(Being an appeal from the judgment and conviction delivered on 26/9/2023 and sentence delivered on 18/10/2023 by Hon. S. M. Nyaga (P.M.) in Baricho Magistrates Court S.O. Case No. E038 of 2022)
Background
1. The appellant 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. Particulars of the charge were that on 24/10/2022 at Kangoro village in Kirinyaga West Sub-County within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of S.N.N. a child aged 10 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina of S.N.N. a child aged 10 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called five witnesses in support of its case. PW 1, S.N. was the complainant and a daughter of the appellant. PW 2, S.M. is the mother of the appellant and grandmother of the complainant. PW 3, Peter Kinyua Wanjohi is the area assistant chief Kithumbu sub-location, neighbouring that of the complainant and the appellant. He was acting as the assistant-chief of their sub-location at the time. PW 4, Zipporah Nyaguthii, is a clinical officer from Sagana-Sub-Count hospital who on 7/11/2022 attended to and examined the complainant over the allegations of defilement and PW 5, PC Cecilia Chomba of Kagio police station was the investigating officer in the case.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
Grounds of appeal
6. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on grounds, that the trial court erred in law and in fact:
i. by failing to consider that the evidence produced in court was not credible.
ii. by failing to consider that the evidence produced in court was full of contradictions and inconsistencies.
iii. by failing to consider that the evidence adduced by the prosecution was not proved beyond reasonable doubt.
iv. by not considering the circumstance of the case, that is, the complainant claimed to have been defiled for three years by the appellant and neither family member nor the teachers noticed.
v. by failing to consider that the investigations done were shoddy, that is, that the appellant lived with his children for six years harmoniously after separation with their mother.
vi. for failing to call the appellant’s defence witness.
vii. by failing to consider the appellant’s defence and mitigation.
Submissions
7. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis following.
8. In his submissions, the appellant decries what he calls reduced standard of proof in sexual offence cases and that this lacuna is being used to even scores, real or imaginary, extort money and take revenge among others. In his case, he submits that the case is out of a family grudge that has made them fabricate several cases against him including the present one.
9. On the ingredients of the offence, he submits that the same were not proved. The appellant submits that the complainant’s evidence of penetration was not corroborated by the clinical officer’s evidence. He submits that the clinical officer’s evidence that the complainant’s hymen was broken did not mean that it was through sexual encounter because there are many ways through which that can be achieved. He has cited the case of P.K.W v Republic [2012] KECA 103 (KLR) where the Court of Appeal made findings that hymen can be raptured through various factors other than sexual intercourse and that the two courts below appeared to have unjustifiably placed a high premium on the finding that the child’s hymen had been broken.
10. The appellant also submitted that voire dire examination was not done as required. The appellant also submitted that an essential witness, to whom the complainant allegedly reported the alleged defilement and who brought up the issue to the complainant’s relatives was not called as a witness yet she was the source of the rumours.
11. The appellant submitted that, contrary to the complainant’s evidence that the appellant inserted his thing of urinating into hers, PW 2 testified that the complainant had told her that the appellant only inserted fingers into her vagina while she bathed.
12. The respondent submitted that the issues for this court’s determination are:
i. Whether the respondent proved its case beyond a reasonable doubt;
ii. Whether the essential ingredients of the offence of defilement were proved;
iii. Whether the investigations done were shoddy;
iv. whether the conviction was legal and regular.
13. The respondent answered all the questions in the affirmative citing cases to support each.
Duty of this court
14. This being a first appeal, this 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 v. Republic (1972) E.A. 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 v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
15. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
The case before the trial court
16. The prosecution evidence was that PW1 is a daughter of the appellant. She was born on 17/11/2012 as per her certificate of birth (Exh. 1). She was staying together with the appellant and her brother J. when the alleged incident happened. The appellant later said that the children had different mothers and both of them were no longer staying with the appellant. PW 2 said that she lived with PW 1 and J. and that the appellant also had them for some time.
17. PW 1 gave evidence that the appellant “inserted his thing for urinating into hers” while they were at home and J. was asleep. She said he had been doing it since she was in grade 1 and at the time of her testimony she was in grade 3. He would threaten to beat her.
18. She reported the incident to her class teacher a Ms Rwiti who in turn informed the complainant’s cousin, one Susan and that was how the matter found its way to the police. PW 1 also said that she had revealed the incident to her grandmother, PW 2, before telling the teacher.
19. PW 1 said further that the appellant used to force her to make ugali and rice.
20. PW 2, gave evidence that the appellant was her son and the complainant her grand-daughter. She used to stay with PW 1 and her brother J. On 6/11/2022, the appellant went and took them away. He had them for some time but the complainant looked traumatized and PW 2 took them back. She asked the complainant who told her that the father used to defile her. That the complainant had reported to her the same issue in 2020 but she ignored it as the appellant had threatened her. On the material day, PW 1 told her that on the material day the appellant had “only inserted fingers into her genital organ” while she bathed.
21. PW 3 said that on 6/11/2022 he received a report from community members that the appellant was singly living with his children including PW 1. He went to the home of the appellant and upon interrogating PW 1 she informed him that the appellant was defiling her and he had had sexual intercourse with her many times before. This prompted PW 3 to report the case at Kagio police station.
22. PW 5, said the case was reported to Kagio police station on 6/11/2022 at about 4.00 p.m. by PW 2 in company of the complainant. On 7/11/2022 she escorted the complainant in company of PW 2 to Sagana Sub-County hospital where she was examined. She interrogated PW 1 who informed her that she lived with the appellant and her brother J. That the appellant would come home late and order her to give him food followed by sexual intercourse and threatened to beat her in case she refused. She kept quiet over the issue until her father was arrested and that was when she reported to PW 2.
23. PW 4 gave evidence that the victim was presented to her on 7/11/2022 on allegations of defilement since 2019. She noticed the child was anxious and traumatized. Upon examination, she found her genitalia was normal and her hymen was missing. There was nothing else significant from the examination relating to the alleged defilement. PW 4 said she learnt that the complainant had sexual intercourse last on 24/10/2022 but PW 4 did not say who gave her that information.
24. The appellant’s defence was that the charges were a frame up because at the time the allegations were made, he was in custody after his father instigated charges of assault against him. He denied committing the offence charged the subject of the appeal herein.
25. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment. It made no finding on the alternative charge.
Analysis
26. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial. Grounds 1, 2, 3, 4 and 5 are generally on the sufficiency of the evidence tendered at the trial to prove the charge while grounds 6 and 7 are both on the failure by the trial court to give the appellant’s defence due consideration. I will consider the grounds under those two heads.
27. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
28. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
29. There was no dispute that the complainant was a minor and that the appellant was her father. The appellant referred to her as his child. What I found curious is that the case proceeded on the charge of defilement without any amendment to incest.
30. The complainant’s age was proved by her certificate of birth (Exh. 1) which showed her date of birth as 17/11/2012 making her about 10 years and 1 month and 1 week when the alleged incident happened on 24/10/2022. She was therefore a minor as found by the trial court.
31. The appellant submitted that in the recent past, a lacuna has emanated in sexual offences in that the standard of proof has been reduced and the same are being used to even scores, whether real or imaginary, to extort money and even take revenge among many other reasons. and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. He cited the case of Eliud Waweru Wambui v Republic [2019] e KLR where the Court of Appeal observed that:
“This appeal epitomizes for the umpteenth time the unfair consequences that are inherent in an critical enforcement of the Sexual Offences Act, No. 3 of 2006 (the Act) and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. The case poses one more time whether it is proper for courts to enforce with mindless zeal that which offends all notions of rationality and proportionality.
32. The contention by the appellant may be true in cases where evidence points in that direction. If it is an issue that comes out from the evidence tendered the court will critically examine the evidence and make its decision thereon as per the observations of the Court of Appeal in the Eliud Waweru case above. In this case the court will look at the evidence tendered to discern whether the case falls in the line of criticism raised by the appellant.
33. His defence at the trial was that his parents hate him and they would beat him a lot. They always frame him so that they do away with him. Recently, his father alleged that the appellant had threatened to kill him but he never had any witnesses and the case was dismissed. He said that he is a grown up and he cannot defile his child as that is a shame. He produced proceedings in Baricho Magistrates Court Criminal Case No. E892 of 2022 where he, George Njuguna Mwangi was an accused person However, I note that he never raised the issue of being framed up and hated by his parents through cross-examination of his mother PW 2. But his mother told him in cross-examination that at one point he wanted to burn them alive in their house. The assistant chief on his part said that the appellant had a bad record in the village.
34. In considering the defence tendered by the appellant the trial court observed that his defence of alibi failed for lack of evidence as the proceedings in the criminal case he was facing at the time did not bear him out and that he was a free man at the time. Secondly that his contention that he had bad blood with his relatives had no evidence and it was a mere excuse to escape culpability. That at some point the appellant had denied living with his children but his mother who stayed with him in the same compound explained that the appellant lived with the children severally and she would pick them when he ran to Nairobi. Finally, that the area chief responded after villagers became suspicious and found the victim living with the appellant hence the appellant was a liar.
35. The learned trial magistrate appears to have set out the prosecution’s case, analyzed the evidence tendered and made conclusions thereon then separately taken up the unsworn testimony of the appellant, analyzed it and made a conclusion that it was not worth believing. Granted that there is no universal style of judgment writing, I do not think separating the prosecution’s case from that of the defence and making separate findings on each is a proper approach. Each party has its case, and during analysis, the case of one must be considered as against that of the other as one whole and not separate bits. It is the totality of the evidence tendered by both parties weighed together that determines whether or not the case has been proved. See generally the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment) where the High Court, Mativo, J. (as he then was) set forth the approach to take in evaluating evidence.
36. Granted that in this case, the appellant made an unsworn testimony and was not very robust in his cross-examination of the witnesses, all the same what he put across both in cross-examination and defence testimony must be considered as against the evidence by the prosecution.
37. Starting with what the trial court found was alibi defence by the appellant, the appellant said in his defence that his father framed him for the offence of assault because they had quarreled, then this case followed while he was in custody. He then said that his record was at home. The learned trial magistrate then made effort to have the appellant produce the record in the other case. He stepped him down from testifying and directed that the prosecution may help him to find his police record. Indeed, the prosecution counsel obliged and managed to obtain court proceedings in Criminal Case No. E892 of 2022. This confirmed the appellant’s testimony that indeed he had a case with his father in court even though not necessarily that the father had framed him but at least the existence of the case. The appellant was therefore being honest to that extent.
38. I have perused the brief proceedings in Criminal Case No. E892 of 2022 and what comes through is that the appellant was charged in that case on 7/10/2022 and he pleaded not guilty. The court granted him bond of KShs 10,000/= plus a surety or cash bail of KShs 3,000/= and fixed the hearing date for 5/12/2022 and mention for 19/10/2022.
39. On 19/10/2022, the record indicates that the appellant was absent and a warrant of arrest was issued, an indication that he had succeeded to get out on bond. The case was fixed for mention on 2/11/2022 and the appellant was present. He asked the court for mercy stating that he had sat outside court. The prosecution counsel informed the court that she had indeed seen him and that he could be excused. It is not clear from those proceedings whether the warrant of arrest had been executed on the very day it was issued and the appellant placed in custody until the mention date of 2/11/2022. He said in his testimony that at the time of the alleged offence he was in custody. I find it highly probable that it was and that was why he was asking for mercy. That being the case, it means the appellant was in custody from 19/10/2022 to 2/11/2022 which includes the date of 24/10/2022 when he allegedly committed the offence. The finding by the trial court that he was a free man cannot be correct.
40. When the appellant informed the trial court that he was in custody at the time of the alleged offence, the trial court directed that the appellant liaises with prison authorities to make available evidence to show whether the appellant was in their custody at that time or not. The hearing was adjourned. At the next mention on 26/7/2023, the learned prosecution counsel informed the court that the appellant had a piece of paper but that that was not sufficient and asked the court to issue an order for prison authorities to confirm if he was in prison at the material time. That request was granted and at the resumed sitting on 2/8/2023, the prosecution counsel informed the court that according to prison department, accused was not under their custody. The appellant then said he had nothing else to say and the case was adjourned for further defence hearing on 8/8/2023 with the court remarking that the appellant may still find his defence using other means.
41. While dealing with the supposed defence of alibi raised by the appellant as having been in custody on the material day of 24/10/2022, the court does not seem to have considered that this was a defence hearing so as for instance take into consideration the information contained in the paper the appellant had. Could it be that the appellant was in police custody rather than prison custody during that period since it is the same period when a warrant of arrest had been issued against him? Since the trial court had found the issue of alibi raised by the appellant relevant, it ought to have gone ahead to find out what was in that paper and where the appellant had obtained it from.
42. This question arises because the investigating officer said in her evidence that the victim had kept as a secret what her father was doing to her until he was arrested and that was the time she reported to PW 2. The evidence tendered in court by the investigating officer, PW 5 was that this matter was reported to the police station on 6/11/2022. This takes me back to the proceedings in Cr. Case No. E892 of 2022 which show that after the warrant of arrest was lifted on 2/11/2022 the prosecution informed the court that parties (meaning the accused person and his father) had reconciled. This meant the case would have been withdrawn under section 176 of the Criminal Procedure Code. However, the court noted that the victim (father) had no identification card and fixed the case for mention on 7/11/2022.
43. When the matter came up for mention on 7/11/2022, the appellant’s father had changed his mind. He told the court that he would not forgive him because he had bothered him on 30/10/2022 and he reported to the area headman. The appellant responded that it was because he was being robbed. The court fixed the matter for hearing on 5/12/2022 and ordered the accused person’s cash bail to be refunded and the accused to find a surety of KShs 50,000/=. There is no indication why the learned trial magistrate took such a drastic step against the appellant. The prosecution had not made any application for cancellation of the bail and enhancement of the terms of bond. That meant the appellant went to custody.
44. What is on record herein in evidence is that the previous day, 6/11/2022 the complainant and her grandmother had made a report of the alleged defilement at the police station. The complainant was taken for medical attention on 7/11/2022 the day the appellant’s father went to court and declined to withdraw the charges and the appellant’s cash bail was cancelled and he was detained.
45. Going back to the evidence tendered by the complainant and her grandmother, PW 2, none of them mentioned the date of 24/10/2022 as the one when the last incident of the alleged defilement took place.
46. The complainant said that she had reported to her class teacher Miss Rwiti who in turn informed her cousin Susan and that was how the matter found its way to the police. There is no indication that the said Miss Rwiti and Susan were sought to be witnesses to corroborate the complainant’s evidence that she had reported such a matter to Miss Rwiti and when that was done.
47. On her part, PW 2 said that on 6/11/2022 (the typed proceedings show 6/11/2023 but the handwritten ones it is 6/11/2022), the appellant went and carried away the complainant from her house. This is the same date that the report was made to the police station alleging the defilement against the complainant, followed by the appellant’s cancellation of cash bail the following day in court on allegations that he had “bothered” his father on 30/10/2022. Could it be that by the appellant taking way his children from PW 2, PW 2 and her husband were not happy and this led to what befell the appellant subsequently, including his father declining to withdraw the charges in the assault case as he had indicated and the incarceration of the appellant after cancellation of his bond? Could the appellant’s assertion that for some reason, his parents did not want him at home have some truth? These kinds of assertions are not unknown in families. The learned trial magistrate did not consider this angle while evaluating the evidence.
48. Finally, the assistant chief, PW 3 who was only acting for the area of residence of the appellant as the areas assistant chief was not available at the time, testified that on 6/11/2022, he received a report that the appellant was living singly with his children including the complainant. He then said that he went to the home and he learnt from the complainant that the appellant was defiling her many times. He finished by saying that the appellant had a bad record in the village. He made a report at Kagio police station. He did not say who made the report to him. But he did not mention the complainant’s class teacher as the one who gave him the information.
49. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with. She was thus the only eye witness on the issue of penetration.
50. The appellant submitted that voire dire examination of the complainant was not done as per the requisite procedure. I note that the exact words which the trial court used to record the voire dire examination of the complainant who was a child of tender years were not recorded. The court remarked before taking her evidence that “I have engaged her and she is intelligent to be able to know the essence of oath.” After she was sworn, the complainant said, “I am ready to tell truth. I attend church and liars go to hell.” Therefore, the failure to record the voire dire examination verbatim was not fatal to the prosecution’s case as submitted by the appellant. In the case of Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) upon considering several prior cases on the issue, the Court of Appeal held that:
“… we are satisfied from the record, as the trial magistrate was, that PW2 understood the oath and the duty to tell the truth. The mere fact that the trial court did not record the questions put to PW2, though it was desirable to do so, is not enough to vitiate the voir dire examination, because the answers by the witness confirm he understood the nature of the oath and the duty to tell the truth.”
51. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
52. The complainant gave sworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of 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.”
53. 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 further explained 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…”
54. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make 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.
55. Even though the learned trial magistrate was satisfied that the complainant was telling the truth, there is nowhere in the judgment showing that the learned trial magistrate warned himself on the
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Background
1. The appellant 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. Particulars of the charge were that on 24/10/2022 at Kangoro village in Kirinyaga West Sub-County within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of S.N.N. a child aged 10 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina of S.N.N. a child aged 10 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called five witnesses in support of its case. PW 1, S.N. was the complainant and a daughter of the appellant. PW 2, S.M. is the mother of the appellant and grandmother of the complainant. PW 3, Peter Kinyua Wanjohi is the area assistant chief Kithumbu sub-location, neighbouring that of the complainant and the appellant. He was acting as the assistant-chief of their sub-location at the time. PW 4, Zipporah Nyaguthii, is a clinical officer from Sagana-Sub-Count hospital who on 7/11/2022 attended to and examined the complainant over the allegations of defilement and PW 5, PC Cecilia Chomba of Kagio police station was the investigating officer in the case.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
Grounds of appeal
6. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on grounds, that the trial court erred in law and in fact:
i. by failing to consider that the evidence produced in court was not credible.
ii. by failing to consider that the evidence produced in court was full of contradictions and inconsistencies.
iii. by failing to consider that the evidence adduced by the prosecution was not proved beyond reasonable doubt.
iv. by not considering the circumstance of the case, that is, the complainant claimed to have been defiled for three years by the appellant and neither family member nor the teachers noticed.
v. by failing to consider that the investigations done were shoddy, that is, that the appellant lived with his children for six years harmoniously after separation with their mother.
vi. for failing to call the appellant’s defence witness.
vii. by failing to consider the appellant’s defence and mitigation.
Submissions
7. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis following.
8. In his submissions, the appellant decries what he calls reduced standard of proof in sexual offence cases and that this lacuna is being used to even scores, real or imaginary, extort money and take revenge among others. In his case, he submits that the case is out of a family grudge that has made them fabricate several cases against him including the present one.
9. On the ingredients of the offence, he submits that the same were not proved. The appellant submits that the complainant’s evidence of penetration was not corroborated by the clinical officer’s evidence. He submits that the clinical officer’s evidence that the complainant’s hymen was broken did not mean that it was through sexual encounter because there are many ways through which that can be achieved. He has cited the case of P.K.W v Republic [2012] KECA 103 (KLR) where the Court of Appeal made findings that hymen can be raptured through various factors other than sexual intercourse and that the two courts below appeared to have unjustifiably placed a high premium on the finding that the child’s hymen had been broken.
10. The appellant also submitted that voire dire examination was not done as required. The appellant also submitted that an essential witness, to whom the complainant allegedly reported the alleged defilement and who brought up the issue to the complainant’s relatives was not called as a witness yet she was the source of the rumours.
11. The appellant submitted that, contrary to the complainant’s evidence that the appellant inserted his thing of urinating into hers, PW 2 testified that the complainant had told her that the appellant only inserted fingers into her vagina while she bathed.
12. The respondent submitted that the issues for this court’s determination are:
i. Whether the respondent proved its case beyond a reasonable doubt;
ii. Whether the essential ingredients of the offence of defilement were proved;
iii. Whether the investigations done were shoddy;
iv. whether the conviction was legal and regular.
13. The respondent answered all the questions in the affirmative citing cases to support each.
Duty of this court
14. This being a first appeal, this 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 v. Republic (1972) E.A. 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 v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
15. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
The case before the trial court
16. The prosecution evidence was that PW1 is a daughter of the appellant. She was born on 17/11/2012 as per her certificate of birth (Exh. 1). She was staying together with the appellant and her brother J. when the alleged incident happened. The appellant later said that the children had different mothers and both of them were no longer staying with the appellant. PW 2 said that she lived with PW 1 and J. and that the appellant also had them for some time.
17. PW 1 gave evidence that the appellant “inserted his thing for urinating into hers” while they were at home and J. was asleep. She said he had been doing it since she was in grade 1 and at the time of her testimony she was in grade 3. He would threaten to beat her.
18. She reported the incident to her class teacher a Ms Rwiti who in turn informed the complainant’s cousin, one Susan and that was how the matter found its way to the police. PW 1 also said that she had revealed the incident to her grandmother, PW 2, before telling the teacher.
19. PW 1 said further that the appellant used to force her to make ugali and rice.
20. PW 2, gave evidence that the appellant was her son and the complainant her grand-daughter. She used to stay with PW 1 and her brother J. On 6/11/2022, the appellant went and took them away. He had them for some time but the complainant looked traumatized and PW 2 took them back. She asked the complainant who told her that the father used to defile her. That the complainant had reported to her the same issue in 2020 but she ignored it as the appellant had threatened her. On the material day, PW 1 told her that on the material day the appellant had “only inserted fingers into her genital organ” while she bathed.
21. PW 3 said that on 6/11/2022 he received a report from community members that the appellant was singly living with his children including PW 1. He went to the home of the appellant and upon interrogating PW 1 she informed him that the appellant was defiling her and he had had sexual intercourse with her many times before. This prompted PW 3 to report the case at Kagio police station.
22. PW 5, said the case was reported to Kagio police station on 6/11/2022 at about 4.00 p.m. by PW 2 in company of the complainant. On 7/11/2022 she escorted the complainant in company of PW 2 to Sagana Sub-County hospital where she was examined. She interrogated PW 1 who informed her that she lived with the appellant and her brother J. That the appellant would come home late and order her to give him food followed by sexual intercourse and threatened to beat her in case she refused. She kept quiet over the issue until her father was arrested and that was when she reported to PW 2.
23. PW 4 gave evidence that the victim was presented to her on 7/11/2022 on allegations of defilement since 2019. She noticed the child was anxious and traumatized. Upon examination, she found her genitalia was normal and her hymen was missing. There was nothing else significant from the examination relating to the alleged defilement. PW 4 said she learnt that the complainant had sexual intercourse last on 24/10/2022 but PW 4 did not say who gave her that information.
24. The appellant’s defence was that the charges were a frame up because at the time the allegations were made, he was in custody after his father instigated charges of assault against him. He denied committing the offence charged the subject of the appeal herein.
25. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment. It made no finding on the alternative charge.
Analysis
26. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial. Grounds 1, 2, 3, 4 and 5 are generally on the sufficiency of the evidence tendered at the trial to prove the charge while grounds 6 and 7 are both on the failure by the trial court to give the appellant’s defence due consideration. I will consider the grounds under those two heads.
27. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
28. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
29. There was no dispute that the complainant was a minor and that the appellant was her father. The appellant referred to her as his child. What I found curious is that the case proceeded on the charge of defilement without any amendment to incest.
30. The complainant’s age was proved by her certificate of birth (Exh. 1) which showed her date of birth as 17/11/2012 making her about 10 years and 1 month and 1 week when the alleged incident happened on 24/10/2022. She was therefore a minor as found by the trial court.
31. The appellant submitted that in the recent past, a lacuna has emanated in sexual offences in that the standard of proof has been reduced and the same are being used to even scores, whether real or imaginary, to extort money and even take revenge among many other reasons. and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. He cited the case of Eliud Waweru Wambui v Republic [2019] e KLR where the Court of Appeal observed that:
“This appeal epitomizes for the umpteenth time the unfair consequences that are inherent in an critical enforcement of the Sexual Offences Act, No. 3 of 2006 (the Act) and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. The case poses one more time whether it is proper for courts to enforce with mindless zeal that which offends all notions of rationality and proportionality.
32. The contention by the appellant may be true in cases where evidence points in that direction. If it is an issue that comes out from the evidence tendered the court will critically examine the evidence and make its decision thereon as per the observations of the Court of Appeal in the Eliud Waweru case above. In this case the court will look at the evidence tendered to discern whether the case falls in the line of criticism raised by the appellant.
33. His defence at the trial was that his parents hate him and they would beat him a lot. They always frame him so that they do away with him. Recently, his father alleged that the appellant had threatened to kill him but he never had any witnesses and the case was dismissed. He said that he is a grown up and he cannot defile his child as that is a shame. He produced proceedings in Baricho Magistrates Court Criminal Case No. E892 of 2022 where he, George Njuguna Mwangi was an accused person However, I note that he never raised the issue of being framed up and hated by his parents through cross-examination of his mother PW 2. But his mother told him in cross-examination that at one point he wanted to burn them alive in their house. The assistant chief on his part said that the appellant had a bad record in the village.
34. In considering the defence tendered by the appellant the trial court observed that his defence of alibi failed for lack of evidence as the proceedings in the criminal case he was facing at the time did not bear him out and that he was a free man at the time. Secondly that his contention that he had bad blood with his relatives had no evidence and it was a mere excuse to escape culpability. That at some point the appellant had denied living with his children but his mother who stayed with him in the same compound explained that the appellant lived with the children severally and she would pick them when he ran to Nairobi. Finally, that the area chief responded after villagers became suspicious and found the victim living with the appellant hence the appellant was a liar.
35. The learned trial magistrate appears to have set out the prosecution’s case, analyzed the evidence tendered and made conclusions thereon then separately taken up the unsworn testimony of the appellant, analyzed it and made a conclusion that it was not worth believing. Granted that there is no universal style of judgment writing, I do not think separating the prosecution’s case from that of the defence and making separate findings on each is a proper approach. Each party has its case, and during analysis, the case of one must be considered as against that of the other as one whole and not separate bits. It is the totality of the evidence tendered by both parties weighed together that determines whether or not the case has been proved. See generally the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment) where the High Court, Mativo, J. (as he then was) set forth the approach to take in evaluating evidence.
36. Granted that in this case, the appellant made an unsworn testimony and was not very robust in his cross-examination of the witnesses, all the same what he put across both in cross-examination and defence testimony must be considered as against the evidence by the prosecution.
37. Starting with what the trial court found was alibi defence by the appellant, the appellant said in his defence that his father framed him for the offence of assault because they had quarreled, then this case followed while he was in custody. He then said that his record was at home. The learned trial magistrate then made effort to have the appellant produce the record in the other case. He stepped him down from testifying and directed that the prosecution may help him to find his police record. Indeed, the prosecution counsel obliged and managed to obtain court proceedings in Criminal Case No. E892 of 2022. This confirmed the appellant’s testimony that indeed he had a case with his father in court even though not necessarily that the father had framed him but at least the existence of the case. The appellant was therefore being honest to that extent.
38. I have perused the brief proceedings in Criminal Case No. E892 of 2022 and what comes through is that the appellant was charged in that case on 7/10/2022 and he pleaded not guilty. The court granted him bond of KShs 10,000/= plus a surety or cash bail of KShs 3,000/= and fixed the hearing date for 5/12/2022 and mention for 19/10/2022.
39. On 19/10/2022, the record indicates that the appellant was absent and a warrant of arrest was issued, an indication that he had succeeded to get out on bond. The case was fixed for mention on 2/11/2022 and the appellant was present. He asked the court for mercy stating that he had sat outside court. The prosecution counsel informed the court that she had indeed seen him and that he could be excused. It is not clear from those proceedings whether the warrant of arrest had been executed on the very day it was issued and the appellant placed in custody until the mention date of 2/11/2022. He said in his testimony that at the time of the alleged offence he was in custody. I find it highly probable that it was and that was why he was asking for mercy. That being the case, it means the appellant was in custody from 19/10/2022 to 2/11/2022 which includes the date of 24/10/2022 when he allegedly committed the offence. The finding by the trial court that he was a free man cannot be correct.
40. When the appellant informed the trial court that he was in custody at the time of the alleged offence, the trial court directed that the appellant liaises with prison authorities to make available evidence to show whether the appellant was in their custody at that time or not. The hearing was adjourned. At the next mention on 26/7/2023, the learned prosecution counsel informed the court that the appellant had a piece of paper but that that was not sufficient and asked the court to issue an order for prison authorities to confirm if he was in prison at the material time. That request was granted and at the resumed sitting on 2/8/2023, the prosecution counsel informed the court that according to prison department, accused was not under their custody. The appellant then said he had nothing else to say and the case was adjourned for further defence hearing on 8/8/2023 with the court remarking that the appellant may still find his defence using other means.
41. While dealing with the supposed defence of alibi raised by the appellant as having been in custody on the material day of 24/10/2022, the court does not seem to have considered that this was a defence hearing so as for instance take into consideration the information contained in the paper the appellant had. Could it be that the appellant was in police custody rather than prison custody during that period since it is the same period when a warrant of arrest had been issued against him? Since the trial court had found the issue of alibi raised by the appellant relevant, it ought to have gone ahead to find out what was in that paper and where the appellant had obtained it from.
42. This question arises because the investigating officer said in her evidence that the victim had kept as a secret what her father was doing to her until he was arrested and that was the time she reported to PW 2. The evidence tendered in court by the investigating officer, PW 5 was that this matter was reported to the police station on 6/11/2022. This takes me back to the proceedings in Cr. Case No. E892 of 2022 which show that after the warrant of arrest was lifted on 2/11/2022 the prosecution informed the court that parties (meaning the accused person and his father) had reconciled. This meant the case would have been withdrawn under section 176 of the Criminal Procedure Code. However, the court noted that the victim (father) had no identification card and fixed the case for mention on 7/11/2022.
43. When the matter came up for mention on 7/11/2022, the appellant’s father had changed his mind. He told the court that he would not forgive him because he had bothered him on 30/10/2022 and he reported to the area headman. The appellant responded that it was because he was being robbed. The court fixed the matter for hearing on 5/12/2022 and ordered the accused person’s cash bail to be refunded and the accused to find a surety of KShs 50,000/=. There is no indication why the learned trial magistrate took such a drastic step against the appellant. The prosecution had not made any application for cancellation of the bail and enhancement of the terms of bond. That meant the appellant went to custody.
44. What is on record herein in evidence is that the previous day, 6/11/2022 the complainant and her grandmother had made a report of the alleged defilement at the police station. The complainant was taken for medical attention on 7/11/2022 the day the appellant’s father went to court and declined to withdraw the charges and the appellant’s cash bail was cancelled and he was detained.
45. Going back to the evidence tendered by the complainant and her grandmother, PW 2, none of them mentioned the date of 24/10/2022 as the one when the last incident of the alleged defilement took place.
46. The complainant said that she had reported to her class teacher Miss Rwiti who in turn informed her cousin Susan and that was how the matter found its way to the police. There is no indication that the said Miss Rwiti and Susan were sought to be witnesses to corroborate the complainant’s evidence that she had reported such a matter to Miss Rwiti and when that was done.
47. On her part, PW 2 said that on 6/11/2022 (the typed proceedings show 6/11/2023 but the handwritten ones it is 6/11/2022), the appellant went and carried away the complainant from her house. This is the same date that the report was made to the police station alleging the defilement against the complainant, followed by the appellant’s cancellation of cash bail the following day in court on allegations that he had “bothered” his father on 30/10/2022. Could it be that by the appellant taking way his children from PW 2, PW 2 and her husband were not happy and this led to what befell the appellant subsequently, including his father declining to withdraw the charges in the assault case as he had indicated and the incarceration of the appellant after cancellation of his bond? Could the appellant’s assertion that for some reason, his parents did not want him at home have some truth? These kinds of assertions are not unknown in families. The learned trial magistrate did not consider this angle while evaluating the evidence.
48. Finally, the assistant chief, PW 3 who was only acting for the area of residence of the appellant as the areas assistant chief was not available at the time, testified that on 6/11/2022, he received a report that the appellant was living singly with his children including the complainant. He then said that he went to the home and he learnt from the complainant that the appellant was defiling her many times. He finished by saying that the appellant had a bad record in the village. He made a report at Kagio police station. He did not say who made the report to him. But he did not mention the complainant’s class teacher as the one who gave him the information.
49. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with. She was thus the only eye witness on the issue of penetration.
50. The appellant submitted that voire dire examination of the complainant was not done as per the requisite procedure. I note that the exact words which the trial court used to record the voire dire examination of the complainant who was a child of tender years were not recorded. The court remarked before taking her evidence that “I have engaged her and she is intelligent to be able to know the essence of oath.” After she was sworn, the complainant said, “I am ready to tell truth. I attend church and liars go to hell.” Therefore, the failure to record the voire dire examination verbatim was not fatal to the prosecution’s case as submitted by the appellant. In the case of Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) upon considering several prior cases on the issue, the Court of Appeal held that:
“… we are satisfied from the record, as the trial magistrate was, that PW2 understood the oath and the duty to tell the truth. The mere fact that the trial court did not record the questions put to PW2, though it was desirable to do so, is not enough to vitiate the voir dire examination, because the answers by the witness confirm he understood the nature of the oath and the duty to tell the truth.”
51. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
52. The complainant gave sworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of 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.”
53. 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 further explained 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…”
54. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make 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.
55. Even though the learned trial magistrate was satisfied that the complainant was telling the truth, there is nowhere in the judgment showing that the learned trial magistrate warned himself on the
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