(Being an appeal from the original conviction and sentence by Hon.I.G. Ruhu, SRM in Mpeketoni Principal Magistrate`s Court Sexual Offence case No.E001 of 2024 delivered on 4/2/2024)
1. The appellant was convicted of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the 29 th December 2023 at (name withheld) area in Mpeketoni sub county within Lamu county he committed an indecent act with a child namely P.U. (herein referred as the victim) a child aged 6 years by rubbing his penis on her navel and kissing her on the mouth.
2. The appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and sentence and lodged the present appeal. The grounds of appeal as per his amended grounds of appeal are that:
(1) The trial court erred in law and fact in failing to find that the case was not proved beyond reasonable doubt.
(2) The trial court erred in law and fact in failing to consider the inconsistencies, discrepancies and contradictions in the evidence of the prosecution witnesses.
(3) The trial court erred in law and fact in not giving due consideration to the appellant`s defence.
3. The appellant is seeking that this court do quash the conviction, set aside the sentence and set him at liberty.
Case for prosecution
4. The case for the prosecution is that the victim herein was at the material time a grade 1 pupil aged 6 years. She was living with her mother PW4.
5. That on the material day the victim was on the way home from the home of Peninah PW3. She was confronted by a certain person who held her hand and took her to a thicket. He lifted up her dress and removed her panties. He sucked her mouth and rubbed his penis her on her navel downwards. He was at the time telling her that he loved her. He then released her and he went away. She headed towards her home. She met with her mother and she told her that a certain man had done bad manners to her. She later identified the man as the appellant. He was arrested.
6. The victim and her mother reported the incident at Mpeketoni police station. She was taken to Mpeketoni sub county hospital where she was examined by a doctor who filled her P3 form and Post Rape Care form. The doctor found her with a swollen upper lip.
7. The case was investigated by a police officer who left the station. He had charged the appellant with the offence. PC Catherine Omoit PW5 testified on his behalf.
8. During the hearing the doctor who completed the medical documents had left the hospital and went for further studies. A clinical officer from the same hospital produced the treatment notes, the Post Rape Care form and the P3 form as exhibits, P.Exh.1 - 3 respectively. The mother to the victim PW4 produced the victim`s birth certificate as exhibit, P.Exh.4. The same indicated that the victim was born on 19/12/2016.
Defence case
9. When placed to his defence the appellant stated in an unsworn statement that he on that day left his home at 3.05pm and went to the home of a friend called Njenga. He stayed there upto 4.25pm when a woman called Mama Njeri called him and asked him to go and repair her shed. He left. On the way he found a girl playing in a poodle of water. He moved her away from the water and told her to go home. He went and repaired the shed. His mother then called him home. He went there and found the mother to the girl he had moved from the water. She was in the company of his neighbour Peninah PW3. They asked him to tell them what he did to the girl. He told them that he moved her away from the water. They accused him of having violated her. On the following day policemen went and arrested him. He was arraigned in court. He denied committing the offence.
10. The appeal was disposed of by way of written submissions.
Appellant`s submissions
11. The appellant submitted that there were contradictions on the evidence of the victim on the manner she identified him. That her evidence and that of her mother contradicted each other but the trial magistrate did not consider the inconsistencies and the contradictions. The appellant submitted that it was not safe to convict on the evidence presented before the trial court. That he should have been accorded the benefit of doubt. He urged the court to acquit him.
Respondent`s submissions
12. The Respondent on the other hand submitted that the ingredients of the offence of indecent act with a child are proof of the age of the victim (proof that she was a minor), contact of one`s body part to either the genitalia, breasts or buttocks of another and that the contact was done intentionally.
13. It was submitted that the age of the victim was proved by the birth certificate which showed that the victim was at the time aged 6 years. That the indecent act was proved by the evidence of the victim herein that the appellant did bad manners to her. The respondent urged the court to uphold the conviction and the sentence.
Analysis and determination
14. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
15. The offence of committing an indecent with a child is created by section 11(1) of the Sexual Offences Act which provides as follows:
Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
16. The offence of indecent act is defined under Section 2 of the Sexual Offences Act as an unlawful intentional act which causes;
a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.
b) …..
17. The appellant contends that the charge against him was not proved beyond reasonable doubt. In that case, it is pertinent for this court to consider the ingredients of the offence of committing an indecent act with a child and determine whether the prosecution proved the same beyond reasonable doubt. The ingredients of the offence are: proof of the age of the victim (that she was a minor), proof of the identity of the perpetrator and proof of the indecent act itself.
18. The victim in this case told the trial court that she was at the time aged 6 years. Her mother PW4 gave the same age. The prosecution produced a birth certificate that indicated that the victim was born on 19/12/2016. This placed her as at 29/12/2023 at 7 years. The age of the victim was proved at 7 years. It was therefore proved that the victim was a child for the purposes of the Sexual Offences Act.
19. On the issue of the indecent act, the prosecution was required to prove that there was an intentional and unlawful contact between a body part of the appellant and the victim`s genital organs, breasts or buttocks. The victim herein said that the assailant sucked her lips and rubbed his penis on her navel. There was no evidence that the assailant did anything to her genital organs, breasts or buttocks. In the absence of such evidence there was no indecent act committed to the victim. The trial court though properly defining the offence in its judgment failed to consider whether the acts complained of amounted to indecent act with a child. The court was in error in not addressing this issue. The appeal ought to succeed on this ground.
20. The trial court in its judgment stated that the appellant was recognized by the victim and that she identified him as the perpetrator. That the incident took place in broad day light.
21. The victim said in her evidence that the appellant is the person who sucked her lips and rubbed his penis on her navel. That after he went away, she saw her mother and told her about the person. That her mother chased the man while shouting. She brought back a certain man but she told her that he was not the one. That PW3 gave her mother the directions to the home of the person. That they went and she identified the person, the appellant, at his farm.
22. Peninah PW3 on her part told the trial court she was on the material day at home at 2pm when the victim went to her home and told her that her mother wanted her to accompany her to town. The child left after delivering the message. That shortly after the victim`s mother went to her and asked her whether she knew the appellant`s home. She took her to the home of the appellant. They found his mother at the home. She called for the appellant and he came to the home. He asked the girl`s mother for forgiveness.
23. It was further evidence of the witness that on that day the appellant had passed by her home.
24. The mother to the complainant PW4 testified that on that day at 3 pm she sent the victim to Peninah PW4 to ask her to accompany her to town. That the child went and took long to return. She went to check on her. That on the way the child suddenly emerged from the bush and ran towards her. She pointed at a man dressed in white and black. He was about 20 meters away from them and she saw his face. He was a person she used to see passing by her place but she did not know him. The victim told her that the man had undressed her and rubbed his dudu on her navel while sucking her mouth. That she went and asked Peninah PW3 whether she knew where the man lived. Penina took her to the home of the man. They found his mother at the home. They disclosed the incident to her. She called at the appellant who went to the home. He was dressed in the same clothes. He got shocked on seeing the victim. Her daughter identified him. They then interrogated him. He first denied but he eventually admitted and asked for her forgiveness. She took the victim to hospital.
25. The mother to the victim paints a picture of them following the appellant from the scene to his home where the victim identified him. She however did not make mention of a third person whom the victim says that her mother arrested and brought back but she said that he was not the one. So, if the mother clearly saw the appellant`s face at the scene as she claimed, who is the third person whom she brought back and the victim said he was not the one? Why didn’t she make mention of this person? Why would she have brought back the wrong person if she had actually identified the appellant as the person? The victim and her mother might have been mistaken on the identity of the appellant.
26. The victim in her evidence-in-chief stated that she did not know the appellant before the date of the incident. Further in her evidence she stated that she had seen him once when she went to look for vegetables. However, she stated in cross-examination that she did not know him before the date of the incident and she had not seen him before. Which of these is the ruth?
27. While the victim said in her evidence-in-chief that she identified the appellant at his farm, she stated in cross-examination that she identified him on the road a short while after her mum asked her who it was. That they saw people on the road and she pointed out the man. That her mum went to the man and took him to the police station that time. This is contrary to the evidence of the victim`s mother that the victim identified the appellant when he found them at his home after he had been called by his mother. Is the victim then telling the truth on how and where she identified the appellant? Did she identify him on the road soon after the incident or she identified him later at his farm? Was she a credible witness on identification of the appellant?
28. It is then apparent that there were grave contradictions between the evidence of the victim and her mother. The Court of Appeal in the case of Munene v Republic [2018] KECA 186 (KLR) dealt with the issue of contradictions in a criminal case and held as follows:
….Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.
It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
29. The contradictions in this case were substantial and can only mean the witnesses were not telling the truth.
30. It is trite that the court before basing a conviction on evidence of identification must examine the evidence carefully and satisfy itself that the identification is favourable and free from the possibility of error. In Francis Karuiki and 7 others vs. Republic Cr. Appeal No 6 of 2001 [2001] eKLR it was held that;
“The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.”
31. In the case of Cleophas Wamunga v Republic (1989) KLR the Court of Appeal cautioned as follows:
Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.
32. In view of the discrepancies noted, I am not satisfied that the victim identified the appellant as the perpetrator. The trial court held that the victim recognized the appellant but failed to interrogate her contradictions on whether she knew him before or not. It is important to note that a witness might be convincing but mistaken. In my view, it was not safe to convict on the evidence of identification by the victim. The evidence of her mother PW4 that she identified the appellant at the scene when he was pointed out by the victim was not credible.
33. The upshot is that the no offence of indecent act with a child was established against the appellant. More so the appellant was not identified as the person who may have committed such an offence. I find the appeal to be merited. The conviction entered against the appellant by the trial court is quashed and the sentence thereof set aside. The appellant is set at liberty forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Republic
Appellant – present virtually at GK Prison Malindi
Court Assistant – Ms Rahma
1. The appellant was convicted of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the 29 th December 2023 at (name withheld) area in Mpeketoni sub county within Lamu county he committed an indecent act with a child namely P.U. (herein referred as the victim) a child aged 6 years by rubbing his penis on her navel and kissing her on the mouth.
2. The appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and sentence and lodged the present appeal. The grounds of appeal as per his amended grounds of appeal are that:
(1) The trial court erred in law and fact in failing to find that the case was not proved beyond reasonable doubt.
(2) The trial court erred in law and fact in failing to consider the inconsistencies, discrepancies and contradictions in the evidence of the prosecution witnesses.
(3) The trial court erred in law and fact in not giving due consideration to the appellant`s defence.
3. The appellant is seeking that this court do quash the conviction, set aside the sentence and set him at liberty.
Case for prosecution
4. The case for the prosecution is that the victim herein was at the material time a grade 1 pupil aged 6 years. She was living with her mother PW4.
5. That on the material day the victim was on the way home from the home of Peninah PW3. She was confronted by a certain person who held her hand and took her to a thicket. He lifted up her dress and removed her panties. He sucked her mouth and rubbed his penis her on her navel downwards. He was at the time telling her that he loved her. He then released her and he went away. She headed towards her home. She met with her mother and she told her that a certain man had done bad manners to her. She later identified the man as the appellant. He was arrested.
6. The victim and her mother reported the incident at Mpeketoni police station. She was taken to Mpeketoni sub county hospital where she was examined by a doctor who filled her P3 form and Post Rape Care form. The doctor found her with a swollen upper lip.
7. The case was investigated by a police officer who left the station. He had charged the appellant with the offence. PC Catherine Omoit PW5 testified on his behalf.
8. During the hearing the doctor who completed the medical documents had left the hospital and went for further studies. A clinical officer from the same hospital produced the treatment notes, the Post Rape Care form and the P3 form as exhibits, P.Exh.1 - 3 respectively. The mother to the victim PW4 produced the victim`s birth certificate as exhibit, P.Exh.4. The same indicated that the victim was born on 19/12/2016.
Defence case
9. When placed to his defence the appellant stated in an unsworn statement that he on that day left his home at 3.05pm and went to the home of a friend called Njenga. He stayed there upto 4.25pm when a woman called Mama Njeri called him and asked him to go and repair her shed. He left. On the way he found a girl playing in a poodle of water. He moved her away from the water and told her to go home. He went and repaired the shed. His mother then called him home. He went there and found the mother to the girl he had moved from the water. She was in the company of his neighbour Peninah PW3. They asked him to tell them what he did to the girl. He told them that he moved her away from the water. They accused him of having violated her. On the following day policemen went and arrested him. He was arraigned in court. He denied committing the offence.
10. The appeal was disposed of by way of written submissions.
Appellant`s submissions
11. The appellant submitted that there were contradictions on the evidence of the victim on the manner she identified him. That her evidence and that of her mother contradicted each other but the trial magistrate did not consider the inconsistencies and the contradictions. The appellant submitted that it was not safe to convict on the evidence presented before the trial court. That he should have been accorded the benefit of doubt. He urged the court to acquit him.
Respondent`s submissions
12. The Respondent on the other hand submitted that the ingredients of the offence of indecent act with a child are proof of the age of the victim (proof that she was a minor), contact of one`s body part to either the genitalia, breasts or buttocks of another and that the contact was done intentionally.
13. It was submitted that the age of the victim was proved by the birth certificate which showed that the victim was at the time aged 6 years. That the indecent act was proved by the evidence of the victim herein that the appellant did bad manners to her. The respondent urged the court to uphold the conviction and the sentence.
Analysis and determination
14. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
15. The offence of committing an indecent with a child is created by section 11(1) of the Sexual Offences Act which provides as follows:
Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
16. The offence of indecent act is defined under Section 2 of the Sexual Offences Act as an unlawful intentional act which causes;
a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.
b) …..
17. The appellant contends that the charge against him was not proved beyond reasonable doubt. In that case, it is pertinent for this court to consider the ingredients of the offence of committing an indecent act with a child and determine whether the prosecution proved the same beyond reasonable doubt. The ingredients of the offence are: proof of the age of the victim (that she was a minor), proof of the identity of the perpetrator and proof of the indecent act itself.
18. The victim in this case told the trial court that she was at the time aged 6 years. Her mother PW4 gave the same age. The prosecution produced a birth certificate that indicated that the victim was born on 19/12/2016. This placed her as at 29/12/2023 at 7 years. The age of the victim was proved at 7 years. It was therefore proved that the victim was a child for the purposes of the Sexual Offences Act.
19. On the issue of the indecent act, the prosecution was required to prove that there was an intentional and unlawful contact between a body part of the appellant and the victim`s genital organs, breasts or buttocks. The victim herein said that the assailant sucked her lips and rubbed his penis on her navel. There was no evidence that the assailant did anything to her genital organs, breasts or buttocks. In the absence of such evidence there was no indecent act committed to the victim. The trial court though properly defining the offence in its judgment failed to consider whether the acts complained of amounted to indecent act with a child. The court was in error in not addressing this issue. The appeal ought to succeed on this ground.
20. The trial court in its judgment stated that the appellant was recognized by the victim and that she identified him as the perpetrator. That the incident took place in broad day light.
21. The victim said in her evidence that the appellant is the person who sucked her lips and rubbed his penis on her navel. That after he went away, she saw her mother and told her about the person. That her mother chased the man while shouting. She brought back a certain man but she told her that he was not the one. That PW3 gave her mother the directions to the home of the person. That they went and she identified the person, the appellant, at his farm.
22. Peninah PW3 on her part told the trial court she was on the material day at home at 2pm when the victim went to her home and told her that her mother wanted her to accompany her to town. The child left after delivering the message. That shortly after the victim`s mother went to her and asked her whether she knew the appellant`s home. She took her to the home of the appellant. They found his mother at the home. She called for the appellant and he came to the home. He asked the girl`s mother for forgiveness.
23. It was further evidence of the witness that on that day the appellant had passed by her home.
24. The mother to the complainant PW4 testified that on that day at 3 pm she sent the victim to Peninah PW4 to ask her to accompany her to town. That the child went and took long to return. She went to check on her. That on the way the child suddenly emerged from the bush and ran towards her. She pointed at a man dressed in white and black. He was about 20 meters away from them and she saw his face. He was a person she used to see passing by her place but she did not know him. The victim told her that the man had undressed her and rubbed his dudu on her navel while sucking her mouth. That she went and asked Peninah PW3 whether she knew where the man lived. Penina took her to the home of the man. They found his mother at the home. They disclosed the incident to her. She called at the appellant who went to the home. He was dressed in the same clothes. He got shocked on seeing the victim. Her daughter identified him. They then interrogated him. He first denied but he eventually admitted and asked for her forgiveness. She took the victim to hospital.
25. The mother to the victim paints a picture of them following the appellant from the scene to his home where the victim identified him. She however did not make mention of a third person whom the victim says that her mother arrested and brought back but she said that he was not the one. So, if the mother clearly saw the appellant`s face at the scene as she claimed, who is the third person whom she brought back and the victim said he was not the one? Why didn’t she make mention of this person? Why would she have brought back the wrong person if she had actually identified the appellant as the person? The victim and her mother might have been mistaken on the identity of the appellant.
26. The victim in her evidence-in-chief stated that she did not know the appellant before the date of the incident. Further in her evidence she stated that she had seen him once when she went to look for vegetables. However, she stated in cross-examination that she did not know him before the date of the incident and she had not seen him before. Which of these is the ruth?
27. While the victim said in her evidence-in-chief that she identified the appellant at his farm, she stated in cross-examination that she identified him on the road a short while after her mum asked her who it was. That they saw people on the road and she pointed out the man. That her mum went to the man and took him to the police station that time. This is contrary to the evidence of the victim`s mother that the victim identified the appellant when he found them at his home after he had been called by his mother. Is the victim then telling the truth on how and where she identified the appellant? Did she identify him on the road soon after the incident or she identified him later at his farm? Was she a credible witness on identification of the appellant?
28. It is then apparent that there were grave contradictions between the evidence of the victim and her mother. The Court of Appeal in the case of Munene v Republic [2018] KECA 186 (KLR) dealt with the issue of contradictions in a criminal case and held as follows:
….Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.
It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
29. The contradictions in this case were substantial and can only mean the witnesses were not telling the truth.
30. It is trite that the court before basing a conviction on evidence of identification must examine the evidence carefully and satisfy itself that the identification is favourable and free from the possibility of error. In Francis Karuiki and 7 others vs. Republic Cr. Appeal No 6 of 2001 [2001] eKLR it was held that;
“The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.”
31. In the case of Cleophas Wamunga v Republic (1989) KLR the Court of Appeal cautioned as follows:
Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.
32. In view of the discrepancies noted, I am not satisfied that the victim identified the appellant as the perpetrator. The trial court held that the victim recognized the appellant but failed to interrogate her contradictions on whether she knew him before or not. It is important to note that a witness might be convincing but mistaken. In my view, it was not safe to convict on the evidence of identification by the victim. The evidence of her mother PW4 that she identified the appellant at the scene when he was pointed out by the victim was not credible.
33. The upshot is that the no offence of indecent act with a child was established against the appellant. More so the appellant was not identified as the person who may have committed such an offence. I find the appeal to be merited. The conviction entered against the appellant by the trial court is quashed and the sentence thereof set aside. The appellant is set at liberty forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Republic
Appellant – present virtually at GK Prison Malindi
Court Assistant – Ms Rahma