1. The appellant, James Murefu was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA) that on 25/2/2022 at around 0300 Hours at Ganja la Simba village in Kinindo location of Kwale County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.M. a girl aged 10 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina of M.M. a child aged 10 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 5 witnesses in support of its case. PW 1, M.M was the complainant, PW 2, Ali Said Weko is the vice chairman of the village in which the complainant was staying with her guardian who is her sister, her sister’s husband, the appellant and their children. PW 3, M.M. is the complainant’s sister with whom the complainant was staying at the material time. PW 4, Malkia Abdalla is clinical officer at Diani Health centre who said she attended to the complainant and completed her P3 and PRC forms and PW 5, PC Cynthia Abede of Msambweni police station was the investigating officer in the case.
5. It was the prosecution’s case that the appellant sneaked into the complainant’s bed at 3.00 a.m. on the material night, removed her tights and panties and engaged in sexual intercourse with her and went back to his bed where he slept with his wife, PW 3 and their infant child. The complainant was sharing her bed with the appellant’s three other children while the appellant and PW 2 slept in the same room with the sleeping areas separated with a curtain.
6. The appellant DW 1, gave sworn evidence in defence and called one witness, DW 2, Hassan Omare, his father. He denied that he committed the offence and said the case was a frame up. His father supported him on that allegation.
7. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
8. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that are undated but filed in court on 27/1/2025 that the learned trial magistrate erred in law and in fact in convicting the appellant the reasons being:
a. the trial was unfair.
b. the witnesses were incredible and their evidence incredible.
c. the ingredient of identification by recognition was not proved.
d. penetration was not proved against the appellant.
e. defilement was not conclusively proved.
f. life imprisonment is inhuman, degrading, oppressive and torturous.
9. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The appellant submitted that the learned trial magistrate was wrong to convict him when the case had not been proved beyond a reasonable doubt while the respondent submitted that the case was indeed proved and the learned trial magistrate arrived at a correct decision.
10. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
11. Sections 8(1) and 8(2) of the SoA under which the appellant was convicted provide as follows:
S. 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 aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was subjected to a brief voire dire examination by the trial court at the end of which, the learned magistrate was satisfied that she was possessed of sufficient intelligence to justify reception of her evidence and understood the duty of speaking the truth and thus directed her to give unsworn evidence. She then gave her evidence of how the appellant whom she identified by the name James and a husband to her sister, PW 3 defiled her.
15. PW 1 said that on the night of 25/2/2022, the accused person went to her bed at 3.00 a.m. and defiled her after removing her tights and panties. She could not scream as he had covered her mouth. There was no light in the room but she saw and recognized him. He left when he was done. He never spoke in the course of the act.
16. PW 1 said in evidence that she was sleeping with four other children on the bed but none of them heard what happened to her. She also said that her sister PW 3 and husband, the appellant sleep in the same room on a separate bed.
17. PW 3, gave evidence that on the material night at 3.00 a.m. the complainant was crying. She asked her what was wrong. The complainant took water. In the morning, the complainant said her tummy was paining. She took her to hospital and when the doctor asked her what the matter was, she said she was not unwell, but that her in-law sat on her tummy and covered her mouth. PW 3 however said, she was not told what happened after the defilement nor the results.
18. PW 3 further said that although they slept in the same room, she did not hear or see anything. They were six people in the room at the time.
19. PW 2, Ali Said Weko, the vice chairman of the village where the incident allegedly took place said that PW 3, the complainant and the appellant were taken to his home at around 6.00 p.m. on 25/2/2022. PW 3 told him that the child (complainant) had been defiled. When she asked PW 3 and the appellant whoever had done it, they both said they did not know. PW 3 told her she would leave the child with PW 2 at his home and she stayed there for three days. PW 2 said that she asked the child but she was embarrassed. However, the child was playing normally with his children and did not look like she had been defiled.
20. PW 4, the clinical officer attended to the complainant at Diani Health Centre on 4/3/2022. She also recounted what the complainant told her of how the alleged defilement had taken place. She said that the complainant had not started her menses. She appeared to be in fair general condition but in shock or fear. She seemed to have a lot on her mind and her eyes were watery. She did a vaginal examination which showed that the vagina was normal, hymen was broken and was hyperemic, meaning reddish and with soreness and tenderness. She concluded that the complainant had been defiled. Samples were taken for laboratory investigations. High vaginal swab had pus and epithelial cells which showed that she had a vaginal infection. All other tests were negative. The complainant was treated for the infection.
21. PW 4 said further that prior to her attending to the complainant she had attended a medical facility at Aliwalydyn where she was treated.
22. PW 5, the investigating officer said that the case was assigned to her by the OCS on 26/2/2022. The complainant had been taken to a rescue centre. PW 5 went there on 27/2/2022 and interrogated the complainant. The complainant recounted to her the story of how the defilement took place on the material night. PW 5 said the offence had been reported at Diani police station where witness statements were recorded and P3 form completed.
23. The appellant gave sworn evidence in defence and called one witness DW 2, Hassan Omare, his father.
24. In his defence, the appellant denied that he had committed the offence. He said he married the complainant’s sister, PW 3, who had four children, the older ones being 13 and 12 years old. They were not going to school and he enrolled them in school and took care of all their needs. They were afterwards blessed with a daughter. The complainant aged 9 years joined to stay with them. He also took care of her needs including school.
25. On the material night, he heard people talking outside his house at 3.00 a.m. His wife had woken up a neighbor. She came back inside the house. He asked her and the wife told him to ask the complainant. He asked the complainant who said nothing. He made breakfast, took it and left. When he came back in the evening, he found that there was a police case and the complainant said that she had been defiled. She was at the chairman’s home playing and running around.
26. DW 2 said that the appellant had been framed for the alleged offence. He had grown up with many girls and he had never done such a thing and so DW 2 could not understand why the appellant would have raped a child that age.
27. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof together with the submissions made by the learned counsel for the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court.
28. Although the appellant’s first ground of appeal was that the trial was unfair, in his submissions he has not expounded on how that was. He has cited the Indian case of Zahira Habibulla H. Shiekh v. State of Gujarat (2004) 4 SCC 158 (Best Bakery Case). His issue was that the case was not proved and it was therefore unfair for the trial court to have convicted him.
29. The appellant took issue with the credibility of the prosecution witnesses submitting that all the five witnesses were not witnesses of truth.
30. I will start with the credibility of the evidence tendered by the prosecution. The complainant was a child of tender years who made an unsworn statement. She was the only witness to testify that the appellant caused penetration of her genital organ with his genital organ. Although she said that PW 3 checked her that night and saw blood in her genitalia, PW 3 denied that she saw evidence of defilement on the complainant. The court is therefore enjoined to consider the complainant’s unsworn testimony on the three elements of the offence of defilement to determine whether each of them was proved beyond a reasonable doubt.
31. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
32. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and allowed the complainant to give unsworn evidence.
33. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
34. On the same issue, the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR upon considering various decisions on the matter said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
35. From these decisions it emerges that, in a sexual offence where the victim is the only witness to the offence, where there is corroboration, that is welcome but if there is none then the court can proceed to convict while relying on the evidence of the complainant alone if it is satisfied that the complainant was telling the truth. When relying upon truthfulness alone the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
36. The appellant in his grounds of appeal and his submissions does not seem to raise issue with the fact that the complainant’s age was established to be 10 years. The appellant mentioned the age of the complainant as 9 years when she came to stay with them. She had been with them for about one year. That means he was all along aware of the complainant’s age. I am satisfied and I find that the learned trial magistrate was correct in her finding that the complainant was aged 10 years at the time of the alleged defilement.
37. The appellant was however not satisfied that penetration and his identification as the culprit were proved beyond a reasonable doubt as found by the learned trial magistrate.
38. The appellant submits that there was no evidence of proper identification of the culprit as the alleged incident took place at night in circumstances not favouring proper identification.
39. It is true that the complainant said that it was dark in the room. In court, she said that in spite of the darkness, she was able to identify the appellant as the complainant all the same. But, PW 4 said that the complainant told her that she identified the appellant from his voice when he warned her not to scream. This inconsistence was not resolved by any other evidence and the learned trial magistrate did not address it in her judgment.
40. This is a disturbing case because, if what PW 4, the clinical officer and PW 5, the investigating officer said is what indeed happened to the child, then she seems to have been let down by her handlers. I say so because, whereas the evidence tendered by PW 4 and PW 5 paints a picture of the appellant being the culprit in the case, theirs of what happened on the material night was hearsay and therefore unreliable. Hearsay because, that was not to a large extend what was said by the complainant, PW 3, her sister and PW 2, the next immediate person to see her after the alleged incident. What they said is therefore not consistent with what the three prior witnesses said.
41. The learned trial magistrate had with her a proper guide from the case of PMG v Republic [2022] KEHC 2440 (KLR) where the learned judge Onyiego, considering the import of section 124 of the Evidence Act said:
“Although a court has the power to convict under Section 124 of the Evidence Act, the same section should be tested with the greatest care and only be applied against the clearest of the victim’s evidence without an iota of doubt. That provision is not a panacea to rescue otherwise a weak prosecution case. It is also not a sympathy nor a tears’ wiping provision. I do agree with the prosecution counsel that reliance on Section 124 of the Evidence Act was not appropriate in the circumstances of this case.”
42. I agree with the learned judge on his observations and find that the learned magistrate did not apply that position in her determination of the case at hand.
43. The complainant said in her evidence that on the material night she was wearing tights and panties which James (the appellant) removed and put his genital organ into her genital organ. He was holding her mouth so she was unable to scream and no one heard. He left when he was done. She also said that it was dark in the room and the appellant never spoke. She however recognized him.
44. According to PW 5 however, the complainant told her that she was sleeping without her panties, the person threatened her not to talk and she recognized the voice as that of the appellant as there was no light in the room. PW 5 also said the complainant told her that she slept without panties. PW 5 said the complainant told her that the appellant threatened her not to talk and then she recognized his voice as there was no light in the room.
45. The statements by PW 5 of what the complainant allegedly told her are at variance with what the complainant said in her evidence. These variances were not resolved by any other witness or evidence. If indeed the complainant said those two different stories then she cannot be said to be a witness of truth because her story lacks consistency. It means the issue of identification was left in doubt.
46. The learned trial magistrate found that the complainant’s evidence that she recognized the appellant was corroborated by the fact that he was the only male person in the room. That would be so if the complainant’s story of how she identified the appellant was consistent.
47. The person who would have resolved the inconsistencies in the complainant’s evidence was her sister PW 3 but she appears to have chosen not to speak out. Again, this left the complainant’s evidence unreliable. For instance, the complainant said that her sister took her outside to look into her vagina and saw there was blood. But PW 3 said that when she looked at the complainant’s genitalia, she did not see any evidence of defilement.
48. I agree with the learned magistrate’s observation that it would appear that the complainant’s sister decided to go mute about what exactly happened that night. I say so because one would ask, if she heard her sister crying, what was the reason? Is it true that she never bothered to find out? It is not true because there is evidence from none other than the appellant himself that he was woken up by the wife talking outside with a neighbor whom PW 3 had woken up, that wee hour of the night. When the appellant inquired what was the matter, PW 3 referred her to the complainant who however did not say anything. So, why had she woken up the neighbor and why refer to the complainant? Then there is evidence that she took the complainant away to stay with the vice village chairman PW 2 for some three days. Why? And yet while they were there, the issue was that the complainant had been defiled. Then there is evidence that she took the complainant to hospital the same day in the evening. Again, why?
49. The learned trial magistrate indeed found that PW 3 was not ready to say what exactly happened that night thereby making her an unreliable witness but went ahead to rely on her evidence. In that case of doubt, the benefit should go to the accused person as was held in the case of PNW v. Republic [2017]eKLR cited by the appellant.
50. Turning to the issue of penetration, the complainant’s evidence was that the appellant had sexual intercourse with her. But PW 3 said that she did not see evidence of defilement. The other evidence was the medical examination. Although PW 4, the clinical officer wished to give the impression that she had examined the complainant in the first instance and made the findings contained in the P3 and PRC forms, the position from the evidence on record is that she was not the initial person who attended to the complainant. The investigating officer, PW 5 said that the complainant was first taken to Ganja La Simba health centre and thereafter to Diani hospital. This means that PW 4 relied on the medical notes from the clinic the complainant was attended at prior.
51. Indeed, it cannot be true as stated by the clinical officer that when she saw the complainant a week after the incident, the complainant’s genitalia was reddish with soreness and tender. That the complainant appeared restless, in shock and fearful. All these arising from an incident that had happened a week before? That evidence would be acceptable if it was tendered by the first medical personnel who attended to the complainant on the evening of 25/2/2023. PW 4 might have heard good intentions to assist the complainant in the case, but her evidence was hearsay and therefore unreliable. I therefore agree with the appellant that the failure to make available the first medical personnel who attended to the complainant was fatal to the prosecution’s case. The medical evidence could therefore not be relied upon to corroborate the complainant’s evidence.
52. For the foregoing reasons, I find that the evidence of penetration as testified by the complainant was not corroborated and neither is she believable on her own given the contradiction between her evidence and that of PW 3.
53. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that two important ingredients of the offence of defilement, penetration and the identity of the perpetrator, were not proved beyond a reasonable doubt.
54. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
55. The offence the appellant was charged with carries a very severe sentence of mandatory sentence of life imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
56. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the element of penetration and the identification of the appellant as the perpetrator of the offence.
57. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
58. Orders accordingly.
59. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 14th day of March 2025 in the presence of:
The appellant in person in Naivasha Maximum Security prison.
Ms Valerie for the respondent.
Johnson: court assistant.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that on the same day, place and time as in the principal charge the appellant intentionally and unlawfully touched the vagina of M.M. a child aged 10 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 5 witnesses in support of its case. PW 1, M.M was the complainant, PW 2, Ali Said Weko is the vice chairman of the village in which the complainant was staying with her guardian who is her sister, her sister’s husband, the appellant and their children. PW 3, M.M. is the complainant’s sister with whom the complainant was staying at the material time. PW 4, Malkia Abdalla is clinical officer at Diani Health centre who said she attended to the complainant and completed her P3 and PRC forms and PW 5, PC Cynthia Abede of Msambweni police station was the investigating officer in the case.
5. It was the prosecution’s case that the appellant sneaked into the complainant’s bed at 3.00 a.m. on the material night, removed her tights and panties and engaged in sexual intercourse with her and went back to his bed where he slept with his wife, PW 3 and their infant child. The complainant was sharing her bed with the appellant’s three other children while the appellant and PW 2 slept in the same room with the sleeping areas separated with a curtain.
6. The appellant DW 1, gave sworn evidence in defence and called one witness, DW 2, Hassan Omare, his father. He denied that he committed the offence and said the case was a frame up. His father supported him on that allegation.
7. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
8. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that are undated but filed in court on 27/1/2025 that the learned trial magistrate erred in law and in fact in convicting the appellant the reasons being:
a. the trial was unfair.
b. the witnesses were incredible and their evidence incredible.
c. the ingredient of identification by recognition was not proved.
d. penetration was not proved against the appellant.
e. defilement was not conclusively proved.
f. life imprisonment is inhuman, degrading, oppressive and torturous.
9. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The appellant submitted that the learned trial magistrate was wrong to convict him when the case had not been proved beyond a reasonable doubt while the respondent submitted that the case was indeed proved and the learned trial magistrate arrived at a correct decision.
10. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
11. Sections 8(1) and 8(2) of the SoA under which the appellant was convicted provide as follows:
S. 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 aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
12. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
13. I have reviewed the evidence tendered before the trial court.
14. PW 1, the complainant was subjected to a brief voire dire examination by the trial court at the end of which, the learned magistrate was satisfied that she was possessed of sufficient intelligence to justify reception of her evidence and understood the duty of speaking the truth and thus directed her to give unsworn evidence. She then gave her evidence of how the appellant whom she identified by the name James and a husband to her sister, PW 3 defiled her.
15. PW 1 said that on the night of 25/2/2022, the accused person went to her bed at 3.00 a.m. and defiled her after removing her tights and panties. She could not scream as he had covered her mouth. There was no light in the room but she saw and recognized him. He left when he was done. He never spoke in the course of the act.
16. PW 1 said in evidence that she was sleeping with four other children on the bed but none of them heard what happened to her. She also said that her sister PW 3 and husband, the appellant sleep in the same room on a separate bed.
17. PW 3, gave evidence that on the material night at 3.00 a.m. the complainant was crying. She asked her what was wrong. The complainant took water. In the morning, the complainant said her tummy was paining. She took her to hospital and when the doctor asked her what the matter was, she said she was not unwell, but that her in-law sat on her tummy and covered her mouth. PW 3 however said, she was not told what happened after the defilement nor the results.
18. PW 3 further said that although they slept in the same room, she did not hear or see anything. They were six people in the room at the time.
19. PW 2, Ali Said Weko, the vice chairman of the village where the incident allegedly took place said that PW 3, the complainant and the appellant were taken to his home at around 6.00 p.m. on 25/2/2022. PW 3 told him that the child (complainant) had been defiled. When she asked PW 3 and the appellant whoever had done it, they both said they did not know. PW 3 told her she would leave the child with PW 2 at his home and she stayed there for three days. PW 2 said that she asked the child but she was embarrassed. However, the child was playing normally with his children and did not look like she had been defiled.
20. PW 4, the clinical officer attended to the complainant at Diani Health Centre on 4/3/2022. She also recounted what the complainant told her of how the alleged defilement had taken place. She said that the complainant had not started her menses. She appeared to be in fair general condition but in shock or fear. She seemed to have a lot on her mind and her eyes were watery. She did a vaginal examination which showed that the vagina was normal, hymen was broken and was hyperemic, meaning reddish and with soreness and tenderness. She concluded that the complainant had been defiled. Samples were taken for laboratory investigations. High vaginal swab had pus and epithelial cells which showed that she had a vaginal infection. All other tests were negative. The complainant was treated for the infection.
21. PW 4 said further that prior to her attending to the complainant she had attended a medical facility at Aliwalydyn where she was treated.
22. PW 5, the investigating officer said that the case was assigned to her by the OCS on 26/2/2022. The complainant had been taken to a rescue centre. PW 5 went there on 27/2/2022 and interrogated the complainant. The complainant recounted to her the story of how the defilement took place on the material night. PW 5 said the offence had been reported at Diani police station where witness statements were recorded and P3 form completed.
23. The appellant gave sworn evidence in defence and called one witness DW 2, Hassan Omare, his father.
24. In his defence, the appellant denied that he had committed the offence. He said he married the complainant’s sister, PW 3, who had four children, the older ones being 13 and 12 years old. They were not going to school and he enrolled them in school and took care of all their needs. They were afterwards blessed with a daughter. The complainant aged 9 years joined to stay with them. He also took care of her needs including school.
25. On the material night, he heard people talking outside his house at 3.00 a.m. His wife had woken up a neighbor. She came back inside the house. He asked her and the wife told him to ask the complainant. He asked the complainant who said nothing. He made breakfast, took it and left. When he came back in the evening, he found that there was a police case and the complainant said that she had been defiled. She was at the chairman’s home playing and running around.
26. DW 2 said that the appellant had been framed for the alleged offence. He had grown up with many girls and he had never done such a thing and so DW 2 could not understand why the appellant would have raped a child that age.
27. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof together with the submissions made by the learned counsel for the respondent. I have also carefully examined and re-evaluated the evidence tendered before the trial court.
28. Although the appellant’s first ground of appeal was that the trial was unfair, in his submissions he has not expounded on how that was. He has cited the Indian case of Zahira Habibulla H. Shiekh v. State of Gujarat (2004) 4 SCC 158 (Best Bakery Case). His issue was that the case was not proved and it was therefore unfair for the trial court to have convicted him.
29. The appellant took issue with the credibility of the prosecution witnesses submitting that all the five witnesses were not witnesses of truth.
30. I will start with the credibility of the evidence tendered by the prosecution. The complainant was a child of tender years who made an unsworn statement. She was the only witness to testify that the appellant caused penetration of her genital organ with his genital organ. Although she said that PW 3 checked her that night and saw blood in her genitalia, PW 3 denied that she saw evidence of defilement on the complainant. The court is therefore enjoined to consider the complainant’s unsworn testimony on the three elements of the offence of defilement to determine whether each of them was proved beyond a reasonable doubt.
31. The manner in which the court should proceed to consider the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
32. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and allowed the complainant to give unsworn evidence.
33. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence as provided for under the above provisions of the law was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
34. On the same issue, the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR upon considering various decisions on the matter said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
35. From these decisions it emerges that, in a sexual offence where the victim is the only witness to the offence, where there is corroboration, that is welcome but if there is none then the court can proceed to convict while relying on the evidence of the complainant alone if it is satisfied that the complainant was telling the truth. When relying upon truthfulness alone the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
36. The appellant in his grounds of appeal and his submissions does not seem to raise issue with the fact that the complainant’s age was established to be 10 years. The appellant mentioned the age of the complainant as 9 years when she came to stay with them. She had been with them for about one year. That means he was all along aware of the complainant’s age. I am satisfied and I find that the learned trial magistrate was correct in her finding that the complainant was aged 10 years at the time of the alleged defilement.
37. The appellant was however not satisfied that penetration and his identification as the culprit were proved beyond a reasonable doubt as found by the learned trial magistrate.
38. The appellant submits that there was no evidence of proper identification of the culprit as the alleged incident took place at night in circumstances not favouring proper identification.
39. It is true that the complainant said that it was dark in the room. In court, she said that in spite of the darkness, she was able to identify the appellant as the complainant all the same. But, PW 4 said that the complainant told her that she identified the appellant from his voice when he warned her not to scream. This inconsistence was not resolved by any other evidence and the learned trial magistrate did not address it in her judgment.
40. This is a disturbing case because, if what PW 4, the clinical officer and PW 5, the investigating officer said is what indeed happened to the child, then she seems to have been let down by her handlers. I say so because, whereas the evidence tendered by PW 4 and PW 5 paints a picture of the appellant being the culprit in the case, theirs of what happened on the material night was hearsay and therefore unreliable. Hearsay because, that was not to a large extend what was said by the complainant, PW 3, her sister and PW 2, the next immediate person to see her after the alleged incident. What they said is therefore not consistent with what the three prior witnesses said.
41. The learned trial magistrate had with her a proper guide from the case of PMG v Republic [2022] KEHC 2440 (KLR) where the learned judge Onyiego, considering the import of section 124 of the Evidence Act said:
“Although a court has the power to convict under Section 124 of the Evidence Act, the same section should be tested with the greatest care and only be applied against the clearest of the victim’s evidence without an iota of doubt. That provision is not a panacea to rescue otherwise a weak prosecution case. It is also not a sympathy nor a tears’ wiping provision. I do agree with the prosecution counsel that reliance on Section 124 of the Evidence Act was not appropriate in the circumstances of this case.”
42. I agree with the learned judge on his observations and find that the learned magistrate did not apply that position in her determination of the case at hand.
43. The complainant said in her evidence that on the material night she was wearing tights and panties which James (the appellant) removed and put his genital organ into her genital organ. He was holding her mouth so she was unable to scream and no one heard. He left when he was done. She also said that it was dark in the room and the appellant never spoke. She however recognized him.
44. According to PW 5 however, the complainant told her that she was sleeping without her panties, the person threatened her not to talk and she recognized the voice as that of the appellant as there was no light in the room. PW 5 also said the complainant told her that she slept without panties. PW 5 said the complainant told her that the appellant threatened her not to talk and then she recognized his voice as there was no light in the room.
45. The statements by PW 5 of what the complainant allegedly told her are at variance with what the complainant said in her evidence. These variances were not resolved by any other witness or evidence. If indeed the complainant said those two different stories then she cannot be said to be a witness of truth because her story lacks consistency. It means the issue of identification was left in doubt.
46. The learned trial magistrate found that the complainant’s evidence that she recognized the appellant was corroborated by the fact that he was the only male person in the room. That would be so if the complainant’s story of how she identified the appellant was consistent.
47. The person who would have resolved the inconsistencies in the complainant’s evidence was her sister PW 3 but she appears to have chosen not to speak out. Again, this left the complainant’s evidence unreliable. For instance, the complainant said that her sister took her outside to look into her vagina and saw there was blood. But PW 3 said that when she looked at the complainant’s genitalia, she did not see any evidence of defilement.
48. I agree with the learned magistrate’s observation that it would appear that the complainant’s sister decided to go mute about what exactly happened that night. I say so because one would ask, if she heard her sister crying, what was the reason? Is it true that she never bothered to find out? It is not true because there is evidence from none other than the appellant himself that he was woken up by the wife talking outside with a neighbor whom PW 3 had woken up, that wee hour of the night. When the appellant inquired what was the matter, PW 3 referred her to the complainant who however did not say anything. So, why had she woken up the neighbor and why refer to the complainant? Then there is evidence that she took the complainant away to stay with the vice village chairman PW 2 for some three days. Why? And yet while they were there, the issue was that the complainant had been defiled. Then there is evidence that she took the complainant to hospital the same day in the evening. Again, why?
49. The learned trial magistrate indeed found that PW 3 was not ready to say what exactly happened that night thereby making her an unreliable witness but went ahead to rely on her evidence. In that case of doubt, the benefit should go to the accused person as was held in the case of PNW v. Republic [2017]eKLR cited by the appellant.
50. Turning to the issue of penetration, the complainant’s evidence was that the appellant had sexual intercourse with her. But PW 3 said that she did not see evidence of defilement. The other evidence was the medical examination. Although PW 4, the clinical officer wished to give the impression that she had examined the complainant in the first instance and made the findings contained in the P3 and PRC forms, the position from the evidence on record is that she was not the initial person who attended to the complainant. The investigating officer, PW 5 said that the complainant was first taken to Ganja La Simba health centre and thereafter to Diani hospital. This means that PW 4 relied on the medical notes from the clinic the complainant was attended at prior.
51. Indeed, it cannot be true as stated by the clinical officer that when she saw the complainant a week after the incident, the complainant’s genitalia was reddish with soreness and tender. That the complainant appeared restless, in shock and fearful. All these arising from an incident that had happened a week before? That evidence would be acceptable if it was tendered by the first medical personnel who attended to the complainant on the evening of 25/2/2023. PW 4 might have heard good intentions to assist the complainant in the case, but her evidence was hearsay and therefore unreliable. I therefore agree with the appellant that the failure to make available the first medical personnel who attended to the complainant was fatal to the prosecution’s case. The medical evidence could therefore not be relied upon to corroborate the complainant’s evidence.
52. For the foregoing reasons, I find that the evidence of penetration as testified by the complainant was not corroborated and neither is she believable on her own given the contradiction between her evidence and that of PW 3.
53. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that two important ingredients of the offence of defilement, penetration and the identity of the perpetrator, were not proved beyond a reasonable doubt.
54. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
55. The offence the appellant was charged with carries a very severe sentence of mandatory sentence of life imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
56. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the element of penetration and the identification of the appellant as the perpetrator of the offence.
57. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
58. Orders accordingly.
59. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 14th day of March 2025 in the presence of:
The appellant in person in Naivasha Maximum Security prison.
Ms Valerie for the respondent.
Johnson: court assistant.