'
(Being an appeal from the Judgment in Principal Magistrate’s Court Sexual Offence number E138 of 2021 delivered by the Hon. Sindani R.M. Ogembo dated the 7 th day of August, 2024)
The appellant was charged with the offence of defilement of a person With mental disability Contrary to Section 7 of the Sexual offences Act .
He also faced an alternative charge of indecent Act with a child contrary to section 11 of the sexual offencens Act.
He was convicted on the main charge and sentenced to serve 10 years imprisonment .
He subsequently moved this court on appeal on the following grounds :
fact and law by failing to properly evaluate and analyse the evidence on record thus arriving at erroneous decision of convicting the appellant on a case whose evidence did not meet the legal threshold of “ proof beyond reasonable doubt” as required in law.
The learned trial magistrate erred in law and in fact by holding that the complainant was a person with mental disability without the evidence of a medical expert, a psychiatrist in this case, in absence of which it was impossible to classify her as such thus making the conviction and sentence unsafe and unlawful.
The learned trial magistrate erred in law and in fact by holding that complainant was a minor aged fifteen years without any evidence/proof of age as no birth certificate or age assessment report was produced in the trial court.
The learned trial magistrate erred in law and in fact by failing to consider and evaluate the appellant’s evidence and witnesses’ testimonies especially the complainant’s father who gave compelling evidence hence arriving at the wrong decision of convicting the appellant.
The learned trial magistrate erred in law and in fact by holding that appellant was guilty of the offence charged yet the prosecution witnesses gave glaring contradictory testimonies, the evidence of the sister and the medical expert evidence, which created reasonable doubt and loopholes in the prosecution case.
The facts of the case were that Dorothy Kemunto Stephen (PW3), the mother to the complaint Z.B a girl aged 15(as per her birth certificate Pexh 5) who has mental disability (Pw1) . on 24.12.21, left PW1 and her twin Sister Suzuki Barongo ( PW2) and accused who was their mason but was not on duty that day while and proceeded to Nyangusu market.
PW2 went by the road side to sell some items leaving accused and PW1and on returning she did not find appellant and PW1. She searched for her and found her in a forest while crying . PW2 called appellant but he ran away. She told PW2 that Josephat had done for her bad things and she showed her vagina. Pw2 saw ’’sperms’’ in her vagina and gave her water to take a bath. PW3 Dorothy Kemunto Stephen took her to Ogembo hospital for treatment, PW4 a clinical officer Agnes Sabira confirmed that PW1 was treated at Ogembo Sub county hospital and on examination it was found that her hymen was broken and had bruises HIV and syphilis tests were negative and epithelia cells were seen . She produced the treatment card Pexh 2,laboratory request form (Pexh 3) Post rape care form(Pexh 4) , P3 form (Pexh 1). The case was investigated by police and PW5 PC James Onyancha took over investigations from the initial investigating over who was transferred from Itumbe police station. The said initial investigating officer found that the appellant defiled complainant a 15 year old girl who was mentally challenged. He was subsequently arrested and charged.
On being placed on his defence , the appellant opted to adduce sworn testimony and he called one witness . Appellant testified as Dw1 and said that he works as a mason and he was framed by PW3 for the charge as he went to the home of the parents of complainant to demand for money. Stephen Ombuna Dw2 is the father to complainant and husband to Pw3 . He said that the appellant did not commit the offence and that the case was framed as his masons and those of PW3 differed over construction work which he and 20 other were doing at his home .
The state conceded to the appeal vide their notice of concession dated 28.8.2025 in which they listed the following grounds ;
The Learned Trial Magistrate to failed to comply with Section 31(1) and 31(2) of the Sexual offences Act .
A. The charge sheet was defective and cited cited the case of IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment)
This is a first appellate court and the duty of this court is to re-evaluate the entire evidence of record and come up with its own conclusion bearing in mind that it neither saw nor heard the Witnesses.
In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record , have meomoraadum of appeal , concession the submissions.
Issues for determination
The issues arising for determination are:
Whether the charge sheet was defective
Whether the trial court erred in failing to comply with
Section 31 (1) and 31 (2) of the Sexual offences Act.
Whether the age of the victim was proved .
Whether the appellant was properly identified.
Whether there was penetration into the vagina of the victim .
Analysis and Determination
On whether the charge sheet was defective , the appellant submitted that the same was defective as the appellant is not a family members of the complainant but has been charged under Section 7 of the Sexual offences Act. Section 7 of the Sexual offences Act provides that ‘’ A person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.
Prosecution conceded to this cited the case of IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment) where it was held that ‘’ The learned trial magistrate in the process of writing the judgment correctly observed at pg 33 line 29-34 continued to pg 34 lines 1-5 as follows:“With regard to whether rape happened within the view of a family member, child or person with mental disability, the burden of proof lies within the prosecution to prove beyond reasonable doubt. This rule was set out in the case of Woolmington v DPP [1935]25 Cr App 1271. From the evidence produced by the prosecution and the witnesses brought to court, none of them were in the room when the incident happened. PW1 heard a scream from the room and ran to it only to find the door closed. When the door was opened, the rape had already taken place. The prosecution could not prove beyond reasonable doubt that the rape happened within the view of the victim’s family or any children thus the second issue was not satisfied. The accused can therefore not be found guilty of an offence under section 7 of the Sexual Offences Act ”
There was no evidence that appellant had blood relations to the complainant and thus I agree that the charge was defective .
On whether the learned trial magistrate failed to comply with Section 31 (1) and (31) (2) of the sexual offences Act, This was the position of the prosecution and appellant .
Section 31 of the Sexual offences Act provides that ‘’ Vulnerable witnesses
A court, in criminal proceedings involving alleged the commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is the alleged victim in the proceedings pending before the court;
a child; or
a person with mental disabilities.
The court may, on its own initiative or on request of the prosecution or any witness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable witness if in the court''s opinion he or she is likely to be vulnerable on account of— age;
intellectual, psychological or physical impairment;
trauma;
cultural differences;
the possibility of intimidation;
race;
religion;
language;
the relationship of the witness to any party to the proceedings;
the nature of the subject matter of the evidence; or (k) any other factor the court considers relevant.
The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness.
The cited IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment) case is distinguishable from the instant case on the issue of Section 31 of the sexual offences Act as the victim in that case was not called as a witness while in the current case , the victim testified at PW1 after the Learned Trial Magistrate conducted a Voire dire examination and found that she was fit to testify . In the case of David Ndumba v Republic , the Court of Appeal at Nyeri in Criminal Appeal No. 272 of 2012 [2013] eKLR considered the competency of a mental patient and held as follows:15.“Mr. Kariuki urged us to find that the evidence adduced by F was not credible by virtue of the fact that she was a medical patient and no voire dire was conducted by the trial court to establish the competency as a witness”. Section 125 of the Evidence Act provides: -125(1)All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extreme old age, disease (whether body of mind) or any similar cause.(2)A mentally disordered person or lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them”.
I have seen the testimony of the complainant herein, the learned trial magistrate examined her and found that she was fit to adduce unsworn testimony . I have perused her testimony find that she was able to testify coherently on the matter before court even though no medical report was filed to ascertain her mental status . She thus did not need an intermediary as suggested by prosecution as she was able to speak for herself .
In the upshot I allow the appeal for the reason that the charge sheet was defective and I proceed to quash the conviction and sentence .
On whether this court should order a retrial order a retrial in the case of Bernard Lolimo Ekimat vs. Republic it was held that ‘’
Criminal Appeal No. 151 of 2004 (unreported) had the following to say:-
There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to courts is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made whereinterests of justice require it.”
I have carefully perused the record herein and I find that it is in the interest of justice that I order a retrial in this case.
Mention before Chief Magistrate Ogembo law courts on 30.10.25 for fresh plea and re-allocation .
T.A ODERA
JUDGE
13.10.25
Delivered Virtually on this 13 th Day of October 2025 in the presence of :
Appellant. Mr Magara for applicant . Mr Koima for the state and Court Assistant . Mr Kipchirchir
'
(Being an appeal from the Judgment in Principal Magistrate’s Court Sexual Offence number E138 of 2021 delivered by the Hon. Sindani R.M. Ogembo dated the 7 th day of August, 2024)
The appellant was charged with the offence of defilement of a person With mental disability Contrary to Section 7 of the Sexual offences Act .
He also faced an alternative charge of indecent Act with a child contrary to section 11 of the sexual offencens Act.
He was convicted on the main charge and sentenced to serve 10 years imprisonment .
He subsequently moved this court on appeal on the following grounds :
fact and law by failing to properly evaluate and analyse the evidence on record thus arriving at erroneous decision of convicting the appellant on a case whose evidence did not meet the legal threshold of “ proof beyond reasonable doubt” as required in law.
The learned trial magistrate erred in law and in fact by holding that the complainant was a person with mental disability without the evidence of a medical expert, a psychiatrist in this case, in absence of which it was impossible to classify her as such thus making the conviction and sentence unsafe and unlawful.
The learned trial magistrate erred in law and in fact by holding that complainant was a minor aged fifteen years without any evidence/proof of age as no birth certificate or age assessment report was produced in the trial court.
The learned trial magistrate erred in law and in fact by failing to consider and evaluate the appellant’s evidence and witnesses’ testimonies especially the complainant’s father who gave compelling evidence hence arriving at the wrong decision of convicting the appellant.
The learned trial magistrate erred in law and in fact by holding that appellant was guilty of the offence charged yet the prosecution witnesses gave glaring contradictory testimonies, the evidence of the sister and the medical expert evidence, which created reasonable doubt and loopholes in the prosecution case.
The facts of the case were that Dorothy Kemunto Stephen (PW3), the mother to the complaint Z.B a girl aged 15(as per her birth certificate Pexh 5) who has mental disability (Pw1) . on 24.12.21, left PW1 and her twin Sister Suzuki Barongo ( PW2) and accused who was their mason but was not on duty that day while and proceeded to Nyangusu market.
PW2 went by the road side to sell some items leaving accused and PW1and on returning she did not find appellant and PW1. She searched for her and found her in a forest while crying . PW2 called appellant but he ran away. She told PW2 that Josephat had done for her bad things and she showed her vagina. Pw2 saw ’’sperms’’ in her vagina and gave her water to take a bath. PW3 Dorothy Kemunto Stephen took her to Ogembo hospital for treatment, PW4 a clinical officer Agnes Sabira confirmed that PW1 was treated at Ogembo Sub county hospital and on examination it was found that her hymen was broken and had bruises HIV and syphilis tests were negative and epithelia cells were seen . She produced the treatment card Pexh 2,laboratory request form (Pexh 3) Post rape care form(Pexh 4) , P3 form (Pexh 1). The case was investigated by police and PW5 PC James Onyancha took over investigations from the initial investigating over who was transferred from Itumbe police station. The said initial investigating officer found that the appellant defiled complainant a 15 year old girl who was mentally challenged. He was subsequently arrested and charged.
On being placed on his defence , the appellant opted to adduce sworn testimony and he called one witness . Appellant testified as Dw1 and said that he works as a mason and he was framed by PW3 for the charge as he went to the home of the parents of complainant to demand for money. Stephen Ombuna Dw2 is the father to complainant and husband to Pw3 . He said that the appellant did not commit the offence and that the case was framed as his masons and those of PW3 differed over construction work which he and 20 other were doing at his home .
The state conceded to the appeal vide their notice of concession dated 28.8.2025 in which they listed the following grounds ;
The Learned Trial Magistrate to failed to comply with Section 31(1) and 31(2) of the Sexual offences Act .
A. The charge sheet was defective and cited cited the case of IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment)
This is a first appellate court and the duty of this court is to re-evaluate the entire evidence of record and come up with its own conclusion bearing in mind that it neither saw nor heard the Witnesses.
In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record , have meomoraadum of appeal , concession the submissions.
Issues for determination
The issues arising for determination are:
Whether the charge sheet was defective
Whether the trial court erred in failing to comply with
Section 31 (1) and 31 (2) of the Sexual offences Act.
Whether the age of the victim was proved .
Whether the appellant was properly identified.
Whether there was penetration into the vagina of the victim .
Analysis and Determination
On whether the charge sheet was defective , the appellant submitted that the same was defective as the appellant is not a family members of the complainant but has been charged under Section 7 of the Sexual offences Act. Section 7 of the Sexual offences Act provides that ‘’ A person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.
Prosecution conceded to this cited the case of IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment) where it was held that ‘’ The learned trial magistrate in the process of writing the judgment correctly observed at pg 33 line 29-34 continued to pg 34 lines 1-5 as follows:“With regard to whether rape happened within the view of a family member, child or person with mental disability, the burden of proof lies within the prosecution to prove beyond reasonable doubt. This rule was set out in the case of Woolmington v DPP [1935]25 Cr App 1271. From the evidence produced by the prosecution and the witnesses brought to court, none of them were in the room when the incident happened. PW1 heard a scream from the room and ran to it only to find the door closed. When the door was opened, the rape had already taken place. The prosecution could not prove beyond reasonable doubt that the rape happened within the view of the victim’s family or any children thus the second issue was not satisfied. The accused can therefore not be found guilty of an offence under section 7 of the Sexual Offences Act ”
There was no evidence that appellant had blood relations to the complainant and thus I agree that the charge was defective .
On whether the learned trial magistrate failed to comply with Section 31 (1) and (31) (2) of the sexual offences Act, This was the position of the prosecution and appellant .
Section 31 of the Sexual offences Act provides that ‘’ Vulnerable witnesses
A court, in criminal proceedings involving alleged the commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is the alleged victim in the proceedings pending before the court;
a child; or
a person with mental disabilities.
The court may, on its own initiative or on request of the prosecution or any witness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable witness if in the court''s opinion he or she is likely to be vulnerable on account of— age;
intellectual, psychological or physical impairment;
trauma;
cultural differences;
the possibility of intimidation;
race;
religion;
language;
the relationship of the witness to any party to the proceedings;
the nature of the subject matter of the evidence; or (k) any other factor the court considers relevant.
The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness.
The cited IOO v Republic (Criminal Appeal E001 of 2023) [2024] KEHC 1974 (KLR) (1 March 2024) (Judgment) case is distinguishable from the instant case on the issue of Section 31 of the sexual offences Act as the victim in that case was not called as a witness while in the current case , the victim testified at PW1 after the Learned Trial Magistrate conducted a Voire dire examination and found that she was fit to testify . In the case of David Ndumba v Republic , the Court of Appeal at Nyeri in Criminal Appeal No. 272 of 2012 [2013] eKLR considered the competency of a mental patient and held as follows:15.“Mr. Kariuki urged us to find that the evidence adduced by F was not credible by virtue of the fact that she was a medical patient and no voire dire was conducted by the trial court to establish the competency as a witness”. Section 125 of the Evidence Act provides: -125(1)All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extreme old age, disease (whether body of mind) or any similar cause.(2)A mentally disordered person or lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them”.
I have seen the testimony of the complainant herein, the learned trial magistrate examined her and found that she was fit to adduce unsworn testimony . I have perused her testimony find that she was able to testify coherently on the matter before court even though no medical report was filed to ascertain her mental status . She thus did not need an intermediary as suggested by prosecution as she was able to speak for herself .
In the upshot I allow the appeal for the reason that the charge sheet was defective and I proceed to quash the conviction and sentence .
On whether this court should order a retrial order a retrial in the case of Bernard Lolimo Ekimat vs. Republic it was held that ‘’
Criminal Appeal No. 151 of 2004 (unreported) had the following to say:-
There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to courts is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made whereinterests of justice require it.”
I have carefully perused the record herein and I find that it is in the interest of justice that I order a retrial in this case.
Mention before Chief Magistrate Ogembo law courts on 30.10.25 for fresh plea and re-allocation .
T.A ODERA
JUDGE
13.10.25
Delivered Virtually on this 13 th Day of October 2025 in the presence of :
Appellant. Mr Magara for applicant . Mr Koima for the state and Court Assistant . Mr Kipchirchir
'