The appellant was charged with the offence of defilement contrary to Section 8(1)(3) as read with subsection (4) of the Sexual Offences Act. The particulars of the charge were that on the diverse dates between February, 2023 to August, 2023 at Kaya Village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of E.H.N a child aged 13 years.
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between February, 2023 to August, 2023 at Kaya Village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to touch the vagina of E.H.N a child aged 13 years.
The appellant was tried before the Chief Magistrate’s Court at Malindi and vide a judgment delivered on 14 th July, 2025 he was found guilty and accordingly convicted and subsequently sentenced to serve twenty years imprisonment.
Aggrieved by the conviction and sentence of the trial court the appellant preferred this appeal. In an amended ground of appeal, the appellant raised five grounds to wit:
1. That the learned trial magistrate erred in and facts by upholding the conviction failing to consider that the charge sheets as laid before the court was incurably defective contrary to Section 134 and 137 of the Criminal Procedure Code;
2. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that voire dire examination was not conducted properly to the minor contrary to Section 19(1) of the Oaths and Statutory Declaration Act hence the resultant trial was a nullity;
3. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that Section 200(4) of the Criminal Procedure Code was not complied with;
4. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that the prosecution witnesses brought a lot of contradiction and inconsistencies; and
5. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider the time spent in pre-trial custody was accorded to contrary to section 333(2) of the Criminal Procedure Code.
Briefly the prosecution case was that PW1 who said she was aged 13 years was staying at the appellant’s home where she had been called by the appellant’s wife to stay with her children as she was working in Mtwapa. She said she was in class seven. She told the trial court that the appellant’s wife told her to help her while she takes her to school. During the time she was staying at the appellant’s home she had her periods and the appellant gave her money to buy pads (always). She also had her next period and told the appellant to buy her pads which he did. The appellant later told her that she has to pay for the pads he was buying for her. When she enquired how she will pay him he told her that she should have sex with him which they did. She told the trial court that they used to have sex with the appellant for almost a year which will happen during the night. She later realized that she was pregnant. When she told the appellant he told her that he will take care of the child when she gives birth. She stopped going to school. When a ‘nyumba kumi’ elder asked her why she was not going to school she told her that she was pregnant and that the appellant was responsible. The ‘Nyumba Kumi’ elder informed the area sub chief whom she explained what had happened to her. together with the appellant they were taken to police station and the appellant accepted having had relationship with her. She gave birth on 18 th November, 2023.
PW2 the father of the complainant testified that he was working in Lamu when he was called by the area Sub Chief who told him that her daughter was pregnant. He travelled home and when he enquired from the complainant she told her that the appellant was responsible for the pregnancy. He talked with the appellant who was a neighbour and he agreed that he got the complainant pregnant.
PW3 Dr. Moses Rimba of Malindi Sub County hospital testified that the complainant was taken to Marafa hospital with history of being pregnant after having sexual relationship with a man known to her. she narrated that she had relationship with the said man from March, 2022. After examination she was found to be pregnant. He produced medical documents in respect of the treatment and examination done to the complainant.
PW4 Shadrack Kahindi Kazungu the area Sub Chief testified that he was informed of children who had dropped out of school because of pregnancy. He went round and found the complainant one of the girls who were said to be pregnant. On inquiry he was informed that the complainant was staying with at the appellant’s home. When he asked the complainant why she was not in school she told her that she was pregnant and the appellant was responsible. He reported the matter to the police and the complainant was rescued.
PW5 P.C Beth Kagendo of Marafa police station investigated that case. She said the complainant together with the appellant were brought to the police station by the Assistant Chief. The Assistant Chief informed her that the complainant had been rescued from an early marriage. At the time the complainant was aged 13 years and she was pregnant. On interrogation the complainant told her that she had been requested by a neighbour by the name Joyce the appellant’s wife to help her look at her children as she was working in Mombasa. The arrangement was that the appellant would meet her education expenses which the complainant agreed. Later on, the appellant started engaging in sexual intercourse with the complainant. This went on until the complainant became pregnant. The complainant was sent for medical examination. After examination the appellant was arrested and charged.
PW6 Mwanduni Omar of Government Chemist in Mombasa collected samples from the complainant, appellant and the child born by the complainant. Upon analysis of the same he made a finding that the appellant was 99.99% the father of the child. He produced the DNA report as an exhibit. In cross-examination he told the court that the initial sample he collected from the appellant was not viable prompting him to collect a fresh sample from the appellant. He said the appellant was presented to him for the collection of the sample. He maintained that the findings indicated that the appellant was the biological father of the child born by the complainant.
The appellant was placed on his defence by the trial court. He gave a sworn statement. He said that he was working in Garissa where he had gone on 1 st January, 2021. Later in 2022 he received a call from his wife who told her that she had employed the complainant as a maid and in return she would pay her school fees. Later in March, 2023 it was discovered that the complainant was pregnant. He said when he returned home in 2023 he found that indeed the complainant was pregnant. He was summoned by the Assistant Chief to the police station. At the police station the complainant alleged that he is the one who had impregnated her. he denied committing the offence. In cross-examination he maintained that he was framed by the complainant because of a dispute he had with the complainant’s elder brother. He said he was away in Garissa during the period he is alleged to have committed the offence.
The trial court after considering the prosecution case, the defence case and the appellant’s submissions found that the prosecution proved the case against the appellant as required and convicted him.
The appellant in his submissions attacked the charge sheet of being defective. He cited Section 134 and 137 of the Criminal Procedure Code on the framing of the charge. He submitted that both the main charge and the alternative charge were defective in the sense that the same were too general in terms of the time of the alleged offence. His grievance is that the charge sheet talked of the offence being committed on diverse dates hence it was not specific and as such it prejudiced the appellant as it did not define the specific time when the offence was committed so as to allow the appellant prepare his defence.
He further submitted that the voire dire examination was not conducted to the standard required under Section 19(1) of the Oaths and Statutory Declaration Act thus it was difficult to determine whether the complainant who was a minor was intelligence to tell the truth and whether she understood the meaning of giving evidence on oath. He cited the case of John Muiruri vs R (1983) KLR 445. He further cited the case of RMM vs Republic (2019) e KLR.
The appellant further submitted that Section 200(4) of the Criminal Procedure Code was not complied with following the taking over of the case by Hon. J. S Wesonga SRM from Onalo J.K SRM. He submitted that the former magistrate recorded the evidence of two witnesses but when the trial magistrate who rendered the judgment took over the matter failed to comply with Section 200 of the Criminal Procedure Code thus prejudicing the appellant’s right to fair trial.
The appellant further submitted that the trial court failed to take into consideration the period he was in custody contrary to Section 333(2) of the Criminal Procedure Code. He submitted that since the appellant was arrested on 8 th August, 2023 up to 14 th July, 2025 when he was granted bond he was still in custody and the trial court failed to consider the said period when sentencing the appellant.
The appellant further alluded to contradictions and inconsistencies in the prosecution witnesses’ evidence. He cited the evidence of PW1 who said that which he submitted did not disclose the date and time when she was told by the appellant’s wife to remain with the children. He further cited the contradiction as to the age of the complainant. He submitted that the complainant age was contradictory in the sense that it was not clear whether she was aged 17 years or 15 years or 13 years.
The respondent in response to the defect in the charge sheet submitted that the charge sheet was clear on the offence he was charged with and the appellant was informed of the particulars of the charge. It is the submission of the respondent that the complainant was clear that he was defiled by the appellant on diverse dates. As such the charge sheet presented was sufficient to enable the appellant know the offence he was facing and to sufficiently prepare his defence. It is the position of the respondent that the complainant was a child of tender age and could not be expected to recall the dates of the alleged defilement with precision. Reliance was placed on the case of ASK vs Republic Criminal Appeal No. 59 of 2021 (2023) KECA 719 where the court emphasized that the discrepancies in dates was not sufficient to ground for quashing a conviction noting that the use of diverse dates in the charge sheet does not connote that the offence was committed on either of the dates outlined in the charges sheet or on all the dates outlined therein but the consideration is whether the charge sheet gave information as to the nature of the offence, charges and whether the appellant was prejudiced or the same occasioned miscarriage of justice.
On assertion that voire dire examination was not conducted when the complainant was 13 years old, it is conceded by the respondent that no voire dire examination was conducted. However, failure to conduct voire dire examination did not render the trial a nullity nor caused prejudice to the appellant. It is submitted that in the present case there was material evidence in the nature of DNA report which provided evidence linking the appellant with the offence. Reliance was placed on the case of Maripett Loonkomok vs Republic (2015) e KLR where the court held that the evidence of the child was corroborated by the DNA report and was therefore credible and consistent and thus lack of voire dire examination did not prejudice the appellant. Further reliance was placed on the case of Kisevelo Mboloi vs Republic (2013) e KLR where the court held that in instances where voire dire examination is not conducted and there is sufficient independent evidence to support the charge, the court is entitled to uphold the conviction.
On appellant’s assertion that Section 200(4) of the Criminal Procedure Code was not complied with. It is submitted that this was duly complied with by the succeeding magistrate as the record clearly shows the same.
On contradictions and inconsistencies, it is submitted that the prosecution’s case was corroborated by independent evidence in the form of DNA linking the appellant with the offence hence the discrepancies as to the date of the offence was committed was immaterial.
On failure to consider the period the appellant was in pre-trial custody, it is submitted that the trial magistrate fully complied with Section 333(2) of the Criminal Procedure Code as discerned from the record.
I have considered the grounds of appeal, the evidence adduced by the prosecution and the defence case as well as the submissions by both sides. It is trite that this being the first appeal, the court is expected to re-evaluate and reconsider the evidence adduced before the trial court and make its own independent decision cautiously noting that it did not have the opportunity to hear and see the witnesses testify before the trial court. This position has been restated in numerous authorities. In the case of Kiilu & Another vs Republic (2005)1 KLR the Court of Appeal rendered itself thus:
“An Appellant on 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. 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’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has the advantage of hearing and seeing the witnesses.”
Further to the foregoing, it must be born in mind that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This cardinal principle of criminal law has been laid down in numerous authorities. For instance, in the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution’s duty to prove its case and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1953) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan law.”
In the instant case the appellant was charged and convicted with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than twenty years.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 in considering what the prosecution must prove in a case of defilement stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
Thus, from the foregoing the essential ingredients of the offence of defilement are the age of the victim, proof of penetration and identification of the perpetrator.
Before I consider whether the prosecution established the aforesaid ingredients it is critical that I consider preliminary issues raised by the appellant.
The first preliminary issue raised by the appellant is that the charge sheet was defective in that it was too general in terms of the time when the offence was committed. The appellant cited Sections 134 and 137 of the Criminal Procedure Code. Section 134 of the Criminal Procedure Code provides:
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
Section 137(f) of the Criminal Procedure Code provides:
“Subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in the charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”
The argument by the appellant is that the charge sheet on both the main charge and the alternative charge referred to diverse dates when the offence was committed and as such he was prejudiced in preparation of his defence as to the time the offence was committed.
The respondent on the other hand submitted that the charge as drafted was clear and the use of the word diverse did not at all prejudice the appellant as it is permissible for the use of the words “diverse dates” if the offence is of a continuous in nature or occurs over a period of time as was the case in the current scenario. Reliance was placed in the case of A.S.K vs Republic Criminal Appeal No. 59 of 2021 (2023) KEHC 719 (KLR) where the court held that discrepancies in dates is not enough to quash a conviction.
In this case much as the charge sheet indicated that the offence was committed on diverse dates, the most critical aspect of consideration is whether the appellant was prejudiced or embarrassed in preparation of his defence. I am of the opinion that the narrative in the charge sheet was sufficient and the appellant cannot say he was embarrassed or prejudiced in any way. I find this ground unmerited.
The second preliminary issue raised by the appellant is that voire dire examination was not conducted contrary to the provision of Section 19(1) of the Oaths and Statutory Declaration Act. Section 19(1) of the said Act provides:
“19(1) 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 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 on 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 understand 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.”
The essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath, whether the child is possessed of sufficient intelligence to testify under oath and whether the child understands the duty of speaking the truth. For the court to be informed on whether voire dire examination should be conducted, it must first determine whether the child is of tender years. Once the court determines that the child is of tender years, it is obligated to conduct voire dire examination as required under Section 19(1) of the Oaths and Statutory Declaration Act. The question is who is a child of tender years. A child of tender years is defined in Section 2 of the Children Act, 2022 to mean a child under the age of ten years. However, various decisions of court have maintained a higher threshold of fourteen years and not ten years whose evidence must be subjected to voire dire examination. This was the case in the case of Kibageny Arap Korir vs Republic (1959) E.A 92 where the Court of Appeal of Eastern Africa in determining the issue held that child of tender years means child under the age of fourteen years.
In the instant case, the complainant is indicated to have been thirteen years in the charge sheet. However, when she was called to give evidence the court prosecutor indicated that the complainant had said she was fifteen years. The court made an observation that the complainant looked older than thirteen years indicated in the charge sheet. The birth certificate produced in court showed that the complainant was born on 9 th October, 2010. The offence is alleged to have been committed on diverse dates between February, 2023 and August, 2023. Going by the birth certificate which has been held in many decisions to be proof of age, the complainant was aged thirteen years and five months. As such the complainant was a child of tender years as she was below fourteen years. Consequently, the trial court ought to have conducted voire dire examination as required under Section 19 of the Oaths and Statutory Declaration Act and Evidence Act.
The respondent argued that much as voire dire examination was never conducted, the complainant evidence was supported by independent evidence in the form of DNA report produced in court to link the appellant with the offence. Reliance was placed on the case of Maripett Loonkomok vs Republic (2015) e KLR.
Having considered the arguments by both the appellant and the respondent in regard to whether the evidence of the complainant should have been received after conducting voire dire examination, much as the trial court did not conduct voire dire examination, I am persuaded by the argument by the respondent that there was independent evidence to link the appellant with the offence in the nature of the DNA. In my view failure to conduct voire dire examination did not render the trial a nullity.
The other issue raised by the appellant is that Section 200 of the Criminal Procedure Code was not complied with. Section 200 of the Criminal Procedure Code outlines the legal procedure when a magistrate is replaced mid-trial. It mandates the succeeding magistrate to inform the accused of his right to either recall the witnesses who had testified before the previous magistrate to give evidence afresh or for cross-examination or to proceed with the evidence recorded by the previous magistrate.
The record shows that four witnesses testified before Hon. Onalo J.K Olga SRM before the matter was taken over by Hon. J.S Wesonga SPM. The record shows that the appellant was informed of his rights under Section 200 of the Criminal Procedure Code. This is what the succeeding magistrate recorded in the proceedings:
Court- The accused is informed of his rights to recall any witness to be reheard as provided for under Section 200(3) of the Criminal Procedure Code.
Accused- I will proceed from where the matter had reached.
Court= Section 200(3) of the Criminal Procedure Code complied with to proceed from where it reached on 7/10/2024.
From the foregoing it is not true as alleged by the appellant that Section 200 of the Criminal Procedure Code was not complied with. I find the ground that there was no compliance with the said section unmerited.
Having stated the foregoing, the question is whether the prosecution proved the charges as required. As indicated in this judgment, the first essential ingredient to be proved by the prosecution is the age of the complainant. The prosecution produced birth certificate showing that the complainant was born on 9 th October, 2010. The offence is alleged to have been committed on diverse dates between February and August, 2023. The charge sheet indicated the age of the complainant as thirteen years. It is therefore clear that the age of the complainant was proved as required.
On the element of penetration, the complainant testified that the appellant had sexual intercourse with her on various dates resulting to pregnancy. The complainant evidence is corroborated by the evidence of PW3 the medical doctor who examined her and found that she was pregnant. Further DNA test results showed that the appellant was the biological father of the child born by the complainant. All this points out that the appellant penetrated the complainant resulting to pregnancy hence the element of penetration was proved.
On positive identification of the appellant as the perpetrator, there was ample evidence that the complainant was living with the appellant and as such chances of mistaken identity are very remote.
The appellant alleged that there were contradictions and inconsistencies in the prosecution case. The contradictions he referred to is in relation to the evidence adduced as to the age of the complainant whether she was 13 or 15 or 17 years. This may sound contradictory but looked at the entire evidence adduced by the prosecution they are minor contradictions which do not go to the root of the prosecution case. The same did not affect the evidence that the complainant was aged 13 years and that she was defiled because the evidence adduced was corroborative.
On failure to comply with Section 333(2) of the Criminal Procedure Code, the record is clear that the sentence was to run from 8 th August, 2023 when the appellant was arrested hence that ground of appeal must fail.
The upshot of the foregoing is that the appeal lacks merit and the same is dismissed and the finding of the trial court is upheld.
Dated, signed and delivered virtually this 15 th day of July, 2026
F.N Kyambia
Judge.
2
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between February, 2023 to August, 2023 at Kaya Village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to touch the vagina of E.H.N a child aged 13 years.
The appellant was tried before the Chief Magistrate’s Court at Malindi and vide a judgment delivered on 14 th July, 2025 he was found guilty and accordingly convicted and subsequently sentenced to serve twenty years imprisonment.
Aggrieved by the conviction and sentence of the trial court the appellant preferred this appeal. In an amended ground of appeal, the appellant raised five grounds to wit:
1. That the learned trial magistrate erred in and facts by upholding the conviction failing to consider that the charge sheets as laid before the court was incurably defective contrary to Section 134 and 137 of the Criminal Procedure Code;
2. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that voire dire examination was not conducted properly to the minor contrary to Section 19(1) of the Oaths and Statutory Declaration Act hence the resultant trial was a nullity;
3. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that Section 200(4) of the Criminal Procedure Code was not complied with;
4. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that the prosecution witnesses brought a lot of contradiction and inconsistencies; and
5. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider the time spent in pre-trial custody was accorded to contrary to section 333(2) of the Criminal Procedure Code.
Briefly the prosecution case was that PW1 who said she was aged 13 years was staying at the appellant’s home where she had been called by the appellant’s wife to stay with her children as she was working in Mtwapa. She said she was in class seven. She told the trial court that the appellant’s wife told her to help her while she takes her to school. During the time she was staying at the appellant’s home she had her periods and the appellant gave her money to buy pads (always). She also had her next period and told the appellant to buy her pads which he did. The appellant later told her that she has to pay for the pads he was buying for her. When she enquired how she will pay him he told her that she should have sex with him which they did. She told the trial court that they used to have sex with the appellant for almost a year which will happen during the night. She later realized that she was pregnant. When she told the appellant he told her that he will take care of the child when she gives birth. She stopped going to school. When a ‘nyumba kumi’ elder asked her why she was not going to school she told her that she was pregnant and that the appellant was responsible. The ‘Nyumba Kumi’ elder informed the area sub chief whom she explained what had happened to her. together with the appellant they were taken to police station and the appellant accepted having had relationship with her. She gave birth on 18 th November, 2023.
PW2 the father of the complainant testified that he was working in Lamu when he was called by the area Sub Chief who told him that her daughter was pregnant. He travelled home and when he enquired from the complainant she told her that the appellant was responsible for the pregnancy. He talked with the appellant who was a neighbour and he agreed that he got the complainant pregnant.
PW3 Dr. Moses Rimba of Malindi Sub County hospital testified that the complainant was taken to Marafa hospital with history of being pregnant after having sexual relationship with a man known to her. she narrated that she had relationship with the said man from March, 2022. After examination she was found to be pregnant. He produced medical documents in respect of the treatment and examination done to the complainant.
PW4 Shadrack Kahindi Kazungu the area Sub Chief testified that he was informed of children who had dropped out of school because of pregnancy. He went round and found the complainant one of the girls who were said to be pregnant. On inquiry he was informed that the complainant was staying with at the appellant’s home. When he asked the complainant why she was not in school she told her that she was pregnant and the appellant was responsible. He reported the matter to the police and the complainant was rescued.
PW5 P.C Beth Kagendo of Marafa police station investigated that case. She said the complainant together with the appellant were brought to the police station by the Assistant Chief. The Assistant Chief informed her that the complainant had been rescued from an early marriage. At the time the complainant was aged 13 years and she was pregnant. On interrogation the complainant told her that she had been requested by a neighbour by the name Joyce the appellant’s wife to help her look at her children as she was working in Mombasa. The arrangement was that the appellant would meet her education expenses which the complainant agreed. Later on, the appellant started engaging in sexual intercourse with the complainant. This went on until the complainant became pregnant. The complainant was sent for medical examination. After examination the appellant was arrested and charged.
PW6 Mwanduni Omar of Government Chemist in Mombasa collected samples from the complainant, appellant and the child born by the complainant. Upon analysis of the same he made a finding that the appellant was 99.99% the father of the child. He produced the DNA report as an exhibit. In cross-examination he told the court that the initial sample he collected from the appellant was not viable prompting him to collect a fresh sample from the appellant. He said the appellant was presented to him for the collection of the sample. He maintained that the findings indicated that the appellant was the biological father of the child born by the complainant.
The appellant was placed on his defence by the trial court. He gave a sworn statement. He said that he was working in Garissa where he had gone on 1 st January, 2021. Later in 2022 he received a call from his wife who told her that she had employed the complainant as a maid and in return she would pay her school fees. Later in March, 2023 it was discovered that the complainant was pregnant. He said when he returned home in 2023 he found that indeed the complainant was pregnant. He was summoned by the Assistant Chief to the police station. At the police station the complainant alleged that he is the one who had impregnated her. he denied committing the offence. In cross-examination he maintained that he was framed by the complainant because of a dispute he had with the complainant’s elder brother. He said he was away in Garissa during the period he is alleged to have committed the offence.
The trial court after considering the prosecution case, the defence case and the appellant’s submissions found that the prosecution proved the case against the appellant as required and convicted him.
The appellant in his submissions attacked the charge sheet of being defective. He cited Section 134 and 137 of the Criminal Procedure Code on the framing of the charge. He submitted that both the main charge and the alternative charge were defective in the sense that the same were too general in terms of the time of the alleged offence. His grievance is that the charge sheet talked of the offence being committed on diverse dates hence it was not specific and as such it prejudiced the appellant as it did not define the specific time when the offence was committed so as to allow the appellant prepare his defence.
He further submitted that the voire dire examination was not conducted to the standard required under Section 19(1) of the Oaths and Statutory Declaration Act thus it was difficult to determine whether the complainant who was a minor was intelligence to tell the truth and whether she understood the meaning of giving evidence on oath. He cited the case of John Muiruri vs R (1983) KLR 445. He further cited the case of RMM vs Republic (2019) e KLR.
The appellant further submitted that Section 200(4) of the Criminal Procedure Code was not complied with following the taking over of the case by Hon. J. S Wesonga SRM from Onalo J.K SRM. He submitted that the former magistrate recorded the evidence of two witnesses but when the trial magistrate who rendered the judgment took over the matter failed to comply with Section 200 of the Criminal Procedure Code thus prejudicing the appellant’s right to fair trial.
The appellant further submitted that the trial court failed to take into consideration the period he was in custody contrary to Section 333(2) of the Criminal Procedure Code. He submitted that since the appellant was arrested on 8 th August, 2023 up to 14 th July, 2025 when he was granted bond he was still in custody and the trial court failed to consider the said period when sentencing the appellant.
The appellant further alluded to contradictions and inconsistencies in the prosecution witnesses’ evidence. He cited the evidence of PW1 who said that which he submitted did not disclose the date and time when she was told by the appellant’s wife to remain with the children. He further cited the contradiction as to the age of the complainant. He submitted that the complainant age was contradictory in the sense that it was not clear whether she was aged 17 years or 15 years or 13 years.
The respondent in response to the defect in the charge sheet submitted that the charge sheet was clear on the offence he was charged with and the appellant was informed of the particulars of the charge. It is the submission of the respondent that the complainant was clear that he was defiled by the appellant on diverse dates. As such the charge sheet presented was sufficient to enable the appellant know the offence he was facing and to sufficiently prepare his defence. It is the position of the respondent that the complainant was a child of tender age and could not be expected to recall the dates of the alleged defilement with precision. Reliance was placed on the case of ASK vs Republic Criminal Appeal No. 59 of 2021 (2023) KECA 719 where the court emphasized that the discrepancies in dates was not sufficient to ground for quashing a conviction noting that the use of diverse dates in the charge sheet does not connote that the offence was committed on either of the dates outlined in the charges sheet or on all the dates outlined therein but the consideration is whether the charge sheet gave information as to the nature of the offence, charges and whether the appellant was prejudiced or the same occasioned miscarriage of justice.
On assertion that voire dire examination was not conducted when the complainant was 13 years old, it is conceded by the respondent that no voire dire examination was conducted. However, failure to conduct voire dire examination did not render the trial a nullity nor caused prejudice to the appellant. It is submitted that in the present case there was material evidence in the nature of DNA report which provided evidence linking the appellant with the offence. Reliance was placed on the case of Maripett Loonkomok vs Republic (2015) e KLR where the court held that the evidence of the child was corroborated by the DNA report and was therefore credible and consistent and thus lack of voire dire examination did not prejudice the appellant. Further reliance was placed on the case of Kisevelo Mboloi vs Republic (2013) e KLR where the court held that in instances where voire dire examination is not conducted and there is sufficient independent evidence to support the charge, the court is entitled to uphold the conviction.
On appellant’s assertion that Section 200(4) of the Criminal Procedure Code was not complied with. It is submitted that this was duly complied with by the succeeding magistrate as the record clearly shows the same.
On contradictions and inconsistencies, it is submitted that the prosecution’s case was corroborated by independent evidence in the form of DNA linking the appellant with the offence hence the discrepancies as to the date of the offence was committed was immaterial.
On failure to consider the period the appellant was in pre-trial custody, it is submitted that the trial magistrate fully complied with Section 333(2) of the Criminal Procedure Code as discerned from the record.
I have considered the grounds of appeal, the evidence adduced by the prosecution and the defence case as well as the submissions by both sides. It is trite that this being the first appeal, the court is expected to re-evaluate and reconsider the evidence adduced before the trial court and make its own independent decision cautiously noting that it did not have the opportunity to hear and see the witnesses testify before the trial court. This position has been restated in numerous authorities. In the case of Kiilu & Another vs Republic (2005)1 KLR the Court of Appeal rendered itself thus:
“An Appellant on 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. 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’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has the advantage of hearing and seeing the witnesses.”
Further to the foregoing, it must be born in mind that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This cardinal principle of criminal law has been laid down in numerous authorities. For instance, in the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution’s duty to prove its case and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1953) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan law.”
In the instant case the appellant was charged and convicted with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than twenty years.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 in considering what the prosecution must prove in a case of defilement stated:
“That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
Thus, from the foregoing the essential ingredients of the offence of defilement are the age of the victim, proof of penetration and identification of the perpetrator.
Before I consider whether the prosecution established the aforesaid ingredients it is critical that I consider preliminary issues raised by the appellant.
The first preliminary issue raised by the appellant is that the charge sheet was defective in that it was too general in terms of the time when the offence was committed. The appellant cited Sections 134 and 137 of the Criminal Procedure Code. Section 134 of the Criminal Procedure Code provides:
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
Section 137(f) of the Criminal Procedure Code provides:
“Subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in the charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”
The argument by the appellant is that the charge sheet on both the main charge and the alternative charge referred to diverse dates when the offence was committed and as such he was prejudiced in preparation of his defence as to the time the offence was committed.
The respondent on the other hand submitted that the charge as drafted was clear and the use of the word diverse did not at all prejudice the appellant as it is permissible for the use of the words “diverse dates” if the offence is of a continuous in nature or occurs over a period of time as was the case in the current scenario. Reliance was placed in the case of A.S.K vs Republic Criminal Appeal No. 59 of 2021 (2023) KEHC 719 (KLR) where the court held that discrepancies in dates is not enough to quash a conviction.
In this case much as the charge sheet indicated that the offence was committed on diverse dates, the most critical aspect of consideration is whether the appellant was prejudiced or embarrassed in preparation of his defence. I am of the opinion that the narrative in the charge sheet was sufficient and the appellant cannot say he was embarrassed or prejudiced in any way. I find this ground unmerited.
The second preliminary issue raised by the appellant is that voire dire examination was not conducted contrary to the provision of Section 19(1) of the Oaths and Statutory Declaration Act. Section 19(1) of the said Act provides:
“19(1) 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 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 on 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 understand 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.”
The essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath, whether the child is possessed of sufficient intelligence to testify under oath and whether the child understands the duty of speaking the truth. For the court to be informed on whether voire dire examination should be conducted, it must first determine whether the child is of tender years. Once the court determines that the child is of tender years, it is obligated to conduct voire dire examination as required under Section 19(1) of the Oaths and Statutory Declaration Act. The question is who is a child of tender years. A child of tender years is defined in Section 2 of the Children Act, 2022 to mean a child under the age of ten years. However, various decisions of court have maintained a higher threshold of fourteen years and not ten years whose evidence must be subjected to voire dire examination. This was the case in the case of Kibageny Arap Korir vs Republic (1959) E.A 92 where the Court of Appeal of Eastern Africa in determining the issue held that child of tender years means child under the age of fourteen years.
In the instant case, the complainant is indicated to have been thirteen years in the charge sheet. However, when she was called to give evidence the court prosecutor indicated that the complainant had said she was fifteen years. The court made an observation that the complainant looked older than thirteen years indicated in the charge sheet. The birth certificate produced in court showed that the complainant was born on 9 th October, 2010. The offence is alleged to have been committed on diverse dates between February, 2023 and August, 2023. Going by the birth certificate which has been held in many decisions to be proof of age, the complainant was aged thirteen years and five months. As such the complainant was a child of tender years as she was below fourteen years. Consequently, the trial court ought to have conducted voire dire examination as required under Section 19 of the Oaths and Statutory Declaration Act and Evidence Act.
The respondent argued that much as voire dire examination was never conducted, the complainant evidence was supported by independent evidence in the form of DNA report produced in court to link the appellant with the offence. Reliance was placed on the case of Maripett Loonkomok vs Republic (2015) e KLR.
Having considered the arguments by both the appellant and the respondent in regard to whether the evidence of the complainant should have been received after conducting voire dire examination, much as the trial court did not conduct voire dire examination, I am persuaded by the argument by the respondent that there was independent evidence to link the appellant with the offence in the nature of the DNA. In my view failure to conduct voire dire examination did not render the trial a nullity.
The other issue raised by the appellant is that Section 200 of the Criminal Procedure Code was not complied with. Section 200 of the Criminal Procedure Code outlines the legal procedure when a magistrate is replaced mid-trial. It mandates the succeeding magistrate to inform the accused of his right to either recall the witnesses who had testified before the previous magistrate to give evidence afresh or for cross-examination or to proceed with the evidence recorded by the previous magistrate.
The record shows that four witnesses testified before Hon. Onalo J.K Olga SRM before the matter was taken over by Hon. J.S Wesonga SPM. The record shows that the appellant was informed of his rights under Section 200 of the Criminal Procedure Code. This is what the succeeding magistrate recorded in the proceedings:
Court- The accused is informed of his rights to recall any witness to be reheard as provided for under Section 200(3) of the Criminal Procedure Code.
Accused- I will proceed from where the matter had reached.
Court= Section 200(3) of the Criminal Procedure Code complied with to proceed from where it reached on 7/10/2024.
From the foregoing it is not true as alleged by the appellant that Section 200 of the Criminal Procedure Code was not complied with. I find the ground that there was no compliance with the said section unmerited.
Having stated the foregoing, the question is whether the prosecution proved the charges as required. As indicated in this judgment, the first essential ingredient to be proved by the prosecution is the age of the complainant. The prosecution produced birth certificate showing that the complainant was born on 9 th October, 2010. The offence is alleged to have been committed on diverse dates between February and August, 2023. The charge sheet indicated the age of the complainant as thirteen years. It is therefore clear that the age of the complainant was proved as required.
On the element of penetration, the complainant testified that the appellant had sexual intercourse with her on various dates resulting to pregnancy. The complainant evidence is corroborated by the evidence of PW3 the medical doctor who examined her and found that she was pregnant. Further DNA test results showed that the appellant was the biological father of the child born by the complainant. All this points out that the appellant penetrated the complainant resulting to pregnancy hence the element of penetration was proved.
On positive identification of the appellant as the perpetrator, there was ample evidence that the complainant was living with the appellant and as such chances of mistaken identity are very remote.
The appellant alleged that there were contradictions and inconsistencies in the prosecution case. The contradictions he referred to is in relation to the evidence adduced as to the age of the complainant whether she was 13 or 15 or 17 years. This may sound contradictory but looked at the entire evidence adduced by the prosecution they are minor contradictions which do not go to the root of the prosecution case. The same did not affect the evidence that the complainant was aged 13 years and that she was defiled because the evidence adduced was corroborative.
On failure to comply with Section 333(2) of the Criminal Procedure Code, the record is clear that the sentence was to run from 8 th August, 2023 when the appellant was arrested hence that ground of appeal must fail.
The upshot of the foregoing is that the appeal lacks merit and the same is dismissed and the finding of the trial court is upheld.
Dated, signed and delivered virtually this 15 th day of July, 2026
F.N Kyambia
Judge.
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