REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E033 OF 2024
JOSEPH NZAU NZIOKA........….……………………................................................APPELLANT
VERSUS
REPUBLIC…………………………………………....................................................RESPONDENT
(Being an appeal from the conviction and sentence of Hon. L. T. Lewa, PM in Kwale Magistrates Court Sexual Offence (SO) Case No. E018 of 2023 delivered on 9 th July 2024)
J U D G M E N T
1. The appellant, Joseph Nzai Nzioka was convicted and sentenced to serve life imprisonment on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). The particulars were that on 8 th January 2023 at noon at Gozani village in Kinango Sub-County within Kwale County of the Coast region, intentionally and unlawfully caused his penis to penetrate into the vagina of S.N. a child aged 8 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, same place and same time as in the principal charge the appellant intentionally and unlawfully touched with his penis the vagina of S. N. a child aged 8 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 4 witnesses to support its case. PW 1, S. N. was the complainant. PW 2, Moses Kasyoki Mutuku is a clinical officer at Kinango hospital. He examined the complainant and completed her P3 form on 31 st January 2023. PW 3, P.C. Everlyne Irungu of Vigurungani police station took over investigations in the case from her colleague PC Keith Rotich who had proceeded on transfer. PW 4, A.M.N., is the complainants’ grandmother and guardian.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement. He was convicted and sentenced to serve life imprisonment.
6. The appellant was aggrieved by the decision of the trial court and has filed this appeal on 5 th August 2024 based on the following grounds:
a. that the learned trial magistrate erred in law and in fact by failing to see that the identification evidence was lacking.
b. that the learned trial magistrate erred in law and by failing to consider that the prosecution case was riddled with massive contradictions and discrepancies.
c. that the learned trial magistrate erred in law and fact by failing to consider that the case was poorly investigated.
d. that the learned trial magistrate erred in law and fact for failing to see that the ingredient of age was not established.
e. The learned trial magistrate erred I law and fact by failing to comply with section 329 of the CPC as mitigation is part of the trial process.
7. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
8. The appellant, through Chimera, Kamotho & Company Advocates submits that the case of defilement for the prosecution was not proved against him beyond a reasonable doubt. Learned counsel submits that there was no evidence that the complainant was defiled contrary to the findings by the trial court, that the evidence adduced by the prosecution witnesses was riddled with contradiction and inconsistencies, that the complainant’s evidence was not credible and could not be believed and the evidence of PW 4 and the medical evidence on the injuries the complainant had allegedly sustained was inconsistent and finally, that the prosecution failed to call a material witness namely H, a sister (should be brother) of the complainant to corroborate the complainant’s evidence. Learned counsel has cited several authorities to support the submissions.
9. The cases are inter alia Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) with regard to contradictions and inconsistencies in the prosecution’s case and Manga v Republic [2016] KECA 691 (KLR) on whether or not the medical evidence had proved the element of penetration.
10. The respondent submits that the prosecution proved all the elements of the offence of defilement beyond a reasonable doubt. On the element of age, the complainant was proved to be 7 years old at the time of the incident through her certificate of birth which was produced as exhibit. That on identification, the incident happened in broad daylight and the appellant was well known to the complainant as a neighbor and she was able to identify him well. That on penetration, the complainant’s evidence that the appellant had defiled her was sufficient. Learned counsel submits that the sentence meted out was within the law. She therefore submits that the appeal lacks merit and should be dismissed.
11. The respondent cited the following cases to support their submissions. GOO v Republic [2016] KEHC 800 (KLR) on the ingredients of the offence of defilement that need to be established by the prosecution. The Ugandan case of Francis Omuroni Vs. Uganda Criminal Appeal No. 2 of 2000, also cited by the respondent on how the age of a minor victim of a sexual offence can be proved either through medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation has been endorsed by the Court of Appeal in various decisions such as Kaburu v Republic [2022] KECA 789 (KLR) and Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) . However, in the case of Mwalango Chichoro (supra) the Court of Appeal expressed the view that it doubted if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. The respondent also relied on the Ugandan case of Bassita v Uganda S.C. Criminal Appeal Number 35 of 1995 which has also been applied by the Court of Appeal in various decisions including that of SJS v Republic [2026] KECA 921 (KLR) for the holding that penetration is proved by direct or circumstantial evidence, usually by the victims’ own evidence and corroborated by the medical evidence or other evidence even as it is not always the rule that the victim’s evidence and mediacl evidence must always be adduced and whatever evidence that is able to prove the case beyond a reasonable doubt will suffice.
12. This being a first appeal, the court is required to 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;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19 .
14. The prosecution’s case before the trial court was that the complainant a girl borne on 1 st April 2015 as per her certificate of birth (Exh. 1) was at the time of the alleged offence on 8 th January 2023 staying with her grandmother PW 4 and younger brother, H. who did not testify, at Gonzani area where the appellant was their neighbor. She now lives at Henny’s in a children’s home where she goes to school.
15. On the material day in the afternoon the appellant went to her grandmother’s home where she was with her younger brother, H. He called her out then took her to her grandmother’s house and placed her on the bed where he defiled her. He first gagged her mouth with his shirt and then used the same shirt to tie her to the bed. He undressed then removed her trousers. He then took out his penis which PW 1 referred to as his “dudu” Kiswahili for insect, which he uses to pass urine and put it in her private parts where she uses to pee. She tried to scream and her younger brother went to the door to try and rescue her but the door was locked from inside by the appellant. After he was finished, the appellant warned her not to tell anyone or else he would kill her. He then left.
16. Her younger brother then went into the house and the complainant informed her what the accused person had done to her. The complainant did not report the incident to the grandmother or anybody else.
17. The complainant’s grandmother, PW 4 said that some four days before 27 th January 2023, the complainant had complained of stomach pains and or cramps. She did not pay much attention. On 27 th January 2023, at 7.30 a.m. she noticed that the complainant was still asleep. She sent the younger brother H. to go and wake her up. However, the complainant was unable to wake up. That was when H. told her that the appellant, who was their neighbor had defiled the complainant at their home. H. explained to PW 4 how the incident had happened. PW 4 then asked the complainant about the incident. The complainant broke down and started crying. She was hesitant and said the appellant would kill her. PW 4 calmed her down and reassured her that she was safe and he would not harm her. She was able to narrate to PW 4 the incident.
18. PW 4 checked the complainant’s private parts and noticed that she had a foul smell and there were bruises in her inner thighs and lacerations but they were not fresh. She then took the complainant to Gonzani dispensary from where she was referred to Kinango hospital. They went to the Kinango police station first after which they proceeded to the hospital.
19. PW 2 testified that he examined the complainant and completed her P3 form. She bore no physical injuries on general observation. He examined her private parts and established that the hymen was missing. However, she had no vaginal discharge and both her Labia minora and Labia Majora were okay with no injuries. She had no infection. A urinalysis test showed that there were epithelial cells and an ultra sound scan of the pelvis showed that it was normal. He gave her appropriate medication.
20. PW 2 said that other than the finding of the missing hymen, the laboratory examination did not return anything to conclude that the complainant was defiled.
21. Later the appellant was arrested for the offense and charged.
22. In his defence, the appellant denied that he committed the offence. He said he was working for PW 4 in her hotel at Gonzani for four days. When he asked her for payment, she declined to pay her in cash and offered to pay her in kind, meaning by engaging in sexual intercourse with him. He declined and told her that he was married. PW 4 threatened to bewitch him. He left her work and was employed in a butchery nearby. PW 4 paid him his dues after some four days but threatened that she would ensure that he was locked up for good. He was subsequently arrested on 3 rd February 2023 and charged.
23. I have carefully examined and re-evaluated the evidence tendered before the trial court, the grounds of appeal as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. Sections 8(1) and 8(2) of the Sexual Offences Act 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.
25. The Court of Appeal, while considering thre offence of defilement in the case Shitula v Republic [2025] KECA 12 (KLR) held that:
“The main ingredients of the offence of defilement are, proof that the victim is a minor; that there was penetration of the victim’s genital organs with the genital organs of another person; and that the accused person was the person who penetrated the victim’s genital organs.”
26. The main witness in this case was the complainant, a child aged about 8 years at the time of testimony. Since she was a child of tender years the trial court conducted a voire dire examination of the child and was satisfied that she was possessed of sufficient intelligence and understood the meaning of speaking the truth to enable her to testify and also that she understood the meaning of an oath and so allowed her to testify on oath. She gave sworn evidence.
27. The manner in which the court should proceed to assess 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.”
28. In the present case, it is worthy to note that though a child of tender years, the complainant gave sworn evidence meaning that the provisions of section 124 of the Evidence Act with respect to the requirement for corroboration would not in the circumstances be applicable.
29. In the case of Omar v Republic [2017] KECA 357 (KLR) the Court of Appeal while considering the provisions of section 124 of the Evidence Act 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.”
30. 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] KEHC 26946 (KLR) . Upon considering various decisions on the matter the learned Judge concluded 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…”
31. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there is corroboration and if there is none the court can still rely on the uncorroborated evidence of the victim if it believes that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim 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 victim.
32. Although one of the grounds of appeal is that the complainant’s age was not established, the appellant did not make any submission on that issue. That means that he dropped that ground of appeal. All the same evidence of the age of the complainant was had from her certificate of birth which showed that she was born on 1 st April 2015. That made her eight years and about six months old at the time of the alleged incident on 8 th November 2023. She was therefore a child under the age of 11 years. I am satisfied that there was evidence upon which the learned trial magistrate correctly found that the complainant was a child as provided for under section 8(1) of the SoA.
33. The issue of whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue was not contested. The complainant said and her grandmother corroborated her evidence that the appellant is their neighbor and so was well known to her. I am satisfied that there was evidence to prove the same.
34. The final issue for determination is whether there was proof that the complainant’s sexual organ was penetrated by the appellant.
35. The complainant gave evidence that her assailant penetrated her genital organ with his sexual organ after taking her into her grandmother’s house. He then threatened her that if she told anybody he would kill her. She never reported the incident to anybody. It was her evidence that her younger brother H. was present with her when the appellant took her into the house. That she tried to scream for assistance but the brother could not get into the house as the appellant had locked it from inside.
36. Her evidence that her brother was present and she also told him what had transpired after the appellant left is corroborated by the evidence of PW 4 in her testimony that the incident was reported to her by the complainant’s brother. The complainant was thus consistent in her testimony that her younger brother was present when the incident was committed.
37. When the complainant was asked about the incident, she broke down crying. She was also still afraid of narrating it, fearing that the appellant would make his threats towards her real. PW 4 had to calm her down and reassure her that nothing untoward would happen to her to get the entire story. I do find that her emotional breakdown was occasioned by having to recall the atrocious act that had been done to her as well as the threats. Her reaction is consistent with a person who was recalling a traumatizing incident that had occurred to her. I am satisfied that the reaction was corroborative of her evidence that she had been defiled and that was what was causing her distress.
38. Further, there is evidence that medical examination done on 31 st January 2023 showed that the complainant’s hymen was missing, which was corroboration that there was penetration of her genital organ.
39. Learned counsel for the appellant submits that there were material contradictions in the case for the prosecution thereby making it unreliable. However, I do not find the contradictions pointed out by learned counsel to be material at all. For instance, on the aspect of the complainant being gagged by a shirt, as testified by herself and by a bedsheet as testified by PW 4, the fact is that the only person who was an eye witness and gave material evidence on what cloth was used to gag her was the complainant. Her evidence was emphatic that the appellant gaged her using his shirt and he used the same to tie her to the bed. PW 4 was not challenged on why she was saying that the complainant was gagged using a bedsheet. She could have been mistaken about what the complainant informed her. In any case, the material evidence is that the complainant was gagged by some piece of cloth and that demonstrates her consistence in reporting the issue and her own testimony.
40. Learned counsel casts doubt on the fact that the same shirt could have been used to gag the complainant and at the same time tie her to the bed. She has not explained why that would be difficult. The complaint was not challenged on the possibility of the same at the time of testimony. I have no doubt that the same was possible and did happen.
41. In the case of Munene v Republic [2018] KECA 186 (KLR) the Court of Appeal while considering the effect of inconsistencies and contradictions in a case said:
“… 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 necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.”
42. Further, in Watu v Republic [2016] KECA 696 (KLR) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
43. I find that the inconsistency in the evidence of PW 1 and PW 4 as to what piece of cloth was used to gag the complainant was not material to the determination of the issue of penetration or even to the credibility of the complainant’s testimony.
44. Further, I do not find any contradiction in PW 4’s evidence that when she checked the complainant’s private parts, she noticed that it had a foul smell and her statement that it had something that looked like pus. It is a fact that pass would produce a foul smell. The complainant was taken to a dispensary before she was referred to Kinango hospital. It is possible that she could have been given some drug there that caused some healing before she was examined by PW 2. Therefore, the finding by PW 2 that she had no visible injury to her genital organ cannot mean that it contradicted what PW 4 had observed four days earlier.
45. It is true that PW 2 said that the laboratory investigations did not show evidence of defilement. However, that did not rule out evidence of penetration of the complainant’s genital organ which PW 2 said was supported by the fact that her hymen was missing.
46. I am satisfied that the medical evidence corroborated the complainant’s evidence that indeed her genital organ was penetrated. I find that the element of penetration was proved beyond a reasonable doubt. I am satisfied that the trial court reached a correct decision on that issue.
47. The final issue is whether the failure to call H. the complainant’s brother as a witness was fatal to the case for the prosecution. Indeed, as submitted by learned counsel for the appellant, the brother would have offered some evidence on what transpired on the material day. Indeed in Bukenya and others versus Uganda [1972] EA 549 it was stated clearly that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent; second, that the court has the right and the duty to call witnesses whose evidence appears essential to the just decision of the case; and third, that where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
48. In the present case, whether the evidence of H. would have corroborated the complainant’s evidence or not is a different issue. H. was a child of tender years whose evidence would also have required corroboration. In the case of Keter versus Republic [2007] 1EA 135 the court was categorical that:-
“The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
49. I have gone through the proceedings before the lower court and find that the conviction would still have stood notwithstanding the prosecution’s failure to call H.
50. I find that all the elements of the offence of defilement were established in this case. Consequently, the charge of defilement was proved against the appellant beyond a reasonable doubt and the learned trial magistrate was not in error in so finding.
51. The final ground raised by the appellant was on severity of sentence. However, there was no submission on that ground and I consider that the same was abandoned.
52. In the final analysis, I find that the decision of the learned trial magistrate was correct and the same is affirmed and the appeal is dismissed.
53. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 13 th day of July 2026 in the presence of:
The appellant in person from Shimo la Tewa Maximum prison.
Kimani (Ms)
Ms Vallerie for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
kwale HC Cr. AppEAL No. E033/202413/defilement-8 years
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E033 OF 2024
JOSEPH NZAU NZIOKA........….……………………................................................APPELLANT
VERSUS
REPUBLIC…………………………………………....................................................RESPONDENT
(Being an appeal from the conviction and sentence of Hon. L. T. Lewa, PM in Kwale Magistrates Court Sexual Offence (SO) Case No. E018 of 2023 delivered on 9 th July 2024)
J U D G M E N T
1. The appellant, Joseph Nzai Nzioka was convicted and sentenced to serve life imprisonment on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). The particulars were that on 8 th January 2023 at noon at Gozani village in Kinango Sub-County within Kwale County of the Coast region, intentionally and unlawfully caused his penis to penetrate into the vagina of S.N. a child aged 8 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, same place and same time as in the principal charge the appellant intentionally and unlawfully touched with his penis the vagina of S. N. a child aged 8 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 4 witnesses to support its case. PW 1, S. N. was the complainant. PW 2, Moses Kasyoki Mutuku is a clinical officer at Kinango hospital. He examined the complainant and completed her P3 form on 31 st January 2023. PW 3, P.C. Everlyne Irungu of Vigurungani police station took over investigations in the case from her colleague PC Keith Rotich who had proceeded on transfer. PW 4, A.M.N., is the complainants’ grandmother and guardian.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement. He was convicted and sentenced to serve life imprisonment.
6. The appellant was aggrieved by the decision of the trial court and has filed this appeal on 5 th August 2024 based on the following grounds:
a. that the learned trial magistrate erred in law and in fact by failing to see that the identification evidence was lacking.
b. that the learned trial magistrate erred in law and by failing to consider that the prosecution case was riddled with massive contradictions and discrepancies.
c. that the learned trial magistrate erred in law and fact by failing to consider that the case was poorly investigated.
d. that the learned trial magistrate erred in law and fact for failing to see that the ingredient of age was not established.
e. The learned trial magistrate erred I law and fact by failing to comply with section 329 of the CPC as mitigation is part of the trial process.
7. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
8. The appellant, through Chimera, Kamotho & Company Advocates submits that the case of defilement for the prosecution was not proved against him beyond a reasonable doubt. Learned counsel submits that there was no evidence that the complainant was defiled contrary to the findings by the trial court, that the evidence adduced by the prosecution witnesses was riddled with contradiction and inconsistencies, that the complainant’s evidence was not credible and could not be believed and the evidence of PW 4 and the medical evidence on the injuries the complainant had allegedly sustained was inconsistent and finally, that the prosecution failed to call a material witness namely H, a sister (should be brother) of the complainant to corroborate the complainant’s evidence. Learned counsel has cited several authorities to support the submissions.
9. The cases are inter alia Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) with regard to contradictions and inconsistencies in the prosecution’s case and Manga v Republic [2016] KECA 691 (KLR) on whether or not the medical evidence had proved the element of penetration.
10. The respondent submits that the prosecution proved all the elements of the offence of defilement beyond a reasonable doubt. On the element of age, the complainant was proved to be 7 years old at the time of the incident through her certificate of birth which was produced as exhibit. That on identification, the incident happened in broad daylight and the appellant was well known to the complainant as a neighbor and she was able to identify him well. That on penetration, the complainant’s evidence that the appellant had defiled her was sufficient. Learned counsel submits that the sentence meted out was within the law. She therefore submits that the appeal lacks merit and should be dismissed.
11. The respondent cited the following cases to support their submissions. GOO v Republic [2016] KEHC 800 (KLR) on the ingredients of the offence of defilement that need to be established by the prosecution. The Ugandan case of Francis Omuroni Vs. Uganda Criminal Appeal No. 2 of 2000, also cited by the respondent on how the age of a minor victim of a sexual offence can be proved either through medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation has been endorsed by the Court of Appeal in various decisions such as Kaburu v Republic [2022] KECA 789 (KLR) and Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) . However, in the case of Mwalango Chichoro (supra) the Court of Appeal expressed the view that it doubted if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. The respondent also relied on the Ugandan case of Bassita v Uganda S.C. Criminal Appeal Number 35 of 1995 which has also been applied by the Court of Appeal in various decisions including that of SJS v Republic [2026] KECA 921 (KLR) for the holding that penetration is proved by direct or circumstantial evidence, usually by the victims’ own evidence and corroborated by the medical evidence or other evidence even as it is not always the rule that the victim’s evidence and mediacl evidence must always be adduced and whatever evidence that is able to prove the case beyond a reasonable doubt will suffice.
12. This being a first appeal, the court is required to 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;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19 .
14. The prosecution’s case before the trial court was that the complainant a girl borne on 1 st April 2015 as per her certificate of birth (Exh. 1) was at the time of the alleged offence on 8 th January 2023 staying with her grandmother PW 4 and younger brother, H. who did not testify, at Gonzani area where the appellant was their neighbor. She now lives at Henny’s in a children’s home where she goes to school.
15. On the material day in the afternoon the appellant went to her grandmother’s home where she was with her younger brother, H. He called her out then took her to her grandmother’s house and placed her on the bed where he defiled her. He first gagged her mouth with his shirt and then used the same shirt to tie her to the bed. He undressed then removed her trousers. He then took out his penis which PW 1 referred to as his “dudu” Kiswahili for insect, which he uses to pass urine and put it in her private parts where she uses to pee. She tried to scream and her younger brother went to the door to try and rescue her but the door was locked from inside by the appellant. After he was finished, the appellant warned her not to tell anyone or else he would kill her. He then left.
16. Her younger brother then went into the house and the complainant informed her what the accused person had done to her. The complainant did not report the incident to the grandmother or anybody else.
17. The complainant’s grandmother, PW 4 said that some four days before 27 th January 2023, the complainant had complained of stomach pains and or cramps. She did not pay much attention. On 27 th January 2023, at 7.30 a.m. she noticed that the complainant was still asleep. She sent the younger brother H. to go and wake her up. However, the complainant was unable to wake up. That was when H. told her that the appellant, who was their neighbor had defiled the complainant at their home. H. explained to PW 4 how the incident had happened. PW 4 then asked the complainant about the incident. The complainant broke down and started crying. She was hesitant and said the appellant would kill her. PW 4 calmed her down and reassured her that she was safe and he would not harm her. She was able to narrate to PW 4 the incident.
18. PW 4 checked the complainant’s private parts and noticed that she had a foul smell and there were bruises in her inner thighs and lacerations but they were not fresh. She then took the complainant to Gonzani dispensary from where she was referred to Kinango hospital. They went to the Kinango police station first after which they proceeded to the hospital.
19. PW 2 testified that he examined the complainant and completed her P3 form. She bore no physical injuries on general observation. He examined her private parts and established that the hymen was missing. However, she had no vaginal discharge and both her Labia minora and Labia Majora were okay with no injuries. She had no infection. A urinalysis test showed that there were epithelial cells and an ultra sound scan of the pelvis showed that it was normal. He gave her appropriate medication.
20. PW 2 said that other than the finding of the missing hymen, the laboratory examination did not return anything to conclude that the complainant was defiled.
21. Later the appellant was arrested for the offense and charged.
22. In his defence, the appellant denied that he committed the offence. He said he was working for PW 4 in her hotel at Gonzani for four days. When he asked her for payment, she declined to pay her in cash and offered to pay her in kind, meaning by engaging in sexual intercourse with him. He declined and told her that he was married. PW 4 threatened to bewitch him. He left her work and was employed in a butchery nearby. PW 4 paid him his dues after some four days but threatened that she would ensure that he was locked up for good. He was subsequently arrested on 3 rd February 2023 and charged.
23. I have carefully examined and re-evaluated the evidence tendered before the trial court, the grounds of appeal as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. Sections 8(1) and 8(2) of the Sexual Offences Act 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.
25. The Court of Appeal, while considering thre offence of defilement in the case Shitula v Republic [2025] KECA 12 (KLR) held that:
“The main ingredients of the offence of defilement are, proof that the victim is a minor; that there was penetration of the victim’s genital organs with the genital organs of another person; and that the accused person was the person who penetrated the victim’s genital organs.”
26. The main witness in this case was the complainant, a child aged about 8 years at the time of testimony. Since she was a child of tender years the trial court conducted a voire dire examination of the child and was satisfied that she was possessed of sufficient intelligence and understood the meaning of speaking the truth to enable her to testify and also that she understood the meaning of an oath and so allowed her to testify on oath. She gave sworn evidence.
27. The manner in which the court should proceed to assess 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.”
28. In the present case, it is worthy to note that though a child of tender years, the complainant gave sworn evidence meaning that the provisions of section 124 of the Evidence Act with respect to the requirement for corroboration would not in the circumstances be applicable.
29. In the case of Omar v Republic [2017] KECA 357 (KLR) the Court of Appeal while considering the provisions of section 124 of the Evidence Act 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.”
30. 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] KEHC 26946 (KLR) . Upon considering various decisions on the matter the learned Judge concluded 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…”
31. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there is corroboration and if there is none the court can still rely on the uncorroborated evidence of the victim if it believes that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim 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 victim.
32. Although one of the grounds of appeal is that the complainant’s age was not established, the appellant did not make any submission on that issue. That means that he dropped that ground of appeal. All the same evidence of the age of the complainant was had from her certificate of birth which showed that she was born on 1 st April 2015. That made her eight years and about six months old at the time of the alleged incident on 8 th November 2023. She was therefore a child under the age of 11 years. I am satisfied that there was evidence upon which the learned trial magistrate correctly found that the complainant was a child as provided for under section 8(1) of the SoA.
33. The issue of whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue was not contested. The complainant said and her grandmother corroborated her evidence that the appellant is their neighbor and so was well known to her. I am satisfied that there was evidence to prove the same.
34. The final issue for determination is whether there was proof that the complainant’s sexual organ was penetrated by the appellant.
35. The complainant gave evidence that her assailant penetrated her genital organ with his sexual organ after taking her into her grandmother’s house. He then threatened her that if she told anybody he would kill her. She never reported the incident to anybody. It was her evidence that her younger brother H. was present with her when the appellant took her into the house. That she tried to scream for assistance but the brother could not get into the house as the appellant had locked it from inside.
36. Her evidence that her brother was present and she also told him what had transpired after the appellant left is corroborated by the evidence of PW 4 in her testimony that the incident was reported to her by the complainant’s brother. The complainant was thus consistent in her testimony that her younger brother was present when the incident was committed.
37. When the complainant was asked about the incident, she broke down crying. She was also still afraid of narrating it, fearing that the appellant would make his threats towards her real. PW 4 had to calm her down and reassure her that nothing untoward would happen to her to get the entire story. I do find that her emotional breakdown was occasioned by having to recall the atrocious act that had been done to her as well as the threats. Her reaction is consistent with a person who was recalling a traumatizing incident that had occurred to her. I am satisfied that the reaction was corroborative of her evidence that she had been defiled and that was what was causing her distress.
38. Further, there is evidence that medical examination done on 31 st January 2023 showed that the complainant’s hymen was missing, which was corroboration that there was penetration of her genital organ.
39. Learned counsel for the appellant submits that there were material contradictions in the case for the prosecution thereby making it unreliable. However, I do not find the contradictions pointed out by learned counsel to be material at all. For instance, on the aspect of the complainant being gagged by a shirt, as testified by herself and by a bedsheet as testified by PW 4, the fact is that the only person who was an eye witness and gave material evidence on what cloth was used to gag her was the complainant. Her evidence was emphatic that the appellant gaged her using his shirt and he used the same to tie her to the bed. PW 4 was not challenged on why she was saying that the complainant was gagged using a bedsheet. She could have been mistaken about what the complainant informed her. In any case, the material evidence is that the complainant was gagged by some piece of cloth and that demonstrates her consistence in reporting the issue and her own testimony.
40. Learned counsel casts doubt on the fact that the same shirt could have been used to gag the complainant and at the same time tie her to the bed. She has not explained why that would be difficult. The complaint was not challenged on the possibility of the same at the time of testimony. I have no doubt that the same was possible and did happen.
41. In the case of Munene v Republic [2018] KECA 186 (KLR) the Court of Appeal while considering the effect of inconsistencies and contradictions in a case said:
“… 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 necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.”
42. Further, in Watu v Republic [2016] KECA 696 (KLR) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
43. I find that the inconsistency in the evidence of PW 1 and PW 4 as to what piece of cloth was used to gag the complainant was not material to the determination of the issue of penetration or even to the credibility of the complainant’s testimony.
44. Further, I do not find any contradiction in PW 4’s evidence that when she checked the complainant’s private parts, she noticed that it had a foul smell and her statement that it had something that looked like pus. It is a fact that pass would produce a foul smell. The complainant was taken to a dispensary before she was referred to Kinango hospital. It is possible that she could have been given some drug there that caused some healing before she was examined by PW 2. Therefore, the finding by PW 2 that she had no visible injury to her genital organ cannot mean that it contradicted what PW 4 had observed four days earlier.
45. It is true that PW 2 said that the laboratory investigations did not show evidence of defilement. However, that did not rule out evidence of penetration of the complainant’s genital organ which PW 2 said was supported by the fact that her hymen was missing.
46. I am satisfied that the medical evidence corroborated the complainant’s evidence that indeed her genital organ was penetrated. I find that the element of penetration was proved beyond a reasonable doubt. I am satisfied that the trial court reached a correct decision on that issue.
47. The final issue is whether the failure to call H. the complainant’s brother as a witness was fatal to the case for the prosecution. Indeed, as submitted by learned counsel for the appellant, the brother would have offered some evidence on what transpired on the material day. Indeed in Bukenya and others versus Uganda [1972] EA 549 it was stated clearly that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent; second, that the court has the right and the duty to call witnesses whose evidence appears essential to the just decision of the case; and third, that where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
48. In the present case, whether the evidence of H. would have corroborated the complainant’s evidence or not is a different issue. H. was a child of tender years whose evidence would also have required corroboration. In the case of Keter versus Republic [2007] 1EA 135 the court was categorical that:-
“The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
49. I have gone through the proceedings before the lower court and find that the conviction would still have stood notwithstanding the prosecution’s failure to call H.
50. I find that all the elements of the offence of defilement were established in this case. Consequently, the charge of defilement was proved against the appellant beyond a reasonable doubt and the learned trial magistrate was not in error in so finding.
51. The final ground raised by the appellant was on severity of sentence. However, there was no submission on that ground and I consider that the same was abandoned.
52. In the final analysis, I find that the decision of the learned trial magistrate was correct and the same is affirmed and the appeal is dismissed.
53. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 13 th day of July 2026 in the presence of:
The appellant in person from Shimo la Tewa Maximum prison.
Kimani (Ms)
Ms Vallerie for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
kwale HC Cr. AppEAL No. E033/202413/defilement-8 years