(Being an appeal from the conviction and sentence in Tawa SPM Law Courts Sexual Offence Case No. E006 of 2022, Judgment delivered on 14/05/2024 by Hon. S. Jalang’o)
1. The Appellant was charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on diverse dates between 1 st and 30 th April, 2021 at Kithuni market in Mbooni West Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate to the vagina of S.W.W. a girl aged 15 years.
2. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that, the Appellant, on diverse dates between 1 st and 30 th April, 2021 at Kithoni market in Mbooni West Sub-County within Makueni County, intentionally did an indecent act to S.W.W. a child aged 15 years by touching her private parts namely vagina with his penis.
3. The Court delivered the Judgment on 14 th May, 2024, in which it found the Appellant guilty of Defilement and convicted him of the same. It made no findings on the alternative count. It sentenced him to 20 years imprisonment.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both conviction and sentence. He listed the following grounds;
1) That the learned trial Magistrate erred in matters of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him.
2) That the learned trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced.
3) That the learned trial Magistrate erred in matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the Appellant from the commission of the ill-fated offence.
4) That the Honourable Court imposed a sentence of 20 years imprisonment which is manifestly harsh, excessive and mandatory minimum sentence against the recent jurisprudences.
5. He asked this Court to allow the appeal, quash the conviction, and set aside the sentence.
6. The Appeal was canvassed the by way of written submissions. Both parties filed their respective submissions, and the same was considered at great length.
Appellant’s written Submissions
7. The Appellant submitted that the lower Court was wrong to convict him, arguing that the court relied on hearsay evidence. He argued that the Complainant was subjected to duress to incriminate him. He submitted that the charges were born out of malice and ill-will because he had a grudge with the Complainant’s mother, and she was taking revenge. In addition, the Appellant argued that court relied on flimsy, inconsistent and evidence that was not water-tight. The Respondent filed their submissions dated 28 th May, 2025. The same has been considered at length.
8. In addition, the Appellant submitted that the medical evidence adduced does not support the claim by the prosecution witnesses. He submitted that the court was wrong to rely on the DNA report. He argued that the chances of the DNA results to capture him were high, simply because he is related to the Complainant, and thus the genetic relationship of the samples taken might be the same. Lastly, he submitted that the lower court was wrong to impose the sentence it imposed against him, arguing that the sentence was manifestly draconian, excessively punitive and oppressive.
Respondent’s written Submissions
9. The Respondent submitted that the lower Court was right in convicting the Appellant and in imposing the above mentioned sentence against him. It argued that the testimonies of the witnesses considered together point to the fact that there was penetration of the Complainant who was a minor at the material time and that the Appellant was the perpetrator. It argued that there were no inconsistencies in the evidence of the prosecution’s witnesses and that the Appellant had failed to identify the alleged inconsistencies.
Issues for Determination
10. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
11. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
12. Courts have established that the ingredients of the offence of defilement are: penetration of the Complainant’s genitalia, the complainant is a child, and proper identification of the perpetrator. See the case of Lukas Muli Nzioka v Republic [2019] KEHC 11794 (KLR) , where it was stated that;
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant .
13. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
14. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
15. PW1 was the Complainant. She stated that the Appellant defiled her on April 2021. She stated that she met the Appellant on her way to the market, whereupon he forced her down on the ground, on the road, and defiled her. She said that it was around 5 pm but she did not tell her mother about it when she returned from the market that evening. She stated that she conceived as a result of the assault and came to learn about the pregnancy in May, 2021.
16. PW5 was a clinical officer based at Mbooni Sub-County Hospital who examined the Complainant. She provided P3 Form, treatment notes, and Post Rape Care Form. She told the court that she examined the Complainant on 10 th July, 2021. She testified that the genitalia were normal, hymen was perforated by old tears, and the vaginal swab was normal. I have seen the said forms. They corroborate the clinical officer’s oral testimony.
17. Courts have observed that where the penetration is “forceful” or “forced sex,” the medical examination of the victim is likely to reveal presence of bruises or lacerations, discharge, and blood stains. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court observed as follows;
The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .
18. In the instant case, it appears to this court that the alleged penetration was “forceful.” This is because the Complainant told the court that the Appellant forced himself into her. I appreciate the fact that in this case, the examination was done more than 2 months after the alleged penetration. Therefore, if the Complainant had been abused and had sustained bruises and lacerations, such injuries could not be expected to be revealed in the medical report, in the circumstances herein.
19. I find that the Medical report and the evidence of the clinical officer did not help much on the question of establishing penetration. In my view, even though the medical report was consistent with the fact that time had lapsed since the alleged incident, the medical examination was not definitive.
20. The prosecution also sought to rely on a DNA report. I have seen the Report. The report was signed by a Government Analyst, Pamela Okello, and it is dated 30 th June, 2023. The Appellant argued that the DNA report was erroneous; he disputed its contents and questioned its findings.
21. Before I make a finding on the contents of the DNA report, I find it prudent to assure myself that the DNA report, being a medical report, was properly produced in Court. This is necessary because the document was produced by the investigating officer and not the government analyst.
22. The courts have established guidelines on production of medical reports, especially where the maker of the report/document is not available. In James Bari Munyoris v Republic [2010] eKLR , Justice Sergon stated as follows;
“It is not enough for a witness to state that he was familiar with the handwriting of a particular witness. The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond prosecution's control. The record shows that Dr. Mburu had been transferred to Kenyatta National Hospital. There was no evidence to show that the police attempted and failed to secure Dr. Mburu's attendance in court......”
23. In Hussein Said Abdi v Republic [2021] eKLR , the Court interrogated this issue and made the following observations;
“Ordinarily, the prosecution must call the maker of the expert report. However, in instances where the prosecution intends to call another person other than the maker,…, the prosecution has to lay a basis and has to demonstrate that it has done due diligence to secure the attendance of the maker of the report to no avail and that the delay in wailing for the expert will cause unnecessary delay….In this case, the prosecutor addressed the court indicating that the Government Chemist was a difficult witness to get, being the only one in the area and that he covers a large area. However, the prosecutor did not demonstrate that he had done any due diligence. For example, the court was not told when is the earliest date that the witness would be available.”
24. Recent court decisions have held that the above principles apply equally to the production of reports by government analysts and geologists under section 77 of the Evidence Act. The Court in Sokisi v Republic (Criminal Appeal 85 of 2017) [2023] eKLR observed as follows;
“It is therefore clear that under Section 33 of the Evidence Act as read with Section 77(1) of the same Act, evidence touching on expert opinion should be tendered by experts but that in situations where the evidence of such experts cannot be procured without unreasonable delay or expense, other experts working in similar filed of expertise and who are familiar with handwritings of the unavailable experts can be called upon to tender such evidence. It is also however clear that the condition precedent to the operation of Section 77 as provided under Section 33, a basis has to be laid before a witness other than the maker of a document can competently tender the evidence .”
25. I have relooked at the record to see what transpired in court on the day the DNA report was produced. The report was produced by the investigating officer. However, the investigating officer did not lay a basis for producing it, yet he was not the author. He did not demonstrate that he had done due diligence to secure the government analyst’s attendance. He also did not show that the delay in waiting for the analyst would cause unnecessary delay. In other words, the investigating officer did not show that the government analyst was absent for reasons beyond the prosecution’s control.
26. In addition, I note that the lower Court did not ask the Appellant whether he had any objections to the production of the DNA report, given that it was being produced by a person who was not its maker. In my view, the lower Court should have made this inquiry, given that the Appellant was not represented at the lower Court. A defence was tendered that the complainant and the appellant are related, and the reliability of the tests was challenged.
27. In my view, I find that the production of the DNA Report by the investigating officer was improper. It was improperly produced in Court and cannot therefore be relied upon in determining whether there was penetration.
28. The court in DS v Republic [2022] KEHC 2502 (KLR) held that, where the medical examination may not be conclusive, a court ought to weigh with thorough scrutiny and utmost caution the evidence of the child in order to determine whether there was penetration. It held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .”
29. Similarly, under the law of Evidence, a Court can convict on uncorroborated evidence of a victim of a sexual offence, it court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
“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.”
30. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
31. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does the scrutiny, it is also required to satisfy itself that the child is telling the truth.
32. The Complainant told the Court that the Appellant defiled her on the road, during daytime, at around 5 pm. She said that he forced her down on the ground, removed her underwear, and inserted his penis in her vagina.
33. I find these claims rather curious because this was a road leading to a marketplace, which was presumably being used by other members of the public.
34. In addition, the Complainant claimed that the sexual act was “forced penetration.” Yet, the Complainant did not inform her mother about the incident when she returned from the market that evening. The Complainant claimed that she failed to report because the Appellant had threatened her. I note that at the time of the offence, the Complainant was 15 years old. The analysis of the prosecution witnesses’ testimony shows a strong familiarity between the complainant’s family and the appellant. Given the complainant’s age and the familiarity, I am not convinced she failed to tell her mother about it because of the alleged threats.
35. I also note the manner in which she broke the news of her alleged defilement to her parents. PW3, the Complainant’s father, told the Court that she beat the Complainant, as a result of which the Complainant stated that it was the Appellant who had defiled her. He said; “ I beat my child. She said that you are the one who impregnated her .” This statement by the father of the Complainant creates an impression that the Complainant might have been forced, coerced or unduly influenced to implicate the Appellant.
36. The upshot is that I have formed the opinion that the Complainant’s trustworthiness is suspicious. Accordingly, this court finds no reason to trust her about the alleged defilement by the Appellant.
37. There being no other evidence to prove penetration, I find that the conviction was unsafe.
Disposition
38. The Appeal succeeds.
39. The Conviction for the offence of Defilement in the Sexual Offences Case No. E006 of 2022 is hereby quashed, and the sentence is set aside.
40. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
41. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
5 | Page
1. The Appellant was charged with the offence of Defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on diverse dates between 1 st and 30 th April, 2021 at Kithuni market in Mbooni West Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate to the vagina of S.W.W. a girl aged 15 years.
2. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge were that, the Appellant, on diverse dates between 1 st and 30 th April, 2021 at Kithoni market in Mbooni West Sub-County within Makueni County, intentionally did an indecent act to S.W.W. a child aged 15 years by touching her private parts namely vagina with his penis.
3. The Court delivered the Judgment on 14 th May, 2024, in which it found the Appellant guilty of Defilement and convicted him of the same. It made no findings on the alternative count. It sentenced him to 20 years imprisonment.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both conviction and sentence. He listed the following grounds;
1) That the learned trial Magistrate erred in matters of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him.
2) That the learned trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced.
3) That the learned trial Magistrate erred in matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the Appellant from the commission of the ill-fated offence.
4) That the Honourable Court imposed a sentence of 20 years imprisonment which is manifestly harsh, excessive and mandatory minimum sentence against the recent jurisprudences.
5. He asked this Court to allow the appeal, quash the conviction, and set aside the sentence.
6. The Appeal was canvassed the by way of written submissions. Both parties filed their respective submissions, and the same was considered at great length.
Appellant’s written Submissions
7. The Appellant submitted that the lower Court was wrong to convict him, arguing that the court relied on hearsay evidence. He argued that the Complainant was subjected to duress to incriminate him. He submitted that the charges were born out of malice and ill-will because he had a grudge with the Complainant’s mother, and she was taking revenge. In addition, the Appellant argued that court relied on flimsy, inconsistent and evidence that was not water-tight. The Respondent filed their submissions dated 28 th May, 2025. The same has been considered at length.
8. In addition, the Appellant submitted that the medical evidence adduced does not support the claim by the prosecution witnesses. He submitted that the court was wrong to rely on the DNA report. He argued that the chances of the DNA results to capture him were high, simply because he is related to the Complainant, and thus the genetic relationship of the samples taken might be the same. Lastly, he submitted that the lower court was wrong to impose the sentence it imposed against him, arguing that the sentence was manifestly draconian, excessively punitive and oppressive.
Respondent’s written Submissions
9. The Respondent submitted that the lower Court was right in convicting the Appellant and in imposing the above mentioned sentence against him. It argued that the testimonies of the witnesses considered together point to the fact that there was penetration of the Complainant who was a minor at the material time and that the Appellant was the perpetrator. It argued that there were no inconsistencies in the evidence of the prosecution’s witnesses and that the Appellant had failed to identify the alleged inconsistencies.
Issues for Determination
10. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
11. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
12. Courts have established that the ingredients of the offence of defilement are: penetration of the Complainant’s genitalia, the complainant is a child, and proper identification of the perpetrator. See the case of Lukas Muli Nzioka v Republic [2019] KEHC 11794 (KLR) , where it was stated that;
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant .
13. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
14. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
15. PW1 was the Complainant. She stated that the Appellant defiled her on April 2021. She stated that she met the Appellant on her way to the market, whereupon he forced her down on the ground, on the road, and defiled her. She said that it was around 5 pm but she did not tell her mother about it when she returned from the market that evening. She stated that she conceived as a result of the assault and came to learn about the pregnancy in May, 2021.
16. PW5 was a clinical officer based at Mbooni Sub-County Hospital who examined the Complainant. She provided P3 Form, treatment notes, and Post Rape Care Form. She told the court that she examined the Complainant on 10 th July, 2021. She testified that the genitalia were normal, hymen was perforated by old tears, and the vaginal swab was normal. I have seen the said forms. They corroborate the clinical officer’s oral testimony.
17. Courts have observed that where the penetration is “forceful” or “forced sex,” the medical examination of the victim is likely to reveal presence of bruises or lacerations, discharge, and blood stains. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court observed as follows;
The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .
18. In the instant case, it appears to this court that the alleged penetration was “forceful.” This is because the Complainant told the court that the Appellant forced himself into her. I appreciate the fact that in this case, the examination was done more than 2 months after the alleged penetration. Therefore, if the Complainant had been abused and had sustained bruises and lacerations, such injuries could not be expected to be revealed in the medical report, in the circumstances herein.
19. I find that the Medical report and the evidence of the clinical officer did not help much on the question of establishing penetration. In my view, even though the medical report was consistent with the fact that time had lapsed since the alleged incident, the medical examination was not definitive.
20. The prosecution also sought to rely on a DNA report. I have seen the Report. The report was signed by a Government Analyst, Pamela Okello, and it is dated 30 th June, 2023. The Appellant argued that the DNA report was erroneous; he disputed its contents and questioned its findings.
21. Before I make a finding on the contents of the DNA report, I find it prudent to assure myself that the DNA report, being a medical report, was properly produced in Court. This is necessary because the document was produced by the investigating officer and not the government analyst.
22. The courts have established guidelines on production of medical reports, especially where the maker of the report/document is not available. In James Bari Munyoris v Republic [2010] eKLR , Justice Sergon stated as follows;
“It is not enough for a witness to state that he was familiar with the handwriting of a particular witness. The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond prosecution's control. The record shows that Dr. Mburu had been transferred to Kenyatta National Hospital. There was no evidence to show that the police attempted and failed to secure Dr. Mburu's attendance in court......”
23. In Hussein Said Abdi v Republic [2021] eKLR , the Court interrogated this issue and made the following observations;
“Ordinarily, the prosecution must call the maker of the expert report. However, in instances where the prosecution intends to call another person other than the maker,…, the prosecution has to lay a basis and has to demonstrate that it has done due diligence to secure the attendance of the maker of the report to no avail and that the delay in wailing for the expert will cause unnecessary delay….In this case, the prosecutor addressed the court indicating that the Government Chemist was a difficult witness to get, being the only one in the area and that he covers a large area. However, the prosecutor did not demonstrate that he had done any due diligence. For example, the court was not told when is the earliest date that the witness would be available.”
24. Recent court decisions have held that the above principles apply equally to the production of reports by government analysts and geologists under section 77 of the Evidence Act. The Court in Sokisi v Republic (Criminal Appeal 85 of 2017) [2023] eKLR observed as follows;
“It is therefore clear that under Section 33 of the Evidence Act as read with Section 77(1) of the same Act, evidence touching on expert opinion should be tendered by experts but that in situations where the evidence of such experts cannot be procured without unreasonable delay or expense, other experts working in similar filed of expertise and who are familiar with handwritings of the unavailable experts can be called upon to tender such evidence. It is also however clear that the condition precedent to the operation of Section 77 as provided under Section 33, a basis has to be laid before a witness other than the maker of a document can competently tender the evidence .”
25. I have relooked at the record to see what transpired in court on the day the DNA report was produced. The report was produced by the investigating officer. However, the investigating officer did not lay a basis for producing it, yet he was not the author. He did not demonstrate that he had done due diligence to secure the government analyst’s attendance. He also did not show that the delay in waiting for the analyst would cause unnecessary delay. In other words, the investigating officer did not show that the government analyst was absent for reasons beyond the prosecution’s control.
26. In addition, I note that the lower Court did not ask the Appellant whether he had any objections to the production of the DNA report, given that it was being produced by a person who was not its maker. In my view, the lower Court should have made this inquiry, given that the Appellant was not represented at the lower Court. A defence was tendered that the complainant and the appellant are related, and the reliability of the tests was challenged.
27. In my view, I find that the production of the DNA Report by the investigating officer was improper. It was improperly produced in Court and cannot therefore be relied upon in determining whether there was penetration.
28. The court in DS v Republic [2022] KEHC 2502 (KLR) held that, where the medical examination may not be conclusive, a court ought to weigh with thorough scrutiny and utmost caution the evidence of the child in order to determine whether there was penetration. It held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .”
29. Similarly, under the law of Evidence, a Court can convict on uncorroborated evidence of a victim of a sexual offence, it court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
“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.”
30. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
31. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does the scrutiny, it is also required to satisfy itself that the child is telling the truth.
32. The Complainant told the Court that the Appellant defiled her on the road, during daytime, at around 5 pm. She said that he forced her down on the ground, removed her underwear, and inserted his penis in her vagina.
33. I find these claims rather curious because this was a road leading to a marketplace, which was presumably being used by other members of the public.
34. In addition, the Complainant claimed that the sexual act was “forced penetration.” Yet, the Complainant did not inform her mother about the incident when she returned from the market that evening. The Complainant claimed that she failed to report because the Appellant had threatened her. I note that at the time of the offence, the Complainant was 15 years old. The analysis of the prosecution witnesses’ testimony shows a strong familiarity between the complainant’s family and the appellant. Given the complainant’s age and the familiarity, I am not convinced she failed to tell her mother about it because of the alleged threats.
35. I also note the manner in which she broke the news of her alleged defilement to her parents. PW3, the Complainant’s father, told the Court that she beat the Complainant, as a result of which the Complainant stated that it was the Appellant who had defiled her. He said; “ I beat my child. She said that you are the one who impregnated her .” This statement by the father of the Complainant creates an impression that the Complainant might have been forced, coerced or unduly influenced to implicate the Appellant.
36. The upshot is that I have formed the opinion that the Complainant’s trustworthiness is suspicious. Accordingly, this court finds no reason to trust her about the alleged defilement by the Appellant.
37. There being no other evidence to prove penetration, I find that the conviction was unsafe.
Disposition
38. The Appeal succeeds.
39. The Conviction for the offence of Defilement in the Sexual Offences Case No. E006 of 2022 is hereby quashed, and the sentence is set aside.
40. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
41. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
5 | Page