(Being an appeal from original conviction and sentence by Hon. R.A. Amwayi, Principal Magistrate in Kaloleni Principal Magistrate’s Court Sexual Offence Case No.E017 of 2024 delivered on 27/7/2024)
1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 15 years imprisonment. The particulars of the offence were on the night of 3 rd and 4 th February 2024 at (name withheld) village in Kaloleni Sub County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of K.M. (herein referred to as the complainant), a child aged 17 years.
2. The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal on the following grounds:
1) That the learned magistrate erred in law and fact by failing to find that the charge sheet was defective, a breach of article 50(2)(b) of the Constitution of Kenya.
2) That the learned magistrate erred in law and fact for not noting that the prosecution’s evidence failed to prove its case beyond reasonable doubt.
3) That the learned magistrate erred in law and fact by ignoring the fact that the prosecution evidence was riddled with inconsistencies and contradictions hence unreliable to sustain a conviction.
4) That the learned magistrate erred in law and fact for not noting that the medical records were forged, aimed at unfairly incriminating the appellant.
5) That the learned magistrate erred in law and fact by unjustly dismissing the Appellant`s defence evidence.
3. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case.
Prosecution case
4. The case for the prosecution was that the Appellant was at the material time a school going girl and was living with her mother PW2 and her father PW4. At night she used to sleep in the house of an aunt who did not testify in the case. The Appellant was their neighbour.
5. It was the evidence of the complainant PW3 that she was at the material time aged 15 years. That on the evening of 3/2/2024 she was at her home with her siblings and her mother. The Appellant was also with them. Her mother and siblings went to sleep and she was left with the Appellant watching TV. She later switched off the TV and left for the house of her aunt where she used to sleep. That the Appellant followed her. That on the way he held her hand and took her to the bush. He warned her not to scream. He removed her panties and removed his shorts. He pushed her to the ground and inserted his penis into her vagina. He warned her not to tell anybody about it. They went up to the house of her aunt. She knocked the door and her aunt opened for her. The Appellant then left. That on 4/2/2024 her aunt told her father that she had been with the Appellant at night. Her father made a report to the police on 8/2/2024. Her parents interrogated her but she never told them where she had been. They then went to the police station and she was interrogated. She was taken to hospital for examination.
6. The mother to the complainant PW2 testified that the complainant was at the material time aged 15 years. That on the evening of the material day she ate supper and went to sleep. She left the Appellant and the complainant watching TV. That on the following day she came home from church and found the Appellant fighting with a person called Biri. They were separated. She was then informed by a lady called Shantel that on the previous night the Appellant had taken the complainant to her (Shantel`s) house at 1.30 am. She PW2 then reported to the police. The complainant was taken to Mariakani sub county hospital for examination where the doctor confirmed that the complainant had been penetrated. That she interrogated her daughter and she told her that the appellant had defiled her in the bush.
7. A clinical officer at Mariakani sub county hospital PW1 testified that he examined the complainant at their hospital on 8/4/2024 and found her with a broken hymen and swellings on the labia that were painful. He completed a P3 form to that end. He confirmed that there was penetration. During the hearing of the case in court, he produced the P3 form, the treatment notes, lab request form, GBV client refer form and the age assessment report as exhibits, P.Exh. 1 - 5 respectively.
8. The father to the complainant PW4 told the court that on the 4/2/2024 he was at his home at 10 am when he was informed by Shantel that on the previous night the complainant had been taken to her house by the Appellant at 1.30 am. He called the complainant and asked her about it. She started to cry. He told her aunts to ask her. After 4 days he reported to the police and they took the complainant to Mariakani sub county hospital where she was examined and the doctor confirmed that there was penetration. He interrogated her and she said that she indeed had sexual intercourse with the Appellant.
9. The case was investigated by a police officer who left Kaloleni police station and handed over the file to PC Paul Njuki PW5. It was the evidence of PW5 that he had accompanied the investigating officer to arrest the Appellant. It was further his evidence that the statements in the police file indicated that the age of the complainant was assessed at 17 years. That she was examined at hospital and found to have been defiled.
Defence case
10. The Appellant in his defence stated in a sworn statement that he left home and went to hospital. That he returned home and continued with treatment for one week. That while going to the shops he met with the father to the complainant who told him that his daughter was brought home at night having been defiled. That he told him to report.
11. It was further evidence of the Appellant that he had a feud with a brother to the complainant who had even assaulted him and he had reported to the police. The said brother had gone into hiding.
12. The appeal was canvassed by way of written submissions.
Appellant`s submissions
13. The Appellant submitted that the age of the complainant was not proved to the required standard of beyond reasonable doubt. That the charge sheet indicated that the complainant was aged 17 years while the complainant and her mother said that she was aged 15 years. That her father said she was aged 14 years.
14. It was submitted that there was contradiction in the evidence on the date the complainant was taken to hospital. That the clinical officer PW1 said in cross-examination that the complainant went to hospital on 18/4/2024. It was submitted that the medical documents were forged. That the findings were not credible due to the long period the complainant had taken to go to hospital.
15. It was submitted that the complainant told the trial court that she did not disclose the defilement to her parents. The Appellant wondered what was being reported to the police if the complainant had not told her parents what had happened. The Appellant urged the court to allow the appeal.
Respondent`s submissions
16. The respondent through its prosecution counsel submitted that the age of the complainant was proved by the age assessment report that was produced in the case. That it was proved that the complainant was at the material time aged 17 years.
17. It was submitted that the evidence of the complainant that she was on the material night watching TV with the Appellant was corroborated by her mother PW2. That as per the provisions of section 124 of the Evidence Act, the sole evidence of the complainant was sufficient to prove the charge. That the evidence was corroborated by the clinical officer PW1.
18. On the identification of the Appellant, it was submitted that he was a person well known to the complainant. That they had been together before he defiled her. That the Appellant`s defence that he had a feud with the brother to the complainant was not backed up by any evidence and had no bearing to the charge.
19. It was submitted that the charge was not defective as it contained a statement of the offence that the Appellant was facing and the particulars of the offence. The Respondent urged the court to dismiss the appeal.
Analysis and determination
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
21. The ingredients of the offence of defilement are: proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR.
22. On the element of age, it is trite that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR 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.”
23. In the present case, the complainant and her mother gave evidence that the complainant was aged 15 years while her father said that she was aged 14 years. The clinical officer PW1 said that the age of the complainant was assessed at the hospital and she was found to be aged 17 years. The charge sheet indicated that the complainant was aged 17 years. The trial court went by the age assessment report and held that the age of the complainant was proved at 17 years.
24. I have examined the age assessment report, P.Exh.5. The clinical officer PW1 never said that he is the one who did the assessment. The same seems to have been prepared by an officer who did not testify in the case. PW1 did not identify the officer who prepared the age assessment report. He did not say whether they were working together in the same hospital neither did he say that he was familiar with his handwriting. Consequently, the author of the document is not known. More so, the author did not indicate the method he used to arrive at the opinion that the complainant was aged 17 years. In my view the document was not credible and should not have been relied upon to hold that the complainant was aged 17 years.
25. In the case of Edwin Nyambogo Onsongo (supra), the Court of Appeal held that the age of a child may be proved by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents. It is clear from the evidence of the complainant as given before the trial court that she was an intelligent girl who knew her age. Her mother was in a better position to know her age being the person who gave birth to her. I also note that the clinical officer who completed the P3 form estimated the age of the complainant in Part C of the P3 form at 14 years. I will therefore go by the evidence of the complainant and her mother and find that the complainant was at the material time aged 15 years.
26. On the element of penetration, Section 2 of the Sexual Offences Act defines the same as:
“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
27. The evidence of the complainant was that she was watching TV with the Appellant in the complainant`s house. That she left her home to go to sleep in the house of her aunt when the Appellant followed her and took her into the bush where he penetrated her vagina with his penis.
28. The trial court in its judgment held that the evidence of the complainant that the Appellant penetrated her was corroborated by the finding of the clinical officer that the hymen was broken and that there were swellings and pain on the labias. The court held that the evidence on penetration was uncontroverted.
29. The Appellant submitted that the medical documents did not prove the defilement as the clinical officer PW1 said that the complainant was taken to hospital on 8/4/2024 which was many days after the alleged date of defilement.
30. Indeed, the clinical officer PW1 said in his evidence that the complainant was taken to hospital on 8/4/2024 while the offence was said to have been committed on the night of 3 rd and 4 th February 2024. I have examined the treatment notes prepared by the clinical officer, P.Exh.2 and note that they are dated 8/4/2024. The evidence adduced before the trial court indicate that the case was reported to the police on 8/2/2024 and that the P3 form was issued by the police on the same date. The same indicates that it was signed by the clinical officer PW1 on 8/2/2024. How come then that the clinical officer examined and completed the complainant`s P3 form on 8/2/2024 but the treatment notes that should have accompanied the filling of the P3 form are dated 8/4/2024? The clinical officer did not explain this discrepancy. The trial court did not try to reconcile the discrepancy. Consequently, I find that medical evidence adduced against the Appellant was not credible and should not have been relied upon as corroboration on the complainant`s evidence on penetration by the Appellant.
31. It is trite that absence of medical evidence in proof of defilement is not fatal to the case as defilement may be proved by other ways and not necessarily by way of medical evidence. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:-
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”.
32. Also in George Kioji v Republic, Criminal Appeal no. 270 of 2012 Nyeri, the same court stated as follows:
“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,”
33. In addition, section 124 of the Evidence Act allows a court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for so holding.
34. The trial court in convicting the Appellant of the offence said that there was no reason for the complainant to frame up the Appellant with the offence. That the defence of the Appellant that there was a grudge between him and the complainant`s father was an afterthought and was not believable as he did not raise the issue with him when he cross-examined him in the case. It is however to be noted that the Appellant never mentioned that he had a grudge with the complainant`s father but with the brother of the complainant. The trial court misapprehended this aspect of the evidence.
35. Whereas the complainant told the trial court that the Appellant defiled her on the night of 3 rd and 4 th February 2024, she told the court that she did not disclose to her parents where she had been when they interrogated her. It is also to be noted that her father did not make a report to the police until the 8/2/2024 but even then, he did not state whether by then the complainant had mentioned that she had been defiled by the Appellant. It seems from his evidence that he learnt from the clinical officer after examination at the hospital that the complainant had been defiled. It is this same evidence of the clinical officer which this court has found to be unreliable.
36. The complainant said in her evidence that she was interrogated at the police station but she did not tell the court what she told the police. The police officer who investigated the case did not testify in the case. It is therefore not known at what stage the complainant came to mention that she was defiled by the Appellant. Was the complainant then a truthful and credible witness?
37. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 , held the following on credibility of witnesses:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
38. The fact that the complainant in this matter failed to disclose to her parents upon interrogation that she was defiled by the Appellant created an impression that she was not a reliable witness. It seems that she mentioned to have been defiled by the Appellant after the clinical officer purportedly confirmed the defilement which evidence was unreliable. In my view it was not safe to rely on the evidence of such a witness as the basis of a conviction on the Appellant. The complainant may have implicated the Appellant in the commission of the offence due to pressure from her parents and the purported finding of the clinical officer. The trial court did not properly assess the credibility of the complainant to ascertain whether she was a trustworthy witness. It was not enough just to say that she did not have reason to frame up the case against the Appellant.
39. In view of the foregoing, I find that the charge against the Appellant was not proved beyond reasonable doubt. The appeal is thereby merited. Consequently, the conviction entered on the Appellant by the trial court is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 13 th May 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant: Rahma
MLD HCCRA No. E099 of 2024 Judgment Page | 2
1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 15 years imprisonment. The particulars of the offence were on the night of 3 rd and 4 th February 2024 at (name withheld) village in Kaloleni Sub County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of K.M. (herein referred to as the complainant), a child aged 17 years.
2. The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal on the following grounds:
1) That the learned magistrate erred in law and fact by failing to find that the charge sheet was defective, a breach of article 50(2)(b) of the Constitution of Kenya.
2) That the learned magistrate erred in law and fact for not noting that the prosecution’s evidence failed to prove its case beyond reasonable doubt.
3) That the learned magistrate erred in law and fact by ignoring the fact that the prosecution evidence was riddled with inconsistencies and contradictions hence unreliable to sustain a conviction.
4) That the learned magistrate erred in law and fact for not noting that the medical records were forged, aimed at unfairly incriminating the appellant.
5) That the learned magistrate erred in law and fact by unjustly dismissing the Appellant`s defence evidence.
3. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case.
Prosecution case
4. The case for the prosecution was that the Appellant was at the material time a school going girl and was living with her mother PW2 and her father PW4. At night she used to sleep in the house of an aunt who did not testify in the case. The Appellant was their neighbour.
5. It was the evidence of the complainant PW3 that she was at the material time aged 15 years. That on the evening of 3/2/2024 she was at her home with her siblings and her mother. The Appellant was also with them. Her mother and siblings went to sleep and she was left with the Appellant watching TV. She later switched off the TV and left for the house of her aunt where she used to sleep. That the Appellant followed her. That on the way he held her hand and took her to the bush. He warned her not to scream. He removed her panties and removed his shorts. He pushed her to the ground and inserted his penis into her vagina. He warned her not to tell anybody about it. They went up to the house of her aunt. She knocked the door and her aunt opened for her. The Appellant then left. That on 4/2/2024 her aunt told her father that she had been with the Appellant at night. Her father made a report to the police on 8/2/2024. Her parents interrogated her but she never told them where she had been. They then went to the police station and she was interrogated. She was taken to hospital for examination.
6. The mother to the complainant PW2 testified that the complainant was at the material time aged 15 years. That on the evening of the material day she ate supper and went to sleep. She left the Appellant and the complainant watching TV. That on the following day she came home from church and found the Appellant fighting with a person called Biri. They were separated. She was then informed by a lady called Shantel that on the previous night the Appellant had taken the complainant to her (Shantel`s) house at 1.30 am. She PW2 then reported to the police. The complainant was taken to Mariakani sub county hospital for examination where the doctor confirmed that the complainant had been penetrated. That she interrogated her daughter and she told her that the appellant had defiled her in the bush.
7. A clinical officer at Mariakani sub county hospital PW1 testified that he examined the complainant at their hospital on 8/4/2024 and found her with a broken hymen and swellings on the labia that were painful. He completed a P3 form to that end. He confirmed that there was penetration. During the hearing of the case in court, he produced the P3 form, the treatment notes, lab request form, GBV client refer form and the age assessment report as exhibits, P.Exh. 1 - 5 respectively.
8. The father to the complainant PW4 told the court that on the 4/2/2024 he was at his home at 10 am when he was informed by Shantel that on the previous night the complainant had been taken to her house by the Appellant at 1.30 am. He called the complainant and asked her about it. She started to cry. He told her aunts to ask her. After 4 days he reported to the police and they took the complainant to Mariakani sub county hospital where she was examined and the doctor confirmed that there was penetration. He interrogated her and she said that she indeed had sexual intercourse with the Appellant.
9. The case was investigated by a police officer who left Kaloleni police station and handed over the file to PC Paul Njuki PW5. It was the evidence of PW5 that he had accompanied the investigating officer to arrest the Appellant. It was further his evidence that the statements in the police file indicated that the age of the complainant was assessed at 17 years. That she was examined at hospital and found to have been defiled.
Defence case
10. The Appellant in his defence stated in a sworn statement that he left home and went to hospital. That he returned home and continued with treatment for one week. That while going to the shops he met with the father to the complainant who told him that his daughter was brought home at night having been defiled. That he told him to report.
11. It was further evidence of the Appellant that he had a feud with a brother to the complainant who had even assaulted him and he had reported to the police. The said brother had gone into hiding.
12. The appeal was canvassed by way of written submissions.
Appellant`s submissions
13. The Appellant submitted that the age of the complainant was not proved to the required standard of beyond reasonable doubt. That the charge sheet indicated that the complainant was aged 17 years while the complainant and her mother said that she was aged 15 years. That her father said she was aged 14 years.
14. It was submitted that there was contradiction in the evidence on the date the complainant was taken to hospital. That the clinical officer PW1 said in cross-examination that the complainant went to hospital on 18/4/2024. It was submitted that the medical documents were forged. That the findings were not credible due to the long period the complainant had taken to go to hospital.
15. It was submitted that the complainant told the trial court that she did not disclose the defilement to her parents. The Appellant wondered what was being reported to the police if the complainant had not told her parents what had happened. The Appellant urged the court to allow the appeal.
Respondent`s submissions
16. The respondent through its prosecution counsel submitted that the age of the complainant was proved by the age assessment report that was produced in the case. That it was proved that the complainant was at the material time aged 17 years.
17. It was submitted that the evidence of the complainant that she was on the material night watching TV with the Appellant was corroborated by her mother PW2. That as per the provisions of section 124 of the Evidence Act, the sole evidence of the complainant was sufficient to prove the charge. That the evidence was corroborated by the clinical officer PW1.
18. On the identification of the Appellant, it was submitted that he was a person well known to the complainant. That they had been together before he defiled her. That the Appellant`s defence that he had a feud with the brother to the complainant was not backed up by any evidence and had no bearing to the charge.
19. It was submitted that the charge was not defective as it contained a statement of the offence that the Appellant was facing and the particulars of the offence. The Respondent urged the court to dismiss the appeal.
Analysis and determination
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
21. The ingredients of the offence of defilement are: proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR.
22. On the element of age, it is trite that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR 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.”
23. In the present case, the complainant and her mother gave evidence that the complainant was aged 15 years while her father said that she was aged 14 years. The clinical officer PW1 said that the age of the complainant was assessed at the hospital and she was found to be aged 17 years. The charge sheet indicated that the complainant was aged 17 years. The trial court went by the age assessment report and held that the age of the complainant was proved at 17 years.
24. I have examined the age assessment report, P.Exh.5. The clinical officer PW1 never said that he is the one who did the assessment. The same seems to have been prepared by an officer who did not testify in the case. PW1 did not identify the officer who prepared the age assessment report. He did not say whether they were working together in the same hospital neither did he say that he was familiar with his handwriting. Consequently, the author of the document is not known. More so, the author did not indicate the method he used to arrive at the opinion that the complainant was aged 17 years. In my view the document was not credible and should not have been relied upon to hold that the complainant was aged 17 years.
25. In the case of Edwin Nyambogo Onsongo (supra), the Court of Appeal held that the age of a child may be proved by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents. It is clear from the evidence of the complainant as given before the trial court that she was an intelligent girl who knew her age. Her mother was in a better position to know her age being the person who gave birth to her. I also note that the clinical officer who completed the P3 form estimated the age of the complainant in Part C of the P3 form at 14 years. I will therefore go by the evidence of the complainant and her mother and find that the complainant was at the material time aged 15 years.
26. On the element of penetration, Section 2 of the Sexual Offences Act defines the same as:
“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
27. The evidence of the complainant was that she was watching TV with the Appellant in the complainant`s house. That she left her home to go to sleep in the house of her aunt when the Appellant followed her and took her into the bush where he penetrated her vagina with his penis.
28. The trial court in its judgment held that the evidence of the complainant that the Appellant penetrated her was corroborated by the finding of the clinical officer that the hymen was broken and that there were swellings and pain on the labias. The court held that the evidence on penetration was uncontroverted.
29. The Appellant submitted that the medical documents did not prove the defilement as the clinical officer PW1 said that the complainant was taken to hospital on 8/4/2024 which was many days after the alleged date of defilement.
30. Indeed, the clinical officer PW1 said in his evidence that the complainant was taken to hospital on 8/4/2024 while the offence was said to have been committed on the night of 3 rd and 4 th February 2024. I have examined the treatment notes prepared by the clinical officer, P.Exh.2 and note that they are dated 8/4/2024. The evidence adduced before the trial court indicate that the case was reported to the police on 8/2/2024 and that the P3 form was issued by the police on the same date. The same indicates that it was signed by the clinical officer PW1 on 8/2/2024. How come then that the clinical officer examined and completed the complainant`s P3 form on 8/2/2024 but the treatment notes that should have accompanied the filling of the P3 form are dated 8/4/2024? The clinical officer did not explain this discrepancy. The trial court did not try to reconcile the discrepancy. Consequently, I find that medical evidence adduced against the Appellant was not credible and should not have been relied upon as corroboration on the complainant`s evidence on penetration by the Appellant.
31. It is trite that absence of medical evidence in proof of defilement is not fatal to the case as defilement may be proved by other ways and not necessarily by way of medical evidence. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:-
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”.
32. Also in George Kioji v Republic, Criminal Appeal no. 270 of 2012 Nyeri, the same court stated as follows:
“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,”
33. In addition, section 124 of the Evidence Act allows a court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for so holding.
34. The trial court in convicting the Appellant of the offence said that there was no reason for the complainant to frame up the Appellant with the offence. That the defence of the Appellant that there was a grudge between him and the complainant`s father was an afterthought and was not believable as he did not raise the issue with him when he cross-examined him in the case. It is however to be noted that the Appellant never mentioned that he had a grudge with the complainant`s father but with the brother of the complainant. The trial court misapprehended this aspect of the evidence.
35. Whereas the complainant told the trial court that the Appellant defiled her on the night of 3 rd and 4 th February 2024, she told the court that she did not disclose to her parents where she had been when they interrogated her. It is also to be noted that her father did not make a report to the police until the 8/2/2024 but even then, he did not state whether by then the complainant had mentioned that she had been defiled by the Appellant. It seems from his evidence that he learnt from the clinical officer after examination at the hospital that the complainant had been defiled. It is this same evidence of the clinical officer which this court has found to be unreliable.
36. The complainant said in her evidence that she was interrogated at the police station but she did not tell the court what she told the police. The police officer who investigated the case did not testify in the case. It is therefore not known at what stage the complainant came to mention that she was defiled by the Appellant. Was the complainant then a truthful and credible witness?
37. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 , held the following on credibility of witnesses:
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.
38. The fact that the complainant in this matter failed to disclose to her parents upon interrogation that she was defiled by the Appellant created an impression that she was not a reliable witness. It seems that she mentioned to have been defiled by the Appellant after the clinical officer purportedly confirmed the defilement which evidence was unreliable. In my view it was not safe to rely on the evidence of such a witness as the basis of a conviction on the Appellant. The complainant may have implicated the Appellant in the commission of the offence due to pressure from her parents and the purported finding of the clinical officer. The trial court did not properly assess the credibility of the complainant to ascertain whether she was a trustworthy witness. It was not enough just to say that she did not have reason to frame up the case against the Appellant.
39. In view of the foregoing, I find that the charge against the Appellant was not proved beyond reasonable doubt. The appeal is thereby merited. Consequently, the conviction entered on the Appellant by the trial court is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 13 th May 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant: Rahma
MLD HCCRA No. E099 of 2024 Judgment Page | 2