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(Being an Appeal against conviction and sentence in Kilungu Magistrates Courts S.O E034 of 2022 delivered on 21 st July, 2023 by Hon. F. Makoyo, SPM)
The Appellant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars are that:-“On the 5 th day of October 2022 at Kikoko Mission Hospital in Kikoko Sub-location in Kikoko Location within Makueni County, the Appellant unlawfully and intentionally touched the breasts and buttocks of LML, a child aged 14years.
The Appellant pleaded not guilty. The prosecution called six witnesses; the Appellant was put to his defence. The Appellant was subsequently convicted and sentenced to serve ten years imprisonment.
Being dissatisfied with both the conviction and the sentence, he has appealed, and in the Amended Petition of Appeal filed, he raised the following eight grounds of appeal; (i) The learned trial magistrate erred in law and fact by convicting the appellant based on contradictory and inconsistent evidence tendered by the prosecution; (ii) The learned trial magistrate erred in law and when he convicted the appellant without the prosecution proving their case beyond reasonable doubt as required under the law; (iii) The learned trial magistrate erred in law and fact by finding that the testimonies of the prosecution witnesses were contradictory but, nonetheless proceeding to rely on the same evidence to convict the appellant; (iv) The learned trial magistrate erred in law and fact by relying on the evidence of the minor who was not a credible witness contrary to the provisions of the Evidence Act and the law; (v) The learned trial magistrate erred in law and fact by accepting the prosecution case as proved without taking into consideration the defence case; (vi) The learned trial magistrate erred in law and fact by ignoring the legal principles governing circumstantial evidence and when to convict on the basis of such evidence; (vii) The conviction was against the weight of the evidence adduced; (viii) That the sentence by the trial magistrate was harsh and excessive in the circumstances.
The appellant submitted that the complainant’s testimony should not be accepted as truthful because she did not report the incident to the matron who was with her at the hospital. The appellant took issue with the evidence that the matron learnt about the incident from the school principal. Additionally, the appellant submitted that the trial court’s decision regarding the appellant’s defence was incorrect.
The appellant further contended that, based on the evidence presented by the prosecution, it was unsafe to convict the appellant and asked the court to quash the conviction and set aside the sentence, which they argued was excessively harsh.
The respondent, on the other hand, submitted that the ingredients of the offence had been proved and urged the court to uphold the conviction and sentence.
The respondent argued that the inconsistencies cited by the appellant were immaterial and not fatal to the case.
Analysis and determination
As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate Court as follows:- “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties. I have also read the judgment of the trial Court. Having done so, I find that the issues for determination is whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt, whether the conviction was safe, and whether the sentence was appropriate or excessive.
Section 11 (1) of the Sexual Offences Act provides that, “Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Section 2 provides that; “indecent act” means any unlawful intentional act which causes - (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will.”
Thus, to establish the offence of committing an indecent act on a child, the prosecution had to establish the age of the victim, the indecent act and the positive identification of the perpetrator.
The Complainant’s birth certificate was produced; she was 15 years old at the date relevant to the charge before the Court.
The Complainant stated that she had been escorted to the hospital for dressing of a wound she had sustained earlier when the Appellant, who was attending to her, locked the door and forcefully hugged her and touched her breasts and buttocks. She stated that before the indecent act, the Appellant called her ‘sweetheart’ and told her that he loved her. The Complainant stated that she forced her way out of the room and rushed back to school, where she told her class teacher what had transpired.
The matron who had escorted the Complainant testified as PW5 and confirmed that she was in company of the Complainant and PW3 at the hospital. She also confirmed that the Appellant was the one attending to the two students.
According to PW5, the Complainant left without informing her, and it was the Appellant who told her that her NEMIS Number had a problem and that she should return next Friday. However, she stated that she (Complainant) left looking troubled, which she thought was due to the wound.
The Appellant stated in his defence that he was attending to PW1, PW3 , and PW5 at the hospital on the day in question. He testified that the Complainant’s NEMIS number did not appear as registered; however, he allowed her to proceed with treatment, which she received next door. He stated that he served her while seated and never stood from his seat. He maintained his innocence and expressed surprise at his subsequent arrest and charges.
It is not in dispute that the Complainant and the Appellant interacted on that material date at the hospital precincts.
The school principal (PW2) stated that the Complainant was escorted to her office on the very day, while crying, and she reported the incident to her. The report to the police was made within three days.
On the indecent act and identification of the perpetrator, the trial Court relied on the evidence of the victims to establish those ingredients in the affirmative. Section 124 of the Evidence Act provides that a conviction shall not be sustained on the evidence of a single identifying witness except in cases of sexual offences, so long as the court can ascertain that the witness was telling the truth.
The trial Court made the following findings; “Being a child, the court conducted a voire dire on PW1 and determined that she understood the oath and could be sworn. She therefore gave sworn testimony, which was tested through cross-examination. She was able to give clear testimony of what took place between her and the accused person.”
Upon reviewing the evidence, it is clear that the Complainant took swift action to report the incident to the principal on the very same day it occurred. The school matron confirmed that the Complainant left in a rush. The complainant also stated that she left immediately for school. I do not see anything fatal with where the complaint was first made in this case. The school’s response reinforces the notion that every step was taken with a genuine intention to address the situation, free of any hint of malice.
The trial court carefully addressed the defence on page 4 of its judgment. I have reviewed the defence, and it is clear that the prosecution’s strong evidence effectively counters the defence’s arguments.
Upon examination of the evidence submitted by both the prosecution and defence, I arrive at the same findings and agree with the trial Court’s conclusions. It is evident that the Appellant, who was entrusted with responsibility at the hospital, engaged in behaviour that constituted sexual harassment towards the patient.
I therefore find that the elements of the offence of committing an indecent act with a child were proved beyond all reasonable doubt, and the evidence tendered was sufficient to sustain a conviction.
Sentencing
The penalty for committing an indecent act with a child under Section 11(1) of the Sexual Offences Act is prescribed as follows: “Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
The Appellant was sentenced to the minimum sentence of imprisonment for ten years.
The Supreme Court has now provided guidance on minimum sentences under the Sexual Offences Act in Republic V Joshua Gichuki Mwangi Petition No. E018 of 2023. The Supreme Court held that where a sentence is set in statute, the legislature has already determined the course unless declared unconstitutional.
The Appellant was afforded a fair trial, the conviction was safe, and the trial Court meted out a lawful sentence. The Appeal lacks merit and is dismissed. Right of Appeal explained.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17th Day day of November 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Mr. Kazungu, ODPP
'
(Being an Appeal against conviction and sentence in Kilungu Magistrates Courts S.O E034 of 2022 delivered on 21 st July, 2023 by Hon. F. Makoyo, SPM)
The Appellant was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars are that:-“On the 5 th day of October 2022 at Kikoko Mission Hospital in Kikoko Sub-location in Kikoko Location within Makueni County, the Appellant unlawfully and intentionally touched the breasts and buttocks of LML, a child aged 14years.
The Appellant pleaded not guilty. The prosecution called six witnesses; the Appellant was put to his defence. The Appellant was subsequently convicted and sentenced to serve ten years imprisonment.
Being dissatisfied with both the conviction and the sentence, he has appealed, and in the Amended Petition of Appeal filed, he raised the following eight grounds of appeal; (i) The learned trial magistrate erred in law and fact by convicting the appellant based on contradictory and inconsistent evidence tendered by the prosecution; (ii) The learned trial magistrate erred in law and when he convicted the appellant without the prosecution proving their case beyond reasonable doubt as required under the law; (iii) The learned trial magistrate erred in law and fact by finding that the testimonies of the prosecution witnesses were contradictory but, nonetheless proceeding to rely on the same evidence to convict the appellant; (iv) The learned trial magistrate erred in law and fact by relying on the evidence of the minor who was not a credible witness contrary to the provisions of the Evidence Act and the law; (v) The learned trial magistrate erred in law and fact by accepting the prosecution case as proved without taking into consideration the defence case; (vi) The learned trial magistrate erred in law and fact by ignoring the legal principles governing circumstantial evidence and when to convict on the basis of such evidence; (vii) The conviction was against the weight of the evidence adduced; (viii) That the sentence by the trial magistrate was harsh and excessive in the circumstances.
The appellant submitted that the complainant’s testimony should not be accepted as truthful because she did not report the incident to the matron who was with her at the hospital. The appellant took issue with the evidence that the matron learnt about the incident from the school principal. Additionally, the appellant submitted that the trial court’s decision regarding the appellant’s defence was incorrect.
The appellant further contended that, based on the evidence presented by the prosecution, it was unsafe to convict the appellant and asked the court to quash the conviction and set aside the sentence, which they argued was excessively harsh.
The respondent, on the other hand, submitted that the ingredients of the offence had been proved and urged the court to uphold the conviction and sentence.
The respondent argued that the inconsistencies cited by the appellant were immaterial and not fatal to the case.
Analysis and determination
As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174 , the Court of Appeal set out the duties of a first appellate Court as follows:- “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties. I have also read the judgment of the trial Court. Having done so, I find that the issues for determination is whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt, whether the conviction was safe, and whether the sentence was appropriate or excessive.
Section 11 (1) of the Sexual Offences Act provides that, “Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Section 2 provides that; “indecent act” means any unlawful intentional act which causes - (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will.”
Thus, to establish the offence of committing an indecent act on a child, the prosecution had to establish the age of the victim, the indecent act and the positive identification of the perpetrator.
The Complainant’s birth certificate was produced; she was 15 years old at the date relevant to the charge before the Court.
The Complainant stated that she had been escorted to the hospital for dressing of a wound she had sustained earlier when the Appellant, who was attending to her, locked the door and forcefully hugged her and touched her breasts and buttocks. She stated that before the indecent act, the Appellant called her ‘sweetheart’ and told her that he loved her. The Complainant stated that she forced her way out of the room and rushed back to school, where she told her class teacher what had transpired.
The matron who had escorted the Complainant testified as PW5 and confirmed that she was in company of the Complainant and PW3 at the hospital. She also confirmed that the Appellant was the one attending to the two students.
According to PW5, the Complainant left without informing her, and it was the Appellant who told her that her NEMIS Number had a problem and that she should return next Friday. However, she stated that she (Complainant) left looking troubled, which she thought was due to the wound.
The Appellant stated in his defence that he was attending to PW1, PW3 , and PW5 at the hospital on the day in question. He testified that the Complainant’s NEMIS number did not appear as registered; however, he allowed her to proceed with treatment, which she received next door. He stated that he served her while seated and never stood from his seat. He maintained his innocence and expressed surprise at his subsequent arrest and charges.
It is not in dispute that the Complainant and the Appellant interacted on that material date at the hospital precincts.
The school principal (PW2) stated that the Complainant was escorted to her office on the very day, while crying, and she reported the incident to her. The report to the police was made within three days.
On the indecent act and identification of the perpetrator, the trial Court relied on the evidence of the victims to establish those ingredients in the affirmative. Section 124 of the Evidence Act provides that a conviction shall not be sustained on the evidence of a single identifying witness except in cases of sexual offences, so long as the court can ascertain that the witness was telling the truth.
The trial Court made the following findings; “Being a child, the court conducted a voire dire on PW1 and determined that she understood the oath and could be sworn. She therefore gave sworn testimony, which was tested through cross-examination. She was able to give clear testimony of what took place between her and the accused person.”
Upon reviewing the evidence, it is clear that the Complainant took swift action to report the incident to the principal on the very same day it occurred. The school matron confirmed that the Complainant left in a rush. The complainant also stated that she left immediately for school. I do not see anything fatal with where the complaint was first made in this case. The school’s response reinforces the notion that every step was taken with a genuine intention to address the situation, free of any hint of malice.
The trial court carefully addressed the defence on page 4 of its judgment. I have reviewed the defence, and it is clear that the prosecution’s strong evidence effectively counters the defence’s arguments.
Upon examination of the evidence submitted by both the prosecution and defence, I arrive at the same findings and agree with the trial Court’s conclusions. It is evident that the Appellant, who was entrusted with responsibility at the hospital, engaged in behaviour that constituted sexual harassment towards the patient.
I therefore find that the elements of the offence of committing an indecent act with a child were proved beyond all reasonable doubt, and the evidence tendered was sufficient to sustain a conviction.
Sentencing
The penalty for committing an indecent act with a child under Section 11(1) of the Sexual Offences Act is prescribed as follows: “Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
The Appellant was sentenced to the minimum sentence of imprisonment for ten years.
The Supreme Court has now provided guidance on minimum sentences under the Sexual Offences Act in Republic V Joshua Gichuki Mwangi Petition No. E018 of 2023. The Supreme Court held that where a sentence is set in statute, the legislature has already determined the course unless declared unconstitutional.
The Appellant was afforded a fair trial, the conviction was safe, and the trial Court meted out a lawful sentence. The Appeal lacks merit and is dismissed. Right of Appeal explained.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17th Day day of November 2025.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant - present
Mr. Kazungu, ODPP
'