REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E023 OF 2023
JAMES NGIRI WAMBUA……………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence in Mombasa Magistrates Criminal Case No. S.O. E111 of 2022 delivered on 1/3/2023 by Hon. M. Mutuku (C.M.)
J U D G M E N T
1. The appellant, James Ngiri Wambua was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 21/8/2022 within Mathare area in Changamwe sub-County within Mombasa County he intentionally and unlawfully caused his penis to penetrate the vagina of V.K. a child aged 14 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to rub the vagina of V.K. a girl aged 14 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his undated amended grounds of appeal filed alongside his submissions: -
a. The learned trial magistrate erred in law and fact for not noting that the charge levelled against the appellant was incurably defective as it was not supported by the evidence on record.
b. The learned trial magistrate erred in fact and law for not considering that the victim’s testimony was not sufficient to support the offence of defilement as prescribed under section 43 of the SOA.
c. The learned trial magistrate erred in law and fact for not observing that the character and antecedents of the said minor were questionable which ought to have been considered alongside section 8(5) of the SOA.
d. The learned trial magistrate erred in law and fact for not considering section 8(5) of the SOA whereas the circumstances of the case were suitable for that provision to be considered.
e. The learned trial magistrate erred in law and fact for imposing a sentence without considering that minimum and maximum sentences were ruled unconstitutional by the Supreme court
f. The learned trial magistrate erred in law and fact for imposing the sentence without following the requirements of some clauses in the Sentencing Policy Guidelines which caused her to impose a harsh sentence.
g. The learned trial magistrate erred in law and in fact for not considering the appellant’s evidence which was not vitiated by the prosecution.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by the appellant which I have duly considered. The respondent did not file submissions.
7. As a first appellate court, this court is duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, V.K.S. was the complainant. She was 14 years old on the date of the alleged offence having been born on 28/3/2008. She was a student in secondary school in form 1 at the time. She said the appellant was their neighbor and she had known him for about three months. They used to talk. On the material day, while her mother and aunt had gone to town, the appellant picked her from their gate and took her to his house where they engaged in sexual intercourse then she went back home. During the night, her mother confronted her with information that a neighbor who operated a shop nearby had informed her that she had seen the appellant call the complainant. At first, the complainant denied the allegations but she later gave in and told her mother what had happened during the day.
10. In cross-examination, the complainant denied that the neighbor who implicated the appellant in the incident was one Tina who operates a shop as well as a wines and spirits outlet. She denied that Tina had pushed the complainant and her mother to implicate the appellant in the incident. The complainant said that she did not sustain any bruises or scratches when she engaged in sexual intercourse with the appellant. She conceded that in the month of March 2022, she had sexual intercourse with a boy in Machakos.
11. PW 2, P.S.K. the complainant’s mother testified that on the material evening at around 4.00 p.m. after she had come from town, the neighbour Tina, informed her that she had seen the complainant leaving the house and PW 2 should ask her where she had been and if she had been with James, the appellant. When PW 2 confronted the complainant later that night, at first, she denied the allegations but later conceded that she had been with James and then said that he had raped her on his bed.
12. PW 2 reported the matter at Changamwe police station the following day. She first allowed the complainant to go to school to do examinations after which she picked her and took her to the police station and then to Portreitz hospital where she was medically examined and given medical attention. A P3 form and PRC form were completed. The appellant was subsequently arrested and charged.
13. PW 3, Dr. Safian A. Baradia gave evidence on behalf of her colleague Dr. Edwin Wekesa who examined the complainant and completed her P3 and PRC forms and had proceeded on study leave. According to the P3 form filled on 24/8/2022 there were no significant findings arising from the examination of the complainant’s genitalia in relation to the alleged defilement. However, the complainant’s hymen was not intact and it had an old scar. Examination results of all other systems returned normal results.
14. PW 4, PC Asli Yusuf Keynan was the investigating officer in the case. She took the statements of the witnesses and had the appellant arrested and charged for the offence.
15. DW 1, James Ngila Wambua the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He alleged that he was framed up by Tina, the neighbour who was his woman friend. However, when he told her that he would no longer befriend her, she felt slighted and averred to teach him a lesson, the result of which was his arrest and being charged with this offence. He denied that he had any differences with the complainant or her mother who were his neighbours.
16. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant.
17. Section 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provides 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) …
(3) 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.
18. 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.
19. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above. She set them out and then evaluated the evidence tendered in proof of each of them, relying on various decided cases.
20. In this appeal, the appellant submitted that the charge sheet was defective because there was no evidence to prove the elements of the offence namely the act complained of being “unlawful and intentional” as captured in the particulars of the charge and defined under section 43 of the SOA.
21. The words “intentional and unlawful” as provided for under section 43 of the SOA are not part of the definition of the offence of defilement as laid out under section 8(1) of the SOA. They are thus not elements of the offence and so they need not be proved by the prosecution. Their inclusion in the particulars of the charge herein (and in every charge of defilement that I see) is simply surplusage, perhaps being erroneously imported from the offence of rape as provided for under section 3(1)(a) of the SOA and whose ingredients include those words. The prosecution did not therefore need to prove that the acts complained of were intentional and unlawful.
22. The appellant made extensive submissions that the charge sheet was defective in that respect and that the prosecution had not proved those elements. He followed it up with the submission that the complainant had behaved like an adult and therefore his case came within the provisions of section 8(5) of the SOA. That section, which provides that deception of an accused person by the complainant that she was over the age of eighteen years at the time of commission of the offence sets out a defence of deception and reasonable belief to a charge of defilement which if established will entitle an accused person to an acquittal. However, in this case, the appellant never raised such a defence before the trial court. It is therefore an afterthought meant to aid him in this appeal. I find it to be without merit and those two grounds of appeal, that the charge sheet was defective and that his case fell within the statutory defence of deception and reasonable belief must fail.
23. The complainant gave sworn evidence after a voire dire examination.
24. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 14 years through the certificate of birth produced in evidence as well as the evidence of the complainant and that of her mother. That finding was correct and is upheld. The learned trial magistrate also found that identification of the appellant as the assailant had been proved as he was well known to the complainant as he was their neighbor. That finding again was correct and it is upheld. On the element of age, the complainant’s evidence was corroborated by her mother, PW 2 where there was further corroboration by the certificate of birth. In the case of identification, the evidence of the appellant supported the prosecution’s evidence that he was a neighbor of the complainant and so well known to her. Identification was therefore proved.
25. That leaves the issue of penetration which I find was the main issue in controversy for determination in the case. It therefore required careful scrutiny, applying the law to the facts to come up with a proper determination.
26. There is no doubt that the complainant was the only witness on the element of penetration. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“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.”
27. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behoves the court first to determine whether there is any other evidence to besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it.
28. If there is no other evidence besides that of the victim the court then has to go further and indicate that it is relying on the evidence of the victim alone and record in the proceedings that the victim has told the truth.
29. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… 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.”
30. On the issue of penetration, the learned trial magistrate found that the same had been proved through the complainant’s evidence and corroborated by the medical evidence.
31. As stated above, the only positive finding of penetration in the medical evidence tendered was that the complainant’s genital organ had a broken hymen with an old scar. The treatment notes and the P3 form both indicate that the complainant had an old scar in her genital organ. The PRC form indicates that the complainant had prior sexual encounter in March 2022 which however was not reported. The complainant conceded the same in her evidence saying that the same happened in Machakos with a boy. It follows from this evidence that her hymen was broken earlier, at least in March 2022. The medical evidence tendered showed that both labia as well as the vagina appeared normal. Consequently, it could not be the case that the evidence of her broken hymen alone would be taken as corroboration of her allegation that the appellant had engaged in sexual intercourse with her on 21/8/2022. This is not to say that it could not be the case that he did engage in sexual intercourse with her but that the broken hymen alone could not be evidence to support her evidence.
32. The learned trial magistrate was therefore not correct in her finding that there was corroboration of the complainant’s evidence of penetration by way of the medical evidence. That means the only evidence of penetration was the word of the complainant.
33. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by 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 the learned Judge 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…”
34. In the present case, the victim gave sworn evidence. The court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
35. The learned trial magistrate indicated in the judgment that she found the complainant to be a reliable and honest witness since she confessed that she had a previous sexual encounter with another person.
36. However, there is no indication that the learned trial magistrate warned herself of the danger of relying on the uncorroborated evidence of the complainant. I find that the learned trial magistrate failed to direct herself appropriately before basing the conviction of the appellant upon the sole evidence of the complainant.
37. The learned magistrate also found that the complainant and her mother bore no grudges against the appellant that would cause them to come up with a false story against him. The presence of a grudge may be indicative yet not conclusive evidence that one had a motivate to give false evidence against an accused person. But the converse is not true that absence of a grudge cannot make one give false evidence against an accused person. There need not have been any grudge between the appellant and the complainant and her mother for the complainant to name the appellant as having had illegal sexual intercourse with her. What is required is to look at the evidence tendered in the case in a wholesome manner.
38. The appellant presented a defence that his arrest was instigated by Tina with whom he had fallen out of a relationship. His evidence of falling out with Tina was not challenged. The prosecution’s case was that Tina was the one who gave the complainant’s mother the information that the complainant had been with the appellant.
39. It is therefore clear from the prosecution’s case that Tina was a very crucial witness in this case. She was the one who had the information that the complainant had been with the appellant. Yet, she was not called as a witness and no explanation was offered for that omission. The investigating officer said that she did not even interrogate her in this case. But the complainant’s mother said that in fact, Tina had recorded a statement with the police. This conflict of in the prosecution’s evidence was not resolved.
40. The learned trial magistrate found that Tina was not called to testify but did not consider the effect of the failure to call her as a prosecution witness. I find that the omission to call Tina as a witness for the prosecution was a fatal.
41. It was fatal because, right from the start, the appellant’s defence was that this case was instigated against him by Tina. Throughout cross-examination of all the prosecution witnesses other than PW 3, he brought out the issue of Tina being behind his arrest. He then explained himself in defence how the differences with Tina arose and why she would have come to implicate him in this case. The learned trial magistrate found that defence implausible and rejected it. However, the only person who would have properly rebutted the appellant’s assertions was Tina. In the absence of her evidence, it is difficult to find that the appellant’s evidence was not without merit. It needed not be true, but was it a plausible story? I would find that it was. I therefore find that the appellant’s defence, which he maintained throughout the trial was plausible and capable of creating a doubt in the mind of the court.
42. The appellant also told the court in his defence that the complainant’s testimony in court that the appellant went to their gate and called her out was at variance with the statement she had recorded with the police that she found his door open and knocked. The learned trial magistrate did not give any attention to this evidence which was not challenged by the prosecution. If this was true, it means that the complainant was the one who went to the appellant’s house and not that the appellant went for her at their gate. Otherwise, how could he have known that she was available alone at home and go for her? But more importantly, why would the complainant lie on that issue? If she could change her story so easily from what she told the police to what she said in court, could she be believed that indeed she was a witness of truth and therefore that she engaged in sexual intercourse with the appellant? In those circumstances, I find that the mere presence of her in his room cannot without more lead to the conclusion that they engaged in sexual intercourse.
43. The learned trial magistrate also misdirected herself when she found that the appellant failed to prove how Tina had framed him. That is against the well-established principles of criminal law that the onus is always upon the prosecution to prove its case beyond a reasonable doubt unless where the law provides that an accused person has the onus of establishing a defense, which is not the case herein. The onus is never on an accused person to prove his innocence or convince the court of the truthfulness of any explanation that he or she gives. The duty of the appellant was to present a case that would create a doubt in the mind of the court. It need not be true but plausible. In this case, I have found that the appellant presented a consistent and convincing defence as to why he was arrested and charged.
44. Having considered the evidence tendered before the trial court and the submissions of the appellant I find that the complainant’s evidence alone on the element of penetration did not satisfy the requirements of section 124 of the Evidence Act on the truthfulness of the victim of a sexual offence so as to be relied upon as the sole basis of a conviction. It may be that in fact, the appellant had sexual intercourse with the complainant, but the other possibility that he did not, was not discounted, seeing that the medical evidence did not support the complainant’s evidence. Consequently, I find that the learned trial magistrate was in error to rely on the complainant’s evidence alone to prove the element of penetration. I find that there was a reasonable doubt created in the prosecution’s case and the same must be exercised in favour of the appellant.
45. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
46. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SOA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of May 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT MOMBASA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E023 OF 2023
JAMES NGIRI WAMBUA……………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence in Mombasa Magistrates Criminal Case No. S.O. E111 of 2022 delivered on 1/3/2023 by Hon. M. Mutuku (C.M.)
J U D G M E N T
1. The appellant, James Ngiri Wambua was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 21/8/2022 within Mathare area in Changamwe sub-County within Mombasa County he intentionally and unlawfully caused his penis to penetrate the vagina of V.K. a child aged 14 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he intentionally and unlawfully caused his penis to rub the vagina of V.K. a girl aged 14 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his undated amended grounds of appeal filed alongside his submissions: -
a. The learned trial magistrate erred in law and fact for not noting that the charge levelled against the appellant was incurably defective as it was not supported by the evidence on record.
b. The learned trial magistrate erred in fact and law for not considering that the victim’s testimony was not sufficient to support the offence of defilement as prescribed under section 43 of the SOA.
c. The learned trial magistrate erred in law and fact for not observing that the character and antecedents of the said minor were questionable which ought to have been considered alongside section 8(5) of the SOA.
d. The learned trial magistrate erred in law and fact for not considering section 8(5) of the SOA whereas the circumstances of the case were suitable for that provision to be considered.
e. The learned trial magistrate erred in law and fact for imposing a sentence without considering that minimum and maximum sentences were ruled unconstitutional by the Supreme court
f. The learned trial magistrate erred in law and fact for imposing the sentence without following the requirements of some clauses in the Sentencing Policy Guidelines which caused her to impose a harsh sentence.
g. The learned trial magistrate erred in law and in fact for not considering the appellant’s evidence which was not vitiated by the prosecution.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by the appellant which I have duly considered. The respondent did not file submissions.
7. As a first appellate court, this court is duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, V.K.S. was the complainant. She was 14 years old on the date of the alleged offence having been born on 28/3/2008. She was a student in secondary school in form 1 at the time. She said the appellant was their neighbor and she had known him for about three months. They used to talk. On the material day, while her mother and aunt had gone to town, the appellant picked her from their gate and took her to his house where they engaged in sexual intercourse then she went back home. During the night, her mother confronted her with information that a neighbor who operated a shop nearby had informed her that she had seen the appellant call the complainant. At first, the complainant denied the allegations but she later gave in and told her mother what had happened during the day.
10. In cross-examination, the complainant denied that the neighbor who implicated the appellant in the incident was one Tina who operates a shop as well as a wines and spirits outlet. She denied that Tina had pushed the complainant and her mother to implicate the appellant in the incident. The complainant said that she did not sustain any bruises or scratches when she engaged in sexual intercourse with the appellant. She conceded that in the month of March 2022, she had sexual intercourse with a boy in Machakos.
11. PW 2, P.S.K. the complainant’s mother testified that on the material evening at around 4.00 p.m. after she had come from town, the neighbour Tina, informed her that she had seen the complainant leaving the house and PW 2 should ask her where she had been and if she had been with James, the appellant. When PW 2 confronted the complainant later that night, at first, she denied the allegations but later conceded that she had been with James and then said that he had raped her on his bed.
12. PW 2 reported the matter at Changamwe police station the following day. She first allowed the complainant to go to school to do examinations after which she picked her and took her to the police station and then to Portreitz hospital where she was medically examined and given medical attention. A P3 form and PRC form were completed. The appellant was subsequently arrested and charged.
13. PW 3, Dr. Safian A. Baradia gave evidence on behalf of her colleague Dr. Edwin Wekesa who examined the complainant and completed her P3 and PRC forms and had proceeded on study leave. According to the P3 form filled on 24/8/2022 there were no significant findings arising from the examination of the complainant’s genitalia in relation to the alleged defilement. However, the complainant’s hymen was not intact and it had an old scar. Examination results of all other systems returned normal results.
14. PW 4, PC Asli Yusuf Keynan was the investigating officer in the case. She took the statements of the witnesses and had the appellant arrested and charged for the offence.
15. DW 1, James Ngila Wambua the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He alleged that he was framed up by Tina, the neighbour who was his woman friend. However, when he told her that he would no longer befriend her, she felt slighted and averred to teach him a lesson, the result of which was his arrest and being charged with this offence. He denied that he had any differences with the complainant or her mother who were his neighbours.
16. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant.
17. Section 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provides 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) …
(3) 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.
18. 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.
19. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above. She set them out and then evaluated the evidence tendered in proof of each of them, relying on various decided cases.
20. In this appeal, the appellant submitted that the charge sheet was defective because there was no evidence to prove the elements of the offence namely the act complained of being “unlawful and intentional” as captured in the particulars of the charge and defined under section 43 of the SOA.
21. The words “intentional and unlawful” as provided for under section 43 of the SOA are not part of the definition of the offence of defilement as laid out under section 8(1) of the SOA. They are thus not elements of the offence and so they need not be proved by the prosecution. Their inclusion in the particulars of the charge herein (and in every charge of defilement that I see) is simply surplusage, perhaps being erroneously imported from the offence of rape as provided for under section 3(1)(a) of the SOA and whose ingredients include those words. The prosecution did not therefore need to prove that the acts complained of were intentional and unlawful.
22. The appellant made extensive submissions that the charge sheet was defective in that respect and that the prosecution had not proved those elements. He followed it up with the submission that the complainant had behaved like an adult and therefore his case came within the provisions of section 8(5) of the SOA. That section, which provides that deception of an accused person by the complainant that she was over the age of eighteen years at the time of commission of the offence sets out a defence of deception and reasonable belief to a charge of defilement which if established will entitle an accused person to an acquittal. However, in this case, the appellant never raised such a defence before the trial court. It is therefore an afterthought meant to aid him in this appeal. I find it to be without merit and those two grounds of appeal, that the charge sheet was defective and that his case fell within the statutory defence of deception and reasonable belief must fail.
23. The complainant gave sworn evidence after a voire dire examination.
24. The learned trial magistrate upon evaluating the evidence found that the age of the complainant had been proved as 14 years through the certificate of birth produced in evidence as well as the evidence of the complainant and that of her mother. That finding was correct and is upheld. The learned trial magistrate also found that identification of the appellant as the assailant had been proved as he was well known to the complainant as he was their neighbor. That finding again was correct and it is upheld. On the element of age, the complainant’s evidence was corroborated by her mother, PW 2 where there was further corroboration by the certificate of birth. In the case of identification, the evidence of the appellant supported the prosecution’s evidence that he was a neighbor of the complainant and so well known to her. Identification was therefore proved.
25. That leaves the issue of penetration which I find was the main issue in controversy for determination in the case. It therefore required careful scrutiny, applying the law to the facts to come up with a proper determination.
26. There is no doubt that the complainant was the only witness on the element of penetration. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“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.”
27. The proviso to section 124 of the Evidence Act permits the court to rely on the evidence of a victim of a sexual offence where hers is the only evidence. In my understanding, there is no requirement under this proviso that the evidence be corroborated whether sworn or unsworn. What is required is that the court determines that the victim is a witness of truth. This determination is paramount where the only evidence is that of the alleged victim of the sexual offence. It therefore behoves the court first to determine whether there is any other evidence to besides that of the victim, to prove the offence. If there is, it will proceed to consider it alongside the evidence of the victim and determine the strength of it.
28. If there is no other evidence besides that of the victim the court then has to go further and indicate that it is relying on the evidence of the victim alone and record in the proceedings that the victim has told the truth.
29. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… 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.”
30. On the issue of penetration, the learned trial magistrate found that the same had been proved through the complainant’s evidence and corroborated by the medical evidence.
31. As stated above, the only positive finding of penetration in the medical evidence tendered was that the complainant’s genital organ had a broken hymen with an old scar. The treatment notes and the P3 form both indicate that the complainant had an old scar in her genital organ. The PRC form indicates that the complainant had prior sexual encounter in March 2022 which however was not reported. The complainant conceded the same in her evidence saying that the same happened in Machakos with a boy. It follows from this evidence that her hymen was broken earlier, at least in March 2022. The medical evidence tendered showed that both labia as well as the vagina appeared normal. Consequently, it could not be the case that the evidence of her broken hymen alone would be taken as corroboration of her allegation that the appellant had engaged in sexual intercourse with her on 21/8/2022. This is not to say that it could not be the case that he did engage in sexual intercourse with her but that the broken hymen alone could not be evidence to support her evidence.
32. The learned trial magistrate was therefore not correct in her finding that there was corroboration of the complainant’s evidence of penetration by way of the medical evidence. That means the only evidence of penetration was the word of the complainant.
33. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by 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 the learned Judge 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…”
34. In the present case, the victim gave sworn evidence. The court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
35. The learned trial magistrate indicated in the judgment that she found the complainant to be a reliable and honest witness since she confessed that she had a previous sexual encounter with another person.
36. However, there is no indication that the learned trial magistrate warned herself of the danger of relying on the uncorroborated evidence of the complainant. I find that the learned trial magistrate failed to direct herself appropriately before basing the conviction of the appellant upon the sole evidence of the complainant.
37. The learned magistrate also found that the complainant and her mother bore no grudges against the appellant that would cause them to come up with a false story against him. The presence of a grudge may be indicative yet not conclusive evidence that one had a motivate to give false evidence against an accused person. But the converse is not true that absence of a grudge cannot make one give false evidence against an accused person. There need not have been any grudge between the appellant and the complainant and her mother for the complainant to name the appellant as having had illegal sexual intercourse with her. What is required is to look at the evidence tendered in the case in a wholesome manner.
38. The appellant presented a defence that his arrest was instigated by Tina with whom he had fallen out of a relationship. His evidence of falling out with Tina was not challenged. The prosecution’s case was that Tina was the one who gave the complainant’s mother the information that the complainant had been with the appellant.
39. It is therefore clear from the prosecution’s case that Tina was a very crucial witness in this case. She was the one who had the information that the complainant had been with the appellant. Yet, she was not called as a witness and no explanation was offered for that omission. The investigating officer said that she did not even interrogate her in this case. But the complainant’s mother said that in fact, Tina had recorded a statement with the police. This conflict of in the prosecution’s evidence was not resolved.
40. The learned trial magistrate found that Tina was not called to testify but did not consider the effect of the failure to call her as a prosecution witness. I find that the omission to call Tina as a witness for the prosecution was a fatal.
41. It was fatal because, right from the start, the appellant’s defence was that this case was instigated against him by Tina. Throughout cross-examination of all the prosecution witnesses other than PW 3, he brought out the issue of Tina being behind his arrest. He then explained himself in defence how the differences with Tina arose and why she would have come to implicate him in this case. The learned trial magistrate found that defence implausible and rejected it. However, the only person who would have properly rebutted the appellant’s assertions was Tina. In the absence of her evidence, it is difficult to find that the appellant’s evidence was not without merit. It needed not be true, but was it a plausible story? I would find that it was. I therefore find that the appellant’s defence, which he maintained throughout the trial was plausible and capable of creating a doubt in the mind of the court.
42. The appellant also told the court in his defence that the complainant’s testimony in court that the appellant went to their gate and called her out was at variance with the statement she had recorded with the police that she found his door open and knocked. The learned trial magistrate did not give any attention to this evidence which was not challenged by the prosecution. If this was true, it means that the complainant was the one who went to the appellant’s house and not that the appellant went for her at their gate. Otherwise, how could he have known that she was available alone at home and go for her? But more importantly, why would the complainant lie on that issue? If she could change her story so easily from what she told the police to what she said in court, could she be believed that indeed she was a witness of truth and therefore that she engaged in sexual intercourse with the appellant? In those circumstances, I find that the mere presence of her in his room cannot without more lead to the conclusion that they engaged in sexual intercourse.
43. The learned trial magistrate also misdirected herself when she found that the appellant failed to prove how Tina had framed him. That is against the well-established principles of criminal law that the onus is always upon the prosecution to prove its case beyond a reasonable doubt unless where the law provides that an accused person has the onus of establishing a defense, which is not the case herein. The onus is never on an accused person to prove his innocence or convince the court of the truthfulness of any explanation that he or she gives. The duty of the appellant was to present a case that would create a doubt in the mind of the court. It need not be true but plausible. In this case, I have found that the appellant presented a consistent and convincing defence as to why he was arrested and charged.
44. Having considered the evidence tendered before the trial court and the submissions of the appellant I find that the complainant’s evidence alone on the element of penetration did not satisfy the requirements of section 124 of the Evidence Act on the truthfulness of the victim of a sexual offence so as to be relied upon as the sole basis of a conviction. It may be that in fact, the appellant had sexual intercourse with the complainant, but the other possibility that he did not, was not discounted, seeing that the medical evidence did not support the complainant’s evidence. Consequently, I find that the learned trial magistrate was in error to rely on the complainant’s evidence alone to prove the element of penetration. I find that there was a reasonable doubt created in the prosecution’s case and the same must be exercised in favour of the appellant.
45. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
46. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SOA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of May 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE