the child should have related to the incident and results should have confirmed the Appellant was the father of the child. It was therefore apart from proving defilement the duty of the prosecution to prove as they alleged the complainant has had no other sexual intercourse with any other person prior to the date of defilement to prove that as a result of the alleged defilement PW1 became pregnant, bore the child whose DNA test report connected the appellant with the act of defilement.”
31. I also note that Odero J, in the case of Simon Gichuki Maina v Republic [2016] eKLR stated that:
“Whilst paternity test cannot conclusively prove the fact of defilement, these DNA results cast genuine doubt on the evidence of the complainant and bring her veracity into question. If as proved appellant was not the father of her child, then the complainant must have had sexual intercourse with a person other than the appellant and that person fathered her child. Her identification of the appellant as the man who defiled her is cast into doubt. The very real possibility that the complainant only named (identified) the appellant purely to shield some other third party cannot be entirely ruled out.
Nobody witnessed the defilement. Nobody saw appellant in the company of the complainant. The complainant’s claim that the appellant fathered her child through this act of defilement has been disproved by scientific evidence. I find that pertinent and genuine doubts remain regarding the identification of the appellant by the complainant. Once a witness is found to have been untruthful in one aspect of his testimony, then the entire testimony of that witness is cast into doubt. The benefit of such doubt must be awarded to the appellant. As such he was entitled to an acquittal. The trial magistrate erred in rendering a conviction in this case. I therefore quash the appellant’s conviction on the charge of defilement. The subsequent sentence of 25 years’ imprisonment is also set aside. This appeal succeeds. The appellant is to be set at liberty forthwith unless he is otherwise lawfully held.”
32. It bears repeating, that exclusion by DNA result does not absolve any other sexual intercourse with the minor which may be proved through other evidence. It is the onus of the prosecution to properly tie or connect through evidence, the penetration of a child to the accused.
33. I am aware of the proviso to section 124 of the Evidence Act which permits conviction on the sole evidence of a child who is the victim of sexual assault as long as the court has records of the reasons for believing the child. In this case, no such reasons were given and in any manner, this was not a child of tender years even though she is a vulnerable victim due to the mental incapacity though again that incapacity was not fully proved.
34. Further the record shows that the case was handled by 3 different magistrates. Hon Joan Irura, who wrote the judgement, did not have the chance to see the demeanour of the victim nor her mother and therefore their word of mouth needed corroboration, especially on the identification. I have found that the fact that the DNA report excluded the Appellant as the father of the child routs the core of the testimony by PW1- the victim child which was to the effect that she had sex once with the appellant which resulted in the pregnancy. In addition, there was no other cogent and strong evidence which proved any other penetration of the victim by the appellant.
35. In this case it is the Appellant who requested the DNA testing. He did this after giving a background that one Sare had been named as the putative father as he had been seen with the victim severally in the evenings. This name was brought up from the start of the trial as he cross-examined both the victim and her mother about him. He then insisted on the DNA test which he again brought up with the clinician. I wonder why no efforts were made to call any other person or to follow up on the role of this Sare.
36. The evidence that the DNA report exonerated the Appellant was brought up by the investigating officer. The court ought to have followed up on the report if they doubted the evidence of the investigator. In any case, a party who chooses to keep away evidence should not benefit from their latches. This is because the DNA report was a pivotal aspect of this case having featured from the start. In fact, when Hon K Sambu took over the matter, he at one point, on the 26th day of November 2019, ordered that the case start de novo, after the accused person followed up on his application for the DNA testing. At the next hearing date, it seems that these directions were forgotten as the clinician gave evidence as PW3. The issue was not brought up again and PW4 testified before a different Magistrate. It is noted that The Appellant did not have the benefit of legal representation during his trial.
37. It is also noted that the first report to the police did not contain the name of the suspect. These matters, especially the accused person’s persistence on the DNA test and his Alibi which was not disproved by the state, cast doubt on whether the Appellant defiled the complainant. It also cast doubt on the credibility of the evidence by the complainant. The Appellant gave reasons as to why he could have been falsely or wrongly implicated and Indeed PW2 testified they used to fetch water in the Appellant’s family farm and she did not send the victim to go to fetch water. This contradicted Pw1’s evidence. Such is reasonable doubt which should be resolved in favor of the appellant.
38. Accordingly, the appeal succeeds and is allowed. The conviction against the Appellant is hereby quashed and the sentence of 10 years’ imprisonment is set aside.
39. The Appellant is hereby set free unless lawfully held.
40. It is so ordered.
Dated signed and delivered virtually this ----------30th ------------- day 0f July 2024
WENDY KAGENDO .
JUDGE
IN THE PRESENCE OF
THE APPELANT
FOR THE RESPONDENT MS MAINA
BEBORA COURT ASSISTANT
1. The Appellant was convicted of the charge of defilement of a child with mental incapacity contrary to Section 7 of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the 10th day of March 2018 at Kimori Location in Muranga County within the Republic of Kenya, he unlawfully and intentionally caused his penis to penetrate the vagina of V.W. a child aged 17 years.
2. He was charged in the alternative with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 10th day of March 2018 at Kimori location in Muranga County, he unlawfully and intentionally committed an indecent act touching the vagina of V.W. a child aged 17 years. The Appellant was found guilty and sentenced to serve 10 years’ imprisonment.
3. The Appellant, being aggrieved by the said decision has lodged this appeal in which he raised thirteen (13) grounds;
a. That the trial court erred in law and fact by basing the conviction on evidence that did not establish the elements of the offence pursuant to section 7 of the SOA.
b. The trial court erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt in spite of the glaring lack of evidence,
c. The trial court based the conviction on a defective charge sheet,
d. The trial court failed to appreciate that the prosecution case was marred with inconsistencies,
e. The trial court convicted the Appellant, yet the prosecution did not call crucial witnesses nor give reasons why they were not called,
f. That the trial court erred in law and fact in convicting the Appellant on fabricated evidence, yet the DNA report exonerated the Appellant as the father of the child, the product of the alleged defilement.
g. The trial court disregarded the appellant’s plausible defence
h. The trial court meted the minimum sentence without considering his mitigation.
i. The trial court relied on contradictory evidence
j. The trial court did not take into account that no identification parade was conducted.
k. That the P3 did not support the charges.
l. That crucial witnesses were not called, (Repeated at ‘e’)
m. The sentence was excessive.
Duty of the First Appellate Court
4. It is the duty of the first appellate court to re-evaluate and reconsider afresh the evidence on record so as to arrive at its own conclusion while bearing in mind that it did not have the opportunity to observe the demeanor, of the witnesses. These Guiding principles are found in the cases of Okeno versus R (1972) EA 32 , Njoroge Versus R (1987) eKLR 19, Kiilu and another versus R 2005 1 KLR 174 amongst others.
Evidence
5. During trial, the prosecution called 4 witnesses to testify against the appellant. The appellant called 2 witnesses. PW1 the complainant testified that she had gone to fetch water at the river when she met the appellant who told her they were going to the banana plantation.
6. After fetching water, they went to the banana plantation and the appellant told her to lie down and if she refused, he would kill her. Then she lay down, and he got inside. That the Appellant put his thing called ‘kasusu’ into her. The record shows that she pointed at her groin area to demonstrate what she meant. That she went home and did not tell anyone and now (at the time of giving evidence) she was pregnant. She did not know how many months pregnant she was.
7. PW1 was cross-examined as to her relationship with one Sare and whether she lay with him in Captain’s house. She denied the relationship as she did any insinuation that she had been coached to frame the appellant.
8. PW2; NM, the mother of the victim testified that her daughter was born on 10th July 2001 but she used to suffer from convulsions and she also had some mental challenges. In May 2018, she noted that PW1’s feeding habits had changed and she suspected that she was pregnant. That she asked PW1 who was responsible and PW1 said it was Mburu.
9. She then reported at Makuyu Police Station and took PW1 to the hospital where it was confirmed that indeed Pw1 was pregnant and expected to deliver in November. She also denied having heard of any relationship between PW1 and one Sare.
10. PW3 was Moses Karinga Michuki a clinician from Maragua sub-county hospital who examined the victim on 6th June 2018. He testified that the victim was indeed pregnant. He found that there was no hymen, it was not freshly broken’ and he concluded that there was defilement.
11. PW4 was PC (W) Antonia Adhiambo, who took over the file from PC(W) Kiptum. She produced the report from the EEG centre and the birth certificate PEXT 1. Under cross-examination, she testified that a DNA test was done on the child but it was negative. The complainant identified the Appellant as the perpetrator.
12. The Appellant was put on his defence. He gave a sworn statement and denied the offence. He testified that he works at construction sites and at the time of the alleged he was away at work. The Appellant maintained that the charges are fabricated as the victim who is mentally challenged could have implicated him falsely since the victim”s family used to fetch water from their (Appellant’s) farm. That the victim’s family demanded money from him and his father and when the money was not forthcoming he was charged. He called one Samuel Mwangi Kariuki (DW2) to confirm they were working at a site in Jerusalem Maroke Thika at the time of the alleged offence.
ANAYSIS AND DETERMINATION
13. This being the first Appellate Court. I am expected to subject the entire evidence adduced before the trial Court to fresh evaluation and analysis. This I do while bearing in mind that I never had the opportunity to hear the witnesses and observe their demeanour. The principles that apply in the first Appellate Court are set out in the case of Okeno Vs Republic [1972] EA 32 where it was stated as follows: -
“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. 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’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)”
14. In view of the above I have perused the lower court record. I have considered the evidence adduced before the trial Court and wish to consider whether the ingredients for the offence was proved beyond reasonable doubt.
15. Section 7 of the sexual offences act states that any person who intentionally commits rape or an indecent act with another within the view of a family member, or a child or person with mental disabilities is guilty of an offence and is liable upon conviction,to imprisonment for a term which shall not be less than 10years.
16. Section 2 (1) of the Sexual Offences Act defines A person with a mental disability to mean a person affected by any mental disability irrespective of its cause, whether temporary or permanent and for purposes of this act includes a person affected by such mental disability to the extent that he or she ,at the time of the alleged commission of the offence in question was;
a. unable to appreciate the nature and reasonably foreseeable consequences of any act described under this act
b. able to appreciate the nature and reasonably foreseeable consequences of such an act but unable to act in accordance with that appreciation
c. unable to resist the commission of any such act; or
d. unable to communicate his or her unwillingness to participate in such an act.
17. 12. The 3rd ground of appeal is that the trial court based its conviction on a defective charge sheet. They did not elaborate on the alleged defect and neither did they submit on the same. From a look at the charge sheet, it is however apparent that the aspect of mental incapacity is not captured in the particulars of the offence. Indeed that was a defect in the charge that ought to have been rectified.
18. The ingredients of the offence of defilement under section 7 of the sexual offences act would therefore include those that were well stated in the case of Dominic Kibet Mwareng v Republic [2013] eKLR, by Ndolo J. :
“The critical ingredients forming the offence of defilement are;
i. age of the complainant,
ii. Proof of penetration
iii. Positive identification of the
iv. mental incapacity
Age
19. In Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
20. In proof of the complainant’s age, PW4 produced the victim’s birth certificate (exhibit 1) which showed that she was born on 10th July 2001. The birth certificate proves the victim was 17 years old at the time of the offence. And, therefore a child. The Age the complainant was proved beyond reasonable doubt.
MENTAL INCAPACITY
21. The awake EEG recording showed a background of medium voltage bilaterally reactive 9-10 hz alpha rhythms posteriorly.
22. Low amplitude 15 to 18 hz beta activities were recorded over the fronto-central areas bilaterally.
23. Some 5-7 hz theta waves were seen over the fronto region.
24. The impression recorded was EEG record is normal. The maker was not called as a witness so the findings were not elaborated. The P3, the treatment notes and the mother’s evidence however mention that she was mentally challenged.
25. There was no attempt to explain or interpret these findings and this was mostly because of the way the charge sheet was drawn. The trial court also conducted a voire dire but again did not make any finding on the mental ability of the child. For that reason, the court finds that the mental incapacity was not proved
Penetration
26. The P3 form produced showed that PW1 was normal, no bruises, her virginity and hymen was long broken. The trial court properly found that the broken hymen and the fact that the girl conceived confirmed that her genitalia was penetrated. Of course these days there are other ways of conceiving apart from sexual interactions but the circumstances of this case in the rural set up and with someone who is challenged rule out modern fertility approaches.
Identification
27. The prosecution must prove beyond reasonable doubt that the appellant is the one who penetrated the complainant – and therefore committed the offence of defilement. PW1, the complainant testified that she had sexual intercourse with the Appellant on only one occasion in the month of August 2014 which resulted in her pregnancy. DNA examination was done on, after the birth of the child. The results excluded the Appellant from being the father of the child born out of the alleged defilement.
28. DNA testing provides a scientific proof of biological parenthood of a person. In cases of defilement, the fact that the victim became pregnant as a result of sexual intercourse with a child is proof of penetration and the identity of the culprit. Except, it is a different thing altogether if the pregnancy is conceived through other modern fertilization and conception methods. Of great evidentiary importance, however, is that in criminal cases, defilement or rape, DNA result that proves a person to be the biological father of a child conceived through defilement is proof of penetration by the person so found to be the biological father of the child
29. I wish, however, to disabuse the appellant of the notion that, because he was excluded by DNA results, he did not defile the victim. He may have caused penetration of the child at another time which did not result in a pregnancy and so not covered by the DNA result. Nonetheless, such must be proved through other evidence as required.
30. I however take note of the fact that the complainant testified that it is the Appellant who first had sex with her and that she was certain that he was the father of the child. The DNA results is contrary to her testimony; this aspect of her testimony casts doubt on credibility of the testimony. See the case of Eliud Ouma Agwara v Republic [2016] eKLR, where Makau J, stated as follows:
“The DNA results having not connected the appellant with the complainant's child as a result of the alleged result of defilement and the complainant having not connected the appellant with any other previous act of defilement or having not stated that she has had an earlier encounter with another person who could in view of the DNA results be said to be the father of the child, meaning the age of pregnancy and the child should have related to the incident and results should have confirmed the Appellant was the father of the child. The appellant should have been accorded the benefit of doubt. The trial Court fell into an error when it held that DNA results could never be a defence in an offence of defilement as the Court did not properly evaluate and analyze the evidence which prosecution was relying upon thus as a result the defilement of the complainant she became pregnant meaning the age of pregnancy and the child should have related to the incident and results should have confirmed the Appellant was the father of the child. It was therefore apart from proving defilement the duty of the prosecution to prove as they alleged the complainant has had no other sexual intercourse with any other person prior to the date of defilement to prove that as a result of the alleged defilement PW1 became pregnant, bore the child whose DNA test report connected the appellant with the act of defilement.”
31. I also note that Odero J, in the case of Simon Gichuki Maina v Republic [2016] eKLR stated that:
“Whilst paternity test cannot conclusively prove the fact of defilement, these DNA results cast genuine doubt on the evidence of the complainant and bring her veracity into question. If as proved appellant was not the father of her child, then the complainant must have had sexual intercourse with a person other than the appellant and that person fathered her child. Her identification of the appellant as the man who defiled her is cast into doubt. The very real possibility that the complainant only named (identified) the appellant purely to shield some other third party cannot be entirely ruled out.
Nobody witnessed the defilement. Nobody saw appellant in the company of the complainant. The complainant’s claim that the appellant fathered her child through this act of defilement has been disproved by scientific evidence. I find that pertinent and genuine doubts remain regarding the identification of the appellant by the complainant. Once a witness is found to have been untruthful in one aspect of his testimony, then the entire testimony of that witness is cast into doubt. The benefit of such doubt must be awarded to the appellant. As such he was entitled to an acquittal. The trial magistrate erred in rendering a conviction in this case. I therefore quash the appellant’s conviction on the charge of defilement. The subsequent sentence of 25 years’ imprisonment is also set aside. This appeal succeeds. The appellant is to be set at liberty forthwith unless he is otherwise lawfully held.”
32. It bears repeating, that exclusion by DNA result does not absolve any other sexual intercourse with the minor which may be proved through other evidence. It is the onus of the prosecution to properly tie or connect through evidence, the penetration of a child to the accused.
33. I am aware of the proviso to section 124 of the Evidence Act which permits conviction on the sole evidence of a child who is the victim of sexual assault as long as the court has records of the reasons for believing the child. In this case, no such reasons were given and in any manner, this was not a child of tender years even though she is a vulnerable victim due to the mental incapacity though again that incapacity was not fully proved.
34. Further the record shows that the case was handled by 3 different magistrates. Hon Joan Irura, who wrote the judgement, did not have the chance to see the demeanour of the victim nor her mother and therefore their word of mouth needed corroboration, especially on the identification. I have found that the fact that the DNA report excluded the Appellant as the father of the child routs the core of the testimony by PW1- the victim child which was to the effect that she had sex once with the appellant which resulted in the pregnancy. In addition, there was no other cogent and strong evidence which proved any other penetration of the victim by the appellant.
35. In this case it is the Appellant who requested the DNA testing. He did this after giving a background that one Sare had been named as the putative father as he had been seen with the victim severally in the evenings. This name was brought up from the start of the trial as he cross-examined both the victim and her mother about him. He then insisted on the DNA test which he again brought up with the clinician. I wonder why no efforts were made to call any other person or to follow up on the role of this Sare.
36. The evidence that the DNA report exonerated the Appellant was brought up by the investigating officer. The court ought to have followed up on the report if they doubted the evidence of the investigator. In any case, a party who chooses to keep away evidence should not benefit from their latches. This is because the DNA report was a pivotal aspect of this case having featured from the start. In fact, when Hon K Sambu took over the matter, he at one point, on the 26th day of November 2019, ordered that the case start de novo, after the accused person followed up on his application for the DNA testing. At the next hearing date, it seems that these directions were forgotten as the clinician gave evidence as PW3. The issue was not brought up again and PW4 testified before a different Magistrate. It is noted that The Appellant did not have the benefit of legal representation during his trial.
37. It is also noted that the first report to the police did not contain the name of the suspect. These matters, especially the accused person’s persistence on the DNA test and his Alibi which was not disproved by the state, cast doubt on whether the Appellant defiled the complainant. It also cast doubt on the credibility of the evidence by the complainant. The Appellant gave reasons as to why he could have been falsely or wrongly implicated and Indeed PW2 testified they used to fetch water in the Appellant’s family farm and she did not send the victim to go to fetch water. This contradicted Pw1’s evidence. Such is reasonable doubt which should be resolved in favor of the appellant.
38. Accordingly, the appeal succeeds and is allowed. The conviction against the Appellant is hereby quashed and the sentence of 10 years’ imprisonment is set aside.
39. The Appellant is hereby set free unless lawfully held.
40. It is so ordered.
Dated signed and delivered virtually this ----------30th ------------- day 0f July 2024
WENDY KAGENDO .
JUDGE
IN THE PRESENCE OF
THE APPELANT
FOR THE RESPONDENT MS MAINA
BEBORA COURT ASSISTANT