1. The Appellant was charged, tried and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. He was then sentenced to 20 years imprisonment which is the mandatory sentence for the offence.
2. Being dissatisfied with both the conviction and sentence, the Appellant filed the present appeal and set down the following grounds of appeal:- that the learned trial Magistrate erred in law and in fact by convicting him when the case against him was not proved beyond reasonable doubt; that the learned trial Magistrate erred in law and in fact by convicting him on uncorroborated evidence; that the learned trial Magistrate erred in law and in fact by convicting him without considering that crucial witnesses were not availed; that the ingredients of the offence were not conclusively proved; that the learned trial Magistrate erred in law and in fact by excluding the Appellant’s defence without giving reasons, and that he was not accorded a fair trial as stipulated under Article 50 (2) (h) (p) of the Constitution of Kenya 2010.
3. The Appeal was disposed of by way of written submissions.
Appellant’s Submissions
4. The Appellant submitted that the age of the victim was not proved to the required standard as no birth certificate was produced, no parent or guardian testified and, and the age assessment was not rigorously interrogated.
5. On proof of penetration, the Appellant submitted that the medical evidence did not conclusively demonstrate penetration attributable to him and relied on the case of Mark Oiruri Mose v. Republic [2013] eKLR.
6. The Appellant further submitted that the prosecution’s case was full of material contradictions and inconsistencies which went to the root of the case. The Appellant relied on the cases of Ndungu Kimanyi v. Republic [1979] KLR 282 and Philip Nzaka Watu v. Republic [2016] eKLR and submitted that the trial court failed to adequately analyze or reconcile the inconsistencies in the prosecution’s case and accepted it in entirety.
7. It was the Appellant’s contention that the failure by the prosecution to call the Complainant’s brother, neighbours or a consistent Arresting Officer weakened its case and warranted adverse reference. In support of his submissions, the Appellant referred to Bukenya & others v. Uganda [1972] EA 549 and Nguku v. Republic [1985] KLR 412 and argued that failure to call material witnesses rendered the conviction unsafe.
8. The Appellant further posited that the trial court failed to properly caution itself before relying on single witness testimony as required by Section 124 of the Evidence Act. He submitted that caution is needed before conviction under Section 124 of the Evidence act and quoted the case of Roria v. Republic [1967] EA 583, Wamunga v. Republic [1989] KLR 424, and Mohammed v. Republic [2008] eKLR.
9. In respect to his defence, the Appellant submitted that the learned Magistrate failed to properly evaluate and consider the same. Relying on Pandya v. Republic [1957] EA 336 and Ouma v. Republic [1986] KLR 619, he submitted that dismissal of a defence without analysis renders a conviction unsafe.
10. The Appellant also submitted that his right to a fair trial under Article 50 (2) (k) was violated as the cumulative effect of evidentiary gaps and contradictions denied him a fair trial. He contended that when considered cumulatively, the doubt on age, weak medical linkage contradictions, missing witnesses and inadequate defence analysis meant that the prosecution’s case was not proved beyond reasonable doubt.
11. As for the sentence, the Appellant submitted that although Section 8 (3) prescribes a minimum sentence of 20 years, sentencing must be individualized. The Appellant referred to Francis Karioko Muruatetu v. Republic [2017] eKLR, Dismas Wafula Kilwake v. Republic [2018] eKLR and Jared Koita Injiri v. Republic [2019] eKLR and argued that the trial court did not demonstrate consideration of mitigation and proportionality. He submitted that this court retains jurisdiction under Section 354 of the Criminal Procedure Code to interfere with the sentence and prayed that the court allows the appeal, quashes the conviction and sets aside the sentence.
Respondent’s Submissions
12. On its part, the Respondent conceded the appeal and submitted that the prosecution failed to prove its case beyond reasonable doubt as the age of the Complainant was not conclusively proven. It also submitted that there were material contradictions in the prosecution’s case that rendered the conviction unsafe.
Analysis and Determination
13. I have considered the grounds of appeal and the parties’ respective submissions. Being a first appellate court, my duty is to re-evaluate and review the evidence adduced before the trial court and make my own independent conclusion while bearing in mind that I did not have the opportunity to hear and observe the witnesses as they gave evidence. See Okeno v. Republic [1972] EA 74.
14. On revisiting the evidence, PW1 testified that on 31/1/2024, while she relaxed in Muliro Gardens, the Appellant, whom she identified in court approached her and offered to take her to a certain lady who needed an employee but instead took her to his house where he locked the door, and defiled her for a long time after which he left her for the sitting room whereby she dressed up, told him that she wanted to go to the toilet, ran out to the bush, and hid there. Later, she traced her way back to Muliro Gardens and informed the watchmen of her ordeal and after seeing the Appellant coming to the Gardens later, she alerted the watchman who called the police. On cross-examination, she said that she disclosed her age of 15 years to the Appellant who advised her to claim she was 20 years old if asked.
15. PW2 was the watchman, Alfred Igonga. According to him, on 31/1/2024, there was a girl aged about 16-18 years whose age he could not tell whom he found looking for a job in Kakamega Muliro Gardens. He said that he had noticed her the previous day and that she informed him that she had met a man who had promised her a job but instead he took her to his house, locked her there, and defiled her after which he let her out and told her he would connect her to an employer. She slept there, and on asking for the job the next day, he told her to continue waiting. She then ran off back to Muliro Gardens. The witness said that he knew the man who had defiled the girl as he had seen them together the previous day. He said that he confirmed from the photo man at the Gardens that the Appellant had been seen with PW1 the previous day, so he called for reinforcement and had the Appellant arrested.
16. On cross-examination, he said that PW1 had informed him that she was about 18-19 years, had worked in Nairobi and was looking for a job. He also said that he used to see the Appellant sell bananas at the Garden although hawking there was prohibited.
17. PW3 was a Reinforcement Officer within Kakamega County Government who testified that on 31/1/2024, PW2 called him to inform him of a defilement case and he advised that if the offender were seen at the Garden, he should be arrested.
18. PW4 was a Clinical Officer at Kakamega County Government Hospital Edwin Nakitare who testified that on 2/2/2024, he attended to PW1, who alleged that she was defiled on 31/1/2024 at 8.00 p.m. On examination, she had a missing hymen, no sexually transmitted disease, but infection in the urine. Age assessment was done and it was established that she was 15 years old. PW4 who said that he did not know who did the Age Assessment and that on the P3 form, he had indicated the age of PW1 to be 17, years as she told him she was 17 years old. He produced the P3 form, treatment notes and Age Assessment report.
19. PW5 was Corporal Josephine Mukabwa who testified that on 1/2/2024 while on duty at Kakamega Police Station, she received a call from Kakamega County personnel that a person was about to be beaten at Muliro Gardens. That the police rushed to the scene, arrested the person and took the minor to the police station. On interrogating her, the minor said that the Appellant had deceived her that he would take her to an employer but took her to his house and defied her but she escaped, slept in the bushes then went to Muliro Gardens the next day. She further said that when the Appellant approached her the next day at the Gardens, she alerted the watchmen and he was arrested.
20. For an accused person to be convicted for defilement, the essential elements that need to be proven are: the age of the Complainant, proof of penetration and positive identification of the victim. See Dominic Kibet Mwareng v. Republic [2013] KEHC 1353 (KLR).
21. In Fappyton Mutuku Ngui v. Republic [2012] KEHC 5491 (KLR), the court stated that age must be proved by credible evidence. In this instant, an Age Assessment report was produced by a person who was not its maker. It indicates that the Complainant was found to be 15 years of age and that the second permanent molars had just barely completed eruption. The said report was not subjected to cross-examination and fails to conclusively prove the age of the Complainant in view of the fact that PW4, the Clinical Officer who personally attended to the Complainant indicated her age to be 17 years. The Post Rape Care form, produced as PE3 is even more definite as it indicates the Complainant’s date of birth to be 7/12/2004 which would make her 19 years at the time of the incident. The PRC form is significant as it constitutes a record of the history of the Complainant as narrated by her and a record of the findings by the examining medical personnel. What I can deduce from the PRC forms is that the Complainant was examined by one Pamela Boyi in the presence of PW5 who signed the PRC form. Coupled by the testimony of PW2 that the Complainant informed him that she was aged between 18-19 years, I find that the prosecution’s evidence regarding the Complainant’s age was fraught with contradictions and inconsistencies which went to the root of its case as there was no conclusive proof that the Complainant was even a minor at the time of the alleged offence.
22. As to whether penetration was proven, I note that the offence was committed on 31/1/2024 while the medical examination was undertaken on 2/2/2024 which the P3 form indicated was 36 hours later. The laboratory report indicated that no spermatozoa was seen despite a high vaginal swab having been taken. PW4 said that the Complainant had a urinary tract infection.
23. The absence of spermatozoa despite alleged prolonged sexual penetration without protection casts doubt on the prosecution’s case that PW1 had been defiled. The doubt is further strengthened by the inconsistencies in the evidence. According to PW1, she first encountered the Appellant on 31/1/2024 and after he had lured her into his house and defiled her, she ran away and went back to Muliro Gardens. She did not say that she was defiled at 8.00 p.m. or that she spent the night in the bush before proceeding to the Gardens the next day. As submitted by the Respondent, an interpretation of her evidence is that the Complainant went to the Gardens the same day of the incident after hiding in the bush. On the other hand, PW2 said that the Complainant informed him that she slept at the Appellant’s place after he had defiled her. According to PW5, the Complainant informed her that she escaped, slept in the bushes and went to Muliro Gardens the following morning.
24. The contradictions in the witnesses’ testimony regarding the chronology of events subsequent to the alleged defilement affect the credibility of the witnesses and weakens the prosecution’s case. See John Mutua Munyoki v. Republic [2017] KECA 376 (KLR) where the Court of Appeal stated:-
“Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie as to what led her to report to school late, what else did she lie about?”
25. Looking at the totality of evidence, the Complainant was not truthful regarding her age. To some people, she presented herself as a minor while to others, she presented herself as an adult. Which version as to the Complainant’s age should the court believe? If she could inform PW2, whom she expected to assist her that she was aged between 18-19 years, tell the attending Clinical Officer that she was 17 years, tell the Doctor filling the PRC form that she was born on 7/12/2004, then it is probable that at one point, she had said that she was 21 years old as asserted by the Appellant in his defence. All in all, the Complainant’s evidence lacked credibility and an adverse conclusion ought to have ensued from her evidence.
26. In its Judgement, the trial court noted that it had looked at the Complainant as she gave evidence and had no grounds to doubt her. However, the trial court failed to analyze the evidence in totality to establish whether the inconsistencies and contradictions were immaterial.
27. In MTG v. Republic [2022] KEHC 189 (KLR), the Court held as follows:-
“Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.”
28. When weighed with the evidence from the other prosecution witnesses, the Complainant’s evidence contains major and material contradictions. In the premises, the trial court ought to have cautioned itself before relying on her sole testimony that it was the Appellant who defiled her. It was not sufficient for the court to just note that it had observed her as she gave her testimony and believed her.
29. In the end, I find that the Respondent rightfully conceded the appeal. The conviction was unsafe and is hereby quashed and the sentence set aside.
30. The Appellant is hereby set at liberty unless otherwise lawfully held.
2. Being dissatisfied with both the conviction and sentence, the Appellant filed the present appeal and set down the following grounds of appeal:- that the learned trial Magistrate erred in law and in fact by convicting him when the case against him was not proved beyond reasonable doubt; that the learned trial Magistrate erred in law and in fact by convicting him on uncorroborated evidence; that the learned trial Magistrate erred in law and in fact by convicting him without considering that crucial witnesses were not availed; that the ingredients of the offence were not conclusively proved; that the learned trial Magistrate erred in law and in fact by excluding the Appellant’s defence without giving reasons, and that he was not accorded a fair trial as stipulated under Article 50 (2) (h) (p) of the Constitution of Kenya 2010.
3. The Appeal was disposed of by way of written submissions.
Appellant’s Submissions
4. The Appellant submitted that the age of the victim was not proved to the required standard as no birth certificate was produced, no parent or guardian testified and, and the age assessment was not rigorously interrogated.
5. On proof of penetration, the Appellant submitted that the medical evidence did not conclusively demonstrate penetration attributable to him and relied on the case of Mark Oiruri Mose v. Republic [2013] eKLR.
6. The Appellant further submitted that the prosecution’s case was full of material contradictions and inconsistencies which went to the root of the case. The Appellant relied on the cases of Ndungu Kimanyi v. Republic [1979] KLR 282 and Philip Nzaka Watu v. Republic [2016] eKLR and submitted that the trial court failed to adequately analyze or reconcile the inconsistencies in the prosecution’s case and accepted it in entirety.
7. It was the Appellant’s contention that the failure by the prosecution to call the Complainant’s brother, neighbours or a consistent Arresting Officer weakened its case and warranted adverse reference. In support of his submissions, the Appellant referred to Bukenya & others v. Uganda [1972] EA 549 and Nguku v. Republic [1985] KLR 412 and argued that failure to call material witnesses rendered the conviction unsafe.
8. The Appellant further posited that the trial court failed to properly caution itself before relying on single witness testimony as required by Section 124 of the Evidence Act. He submitted that caution is needed before conviction under Section 124 of the Evidence act and quoted the case of Roria v. Republic [1967] EA 583, Wamunga v. Republic [1989] KLR 424, and Mohammed v. Republic [2008] eKLR.
9. In respect to his defence, the Appellant submitted that the learned Magistrate failed to properly evaluate and consider the same. Relying on Pandya v. Republic [1957] EA 336 and Ouma v. Republic [1986] KLR 619, he submitted that dismissal of a defence without analysis renders a conviction unsafe.
10. The Appellant also submitted that his right to a fair trial under Article 50 (2) (k) was violated as the cumulative effect of evidentiary gaps and contradictions denied him a fair trial. He contended that when considered cumulatively, the doubt on age, weak medical linkage contradictions, missing witnesses and inadequate defence analysis meant that the prosecution’s case was not proved beyond reasonable doubt.
11. As for the sentence, the Appellant submitted that although Section 8 (3) prescribes a minimum sentence of 20 years, sentencing must be individualized. The Appellant referred to Francis Karioko Muruatetu v. Republic [2017] eKLR, Dismas Wafula Kilwake v. Republic [2018] eKLR and Jared Koita Injiri v. Republic [2019] eKLR and argued that the trial court did not demonstrate consideration of mitigation and proportionality. He submitted that this court retains jurisdiction under Section 354 of the Criminal Procedure Code to interfere with the sentence and prayed that the court allows the appeal, quashes the conviction and sets aside the sentence.
Respondent’s Submissions
12. On its part, the Respondent conceded the appeal and submitted that the prosecution failed to prove its case beyond reasonable doubt as the age of the Complainant was not conclusively proven. It also submitted that there were material contradictions in the prosecution’s case that rendered the conviction unsafe.
Analysis and Determination
13. I have considered the grounds of appeal and the parties’ respective submissions. Being a first appellate court, my duty is to re-evaluate and review the evidence adduced before the trial court and make my own independent conclusion while bearing in mind that I did not have the opportunity to hear and observe the witnesses as they gave evidence. See Okeno v. Republic [1972] EA 74.
14. On revisiting the evidence, PW1 testified that on 31/1/2024, while she relaxed in Muliro Gardens, the Appellant, whom she identified in court approached her and offered to take her to a certain lady who needed an employee but instead took her to his house where he locked the door, and defiled her for a long time after which he left her for the sitting room whereby she dressed up, told him that she wanted to go to the toilet, ran out to the bush, and hid there. Later, she traced her way back to Muliro Gardens and informed the watchmen of her ordeal and after seeing the Appellant coming to the Gardens later, she alerted the watchman who called the police. On cross-examination, she said that she disclosed her age of 15 years to the Appellant who advised her to claim she was 20 years old if asked.
15. PW2 was the watchman, Alfred Igonga. According to him, on 31/1/2024, there was a girl aged about 16-18 years whose age he could not tell whom he found looking for a job in Kakamega Muliro Gardens. He said that he had noticed her the previous day and that she informed him that she had met a man who had promised her a job but instead he took her to his house, locked her there, and defiled her after which he let her out and told her he would connect her to an employer. She slept there, and on asking for the job the next day, he told her to continue waiting. She then ran off back to Muliro Gardens. The witness said that he knew the man who had defiled the girl as he had seen them together the previous day. He said that he confirmed from the photo man at the Gardens that the Appellant had been seen with PW1 the previous day, so he called for reinforcement and had the Appellant arrested.
16. On cross-examination, he said that PW1 had informed him that she was about 18-19 years, had worked in Nairobi and was looking for a job. He also said that he used to see the Appellant sell bananas at the Garden although hawking there was prohibited.
17. PW3 was a Reinforcement Officer within Kakamega County Government who testified that on 31/1/2024, PW2 called him to inform him of a defilement case and he advised that if the offender were seen at the Garden, he should be arrested.
18. PW4 was a Clinical Officer at Kakamega County Government Hospital Edwin Nakitare who testified that on 2/2/2024, he attended to PW1, who alleged that she was defiled on 31/1/2024 at 8.00 p.m. On examination, she had a missing hymen, no sexually transmitted disease, but infection in the urine. Age assessment was done and it was established that she was 15 years old. PW4 who said that he did not know who did the Age Assessment and that on the P3 form, he had indicated the age of PW1 to be 17, years as she told him she was 17 years old. He produced the P3 form, treatment notes and Age Assessment report.
19. PW5 was Corporal Josephine Mukabwa who testified that on 1/2/2024 while on duty at Kakamega Police Station, she received a call from Kakamega County personnel that a person was about to be beaten at Muliro Gardens. That the police rushed to the scene, arrested the person and took the minor to the police station. On interrogating her, the minor said that the Appellant had deceived her that he would take her to an employer but took her to his house and defied her but she escaped, slept in the bushes then went to Muliro Gardens the next day. She further said that when the Appellant approached her the next day at the Gardens, she alerted the watchmen and he was arrested.
20. For an accused person to be convicted for defilement, the essential elements that need to be proven are: the age of the Complainant, proof of penetration and positive identification of the victim. See Dominic Kibet Mwareng v. Republic [2013] KEHC 1353 (KLR).
21. In Fappyton Mutuku Ngui v. Republic [2012] KEHC 5491 (KLR), the court stated that age must be proved by credible evidence. In this instant, an Age Assessment report was produced by a person who was not its maker. It indicates that the Complainant was found to be 15 years of age and that the second permanent molars had just barely completed eruption. The said report was not subjected to cross-examination and fails to conclusively prove the age of the Complainant in view of the fact that PW4, the Clinical Officer who personally attended to the Complainant indicated her age to be 17 years. The Post Rape Care form, produced as PE3 is even more definite as it indicates the Complainant’s date of birth to be 7/12/2004 which would make her 19 years at the time of the incident. The PRC form is significant as it constitutes a record of the history of the Complainant as narrated by her and a record of the findings by the examining medical personnel. What I can deduce from the PRC forms is that the Complainant was examined by one Pamela Boyi in the presence of PW5 who signed the PRC form. Coupled by the testimony of PW2 that the Complainant informed him that she was aged between 18-19 years, I find that the prosecution’s evidence regarding the Complainant’s age was fraught with contradictions and inconsistencies which went to the root of its case as there was no conclusive proof that the Complainant was even a minor at the time of the alleged offence.
22. As to whether penetration was proven, I note that the offence was committed on 31/1/2024 while the medical examination was undertaken on 2/2/2024 which the P3 form indicated was 36 hours later. The laboratory report indicated that no spermatozoa was seen despite a high vaginal swab having been taken. PW4 said that the Complainant had a urinary tract infection.
23. The absence of spermatozoa despite alleged prolonged sexual penetration without protection casts doubt on the prosecution’s case that PW1 had been defiled. The doubt is further strengthened by the inconsistencies in the evidence. According to PW1, she first encountered the Appellant on 31/1/2024 and after he had lured her into his house and defiled her, she ran away and went back to Muliro Gardens. She did not say that she was defiled at 8.00 p.m. or that she spent the night in the bush before proceeding to the Gardens the next day. As submitted by the Respondent, an interpretation of her evidence is that the Complainant went to the Gardens the same day of the incident after hiding in the bush. On the other hand, PW2 said that the Complainant informed him that she slept at the Appellant’s place after he had defiled her. According to PW5, the Complainant informed her that she escaped, slept in the bushes and went to Muliro Gardens the following morning.
24. The contradictions in the witnesses’ testimony regarding the chronology of events subsequent to the alleged defilement affect the credibility of the witnesses and weakens the prosecution’s case. See John Mutua Munyoki v. Republic [2017] KECA 376 (KLR) where the Court of Appeal stated:-
“Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie as to what led her to report to school late, what else did she lie about?”
25. Looking at the totality of evidence, the Complainant was not truthful regarding her age. To some people, she presented herself as a minor while to others, she presented herself as an adult. Which version as to the Complainant’s age should the court believe? If she could inform PW2, whom she expected to assist her that she was aged between 18-19 years, tell the attending Clinical Officer that she was 17 years, tell the Doctor filling the PRC form that she was born on 7/12/2004, then it is probable that at one point, she had said that she was 21 years old as asserted by the Appellant in his defence. All in all, the Complainant’s evidence lacked credibility and an adverse conclusion ought to have ensued from her evidence.
26. In its Judgement, the trial court noted that it had looked at the Complainant as she gave evidence and had no grounds to doubt her. However, the trial court failed to analyze the evidence in totality to establish whether the inconsistencies and contradictions were immaterial.
27. In MTG v. Republic [2022] KEHC 189 (KLR), the Court held as follows:-
“Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.”
28. When weighed with the evidence from the other prosecution witnesses, the Complainant’s evidence contains major and material contradictions. In the premises, the trial court ought to have cautioned itself before relying on her sole testimony that it was the Appellant who defiled her. It was not sufficient for the court to just note that it had observed her as she gave her testimony and believed her.
29. In the end, I find that the Respondent rightfully conceded the appeal. The conviction was unsafe and is hereby quashed and the sentence set aside.
30. The Appellant is hereby set at liberty unless otherwise lawfully held.