'(Appeal against the conviction and sentence of 15 years in Sexual Offence Case No. E141 of 2021 for the Offence of Defilement by CM’S Court at Mombasa Law Court before Honourable J.B. Kalo CM dated and delivered on 15th December 2022)
1. The Appellant was charged with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act April 2017 at Aldina area in Jomvu Sub-County within Mombasa County the appellant.
2. The appellant was convicted on the charge and sentenced to serve 15 years imprisonment.
3. Being dissatisfied with the said judgment the appellant through his counsel on record lodged an appeal with grounds as follows:
i. That the learned trial magistrate erred in law and fact in coming to a finding that the prosecution had proved its case against the accused beyond reasonable doubt.
ii. That the learned magistrate erred in law and fact in proceeding with a trial to convict on a charge that was defective.
iii. That the learned trial magistrate erred in law and fact in allowing evidence that ought not to have been admitted.
iv. That the learned trial magistrate erred in law and fact in dismissing the appellant’s defence without analysis.
v. That the learned trial magistrate erred in law and fact in arriving at a conviction against the weight of evidence.
vi. That the learned trial magistrate erred in law and fact in ignoring the inconsistencies and clear falsehoods which rendered the prosecution witness unreliable.
vii. That the learned trial magistrate erred in law and fact in failing to comply with statutory provisions to the prejudice of the appellant.
viii. That the sentence was manifestly excessive and harsh.
4. I have considered the appeal and submissions. I have also read the record of the trial court and the impugned judgment.
5. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32.
6. The issues that arises for determination in this appeal
i. Whether the prosecution proved its case to the desired threshold on the basis of the elements of the offence of defilement.
ii. Whether the trial court failed to comply with section 200 of the Criminal Procedure Code and if so, the effect thereof.
7. The Complainant was aged 17 years 11 months - one-month shy of majority. That one month is however still critical as she cannot give consent to sexual activities. My main concern is the inconsistency in the evidence. The minor told the clinician that she was not forced to have sex by the boy rather she knew the guy (perpetrator) and she has been having sexual relationship with him 3 months ago.
8. The initial treatment notes , in the history show that the victim told the clinician that her mother is aware about her sexual relationship with the boy – perpetrator. She further alleges that their neighbour Mama Angel who informs the perpetrator when the parents of the victim (girl). More so the father when not around.
9. The PRC FURTHER SHOWS
10. On examination,
Calm girl – no torn clothes – blood
Stained clothes – in non-polythene bag
Vaginal – examination
Speculum examination – not done. Client not co-operative.
Digital examination - vaginal wall- No tear, no bruises, urethra
intact absent hymen.
This was on 12/10/2021 at 3.01pm.
11. The PRC Form was also filled and under circumstances surrounding incident it shows –
‘The minor (survivor) reports she was not forced to have sex with the perpetrator.
On the body map – the comments are – no physical injuries noted.
No lacerations –
Visible vaginal bleeding menses
Hymen absent old scar
Intact anus
On genital examination – No physical injuries. Blood stand due to menses.
Hymen – Absent
Anus – intact
12. The P3 Form was then filed on 18/10/2021. On the physical FINDINGS ; upon examination of genetaria – it shows blood stains on the outer genetaria – and vaginal canal. No tear present – Hymen broken – not intact old scar.
13. This P3 was produced by Said Dhadho Salim – on behalf of the maker one Lawrent Kisongo. His evidence runs from page 23-24 of the record. The Doctor stated that “there were blood stains on the outer genetaria and vaginal canal.
14. The hymen was broken. It was an old scar. There was blood stained discharge on vaginal orifice and outer genitaria. The conclusion by the doctor was that the victim had been defiled. This is what is in the P3 and PRC Form.
15. The witness however added the that presence of blood was an indication of trauma in the vaginal canal due to a blunt object penetrating. The stamp on the P3 is from Port Reitz hospital. I produce the P3 as PEX 3. The doctor relied on PRC form and outpatient booklet issued and filled at Coast General Hospital Chaani. The treatment notes were prepared on 12/10/2021. The PRC form was filled on 12/10/2021. The conclusion in the PRC was that there were no physical injuries on the body, hymen not intact. It had an old scar. There was menstrual blood. There were tears in the vaginal canal, an indication that there was forceful penetration with a blunt object. The PRC form is produced as PEX 4 and treatment notes as PEX 2.
16. Now where did this witness get this evidence of a tears or injuries in the vaginal canal? We do not know.
17. The original treatment booklet, the PRC and even the P3 all show that there were no tears or lacerations. Even the diagram in the PRC shows there was no tears.
Unfortunately, this is the evidence that the trial court relied upon in the Judgment. At page 7 of the judgment page 46 of the record, it is stated–
Medical evidence in the Form of the treatment notes, a P3 form and a PRC Form and the testimony of PW 5 – ‘there were tears in the complaints vagina canal’ – an indication of forceful penetration with blunt object.” emphasis mine.
18. The record shows that the trial court observed that the victim witness spoke with clarity and confidence. I however note that she gave a different narrative to the clinician and even mentioned Mama Angel as her go between herself and the perpetrator. This same Mama Angel is the same one who is said to have locked them up in the house. Something does not add up and the trial court ought to have evaluated this evidence carefully.
19. We note that it is the father who took up the matter and even gave the doctor the history when the P3 was being filled. The narration by the girl that the mother was aware of the ongoing relationship can explain this.
20. Accordingly, I find that the issue of penetration was not sufficiently proved and there were critical inconsistencies in the history as narrated by the victim. The clinician who gave evidence in court had not examined the victim and he gave false evidence and this may point at some behind the scenes shenanigans.
21. Accordingly, I find that the conviction was not safe and I quash the same acquit the accused person and set the sentence aside. The Appeal succeeds.
22. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………26th………day of ……June……………………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
Appellant
Mr.Sirima for the state
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
'
1. The Appellant was charged with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act April 2017 at Aldina area in Jomvu Sub-County within Mombasa County the appellant.
2. The appellant was convicted on the charge and sentenced to serve 15 years imprisonment.
3. Being dissatisfied with the said judgment the appellant through his counsel on record lodged an appeal with grounds as follows:
i. That the learned trial magistrate erred in law and fact in coming to a finding that the prosecution had proved its case against the accused beyond reasonable doubt.
ii. That the learned magistrate erred in law and fact in proceeding with a trial to convict on a charge that was defective.
iii. That the learned trial magistrate erred in law and fact in allowing evidence that ought not to have been admitted.
iv. That the learned trial magistrate erred in law and fact in dismissing the appellant’s defence without analysis.
v. That the learned trial magistrate erred in law and fact in arriving at a conviction against the weight of evidence.
vi. That the learned trial magistrate erred in law and fact in ignoring the inconsistencies and clear falsehoods which rendered the prosecution witness unreliable.
vii. That the learned trial magistrate erred in law and fact in failing to comply with statutory provisions to the prejudice of the appellant.
viii. That the sentence was manifestly excessive and harsh.
4. I have considered the appeal and submissions. I have also read the record of the trial court and the impugned judgment.
5. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32.
6. The issues that arises for determination in this appeal
i. Whether the prosecution proved its case to the desired threshold on the basis of the elements of the offence of defilement.
ii. Whether the trial court failed to comply with section 200 of the Criminal Procedure Code and if so, the effect thereof.
7. The Complainant was aged 17 years 11 months - one-month shy of majority. That one month is however still critical as she cannot give consent to sexual activities. My main concern is the inconsistency in the evidence. The minor told the clinician that she was not forced to have sex by the boy rather she knew the guy (perpetrator) and she has been having sexual relationship with him 3 months ago.
8. The initial treatment notes , in the history show that the victim told the clinician that her mother is aware about her sexual relationship with the boy – perpetrator. She further alleges that their neighbour Mama Angel who informs the perpetrator when the parents of the victim (girl). More so the father when not around.
9. The PRC FURTHER SHOWS
10. On examination,
Calm girl – no torn clothes – blood
Stained clothes – in non-polythene bag
Vaginal – examination
Speculum examination – not done. Client not co-operative.
Digital examination - vaginal wall- No tear, no bruises, urethra
intact absent hymen.
This was on 12/10/2021 at 3.01pm.
11. The PRC Form was also filled and under circumstances surrounding incident it shows –
‘The minor (survivor) reports she was not forced to have sex with the perpetrator.
On the body map – the comments are – no physical injuries noted.
No lacerations –
Visible vaginal bleeding menses
Hymen absent old scar
Intact anus
On genital examination – No physical injuries. Blood stand due to menses.
Hymen – Absent
Anus – intact
12. The P3 Form was then filed on 18/10/2021. On the physical FINDINGS ; upon examination of genetaria – it shows blood stains on the outer genetaria – and vaginal canal. No tear present – Hymen broken – not intact old scar.
13. This P3 was produced by Said Dhadho Salim – on behalf of the maker one Lawrent Kisongo. His evidence runs from page 23-24 of the record. The Doctor stated that “there were blood stains on the outer genetaria and vaginal canal.
14. The hymen was broken. It was an old scar. There was blood stained discharge on vaginal orifice and outer genitaria. The conclusion by the doctor was that the victim had been defiled. This is what is in the P3 and PRC Form.
15. The witness however added the that presence of blood was an indication of trauma in the vaginal canal due to a blunt object penetrating. The stamp on the P3 is from Port Reitz hospital. I produce the P3 as PEX 3. The doctor relied on PRC form and outpatient booklet issued and filled at Coast General Hospital Chaani. The treatment notes were prepared on 12/10/2021. The PRC form was filled on 12/10/2021. The conclusion in the PRC was that there were no physical injuries on the body, hymen not intact. It had an old scar. There was menstrual blood. There were tears in the vaginal canal, an indication that there was forceful penetration with a blunt object. The PRC form is produced as PEX 4 and treatment notes as PEX 2.
16. Now where did this witness get this evidence of a tears or injuries in the vaginal canal? We do not know.
17. The original treatment booklet, the PRC and even the P3 all show that there were no tears or lacerations. Even the diagram in the PRC shows there was no tears.
Unfortunately, this is the evidence that the trial court relied upon in the Judgment. At page 7 of the judgment page 46 of the record, it is stated–
Medical evidence in the Form of the treatment notes, a P3 form and a PRC Form and the testimony of PW 5 – ‘there were tears in the complaints vagina canal’ – an indication of forceful penetration with blunt object.” emphasis mine.
18. The record shows that the trial court observed that the victim witness spoke with clarity and confidence. I however note that she gave a different narrative to the clinician and even mentioned Mama Angel as her go between herself and the perpetrator. This same Mama Angel is the same one who is said to have locked them up in the house. Something does not add up and the trial court ought to have evaluated this evidence carefully.
19. We note that it is the father who took up the matter and even gave the doctor the history when the P3 was being filled. The narration by the girl that the mother was aware of the ongoing relationship can explain this.
20. Accordingly, I find that the issue of penetration was not sufficiently proved and there were critical inconsistencies in the history as narrated by the victim. The clinician who gave evidence in court had not examined the victim and he gave false evidence and this may point at some behind the scenes shenanigans.
21. Accordingly, I find that the conviction was not safe and I quash the same acquit the accused person and set the sentence aside. The Appeal succeeds.
22. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………26th………day of ……June……………………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
Appellant
Mr.Sirima for the state
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
'