( Appeal against the Judgment and sentence delivered by Hon. V. Karanja – PM on 20/02/2025 in Iten Senior Principal Magistrate’s Court Criminal (Sexual Offences) Case No. E048 of 2024 )
JUDGMENT
1. The Appellant was charged in the case referred to above with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act , No. 3 of 2006 . It was alleged that the Appellant, on 13/11/2024, at around 1930 hours, at [ particulars withheld ] village, [ particulars withheld ] sub-location in Marakwet West sub-County, within Elgeyo Marakwet, intentionally and unlawfully caused his penis to penetrate the vagina of KLM , a girl aged 13 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by unlawfully and indecently touching the same girl’s private parts with his penis.
2. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the Prosecution called 4 witnesses. At the close of the trial, the Court convicted the Appellant on the main charge, and sentenced him to serve 20 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant filed this Appeal by way of the undated Memorandum of Appeal filed on 10/03/2025. He however, in his Submissions dated 2/10/2025, introduced what he referred to as “ Amended Grounds of Appeal ”, which is what he now relies on herein. The same, sounding more like Submissions, reproduced verbatim, is premised as follows:
i) THAT the Learned trial Magistrate erred in matters of law and fact by holding that the prosecution had proved its case beyond reasonable doubt according to provisions of Section 107 of the evidence act without supporting evidence and in view of the unresolved contradiction in the prosecution case. Reliance is on the authority of WILLIAM KIPROTICH CHERUIYOT VS REPUBLIC (2021) where it was held the burden of proof lay with the prosecution.
ii) THAT the Learned trial Magistrate erred in matters of law and fact by not finding that most of the ingredients of the offence he was charged with were never proved. On AGE it was not properly established – age assessment report 13, complainant 14, charge sheet 13, Doctor 13 but presented age assessment report which was not authentic. Court finding 13 years. Finding not based on accurate evidence, Positive identification not proved as the complainant indicated she did recognize him visually while it was dark but later on voice recognition which could be wrong. Penetration was never proved by the prosecution on the reason that the P3 form lacked authenticity as the said Doctor indicated the Vaginal opening and wall were normal but formed an opinion that penetration occurred on contradictory piece of evidence of inflamed labia minora. Inconclusive medical evidence on penetration, identification in difficult circumstances.
iii) THAT the Learned trial Magistrate erred in law and fact in founding the case on contradictory evidence
iv) THAT the Learned trial Magistrate erred in law and fact by failing to award the appellant the benefit of doubt that was raised during his case on the fact reasonable doubt was created over his involvement in the defilement act. The many mistakes by the prosecution introduced a serious doubt in the prosecution case a benefit of which should have been passed on to him with an acquittal.
v) THAT the Learned trial Magistrate erred in matters of law and fact in finding him guilty using the evidence of incredible witnesses. PW1 had an old torn hymen which was not related to the present defilement incident. She indicated she had consensual sex in September 2024. Her conduct being a minor raises credibility issues as her conduct was not appropriate to her age. The trial court did not make a finding that she was an incredible witness and disregard her evidence/case.
vi) THAT the Learned trial Magistrate erred in matters of law and fact for not observing that there was no substantive investigation by the investigating officer thereby basing the conviction on mere allegations and fabrications (no findings on investigation were tendered) and no proper investigation based on standards laid down in the police act 2011 was done. A demonstration of poor investigation can be highlighted by failure to exhibit the muddy clothes and subjecting appellant to both physical and medical investigation to prove their case among other shortcoming.
vii) THAT the trial Magistrate erred in matters of law by not warning herself on the danger of convicting and sentencing the appellant based on a single identifying witness in very difficult circumstances namely the alleged offence took place in total darkness and the witness was not competent as demonstrated by her wavering testimony that in examination in chief she indicated she recognized him based on visual recognition but on being cross examined on this she switched to voice recognition. The court did not take note of these contradictory identification statements which were not free of errors due to lighting condition at the time of the incident.
viii) THAT the Learned trial Magistrate erred in matters of law and fact as he is faulted for using the testimony of PW2, PW3, among others which was based on hearsay as what they stated was not based on first-hand knowledge, but on what they were told and the same evidence was used to convict and sentence him to 20 years. The witnesses for instance PW2 confirmed with her testimony that she spoke on what she was told that complainant told her. Hearsay evidence according to the law was not admissible in this case. A good example is the witness who was locked out of the prosecution case which was purely intentional.
ix) THAT the Learned trial Magistrate erred in matters of law and fact in founding this case on contradictory evidence. Nearly all the witnesses self-contradicted themselves or contradicted each other and the same was used to convict and sentence the appellant. These contradictions were very major and material to the case and goes to its root.
x) THAT the Learned trial Magistrate erred in matters of law and fact by finding the appellant to be guilty of the alleged offence on the basis of a DEFECTIVE CHARGE SHEET violating sec 134 of CPC. The defect is easily noticeable as the INITIALS of the victim K.L.M on the charge sheet do not match that of the victim JOYCE MULATI (J.M). Equally the charge sheet is at variance with evidence of age assessment report of 14 years. In those instances, the prosecution did not make a timely amendment to suit those facts in the statement of prosecution witness. These defects are not curable under section 382 of the CPC, urge the court to acquit the appellant on this account which occasioned a miscarriage of justice or in the alternative order for a re-trial. Reliance is on the authority of BENARD OMBUNA VS REPUBLIC (2019) eKLR. The defect prejudiced the appellant as he was having trouble to follow that case he was being charged with.
xi) THAT the Learned trial Magistrate erred in matters of law and fact by failing to consider the evidence of the defence. The complainant indicated to the court he did not commit the offence but the trial court disregarded my defence as just a denial and was not trustworthy without elaborating why she could not trust my defence. The court discriminated me on ground of criminality and sided with prosecution to find me guilty by all means.
xii) THAT the Learned trial Magistrate erred in matters of law and fact by making wrong recording on the trial proceedings. Its the statement of the prosecutions’ witnesses PW1, PW2 that she was taken to hospital after the alleged incident by the father, but in her judgement she indicated the mother took her to hospital. Elsewhere she notes in the judgement an incorrect finding of the doctor’s report besides using an unauthentic age assessment report. These inconsistencies prejudiced the appellant’s case.
xiii) THAT the Learned trial Magistrate erred in matters of law and fact by failing to consider the principles of sentencing during the sentence hearing which is evidenced by imposition of a mandatory sentence implying the principle such as mitigation/proportionality were not factored in the determination of his sentence of 20 years. This made the sentence to be wrong on principle as mitigation principle is supposed according to the sentencing policy guidelines 2023 to reduce a sentence by one third of the prescribed sentence.
4. I will now recount the testimonies and evidence presented before the trial Court.
5. PW1 was the complainant, a minor. She testified that she was a 14 years old class 7 pupil and referred to an Age Assessment Report presented. She then testified that she was on her way from the posho mill on 13/11/2024 at around 7.00 pm when the Appellant whom she referred to as “ Hilla ” strangled her, removed all her clothes and raped her. She stated further that her mother-in-law and one E came to her rescue and the Appellant ran away. She testified that the Appellant first came and asked for mandazi and asked her where she was coming from, and that she knew his voice since herself and her sister sell mandazi and she normally sees the Appellant at the changaa (local brew) den. She stated that her father was informed of the incident, she was taken to the hospital, the matter was reported, and she was issued with a P3 Form. In cross-examination, she stated that the time the incident occurred was around 9.00 pm, and reiterated that the Appellant spoke with her.
6. PW2 was JK , the minor’s mother. She stated that she did not know the minor’s age. She then testified that she had, on 13/11/2024, sent the minor to the posho mill but waited for too long for her to return until she got worried, that they went out to search for her and found her inside a river, alone, and all muddy. PW2 stated that she screamed and neighbours came over. She also testified that the minor’s father also came and took her to hospital, and that the minor later told them that “ Hilla ” (the Appellant) had raped her. She then stated that the Appellant was known to her.
7. PW3 was Police Corporal Evans Johnstone Mwaniki , attached at the Kaptarakwa Police Station, the Investigating Officer in the matter. He testified that he was at the Station when the matter was reported there on 13/11/2024. On what he established during his investigations about how the incident occurred, he narrated the same account given by the minor ( PW1 ). He then testified that the minor was issued with a P3 Form, he recorded statements and then charged the Appellant for the offence. In cross-examination, he stated that he visited the scene of crime and recovered the minor’s muddy clothes, and also that the minor identified the Appellant as the assaulter.
8. PW4 was Alfred Kemboi , a Clinical Officer at the Chebiemit Sub-County Hospital . who produced the P3 Form. He testified that the minor came to the facility with a history of defilement, and that she was aged 13 years old. He stated that on examination, the minor was found to have scratch marks on the face, neck and chest, normal genitalia, redness in the labia minora , the hymen was torn but not related to the incident herein, the laboratory results were normal, and there was no bleeding. He testified that there was evidence of penetration on the labia minora , and he then produced the Post-Care Rape ( PCR ) Form, P3 Form, Treatment Notes and the Age Assessment Report.
9. After the Prosecution closed its case, the Court found the Appellant with a case to answer and placed him on his defence. He then gave unsworn testimony in his defence, and was thus not cross-examined.
10. The Appellant testified as DW1 . He stated that he was at home on 13/11/2024 when at around 11.00 am, the village elder, nyumba kumi (community policing members), appeared and escorted him to the Police Station, and informed him that he had defiled a child. He denied committing the offence. He then urged that the alleged neighbours that the minor’s mother ( PW2 ) claimed to have gone to the scene, did not record statements. He also contended that the Investigating Officer ( PW4 ) did not visit the scene.
11. As aforesaid, by the Judgment delivered on 20/02/2025, the trial Court found the Appellant guilty, convicted him, and sentenced him to serve 20 years imprisonment.
12. The Appeal was then canvassed by way of written Submissions. The Appellant’s Submissions is dated 2/10/2025, while the State’s is dated 6/09/2025.
Appellant’s Submissions
13. The Appellant submitted that the Prosecution failed to prove its case. Regarding “ age ”, he submitted that while the Charge Sheet, the Age Assessment Report, and the doctor all indicated that the minor was 13 years old, the minor, in her own testimony, testified that she was 14 years old. He urged further that the Age Assessment Report was not authentic as it gave an exact age, and not an estimate as is usually the practice, that the maker thereof did not sign it, and also that it indicates that the minor was born in 2011 yet the mother testified that she did not know her age. Regarding “ penetration ”, he submitted that the Clinical Officer contradicted himself by testifying that examination of the minor found her vaginal opening and wall were normal but still formed the opinion that penetration occurred. He also observed that while in the P3 Form, the bruises are indicated to be on the left side, the PRC Form indicates their position as being on the right side. He also faulted the trial Magistrate for introducing, in her Judgment, extraneous matters not testified upon such as the finding that both the minor’s labia minora and majora were bruised and swollen, which finding was not made by the Clinical Officer, and was also not in the P3 Form. On “ identification ”, he submitted that the minor, in her evidence-in-chief, mentioned visual identification but in cross-examination, she switched to voice recognition, and she never disclosed the source of the light she used to identify the Appellant in the dark. He also submitted that the minor initially stated that the time of the incident was 7.00 pm, but later changed it to 9.00 pm, and the Charge Sheet, on its part, indicated 1930 hours. He also described the investigations conducted as “shoddy” and observed that the subject clothes were not produced in evidence, that he was not subjected to medical examination, the police did not visit the scene of crime, and that the police did not also adhere to the 24 hours rule as they did not present him in Court within that period after arrest. He also complained that the trial Magistrate convicted him on the evidence of a single identifying witness without warning herself of the dangers thereof, and that the trial Magistrate relied on hearsay evidence of witnesses who only restated what they were told. He further submitted that the Charge Sheet was fatally defective as it described the victim as KLM yet the alleged victim ( PW1 ) testified that her name was “ J… M….” , and also that the age stated therein was at variance with the age indicated in the Age Assessment Report. Regarding “ sentence ”, he submitted that the same was harsh and excessive.
Respondent’s Submissions
14. Prosecution Counsel Rachel Mwangi , on the issue of “ penetration ”, cited the minor’s testimony and narration of how the Appellant raped her and submitted that the testimony was corroborated by the medical evidence. Regarding the issue of “ age ”, she submitted that the age of 14 years which the minor testified was her age, and the age of 13 years indicated in the Age Assessment Report, both fall under the age bracket specified in Section 8(3) of the Sexual Offences Act of 12 and 15 years under which conviction attracts a prison sentence of 20 years. Regarding “ identification ”, Counsel submitted that the Appellant was not a stranger to the minor, and cited her testimony that she recognized the Appellant’s voice since she used to sell him mandazi, and she used to see him at the chan’gaa den. On the allegations of “ contradictions ” in the Prosecution’s evidence, she submitted that there were no material contradictions that could create doubts in the case. She cited the case of Francis Mugo v Republic [2022] eKLR , and also the case of Richard Munene v Republic [2018] eKLR .
Determination
15. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) .
16. The issues that arise for determination herein are evidently the following:
a) Whether the charge sheet was fatally defective.
b) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
c) Whether the sentence of 20 years imprisonment was justified.
17. On the issue of the Charge Sheet, the Appellant alleged that it was defective because, while it indicated the victim’s name as “ KLM ”, the minor in her testimony testified that her name was “ C….J… ”. In his view therefore, the Charge Sheet was fatally defective because it may have referred to two different people.
18. In regard to drafting of Charge Sheets , Section 134 of the Criminal Procedure Code provides as follows:
“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the Appellant person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
19. The above position was amplified by Kimaru J (as he then was) , in the case of Kipkurui Arap Sigilani vs Republic, (2004) 2 KLR, 480, in which he stated that:
"The principle of the law governing charge sheets is that an Appellant should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the Appellant may be able to plead to specific charge that he can understand. It will also enable the Appellant to prepare his defence."
20. The Appellant’s observation on the contradiction in the minor’s name with the initials indicated in the Charge Sheet is indeed correct. However, applying the test above, I am satisfied that the particulars of the offence were clearly spelt out, and these included the section of the law creating the offence, the date of the offence, the place of the offence, the act constituting the offence and the name of the victim. In the circumstances, my view is that the contradiction in the victim’s name was not material, and could not honestly have occasioned any injustice or vitiate the conviction. The Appellant knew very well which minor the case was about from inception. The fact that he ably cross-examined the witnesses, and at no time raised any issue over identity of the victim is sufficient proof that the discrepancy in the minor’s name, in no way prejudiced his ability to prepare and execute his defence, and did not at all occasion him any injustice. I thus reject that ground of Appeal.
21. On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender. In respect thereto, Section 8(1) and 8(3) of the Sexual Offences Act provide as follows:
“8. (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 between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years .”
22. In this case, the charge sheet indicated the minor’s age as at the date of the offence (13/11/2024) as 13 years old. The Age Assessment Report dated 18/01/2025 (obviously erroneously stated as 2024), too, estimated the minor’s age at about 13 years old. However, the minor, on the date that she testified on 22/01/2025, slightly above two months later, stated her age as 14 years. Taking any of the ages indicated, all fall below the age of 18 years. I am therefore satisfied that the victim’s status of being a minor was sufficiently proved. Further, as observed by Ms. Mwangi , for purposes of Section 8(3) above, there is no doubt that all the ages indicated fall within the bracket of 12 years and 15 years within which the Section applies. This ground of appeal raised on the basis of alleged failure to prove the minor’s age therefore also fails.
23. On the issue of “ penetration ”, Section 2(1) of the Sexual Offences Act defines the term as “ the partial or complete insertion of the genital organs of a person into the genital organ of another person .”
24. In regard thereto, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:
“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
25. In this case, the minor narrated how she was on her way from the posho mill on 13/11/2024 when “ Hilla” (Appellant) strangled her, removed all her clothes and raped her. She stated that the Appellant ran away when neighbours came to her rescue. She testified that herself and her sister sell mandazi, that she normally sees the Appellant at the changaa (local brew) den, and that she knew his voice since. She testified that the Appellant first came and asked her for mandazi, and also asked her where she was coming from. PW2 , the minor’s mother, on her part, testified and narrated how she had, on 13/11/2024, sent the minor to the posho mill but the minor took too long to return and she panicked, and thus, together with others, they went out to search for her and found her inside a river, alone, and all muddy. PW2 stated that she screamed and neighbours came over, the minor was taken to hospital, and that the minor later told them that “ Hilla” (Appellant) had raped her.
26. Medical evidence was then provided by PW4 , the Clinical Officer who produced the Post-Care Rape ( PCR ) Form, P3 Form, Treatment Notes and the Age Assessment Report. He testified that the minor was brought to the hospital with a history of defilement, and that on examination, she was found to have scratch marks on the face, neck and chest, the genitalia was however normal, but there was redness in the labia minora , the hymen was torn but not related to the incident herein, the laboratory results were also normal, and there was no bleeding. In the end, he concluded that there was evidence of penetration on the labia minora .
27. The trial Magistrate, on the strength of the evidence before her, found that penetration was proved. Considering the state of evidence on record, as captured above, I cannot fault the trial Magistrate for reaching the above findings. She saw and heard the witnesses and thus had the advantage of studying their demeanour. As a finder of facts, she believed the minor and the Clinical Officer as her discretion allowed her to do. The trial Magistrate since she relied on the material before her to reach her findings, she cannot therefore be faulted for finding that the element of “ penetration ” was sufficiently corroborated and thus proved. I thus also overrule this ground of Appeal.
28. On the issue of “ identification ”, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR stated as follows:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the Appellant which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
29. In this case, as aforesaid, the minor testified that herself and her sister sell mandazi and she normally sees the Appellant at the nearby changaa (local brew) den. She also testified that at the time of the incident, the Appellant first came and asked her for mandazi, and also asked her where she was coming from. This testimony therefore means that the minor had sufficient period of time and opportunity to identify the Appellant even before the assault. She also stated that she could recognize the Appellant’s voice. According to the minor’s mother ( PW2 ) and also by the Investigating Officer ( PW3 ), the minor, when narrating the incident to them also mentioned the Appellant by name as the perpetrator. I also note that the Appellant, when cross-examining the minor, did not seriously challenge these accounts of the minor’s testimony and did nothing to shake the same. I have also not observed any inconsistencies or contradictions in the minor’s testimony on how she identified the Appellant. Under this state of the evidence, I am satisfied that the trial Magistrate did not commit any apparent error of principle that can justify faulting her.
30. I note that the Appellant correctly observed the contradiction in the minor’s testimony regarding the time when the incident occurred. I agree that the minor, in her evidence-in-chief, stated that the time was around 7.00 pm but in cross-examination, she indicated 9.00 pm. The Charge Sheet, on its part, indicated 1930 hours. In respect to contradictions and inconsistencies in testimonies, the Court of Appeal, in the case of Philip Nzaka Watu v Republic [2016] eKLR guided that:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing in the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
In Dickson Elai Nsamba Shapwata & Another v The Republic , CR APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
31. Applying the above test to the facts of this case, my view is that the discrepancy between 7.00 pm and 9.00 pm in the circumstances of this case is not such that it can be termed as being material or substantial. It must be appreciated that a victim of a sexual assault undergoes serious trauma and a painful ordeal such that the mind cannot be expected to remain stable during such assault. As the assault is mostly an ambush, the victim is not realistically expected to be busy checking on the time, if at all she even had a watch at that time. A victim in such circumstances would be either be busy fighting off the attacker or if subdued, would be undergoing serios mental torture and most likely physical pain. The time given by a victim under such circumstances, would therefore be expected to be only an estimate. I find it too insensitive to demand that a victim of a sexual assault must always give the exact accurate time when the assault occurred. This is illogical. I also observe that in the P3 Report, it is stated that the minor “ was found unconscious and half naked after a sexual assault ”. Surely in that state, can she really have been expected to have accurately ascertained the time?
32. While I agree that it must have already been dark by the time the incident occurred between 7.00-9.00 pm, and no testimony was given on whether there was any kind of lighting around the scene, whether naturally from the moon, or from electricity or solar, or any other kind of lighting, in this case I find that the minor satisfactorily demonstrated by other reliable and sufficient testimony that she unmistakably positively identified the Appellant. This is because the Appellant was someone she already knew, and since they spoke with each other for some time, it means she had sufficient period of time, before and during the incident, to identify the Appellant.
33. I therefore find this to be a case of “ recognition ” rather than identification of a stranger. Such evidence of “ recognition ” is clearly more reliable and believable in “ identification ” as was stated in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR , in which the Court of Appeal guided as follows:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identi
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JUDGMENT
1. The Appellant was charged in the case referred to above with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act , No. 3 of 2006 . It was alleged that the Appellant, on 13/11/2024, at around 1930 hours, at [ particulars withheld ] village, [ particulars withheld ] sub-location in Marakwet West sub-County, within Elgeyo Marakwet, intentionally and unlawfully caused his penis to penetrate the vagina of KLM , a girl aged 13 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by unlawfully and indecently touching the same girl’s private parts with his penis.
2. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the Prosecution called 4 witnesses. At the close of the trial, the Court convicted the Appellant on the main charge, and sentenced him to serve 20 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant filed this Appeal by way of the undated Memorandum of Appeal filed on 10/03/2025. He however, in his Submissions dated 2/10/2025, introduced what he referred to as “ Amended Grounds of Appeal ”, which is what he now relies on herein. The same, sounding more like Submissions, reproduced verbatim, is premised as follows:
i) THAT the Learned trial Magistrate erred in matters of law and fact by holding that the prosecution had proved its case beyond reasonable doubt according to provisions of Section 107 of the evidence act without supporting evidence and in view of the unresolved contradiction in the prosecution case. Reliance is on the authority of WILLIAM KIPROTICH CHERUIYOT VS REPUBLIC (2021) where it was held the burden of proof lay with the prosecution.
ii) THAT the Learned trial Magistrate erred in matters of law and fact by not finding that most of the ingredients of the offence he was charged with were never proved. On AGE it was not properly established – age assessment report 13, complainant 14, charge sheet 13, Doctor 13 but presented age assessment report which was not authentic. Court finding 13 years. Finding not based on accurate evidence, Positive identification not proved as the complainant indicated she did recognize him visually while it was dark but later on voice recognition which could be wrong. Penetration was never proved by the prosecution on the reason that the P3 form lacked authenticity as the said Doctor indicated the Vaginal opening and wall were normal but formed an opinion that penetration occurred on contradictory piece of evidence of inflamed labia minora. Inconclusive medical evidence on penetration, identification in difficult circumstances.
iii) THAT the Learned trial Magistrate erred in law and fact in founding the case on contradictory evidence
iv) THAT the Learned trial Magistrate erred in law and fact by failing to award the appellant the benefit of doubt that was raised during his case on the fact reasonable doubt was created over his involvement in the defilement act. The many mistakes by the prosecution introduced a serious doubt in the prosecution case a benefit of which should have been passed on to him with an acquittal.
v) THAT the Learned trial Magistrate erred in matters of law and fact in finding him guilty using the evidence of incredible witnesses. PW1 had an old torn hymen which was not related to the present defilement incident. She indicated she had consensual sex in September 2024. Her conduct being a minor raises credibility issues as her conduct was not appropriate to her age. The trial court did not make a finding that she was an incredible witness and disregard her evidence/case.
vi) THAT the Learned trial Magistrate erred in matters of law and fact for not observing that there was no substantive investigation by the investigating officer thereby basing the conviction on mere allegations and fabrications (no findings on investigation were tendered) and no proper investigation based on standards laid down in the police act 2011 was done. A demonstration of poor investigation can be highlighted by failure to exhibit the muddy clothes and subjecting appellant to both physical and medical investigation to prove their case among other shortcoming.
vii) THAT the trial Magistrate erred in matters of law by not warning herself on the danger of convicting and sentencing the appellant based on a single identifying witness in very difficult circumstances namely the alleged offence took place in total darkness and the witness was not competent as demonstrated by her wavering testimony that in examination in chief she indicated she recognized him based on visual recognition but on being cross examined on this she switched to voice recognition. The court did not take note of these contradictory identification statements which were not free of errors due to lighting condition at the time of the incident.
viii) THAT the Learned trial Magistrate erred in matters of law and fact as he is faulted for using the testimony of PW2, PW3, among others which was based on hearsay as what they stated was not based on first-hand knowledge, but on what they were told and the same evidence was used to convict and sentence him to 20 years. The witnesses for instance PW2 confirmed with her testimony that she spoke on what she was told that complainant told her. Hearsay evidence according to the law was not admissible in this case. A good example is the witness who was locked out of the prosecution case which was purely intentional.
ix) THAT the Learned trial Magistrate erred in matters of law and fact in founding this case on contradictory evidence. Nearly all the witnesses self-contradicted themselves or contradicted each other and the same was used to convict and sentence the appellant. These contradictions were very major and material to the case and goes to its root.
x) THAT the Learned trial Magistrate erred in matters of law and fact by finding the appellant to be guilty of the alleged offence on the basis of a DEFECTIVE CHARGE SHEET violating sec 134 of CPC. The defect is easily noticeable as the INITIALS of the victim K.L.M on the charge sheet do not match that of the victim JOYCE MULATI (J.M). Equally the charge sheet is at variance with evidence of age assessment report of 14 years. In those instances, the prosecution did not make a timely amendment to suit those facts in the statement of prosecution witness. These defects are not curable under section 382 of the CPC, urge the court to acquit the appellant on this account which occasioned a miscarriage of justice or in the alternative order for a re-trial. Reliance is on the authority of BENARD OMBUNA VS REPUBLIC (2019) eKLR. The defect prejudiced the appellant as he was having trouble to follow that case he was being charged with.
xi) THAT the Learned trial Magistrate erred in matters of law and fact by failing to consider the evidence of the defence. The complainant indicated to the court he did not commit the offence but the trial court disregarded my defence as just a denial and was not trustworthy without elaborating why she could not trust my defence. The court discriminated me on ground of criminality and sided with prosecution to find me guilty by all means.
xii) THAT the Learned trial Magistrate erred in matters of law and fact by making wrong recording on the trial proceedings. Its the statement of the prosecutions’ witnesses PW1, PW2 that she was taken to hospital after the alleged incident by the father, but in her judgement she indicated the mother took her to hospital. Elsewhere she notes in the judgement an incorrect finding of the doctor’s report besides using an unauthentic age assessment report. These inconsistencies prejudiced the appellant’s case.
xiii) THAT the Learned trial Magistrate erred in matters of law and fact by failing to consider the principles of sentencing during the sentence hearing which is evidenced by imposition of a mandatory sentence implying the principle such as mitigation/proportionality were not factored in the determination of his sentence of 20 years. This made the sentence to be wrong on principle as mitigation principle is supposed according to the sentencing policy guidelines 2023 to reduce a sentence by one third of the prescribed sentence.
4. I will now recount the testimonies and evidence presented before the trial Court.
5. PW1 was the complainant, a minor. She testified that she was a 14 years old class 7 pupil and referred to an Age Assessment Report presented. She then testified that she was on her way from the posho mill on 13/11/2024 at around 7.00 pm when the Appellant whom she referred to as “ Hilla ” strangled her, removed all her clothes and raped her. She stated further that her mother-in-law and one E came to her rescue and the Appellant ran away. She testified that the Appellant first came and asked for mandazi and asked her where she was coming from, and that she knew his voice since herself and her sister sell mandazi and she normally sees the Appellant at the changaa (local brew) den. She stated that her father was informed of the incident, she was taken to the hospital, the matter was reported, and she was issued with a P3 Form. In cross-examination, she stated that the time the incident occurred was around 9.00 pm, and reiterated that the Appellant spoke with her.
6. PW2 was JK , the minor’s mother. She stated that she did not know the minor’s age. She then testified that she had, on 13/11/2024, sent the minor to the posho mill but waited for too long for her to return until she got worried, that they went out to search for her and found her inside a river, alone, and all muddy. PW2 stated that she screamed and neighbours came over. She also testified that the minor’s father also came and took her to hospital, and that the minor later told them that “ Hilla ” (the Appellant) had raped her. She then stated that the Appellant was known to her.
7. PW3 was Police Corporal Evans Johnstone Mwaniki , attached at the Kaptarakwa Police Station, the Investigating Officer in the matter. He testified that he was at the Station when the matter was reported there on 13/11/2024. On what he established during his investigations about how the incident occurred, he narrated the same account given by the minor ( PW1 ). He then testified that the minor was issued with a P3 Form, he recorded statements and then charged the Appellant for the offence. In cross-examination, he stated that he visited the scene of crime and recovered the minor’s muddy clothes, and also that the minor identified the Appellant as the assaulter.
8. PW4 was Alfred Kemboi , a Clinical Officer at the Chebiemit Sub-County Hospital . who produced the P3 Form. He testified that the minor came to the facility with a history of defilement, and that she was aged 13 years old. He stated that on examination, the minor was found to have scratch marks on the face, neck and chest, normal genitalia, redness in the labia minora , the hymen was torn but not related to the incident herein, the laboratory results were normal, and there was no bleeding. He testified that there was evidence of penetration on the labia minora , and he then produced the Post-Care Rape ( PCR ) Form, P3 Form, Treatment Notes and the Age Assessment Report.
9. After the Prosecution closed its case, the Court found the Appellant with a case to answer and placed him on his defence. He then gave unsworn testimony in his defence, and was thus not cross-examined.
10. The Appellant testified as DW1 . He stated that he was at home on 13/11/2024 when at around 11.00 am, the village elder, nyumba kumi (community policing members), appeared and escorted him to the Police Station, and informed him that he had defiled a child. He denied committing the offence. He then urged that the alleged neighbours that the minor’s mother ( PW2 ) claimed to have gone to the scene, did not record statements. He also contended that the Investigating Officer ( PW4 ) did not visit the scene.
11. As aforesaid, by the Judgment delivered on 20/02/2025, the trial Court found the Appellant guilty, convicted him, and sentenced him to serve 20 years imprisonment.
12. The Appeal was then canvassed by way of written Submissions. The Appellant’s Submissions is dated 2/10/2025, while the State’s is dated 6/09/2025.
Appellant’s Submissions
13. The Appellant submitted that the Prosecution failed to prove its case. Regarding “ age ”, he submitted that while the Charge Sheet, the Age Assessment Report, and the doctor all indicated that the minor was 13 years old, the minor, in her own testimony, testified that she was 14 years old. He urged further that the Age Assessment Report was not authentic as it gave an exact age, and not an estimate as is usually the practice, that the maker thereof did not sign it, and also that it indicates that the minor was born in 2011 yet the mother testified that she did not know her age. Regarding “ penetration ”, he submitted that the Clinical Officer contradicted himself by testifying that examination of the minor found her vaginal opening and wall were normal but still formed the opinion that penetration occurred. He also observed that while in the P3 Form, the bruises are indicated to be on the left side, the PRC Form indicates their position as being on the right side. He also faulted the trial Magistrate for introducing, in her Judgment, extraneous matters not testified upon such as the finding that both the minor’s labia minora and majora were bruised and swollen, which finding was not made by the Clinical Officer, and was also not in the P3 Form. On “ identification ”, he submitted that the minor, in her evidence-in-chief, mentioned visual identification but in cross-examination, she switched to voice recognition, and she never disclosed the source of the light she used to identify the Appellant in the dark. He also submitted that the minor initially stated that the time of the incident was 7.00 pm, but later changed it to 9.00 pm, and the Charge Sheet, on its part, indicated 1930 hours. He also described the investigations conducted as “shoddy” and observed that the subject clothes were not produced in evidence, that he was not subjected to medical examination, the police did not visit the scene of crime, and that the police did not also adhere to the 24 hours rule as they did not present him in Court within that period after arrest. He also complained that the trial Magistrate convicted him on the evidence of a single identifying witness without warning herself of the dangers thereof, and that the trial Magistrate relied on hearsay evidence of witnesses who only restated what they were told. He further submitted that the Charge Sheet was fatally defective as it described the victim as KLM yet the alleged victim ( PW1 ) testified that her name was “ J… M….” , and also that the age stated therein was at variance with the age indicated in the Age Assessment Report. Regarding “ sentence ”, he submitted that the same was harsh and excessive.
Respondent’s Submissions
14. Prosecution Counsel Rachel Mwangi , on the issue of “ penetration ”, cited the minor’s testimony and narration of how the Appellant raped her and submitted that the testimony was corroborated by the medical evidence. Regarding the issue of “ age ”, she submitted that the age of 14 years which the minor testified was her age, and the age of 13 years indicated in the Age Assessment Report, both fall under the age bracket specified in Section 8(3) of the Sexual Offences Act of 12 and 15 years under which conviction attracts a prison sentence of 20 years. Regarding “ identification ”, Counsel submitted that the Appellant was not a stranger to the minor, and cited her testimony that she recognized the Appellant’s voice since she used to sell him mandazi, and she used to see him at the chan’gaa den. On the allegations of “ contradictions ” in the Prosecution’s evidence, she submitted that there were no material contradictions that could create doubts in the case. She cited the case of Francis Mugo v Republic [2022] eKLR , and also the case of Richard Munene v Republic [2018] eKLR .
Determination
15. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) .
16. The issues that arise for determination herein are evidently the following:
a) Whether the charge sheet was fatally defective.
b) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
c) Whether the sentence of 20 years imprisonment was justified.
17. On the issue of the Charge Sheet, the Appellant alleged that it was defective because, while it indicated the victim’s name as “ KLM ”, the minor in her testimony testified that her name was “ C….J… ”. In his view therefore, the Charge Sheet was fatally defective because it may have referred to two different people.
18. In regard to drafting of Charge Sheets , Section 134 of the Criminal Procedure Code provides as follows:
“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the Appellant person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
19. The above position was amplified by Kimaru J (as he then was) , in the case of Kipkurui Arap Sigilani vs Republic, (2004) 2 KLR, 480, in which he stated that:
"The principle of the law governing charge sheets is that an Appellant should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the Appellant may be able to plead to specific charge that he can understand. It will also enable the Appellant to prepare his defence."
20. The Appellant’s observation on the contradiction in the minor’s name with the initials indicated in the Charge Sheet is indeed correct. However, applying the test above, I am satisfied that the particulars of the offence were clearly spelt out, and these included the section of the law creating the offence, the date of the offence, the place of the offence, the act constituting the offence and the name of the victim. In the circumstances, my view is that the contradiction in the victim’s name was not material, and could not honestly have occasioned any injustice or vitiate the conviction. The Appellant knew very well which minor the case was about from inception. The fact that he ably cross-examined the witnesses, and at no time raised any issue over identity of the victim is sufficient proof that the discrepancy in the minor’s name, in no way prejudiced his ability to prepare and execute his defence, and did not at all occasion him any injustice. I thus reject that ground of Appeal.
21. On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender. In respect thereto, Section 8(1) and 8(3) of the Sexual Offences Act provide as follows:
“8. (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 between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years .”
22. In this case, the charge sheet indicated the minor’s age as at the date of the offence (13/11/2024) as 13 years old. The Age Assessment Report dated 18/01/2025 (obviously erroneously stated as 2024), too, estimated the minor’s age at about 13 years old. However, the minor, on the date that she testified on 22/01/2025, slightly above two months later, stated her age as 14 years. Taking any of the ages indicated, all fall below the age of 18 years. I am therefore satisfied that the victim’s status of being a minor was sufficiently proved. Further, as observed by Ms. Mwangi , for purposes of Section 8(3) above, there is no doubt that all the ages indicated fall within the bracket of 12 years and 15 years within which the Section applies. This ground of appeal raised on the basis of alleged failure to prove the minor’s age therefore also fails.
23. On the issue of “ penetration ”, Section 2(1) of the Sexual Offences Act defines the term as “ the partial or complete insertion of the genital organs of a person into the genital organ of another person .”
24. In regard thereto, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:
“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
25. In this case, the minor narrated how she was on her way from the posho mill on 13/11/2024 when “ Hilla” (Appellant) strangled her, removed all her clothes and raped her. She stated that the Appellant ran away when neighbours came to her rescue. She testified that herself and her sister sell mandazi, that she normally sees the Appellant at the changaa (local brew) den, and that she knew his voice since. She testified that the Appellant first came and asked her for mandazi, and also asked her where she was coming from. PW2 , the minor’s mother, on her part, testified and narrated how she had, on 13/11/2024, sent the minor to the posho mill but the minor took too long to return and she panicked, and thus, together with others, they went out to search for her and found her inside a river, alone, and all muddy. PW2 stated that she screamed and neighbours came over, the minor was taken to hospital, and that the minor later told them that “ Hilla” (Appellant) had raped her.
26. Medical evidence was then provided by PW4 , the Clinical Officer who produced the Post-Care Rape ( PCR ) Form, P3 Form, Treatment Notes and the Age Assessment Report. He testified that the minor was brought to the hospital with a history of defilement, and that on examination, she was found to have scratch marks on the face, neck and chest, the genitalia was however normal, but there was redness in the labia minora , the hymen was torn but not related to the incident herein, the laboratory results were also normal, and there was no bleeding. In the end, he concluded that there was evidence of penetration on the labia minora .
27. The trial Magistrate, on the strength of the evidence before her, found that penetration was proved. Considering the state of evidence on record, as captured above, I cannot fault the trial Magistrate for reaching the above findings. She saw and heard the witnesses and thus had the advantage of studying their demeanour. As a finder of facts, she believed the minor and the Clinical Officer as her discretion allowed her to do. The trial Magistrate since she relied on the material before her to reach her findings, she cannot therefore be faulted for finding that the element of “ penetration ” was sufficiently corroborated and thus proved. I thus also overrule this ground of Appeal.
28. On the issue of “ identification ”, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR stated as follows:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the Appellant which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
29. In this case, as aforesaid, the minor testified that herself and her sister sell mandazi and she normally sees the Appellant at the nearby changaa (local brew) den. She also testified that at the time of the incident, the Appellant first came and asked her for mandazi, and also asked her where she was coming from. This testimony therefore means that the minor had sufficient period of time and opportunity to identify the Appellant even before the assault. She also stated that she could recognize the Appellant’s voice. According to the minor’s mother ( PW2 ) and also by the Investigating Officer ( PW3 ), the minor, when narrating the incident to them also mentioned the Appellant by name as the perpetrator. I also note that the Appellant, when cross-examining the minor, did not seriously challenge these accounts of the minor’s testimony and did nothing to shake the same. I have also not observed any inconsistencies or contradictions in the minor’s testimony on how she identified the Appellant. Under this state of the evidence, I am satisfied that the trial Magistrate did not commit any apparent error of principle that can justify faulting her.
30. I note that the Appellant correctly observed the contradiction in the minor’s testimony regarding the time when the incident occurred. I agree that the minor, in her evidence-in-chief, stated that the time was around 7.00 pm but in cross-examination, she indicated 9.00 pm. The Charge Sheet, on its part, indicated 1930 hours. In respect to contradictions and inconsistencies in testimonies, the Court of Appeal, in the case of Philip Nzaka Watu v Republic [2016] eKLR guided that:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing in the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
In Dickson Elai Nsamba Shapwata & Another v The Republic , CR APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
31. Applying the above test to the facts of this case, my view is that the discrepancy between 7.00 pm and 9.00 pm in the circumstances of this case is not such that it can be termed as being material or substantial. It must be appreciated that a victim of a sexual assault undergoes serious trauma and a painful ordeal such that the mind cannot be expected to remain stable during such assault. As the assault is mostly an ambush, the victim is not realistically expected to be busy checking on the time, if at all she even had a watch at that time. A victim in such circumstances would be either be busy fighting off the attacker or if subdued, would be undergoing serios mental torture and most likely physical pain. The time given by a victim under such circumstances, would therefore be expected to be only an estimate. I find it too insensitive to demand that a victim of a sexual assault must always give the exact accurate time when the assault occurred. This is illogical. I also observe that in the P3 Report, it is stated that the minor “ was found unconscious and half naked after a sexual assault ”. Surely in that state, can she really have been expected to have accurately ascertained the time?
32. While I agree that it must have already been dark by the time the incident occurred between 7.00-9.00 pm, and no testimony was given on whether there was any kind of lighting around the scene, whether naturally from the moon, or from electricity or solar, or any other kind of lighting, in this case I find that the minor satisfactorily demonstrated by other reliable and sufficient testimony that she unmistakably positively identified the Appellant. This is because the Appellant was someone she already knew, and since they spoke with each other for some time, it means she had sufficient period of time, before and during the incident, to identify the Appellant.
33. I therefore find this to be a case of “ recognition ” rather than identification of a stranger. Such evidence of “ recognition ” is clearly more reliable and believable in “ identification ” as was stated in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR , in which the Court of Appeal guided as follows:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identi
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