1. The Appellant herein was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (SOA) in Mariakani Sexual Offences Case No. 56 of 2018. He was sentenced to 10 years imprisonment. The particulars of the offence were that on diverse dates between June and August 2018, at Njoro village, in Mariakani location, Kaloleni sub-county within Kilifi County, the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of J. M. (the Complainant), a child of 15 years.
2. Being aggrieved by the decision of the trial court, the Appellant has appealed to this Court against both the conviction and sentence and raised the following grounds:
1. That the Learned Trial Magistrate erred in fact and law in proceeding to convict and sentence the Appellant herein based on a defective charge sheet, the particulars thereto and the date of the alleged offence does not tally with the particulars thereof.
2. That the Learned Trial Magistrate erred in fact and law in proceeding to convict and sentence the Appellant on a charge: “Defilement contrary to section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No.3 of 2006 the particulars which……
On diverse dates between the month of June, 2018 and August, 2018 at Njoro Village, in Mariakani Location, Kaloleni Sub-County within Kilifi County of the Coast Region, unlawfully and intentionally caused his penis to penetrate the vagina of J.M. a child aged 15 years old.
Alternative Charge of Committing an indecent act with an adult contrary to Section 11 (1) of the Sexual Offences Act
Particulars
…….he intentionally and unlawfully touched the vagina of the said child with his penis…..
Of concern is to denote that in the alternative charge of the age of the child is given as 16 years.
Yet on the judgment delivered on the 7th day of April, 2021, the Learned Trial Magistrate alludes to … the Accused Person is her boyfriend whom she has been in a relationship with and had sexual intercourse with several times…”
Therefore, the particulars do not conform to the main charge especially the time and dates of alleged incident, the place of the alleged incident and whether or not the incident in itself (Defilement in essence actually occurred).
3. That the Learned Trial Magistrate erred in fact and law in relying on a P3 Form that had conflicting description of the age of the alleged (broken hymen and loose vaginal sphincter muscles), in conflict with the evidence on record, the treatment notes and the testimony of the alleged eye witnesses.
4. That the Learned Trial Magistrate erred in fact and law by convicting and sentencing the Appellant based on facts presented by the Prosecution that are clearly not in tandem with the charges preferred as against the Appellant.
5. That the Learned Trial Magistrate erred in fact and law by proceeding to convict the Appellant on evidence that does not meet the threshold as enunciated by Section 36 of the Sexual Offences Act, the medical evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful.
6. That the Learned Trial Magistrate erred in law and fact in meting out sentence that was harshly and manifestly excessive in the circumstances and failed to take into consideration mitigating factors thereto.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial Court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. The Respondent opposed the appeal in submissions dated 18.1.24. The Respondent submitted that the prosecution was able to establish all 3 ingredients of the offence of defilement.
5. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
6. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
7. The record contains the health card of the Complainant which indicates that she was born on 30.5.03. In June to August 2018 when the offence is alleged to have been committed, the Complainant was 15 years old. This was not challenged by the Appellant. The test of age was thus established.
8. As regards penetration, the Complainant’s evidence was that in June 2018, she was at her aunt’s home in Njoro. At about 10pm, she went to the toilet which belongs to the Appellant’s family. When she came out, the Appellant who was by the door dragged her into a nearby thicket, undressed her and defiled her. In August, at about 3am, as she was cooking mandazi, the Appellant called her and she followed him to his home. He pulled her to his room and defiled her. On another occasion as she and her cousin were escorting Husna, the Appellant called her, led her to a thicket and defiled her. She could not remember the dates when the incidents happened. She did not tell her parents of the incidents for fear that they would beat her. It was her cousin and aunt who reported the matter.
9. PW4, Barrington Charo a Clinical Officer at Mariakani Sub County Hospital produced the P3 form, treatment notes, laboratory documents. He stated that on examination of the Complainant on 28.8.28, he established that her vaginal hymen was missing, she had a whitish discharge and UTI was detected.
10. The Court notes that PW4 did not state that the conclusion deduced from the findings was penetration. Indeed in cross examination, he stated that the whitish vaginal discharge was secondary to infection.
11. A broken hymen alone cannot be used as proof of penetration. In P.K.W v Republic [2012] eKLR, the Court of Appeal addressed its mind to this issue and stated:
Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769.
12. The only evidence of the alleged penetration was that of the Complainant. In her judgment, the trial Magistrate stated that the Complainant did not contradict herself in her testimony. Citing the proviso to Section 124 of the Evidence Act, the trial Magistrate stated that he was satisfied as to the truthfulness of the Complainant’s testimony.
13. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
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. (emphasis)
14. For a court to convict an accused person of a sexual offence only on the basis of the uncorroborated evidence of the victim, such court must be satisfied that the victim is telling the truth.
15. I have carefully considered the evidence of the Complainant. To begin with, she stated that she was defiled several times from June 2018 but could not recall the exact dates. In her examination in chief, she stated that the Appellant defiled her in June in a thicket near his home which neighbour’s that of her aunt. The last time he called her as she was escorting a friend with her cousin, led her to a thicket and defiled her. In cross examination however, she stated that the Appellant defiled her in an unfinished house/construction. Additionally, she stated that in the last incident when she was with her cousin and friend, the Appellant was holding a knife. In cross examination however, she stated that the Appellant’s friend threatened her with a knife. These contradictions and inconsistencies render the Complainant’s testimony untrustworthy.
16. In the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), Mativo, J. (as he then was) stated:
Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.
17. I associate with the sentiments of the learned Judge. The contradictions and inconsistencies are substantial and fundamental to the main issues in question. Coupled with the fact that the medical evidence did not confirm penetration, doubt has been created in the mind of the Court as to whether indeed the alleged offence was in fact committed. The Appellant is entitled to benefit from the doubt created.
18. In light of the foregoing, I find that the Appellant's conviction was unsafe and that the trial Magistrate misdirected himself in convicting the Appellant based on the evidence on record. The conviction is hereby quashed and the sentence is set aside. The Appellant is set at liberty unless otherwise lawfully held.
2. Being aggrieved by the decision of the trial court, the Appellant has appealed to this Court against both the conviction and sentence and raised the following grounds:
1. That the Learned Trial Magistrate erred in fact and law in proceeding to convict and sentence the Appellant herein based on a defective charge sheet, the particulars thereto and the date of the alleged offence does not tally with the particulars thereof.
2. That the Learned Trial Magistrate erred in fact and law in proceeding to convict and sentence the Appellant on a charge: “Defilement contrary to section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No.3 of 2006 the particulars which……
On diverse dates between the month of June, 2018 and August, 2018 at Njoro Village, in Mariakani Location, Kaloleni Sub-County within Kilifi County of the Coast Region, unlawfully and intentionally caused his penis to penetrate the vagina of J.M. a child aged 15 years old.
Alternative Charge of Committing an indecent act with an adult contrary to Section 11 (1) of the Sexual Offences Act
Particulars
…….he intentionally and unlawfully touched the vagina of the said child with his penis…..
Of concern is to denote that in the alternative charge of the age of the child is given as 16 years.
Yet on the judgment delivered on the 7th day of April, 2021, the Learned Trial Magistrate alludes to … the Accused Person is her boyfriend whom she has been in a relationship with and had sexual intercourse with several times…”
Therefore, the particulars do not conform to the main charge especially the time and dates of alleged incident, the place of the alleged incident and whether or not the incident in itself (Defilement in essence actually occurred).
3. That the Learned Trial Magistrate erred in fact and law in relying on a P3 Form that had conflicting description of the age of the alleged (broken hymen and loose vaginal sphincter muscles), in conflict with the evidence on record, the treatment notes and the testimony of the alleged eye witnesses.
4. That the Learned Trial Magistrate erred in fact and law by convicting and sentencing the Appellant based on facts presented by the Prosecution that are clearly not in tandem with the charges preferred as against the Appellant.
5. That the Learned Trial Magistrate erred in fact and law by proceeding to convict the Appellant on evidence that does not meet the threshold as enunciated by Section 36 of the Sexual Offences Act, the medical evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful.
6. That the Learned Trial Magistrate erred in law and fact in meting out sentence that was harshly and manifestly excessive in the circumstances and failed to take into consideration mitigating factors thereto.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial Court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. The Respondent opposed the appeal in submissions dated 18.1.24. The Respondent submitted that the prosecution was able to establish all 3 ingredients of the offence of defilement.
5. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
6. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
7. The record contains the health card of the Complainant which indicates that she was born on 30.5.03. In June to August 2018 when the offence is alleged to have been committed, the Complainant was 15 years old. This was not challenged by the Appellant. The test of age was thus established.
8. As regards penetration, the Complainant’s evidence was that in June 2018, she was at her aunt’s home in Njoro. At about 10pm, she went to the toilet which belongs to the Appellant’s family. When she came out, the Appellant who was by the door dragged her into a nearby thicket, undressed her and defiled her. In August, at about 3am, as she was cooking mandazi, the Appellant called her and she followed him to his home. He pulled her to his room and defiled her. On another occasion as she and her cousin were escorting Husna, the Appellant called her, led her to a thicket and defiled her. She could not remember the dates when the incidents happened. She did not tell her parents of the incidents for fear that they would beat her. It was her cousin and aunt who reported the matter.
9. PW4, Barrington Charo a Clinical Officer at Mariakani Sub County Hospital produced the P3 form, treatment notes, laboratory documents. He stated that on examination of the Complainant on 28.8.28, he established that her vaginal hymen was missing, she had a whitish discharge and UTI was detected.
10. The Court notes that PW4 did not state that the conclusion deduced from the findings was penetration. Indeed in cross examination, he stated that the whitish vaginal discharge was secondary to infection.
11. A broken hymen alone cannot be used as proof of penetration. In P.K.W v Republic [2012] eKLR, the Court of Appeal addressed its mind to this issue and stated:
Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769.
12. The only evidence of the alleged penetration was that of the Complainant. In her judgment, the trial Magistrate stated that the Complainant did not contradict herself in her testimony. Citing the proviso to Section 124 of the Evidence Act, the trial Magistrate stated that he was satisfied as to the truthfulness of the Complainant’s testimony.
13. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
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. (emphasis)
14. For a court to convict an accused person of a sexual offence only on the basis of the uncorroborated evidence of the victim, such court must be satisfied that the victim is telling the truth.
15. I have carefully considered the evidence of the Complainant. To begin with, she stated that she was defiled several times from June 2018 but could not recall the exact dates. In her examination in chief, she stated that the Appellant defiled her in June in a thicket near his home which neighbour’s that of her aunt. The last time he called her as she was escorting a friend with her cousin, led her to a thicket and defiled her. In cross examination however, she stated that the Appellant defiled her in an unfinished house/construction. Additionally, she stated that in the last incident when she was with her cousin and friend, the Appellant was holding a knife. In cross examination however, she stated that the Appellant’s friend threatened her with a knife. These contradictions and inconsistencies render the Complainant’s testimony untrustworthy.
16. In the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), Mativo, J. (as he then was) stated:
Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.
17. I associate with the sentiments of the learned Judge. The contradictions and inconsistencies are substantial and fundamental to the main issues in question. Coupled with the fact that the medical evidence did not confirm penetration, doubt has been created in the mind of the Court as to whether indeed the alleged offence was in fact committed. The Appellant is entitled to benefit from the doubt created.
18. In light of the foregoing, I find that the Appellant's conviction was unsafe and that the trial Magistrate misdirected himself in convicting the Appellant based on the evidence on record. The conviction is hereby quashed and the sentence is set aside. The Appellant is set at liberty unless otherwise lawfully held.