(Being an appeal from the conviction and sentence of Hon. Betty Koech, SRM in Kwale Magistrates Court Criminal Case No. 727 of 2012 delivered on 12/6/2018)
J U D G M E N T
1. The appellant, Kalimbo Nyawa Ngondo, was convicted of the offence of defilement of a girl contrary to section 8(1) as read with sub-section 3 of the Sexual Offences Act (Cap. 63A) (SoA) Laws of Kenya. The particulars of offence were that on 11/5/2012 at Mbandi village of Kinango district in Kwale County within Coast region he unlawfully and intentionally caused penetration of his genital organ (penis) to the genital organ (vagina) of A.S. a girl aged 14 years
2. In the alternative, he was charged with committing an indecent act with a child act contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he committed an indecent act with A.S. a girl aged 14 years by touching her genital organ (vagina) and breasts.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his amended grounds of appeal: -
a. The learned trial magistrate erred in the points of law and fact by imposing a 20-years term of imprisonment when the prosecution had failed to prove all the ingredients of the charge of defilement.
b. The learned trial magistrate erred in the points of law and fact by failing to observe that the prosecution side failed to prove its case beyond a reasonable doubt.
c. The learned trial magistrate erred in the points of law and fact by relying on unreliable evidence by prosecution witnesses full of contradictions and inconsistencies.
d. The learned trial magistrate erred in points of law by failing to exercise discretion in the case.
5. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
6. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
7. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called two witnesses.
8. PW 1, A.M. was the complainant. PW 2, S.M.J. was the complainant’s mother. PW 3, Moses Kasyoki Mutuku was a clinical officer at Kinango district hospital. PW 4, PC Jenniffer Oluoch gave evidence on behalf of the investigating officer who was said to have gone on maternity leave.
9. DW 1, Kalimbo Nyawa was the appellant. DW 2, Nyamvula Bongo was the appellant’s wife. DW 3, Matunguo Kanza was the appellant’s friend.
10. The prosecution’s case was that PW 1, the complainant, a school girl in class 7 at the time aged 14 years was walking alone from school going home at around 6.00 p.m. At the river, she saw a stranger behind her. The person ordered her to wait for him. Since the person was unknown to her, she started running. She was carrying a school bag. The person ran after her. She tripped and fell. The stranger went to her and held her, pinning her to the ground. He lifted her skirt and tore her panties. The complainant screamed and the person warned that he could kill her as he held a knife to her. He unzipped and dropped his trousers and engaged in sexual intercourse with the complainant. He left after he had finished.
11. PW 2, the complainant’s mother said the complainant arrived home on the material evening at 6.30 p.m. while crying and limping. She narrated her ordeal to PW 2, her mother that she had been attacked by a stranger. At that point the complainant fell. PW 2 tried to get her up but she said she could not. PW 2 called for a motor cycle and took the complainant to hospital where she was attended to. PW 2 said that at the hospital the complainant refused to eat and could not sleep that night. A police officer from Kinango police station went to the hospital the following morning. The complainant was still crying. She said she could identify her assailant. Police said they would investigate. The appellant was subsequently arrested and charged.
12. PW 3, the clinical officer said that he examined the complainant on 12/5/2012 when she was taken to the hospital by Cpl Roba. She had bruises in her private parts. The hymen was broken, indicating penetration. All laboratory test results were normal. He assessed her age as 14 years. He completed the post rape care (PRC) and P3 forms in respect of the complainant.
13. In cross-examination, PW 3 said that upon examination of the complainant, she was tense and crying. Her clothes were intact but had sand on the back and the back of the head had sand. She was wearing a panties that was torn. The complainant told him she had never engaged in sexual intercourse before and the attack had taken place 45 minutes before. The bruises were on her labia and vulva, a sign of forceful impact and the hymen was freshly broken and she was bleeding.
14. In his defence, the appellant, DW 1, denied that he committed the offence. He said that he lives at Mlavyeni which is far from the complainant’s home at Bao and he did not know her. He said that at the time the complainant said the incident happened, he was at his home. He said he spent the day looking after his cows in the fields.
15. DW 2, the appellant’s wife said that the appellant left for grazing at around 9.00 a.m. and came back at around 8.00 p.m. together with DW 3. He made food for them and they ate together.
16. In cross-examination, DW 2 said that there is a school where the husband went to graze and that there are bushes around the area.
17. DW 3 said he stays at Mareheri village. He went to visit the appellant on the material day at around 4.00 p.m. and found that he was out looking after cattle. He waited for him and he came back at around 5.00 p.m. They stayed together until 7.00 p.m. when DW 3 left. He said that unless he committed the offence before 5.00 p.m., after that, they were together.
18. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
19. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(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 of not less than twenty years.
20. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
21. The appellant cited the High Court case of Remmy Wanyonyi Wanjoki v Republic [2020] KEHC 4929 (KLR) on the ingredients of the offence of defilement which the prosecution needs to prove. They are the same as those outlined above. He submits that he is faulting the prosecution on only one of the ingredients of the offence, that is identification. He is therefore satisfied with the evidence of the age of the victim and penetration. I am equally satisfied that the evidence on those two ingredients was sufficient and was proved beyond a reasonable doubt. The complainant’s evidence that she was 14 years old was corroborated by the evidence of the clinical officer PW 3 who did an age assessment of her. The complainant’s evidence of penetration of her genital organ by a male genital organ was equally corroborated by the medical evidence tendered by PW 3.
22. On identification, the appellant submits that there is reasonable doubt as to whether the assailant was known to the complainant or not, but that it can be taken that he was a stranger to her. But from the evidence tendered I find that the complainant was quite explicit that the assailant was not known to her. Her mother was the one who said in cross-examination that she used to see the appellant at their place as she went on her safaris. That it is not near her home and it is in a different location.
23. The appellant submits correctly that the complainant at one point said that it was not very dark at the time of the incident. So that, according to him, the phrase “not very dark” should be taken to mean that it was dark and so the conditions of identification were not favourable. But I note that she also said that the sun was just setting and it was bright.
24. The appellant also submits that the duration which the incident took under observation as well as the fact that the assailant pinned the complainant down need to be considered. That the court proceedings are silent on the issue and that no attempt was made to ascertain the complainant’s position as when she tripped and fell and while she was pinned to the ground. The appellant further submits that the distance the assailant was behind the complainant was not ascertained.
25. The appellant also submits that the trial court made an observation about the appellant, that “he had a unique protruding mouth which may be difficult to forget” which was in sharp contrast with the evidence of the complainant that enabled her to identify the appellant that is, that she had seen the gaps in his teeth when he spoke to her. That submission is correct and in line with the record of proceedings.
26. The appellant cited the case of Wilson Kamotho Giuthi v Republic [2018] KEHC 7471 (KLR) where the High Court held that:
“identification of a suspect in any criminal offence is always a pivotal question and whenever it arises the trial court has to satisfy itself, before convicting him, that the question has been disposed of to such threshold as to leave no doubt that the suspect was positively identified.”
27. He also cited the English case of R. v Turnbull (Raymond) [1976] 3 All E.R. 549 (09 July 1976) a key case on how courts should assess the reliability and evaluate evidence of identification by an eyewitness and key principles and safeguards to be followed in order to minimize the risk of wrongful convictions based on mistaken identification.
28. The learned prosecution counsel on her part submits that the identification was proper as the complainant was able to see the appellant properly. That the incident occurred at 6.00 p.m. and therefore the conditions of identification were favourable. She later identified him by the clothes he wore and that he was wearing a bangle of the Kenyan flag colours. She saw him a week later outside a hotel verandah then alerted police officers who went and arrested him. That the victim bore no grudge against the appellant and had no reason to falsely implicate him in the offence.
29. There is no doubt that the complainant was the only witness of identification of her assailant. The complainant gave sworn evidence. The trial court was satisfied that identification of the appellant by the complainant was proper.
30. S. 124 of the Evidence Act (Cap. 80) Laws of Kenya provides with respect to the evidence of a child witness of tender years as the victim and sole witness of an offence that and also where such a witness is the victim in a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
31. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
32. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
33. From these decisions it emerges that in a sexual offence the court is enjoined to evaluate the evidence and determine whether there was corroboration of the victim’s evidence where the evidence was unsworn and if there is none the court can still rely on the uncorroborated evidence of the victim if it believed that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the victim.
34. In the present case, the victim gave sworn evidence and therefore the court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
35. The learned trial magistrate found in her judgment that “it appeared” that there was an identification parade done but the parade forms were not produced. She went ahead to hold that though an identification parade was done, it was not even necessary. It follows that the learned magistrate was satisfied that a proper identification was done which was not the case. This is because, holding an identification parade is governed by law. Section 7 of Chapter 42 - Guide to Criminal Investigations - under the National Police Service Standing Orders (Legal Notice 100 of 2017) made under the National Police Service Act (Cap. 84) Laws of Kenya provides for the manner in which an identification parade of a suspect should be conducted.
36. There was no evidence from which the trial court could find that the procedure was followed in the case of the alleged identification parade herein. The complainant testified that she attended an identification parade from which she identified the appellant. This was in spite of her evidence that she had spotted the appellant earlier seated outside the verandah of a hotel and she went and alerted the police who went and arrested him. In that case, what was the need for an identification parade where the complainant had allegedly already seen and identified the assailant and even alerted police to arrest him?
37. Even then, her evidence is in contrast to that of her mother who said that after one week of the incident, police called her and told her to call the complainant. The police then called the complainant to an identification parade as PW 2 sat outside. Police then told PW 2 that the appellant was the one who the complainant had identified. This evidence does not support the complainant’s evidence that she had earlier spotted the appellant, then alerted the police who went to arrest him. Her mother’s version would indeed support the need for an identification parade. So, where did the complainant get the idea to say that she had spotted the appellant earlier outside the hotel verandah? and if indeed she had, why did the police find it necessary to have her again identify him at an identification parade?
38. It is not just a matter of producing the parade forms but satisfying all the requirements for holding an identification parade as provided for under the NPS Standing Orders. So, there was no basis for the learned trial magistrate to find that an identification parade was done but that in any event the same was not necessary because this led the learned trial magistrate to fall into the error of believing that a proper identification parade was done at which the appellant was positively identified.
39. Minus, that belief, the complainant’s evidence of how she identified the appellant has to be scrutinized.
40. Having considered the evidence tendered before the trial court and the submissions of the parties, I am inclined to agree with the appellant that the evidence tendered by the complainant could not be relied upon to prove that the complainant’s assailant was identified to be the appellant herein. I am satisfied that the submissions made by the appellant as reproduced above are on point on all the issues he raised and they raise reasonable doubt in the prosecution’s case. Those submissions were not responded to by the learned prosecution counsel.
41. In addition to what the appellant raised in his submissions, I note that the complainant said that she saw the appellant behind her and when he ordered her to wait for him, she started running. It means she only had a glance at the assailant and when he ordered her to wait for him, she went into a panic. From that moment of her starting to run, the assailant chasing after her, her falling down, the assailant pinning her to the ground and engaging in sexual intercourse with her, there is no indication of what point she got the opportunity to see a gap in the assailant’s teeth.
42. But one notable thing about the complainant’s testimony was that before the complainant was stepped down for the prosecution to make exhibits available on 9/8/2012, she had not given any description of the assailant. There is no indication that she had given that description to any person before her testimony. However, when she returned to the witness stand one year later on 13/8/2013 she had the full description of the assailant including the bungle and necklace he was wearing on the material day, something she had not said before. I find that it was dangerous for the learned trial magistrate to rely on that evidence as the foundation for the conviction.
43. Whereas the complainant was very confident in her testimony that she identified the appellant as her assailant, I find that it was not a proper identification as the possibility of error could not be discounted. The conditions of a proper identification were difficult in the sense that she only had a momentary glance at the assailant and then she went into a panic and took off. She was even more scared when she fell down and the assailant menacingly threatened her with a knife, meaning, she hardly had any moment to take in his features as she described them in court. Perhaps the only thing she may have remembered was the appearance of the bungle bearing the national flag colours on his arm. But such an item being so common, it cannot be said that it was so unique to the appellant that it would unerringly point to him as the assailant.
44. I find that such evidence could thus not be relied upon to found a conviction, or to make a finding that the appellant was the perpetrator of the sexual penetration herein. The learned trial magistrate was in error to rely on that evidence of identification.
45. Finally, I have not found anywhere in her judgment where the learned trial magistrate warned herself of the damger of relying on the evidence of a single witness when the conditions of identification were difficult. Again, that was an error on the part of the learned trial magistrate.
46. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
47. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
48. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 25th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.
J U D G M E N T
1. The appellant, Kalimbo Nyawa Ngondo, was convicted of the offence of defilement of a girl contrary to section 8(1) as read with sub-section 3 of the Sexual Offences Act (Cap. 63A) (SoA) Laws of Kenya. The particulars of offence were that on 11/5/2012 at Mbandi village of Kinango district in Kwale County within Coast region he unlawfully and intentionally caused penetration of his genital organ (penis) to the genital organ (vagina) of A.S. a girl aged 14 years
2. In the alternative, he was charged with committing an indecent act with a child act contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he committed an indecent act with A.S. a girl aged 14 years by touching her genital organ (vagina) and breasts.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his amended grounds of appeal: -
a. The learned trial magistrate erred in the points of law and fact by imposing a 20-years term of imprisonment when the prosecution had failed to prove all the ingredients of the charge of defilement.
b. The learned trial magistrate erred in the points of law and fact by failing to observe that the prosecution side failed to prove its case beyond a reasonable doubt.
c. The learned trial magistrate erred in the points of law and fact by relying on unreliable evidence by prosecution witnesses full of contradictions and inconsistencies.
d. The learned trial magistrate erred in points of law by failing to exercise discretion in the case.
5. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
6. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
7. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called two witnesses.
8. PW 1, A.M. was the complainant. PW 2, S.M.J. was the complainant’s mother. PW 3, Moses Kasyoki Mutuku was a clinical officer at Kinango district hospital. PW 4, PC Jenniffer Oluoch gave evidence on behalf of the investigating officer who was said to have gone on maternity leave.
9. DW 1, Kalimbo Nyawa was the appellant. DW 2, Nyamvula Bongo was the appellant’s wife. DW 3, Matunguo Kanza was the appellant’s friend.
10. The prosecution’s case was that PW 1, the complainant, a school girl in class 7 at the time aged 14 years was walking alone from school going home at around 6.00 p.m. At the river, she saw a stranger behind her. The person ordered her to wait for him. Since the person was unknown to her, she started running. She was carrying a school bag. The person ran after her. She tripped and fell. The stranger went to her and held her, pinning her to the ground. He lifted her skirt and tore her panties. The complainant screamed and the person warned that he could kill her as he held a knife to her. He unzipped and dropped his trousers and engaged in sexual intercourse with the complainant. He left after he had finished.
11. PW 2, the complainant’s mother said the complainant arrived home on the material evening at 6.30 p.m. while crying and limping. She narrated her ordeal to PW 2, her mother that she had been attacked by a stranger. At that point the complainant fell. PW 2 tried to get her up but she said she could not. PW 2 called for a motor cycle and took the complainant to hospital where she was attended to. PW 2 said that at the hospital the complainant refused to eat and could not sleep that night. A police officer from Kinango police station went to the hospital the following morning. The complainant was still crying. She said she could identify her assailant. Police said they would investigate. The appellant was subsequently arrested and charged.
12. PW 3, the clinical officer said that he examined the complainant on 12/5/2012 when she was taken to the hospital by Cpl Roba. She had bruises in her private parts. The hymen was broken, indicating penetration. All laboratory test results were normal. He assessed her age as 14 years. He completed the post rape care (PRC) and P3 forms in respect of the complainant.
13. In cross-examination, PW 3 said that upon examination of the complainant, she was tense and crying. Her clothes were intact but had sand on the back and the back of the head had sand. She was wearing a panties that was torn. The complainant told him she had never engaged in sexual intercourse before and the attack had taken place 45 minutes before. The bruises were on her labia and vulva, a sign of forceful impact and the hymen was freshly broken and she was bleeding.
14. In his defence, the appellant, DW 1, denied that he committed the offence. He said that he lives at Mlavyeni which is far from the complainant’s home at Bao and he did not know her. He said that at the time the complainant said the incident happened, he was at his home. He said he spent the day looking after his cows in the fields.
15. DW 2, the appellant’s wife said that the appellant left for grazing at around 9.00 a.m. and came back at around 8.00 p.m. together with DW 3. He made food for them and they ate together.
16. In cross-examination, DW 2 said that there is a school where the husband went to graze and that there are bushes around the area.
17. DW 3 said he stays at Mareheri village. He went to visit the appellant on the material day at around 4.00 p.m. and found that he was out looking after cattle. He waited for him and he came back at around 5.00 p.m. They stayed together until 7.00 p.m. when DW 3 left. He said that unless he committed the offence before 5.00 p.m., after that, they were together.
18. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
19. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(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 of not less than twenty years.
20. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
21. The appellant cited the High Court case of Remmy Wanyonyi Wanjoki v Republic [2020] KEHC 4929 (KLR) on the ingredients of the offence of defilement which the prosecution needs to prove. They are the same as those outlined above. He submits that he is faulting the prosecution on only one of the ingredients of the offence, that is identification. He is therefore satisfied with the evidence of the age of the victim and penetration. I am equally satisfied that the evidence on those two ingredients was sufficient and was proved beyond a reasonable doubt. The complainant’s evidence that she was 14 years old was corroborated by the evidence of the clinical officer PW 3 who did an age assessment of her. The complainant’s evidence of penetration of her genital organ by a male genital organ was equally corroborated by the medical evidence tendered by PW 3.
22. On identification, the appellant submits that there is reasonable doubt as to whether the assailant was known to the complainant or not, but that it can be taken that he was a stranger to her. But from the evidence tendered I find that the complainant was quite explicit that the assailant was not known to her. Her mother was the one who said in cross-examination that she used to see the appellant at their place as she went on her safaris. That it is not near her home and it is in a different location.
23. The appellant submits correctly that the complainant at one point said that it was not very dark at the time of the incident. So that, according to him, the phrase “not very dark” should be taken to mean that it was dark and so the conditions of identification were not favourable. But I note that she also said that the sun was just setting and it was bright.
24. The appellant also submits that the duration which the incident took under observation as well as the fact that the assailant pinned the complainant down need to be considered. That the court proceedings are silent on the issue and that no attempt was made to ascertain the complainant’s position as when she tripped and fell and while she was pinned to the ground. The appellant further submits that the distance the assailant was behind the complainant was not ascertained.
25. The appellant also submits that the trial court made an observation about the appellant, that “he had a unique protruding mouth which may be difficult to forget” which was in sharp contrast with the evidence of the complainant that enabled her to identify the appellant that is, that she had seen the gaps in his teeth when he spoke to her. That submission is correct and in line with the record of proceedings.
26. The appellant cited the case of Wilson Kamotho Giuthi v Republic [2018] KEHC 7471 (KLR) where the High Court held that:
“identification of a suspect in any criminal offence is always a pivotal question and whenever it arises the trial court has to satisfy itself, before convicting him, that the question has been disposed of to such threshold as to leave no doubt that the suspect was positively identified.”
27. He also cited the English case of R. v Turnbull (Raymond) [1976] 3 All E.R. 549 (09 July 1976) a key case on how courts should assess the reliability and evaluate evidence of identification by an eyewitness and key principles and safeguards to be followed in order to minimize the risk of wrongful convictions based on mistaken identification.
28. The learned prosecution counsel on her part submits that the identification was proper as the complainant was able to see the appellant properly. That the incident occurred at 6.00 p.m. and therefore the conditions of identification were favourable. She later identified him by the clothes he wore and that he was wearing a bangle of the Kenyan flag colours. She saw him a week later outside a hotel verandah then alerted police officers who went and arrested him. That the victim bore no grudge against the appellant and had no reason to falsely implicate him in the offence.
29. There is no doubt that the complainant was the only witness of identification of her assailant. The complainant gave sworn evidence. The trial court was satisfied that identification of the appellant by the complainant was proper.
30. S. 124 of the Evidence Act (Cap. 80) Laws of Kenya provides with respect to the evidence of a child witness of tender years as the victim and sole witness of an offence that and also where such a witness is the victim in a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
31. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
32. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
33. From these decisions it emerges that in a sexual offence the court is enjoined to evaluate the evidence and determine whether there was corroboration of the victim’s evidence where the evidence was unsworn and if there is none the court can still rely on the uncorroborated evidence of the victim if it believed that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the victim.
34. In the present case, the victim gave sworn evidence and therefore the court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
35. The learned trial magistrate found in her judgment that “it appeared” that there was an identification parade done but the parade forms were not produced. She went ahead to hold that though an identification parade was done, it was not even necessary. It follows that the learned magistrate was satisfied that a proper identification was done which was not the case. This is because, holding an identification parade is governed by law. Section 7 of Chapter 42 - Guide to Criminal Investigations - under the National Police Service Standing Orders (Legal Notice 100 of 2017) made under the National Police Service Act (Cap. 84) Laws of Kenya provides for the manner in which an identification parade of a suspect should be conducted.
36. There was no evidence from which the trial court could find that the procedure was followed in the case of the alleged identification parade herein. The complainant testified that she attended an identification parade from which she identified the appellant. This was in spite of her evidence that she had spotted the appellant earlier seated outside the verandah of a hotel and she went and alerted the police who went and arrested him. In that case, what was the need for an identification parade where the complainant had allegedly already seen and identified the assailant and even alerted police to arrest him?
37. Even then, her evidence is in contrast to that of her mother who said that after one week of the incident, police called her and told her to call the complainant. The police then called the complainant to an identification parade as PW 2 sat outside. Police then told PW 2 that the appellant was the one who the complainant had identified. This evidence does not support the complainant’s evidence that she had earlier spotted the appellant, then alerted the police who went to arrest him. Her mother’s version would indeed support the need for an identification parade. So, where did the complainant get the idea to say that she had spotted the appellant earlier outside the hotel verandah? and if indeed she had, why did the police find it necessary to have her again identify him at an identification parade?
38. It is not just a matter of producing the parade forms but satisfying all the requirements for holding an identification parade as provided for under the NPS Standing Orders. So, there was no basis for the learned trial magistrate to find that an identification parade was done but that in any event the same was not necessary because this led the learned trial magistrate to fall into the error of believing that a proper identification parade was done at which the appellant was positively identified.
39. Minus, that belief, the complainant’s evidence of how she identified the appellant has to be scrutinized.
40. Having considered the evidence tendered before the trial court and the submissions of the parties, I am inclined to agree with the appellant that the evidence tendered by the complainant could not be relied upon to prove that the complainant’s assailant was identified to be the appellant herein. I am satisfied that the submissions made by the appellant as reproduced above are on point on all the issues he raised and they raise reasonable doubt in the prosecution’s case. Those submissions were not responded to by the learned prosecution counsel.
41. In addition to what the appellant raised in his submissions, I note that the complainant said that she saw the appellant behind her and when he ordered her to wait for him, she started running. It means she only had a glance at the assailant and when he ordered her to wait for him, she went into a panic. From that moment of her starting to run, the assailant chasing after her, her falling down, the assailant pinning her to the ground and engaging in sexual intercourse with her, there is no indication of what point she got the opportunity to see a gap in the assailant’s teeth.
42. But one notable thing about the complainant’s testimony was that before the complainant was stepped down for the prosecution to make exhibits available on 9/8/2012, she had not given any description of the assailant. There is no indication that she had given that description to any person before her testimony. However, when she returned to the witness stand one year later on 13/8/2013 she had the full description of the assailant including the bungle and necklace he was wearing on the material day, something she had not said before. I find that it was dangerous for the learned trial magistrate to rely on that evidence as the foundation for the conviction.
43. Whereas the complainant was very confident in her testimony that she identified the appellant as her assailant, I find that it was not a proper identification as the possibility of error could not be discounted. The conditions of a proper identification were difficult in the sense that she only had a momentary glance at the assailant and then she went into a panic and took off. She was even more scared when she fell down and the assailant menacingly threatened her with a knife, meaning, she hardly had any moment to take in his features as she described them in court. Perhaps the only thing she may have remembered was the appearance of the bungle bearing the national flag colours on his arm. But such an item being so common, it cannot be said that it was so unique to the appellant that it would unerringly point to him as the assailant.
44. I find that such evidence could thus not be relied upon to found a conviction, or to make a finding that the appellant was the perpetrator of the sexual penetration herein. The learned trial magistrate was in error to rely on that evidence of identification.
45. Finally, I have not found anywhere in her judgment where the learned trial magistrate warned herself of the damger of relying on the evidence of a single witness when the conditions of identification were difficult. Again, that was an error on the part of the learned trial magistrate.
46. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
47. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
48. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 25th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.