KELVIN BUTUNYI NGAYO VS REPUBLIC KELVIN BUTUNYI NGAYO VS REPUBLIC

Coram: ANDAYI W. F., J.

(Being an appeal from the conviction and sentence by Hon. O. Wanyaga, Senior Resident Magistrate in a judgment delivered on 11/10/2022 at Thika Magistrates Court Sexual Offence Case No. 26 of 2018)

J U D G M E N T

The appellant, Kelvin Butunyi Ngayo, was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of the offence were that the appellant on 24/2/2018 at Bus Park area in Makongeni location within Kiambu County, intentionally and unlawfully caused his penis to penetrate the anus of one AW a child aged 4½ years.
In the alternative charge, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that the appellant on 24/2/2018 at Bus Park area in Makongeni location within Kiambu County, intentionally and unlawfully touched the anus of AW a child aged 4½ years with his penis and hands.
The prosecution called 6 witnesses in support of its case. Upon being placed on his defence the appellant gave sworn evidence and called five witnesses to support his case.
At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 25 years imprisonment.
The appellant was aggrieved by the decision of the trial court and now appeals against the conviction and sentence on some seven grounds which can be summed up into the following:
1. The learned trial magistrate erred in law and in fact by holding that the prosecution had proved its case against the appellant to the required standard of law whereas the evidence on record is not sufficient to make such a ruling.
2. The learned magistrate erred in law and in fact by ignoring the evidence by the complainant which was that she never attended any hospital for medical examination and made a finding which was contrary to the evidence adduced.
3. The evidence of the complainant who was a minor was doubtful, uncorroborated, and unsafe to find a conviction.
4. The medical documents produced as exhibits by the prosecution contradicted the evidence of the complainant and so did not prove the offences.
5. The trial magistrate erred in law and in fact by turning himself into a prosecutor and challenging the evidence adduced and dismissing the same on grounds that are not supported in law and hence arrived at a wrong conclusion.
The appeal was disposed of by way of written submissions filed by the appellant both on the e-filing system and a physical copy. I did not see the respondent’s submissions.
Learned counsel for the appellant submits that two of the ingredients of the offence of defilement, that is identification of the assailant and penetration were not proved beyond a reasonable doubt because the evidence tendered was not sufficient and it was contradictory. He has cited several authorities as proof of each of these elements of the offence.
Learned counsel further submits that the trial court ignored glaring gaps in the prosecution evidence. He submits that first, there was no identification of the appellant because the complainant first identified DW 5 as her assailant and when the appellant was called to where they were, the complainant again pointed at him as the assailant thereby making two different identifications and therefore no identification at all.
The second inconsistence, according to learned counsel is that there were two versions of where the incident took place. The first was that it was in a toilet and the second that it was in a house. This inconsistence was not resolved.
On medical examination of the complainant, she denied that she ever went for medical attention but her mother and the doctor said that she was medically examined.
Learned counsel cited the case of Jackson Mwanzia Musembi Vs Republic [2017] eKLR wherein the court cited the case of Twahangane Alfred Vs Uganda Criminal Appeal No. 139 of 2001(UG CA) 6 on how the court should treat contradictions in a case holding that:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

Learned counsel submitted that in this case there were major contradictions that affect the substance of the evidence tendered pointing to deliberate falsehoods for unknown reasons and it was an injustice to convict the appellant on such evidence.
Finally, learned counsel submitted that the learned trial magistrate ignored the evidence of the defence witnesses tending to prove that the appellant was not at the scene of the crime at the time the incident happened.
I have carefully considered the grounds of appeal in the petition, the evidence tendered at the trial and the trial court’s findings thereon and the submissions by learned counsel for the appellant herein. The issue for determination is whether the prosecution proved a case of defilement against the appellant beyond a reasonable doubt as found by the trial court.
This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;

“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1^st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”

The complainant was the main prosecution witness. The trial court conducted a voire dire examination of PW 1, AW, the complainant. She was then aged about 5 years. She then made an unsworn testimony and narrated what had happened to her leading to the arrest of the accused person. The other prosecution witnesses were PW 2, RNM the complainant’s mother; PW 3, Ann Wambui, a neighbour who had sent the complainant to the Samsung shop to buy for her a “ngumu” when the incident occurred; PW 4, M.K, the complainant’s father; PW 5, IP Racheal Dume, the investigating officer; and PW 6, Dr, Muring’u Kanyagia who completed the complainant’s P3 form.
The appellant gave evidence as DW 1; DW 2, Wilkins Musila was the appellant’s employer and owner of the shop commonly known as Samsung shop near the premises where the residence of the complainant’s family lives and where the complainant went to purchase the “ngumu”; DW 3, Jackline Wanjiru is the appellant’s wife; DW 4, Dorris Masicha also said that the accused person was her employee at the shop, meaning she must be wife to DW 2; DW 5, Victor Ochieng was present on 21/3/2018 the day the accused person was arrested. His evidence and that of DW 4 is that at first, the complainant and her mother pointed at DW 4 alleging that he was the culprit but when the accused person appeared, they changed and pointed at him; DW 6, Jared Wabuko is the accused person’s father.
The evidence from both the prosecution and the defence is that the complainant knew the accused person who also said he knew the complainant because the accused person used to sale at the Samsung shop which the complainant and the mother used to visit often.
There is also evidence from the prosecution and the defence that there is a toilet used by tenants of the premises where the Samsung shop is situated and members of a church.
The prosecution’s case is that on the material day 24/2/2018 at around 5.00 p.m. PW 3, Ann Wambui sent the complainant who was playing nearby to purchase “ngumu’ for her from the Samsung shop, a short distance of about five minutes’ walk away from where PW 3 was selling milk. It is not visible from the milk ATM as there are other buildings in between. The complainant stayed for a long time, about 30 minutes without returning and PW 3 had to go and check on her. PW 3 met the complainant along the way and she was limping. PW 3 asked the complainant what was wrong and she replied that she was injured without indicating by what and PW 3 did not press her more. The complainant gave PW 3 back her KShs 10/= and PW 3 advised her to go and inform the sister what was wrong.
The complainant said that she went to the Samsung shop with Fabian, her friend. She found the accused person. The accused person took her by the hand and led her to a toilet in another building at the shop. He then put something that looked like s stick meaning his penis in her anus as she was standing. She felt pain but did not cry as it was not very painful. The accused person warned her that he would kill her if she cried and if she reported he would do it to her again. She then put on her clothes and went to Fabian. All this time, Fabian was standing outside the gate waiting for her. PW 3 or Wambo, as the complainant referred to her went for her at the gate and found the complainant holding hands with Fabian and they left.
The complainant said she did not tell Fabian what had taken place but she informed PW 3 and that the accused person was present when PW 3 was picking her. She went home and found her father and mother. She informed her father what had happened and the father just said “saw” and directed her sister Annie to bathe her and she did so.
The complainant said that she was not taken to hospital and she did not know who the police were.
In cross-examination by learned counsel for the accused person, the complainant started by saying that she had never seen the accused person before. Learned counsel then took the questioning of the complainant in the third person, that is in the manner of the person who had committed the act upon the complaint. The complainant said the person’s shop is a Samsung shop and that was where she had gone to buy “ngumu” for Wamboi.
PW 1 said she saw two people inside the shop. These people were not with the accused person, in other words, the person who committed the act upon her. When the person took her to the toilet, the two people in the shop were not seeing them.
The complainant further said that the act was done to her by her assailant while both of them were standing and the assailant facing her.
PW 1 reiterated that when she got out of the toilet, she found Wambo, PW 3 and told her that she was at the toilet. She also said that she was walking well and not as though she was injured. Fabian saw her being taken to the toilet and was waiting for her outside the toilet all along. He did not tell Wambo anything.
PW 1 reiterated that when she went home, she found her father and mother. she told her father what the assailant had done to her and he just said “sawa” or fine and that he be given a bath. Her mother did not say anything and the complainant played with the baby until night time.
PW 1 reiterated that she was not taken to the doctor. She said she went to school the next day and she did not tell her teacher what had happened to her.
In re-examination, the complainant said that she told Wambo what her assailant had done to her, that he had removed her clothes and removed a stick-like thing and put it in her. She also repeated that she told the same to the father.
The complainant remained outside their house until her father PW 4 sent her sister A. W. to go and call her at around 7.30 p.m. PW 4 said that when the complainant came into the house, she was crying and unable to walk and she told him that she fell and was injured. In another breath, PW 4 said that the complainant told him about the incident. He then asked her if she could identify the culprit and she agreed. His wife, the complainant’s mother, PW 2, had not arrived at the time. She arrived home at around 8.30 p.m.
In cross-examination, the complainant’s father said that the child told him who the culprit was after three days. He pointed him out on the road while the culprit was riding a motorcycle. The father then kept asking her whenever other people would pass riding motorcycles to make sure that she was sure of the person. He also said that the complainant told him that the incident happened in a room by the shop.
The evidence of PW 4, is contrary to the complainant’s evidence who said that when she went to the house both her parents were in and she told her father, PW 4 what had happened to her and the father just said “sawa” and directed that she be bathed and her sister washed her. The complainant also said the incident happened in the toilet and not in a room in the shop. Evidence on record is that the toilet is separate and some distance away from the shop.
The complainant’s mother PW 2 said that when she arrived home, the complainant was asleep. The complainant that when she went to buy the “ngumu” she found a boy who held her hand and took her to a toilet and that was where he sexually assaulted her. PW 2 said she examined the complainant’s anus and it looked like there were feaces yet she had been washed. They went to Makongeni police station the same day from where they were referred to hospital at around 9.00 p.m. The complainant was examined and given drugs. The doctor told her that the complainant’s anus was torn.
PW 2 said that they told the complainant that if she sees the person who had done the act to her, she should tell them. This begs the question why she could not identify the appellant at once yet he was a person known to her. PW 2 said that it was only on a later date that the complainant identified the appellant to their househelp, one Linet Muceke, their house girl, the appellant as the person who had done the act to her. It was after this that the mother went back to the police station to report that the child had identified the culprit. It took one month before the police officer came over and they had the appellant arrested. Linet Muceke was not called as a witness to confirm that story yet she was so crucial to the identification because she was the first person the complainant allegedly identified the appellant to as her assailant.
In cross-examination, PW 2 said that the complainant did not tell her father about the incident. She also said that the complainant told her that she was made to lie down in the toilet. This is contrary to the complainant’s evidence that the act was done while she and her assailant were standing.
The appellant raised an alibi defence, contending that at the time when the alleged incident is said to have taken place, he was away from the shop on his way to Nairobi where he had been sent by his employer DW 2, Wilkins Musila to send a parcel to Kitale by Great Rift Shuttle. He produced some documents being a receipt for sending the said parcel as confirmation that he was away in Nairobi at the time. He also produced some mobile phone print-out text messages showing that he had been communicating with DW 3, Jackline Wanjiru, his wife because he was travelling to and from Nairobi at the time. The trial court did not find much substance in the exhibits.
DW 2 confirmed that he had indeed sent the appellant to Nairobi at around 4.00 p.m. and that he was away at the time and he came back at around 9.00 p.m. DW 2 said that when the appellant arrived from Nairobi, the complainant’s mother was at the shop with the report that her daughter had been defiled there and the assailant had a beard. DW 2 said both the appellant and himself had a beard. They advised her to report the matter to the police.
In cross-examination, DW 2 said that the appellant was his only employee at the shop.
DW 3 said that on the material evening when he communicated with his husband, the appellant, he was on his way from Nairobi. When the appellant arrived home that evening, he told her that he had been accused of defilement but he had denied the allegation and advised the mother of the complainant to proceed to hospital for medical examination.
DW 4 said she was present at the shop on 21/3/2018 when the complainant in company of her mother and police officers went to the shop for the arrest. at first the complainant and her mother pointed at Victor Ochieng, DW 5 as the culprit but when the appellant showed up, they changed and said he was the one. DW 4 said that they have one salaried employee while the others were casual.
DW 5 said that on 21/3/2018 he was on a motorcycle when he was called by DW 4 to her shop. The complainant was asked if Victor was the culprit and she nodded in the affirmative. When the appellant came in, the complainant and her mother changed and said the appellant was the culprit.
The first issue to consider in this case is that the complaint is a minor, a child of tender years who made an unsworn testimony. She was also the only eye witness to the alleged sexual offence. Section 124 of the Evidence Act, (Cap. 80) Laws of Kenya provides as follows:

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.”

Expounding on this section of the law the Court of Appeal sitting in Mombasa in Sahali Omar vs. Republic [2017] eKLR 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.”

This is a sexual offence and therefore, in spite of the complainant having given unsworn testimony at the trial, if the trial court believed and recorded in the proceedings that it believed her, then it matters not that there was no corroboration of her evidence on any of the ingredients of the offences charged.
Sections 8(1) and 8(2) of the Sexual Offences Act under which the accused person is charged with the principal charge provides as follows:

8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are as set out in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 as follows:

“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

The alternative charge of committing an indecent act with a child is provided for under section 11(1)(a) of the Act as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration. Under this section the ingredients for the offence to be proved are that:
1. the complaint is a child,
2. there is an unlawful intentional act which causes contact,
3. the contact is between any part of the body of any person (in this case the complainant or the accused person) with the genital organs, breasts or buttocks of any other person (in this case the complainant or the accused person).
4. identification of the accused person as the culprit.
In this case, the age of the complainant was proved by production of her certificate of birth (Exh. 1) which shows her date of birth as 31/7/2013, so that at the time of the alleged sexual assault upon her on 24/2/2018 she was just about four and half years old.
Accordingly, I find that the prosecution proved the age of the complainant as a child. It would appear that the trial court did not consider this issue and make a specific finding on the same. However, I find that there was no miscarriage of justice since there was uncontested evidence to prove that ingredient and the appellant’s grounds of appeal do not dispute the same.
The second issue to consider is on a charge of defilement whether or not penetration was proved by the prosecution. Under Section 2 of the said Act:

“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The same section defines “genital organs” to include;

“the whole or part of male or female genital organs and for purposes of this Act includes the anus.”

The evidence on record shows that the only eyewitness to the act committed against the complainant was the complainant herself.
The complainant’s evidence was that her assailant inserted his penis (which she referred to as a stick) into her anus and she felt some pain. She did not cry as it was not very painful and he also threatened to do it to her again if she cried or reported it to anyone. There is no doubt that a young child of 4½ years would be scared stiff by those threats and act as directed.
PW 3 who had sent the complainant and was concerned that she had taken too long and therefore went to look for her said that when they met, the complainant was walking with difficulty. She had been normal and playing a short while before but now she showed signs of difficulty when walking. When questioned, the complainant did not, however, respond to what had happened to her.
The next person who saw the complainant and testified herein after the incident was her father, PW 4. According to him, when the complainant returned to the house at around 7.30 p.m. she was crying and unable to walk. She then told him that she had fallen and was injured.
After her father, the other person who saw her and testified in this case was her mother PW 2. When she examined the complainant’s anus when she says she saw what looked like feaces yet she had been washed a short while before.
PW 2 then took the complainant to hospital. According to the doctor, PW 5, when the complainant was examined some two days after the incident, she had a healing tear on the anus.
I am satisfied that the evidence of the complainant walking with difficulty and presence of the tear in her anal region is corroboration of her evidence that there was penetration of her anus and I so find.
The last issue is the identification of the perpetrator of the sexual assault upon the complainant.
The complainant said that when she met PW 3 upon coming from the toilet where the incident had taken place, she informed her about it. According to the complainant, the assailant was also around there. The evidence of PW 3 is however in contrast with that of the complainant. PW 3 said the complainant did not tell her about what was causing her to walk with difficulty.
The issue of whether or not the complainant told PW 3 what had happened to her and who had done it is material because it leads to how PW 3 handled the situation. If indeed, the complainant told PW 3 what had happened to her and that the appellant was the one who had committed it, why would PW 3 not say so? Why wouldn’t she take immediate action to check the complainant or even confront the appellant who seemingly was well known in that area, if at all he was there? The appellant gave evidence at the trial that he was not present. The learned trial magistrate did not believe it. But when that evidence is considered together with the evidence of PW 3, the possibility that the appellant was not present at the scene at the time is raised.
When PW 2 arrived home, afterwards, the complainant told her that she had hurt her behind. She told her that something that looked like a stick was put there by somebody who she did not know but could identify him if she saw him again.
The issue here is, the accused person was known to the complainant and her mother. She knew him by appearance and where he worked. The evidence by the prosecution never indicated that the complainant’s mother went to the Samsung shop that evening. But the defence witnesses said that she did. I do not understand how the prosecution could have failed to tender such crucial evidence in support of its case. Crucial because this was the first and best opportunity for the complainant to have identified her assailant, if he was at the shop, when the incident was still fresh in her mind. That did not happen and it took one whole month for the identification to be done.
The complainant’s father on his part said that the child told him who the culprit was after three days. He pointed him out on the road while the culprit was riding a motorcycle. The father then kept asking her whenever other people would pass riding motorcycles to make sure that she was sure of the person. He also said that the complainant told him that the incident happened in a room by the shop. This in itself would mean that the father was not certain that the complainant had properly identified her assailant. More importantly, none of the witnesses, not even the father, said that the appellant used to ride a motorcycle. Yet again, there is evidence that on the date of arrest, the complainant first identified DW 5 who indeed is a motorcycle rider, and later changed to the appellant. That is an additional indication that the complainant was not sure who her assailant was.
The trial court found that the complainant had positively identified the appellant and not DW 2 or DW 5 both of who were at the shop. In doing so, it ignore the major inconsistencies in the complainant’s evidence as pointed out above. It also failed to give sufficient regard to the defence witnesses’ evidence on the inconsistence of the complainant.
The trial court also fell in error in finding that the complainant claimed that she was defiled by a person who had a beard. This statement came from DW 2 in his testimony and not from the complainant or her mother. DW 2 said the mother of the complainant said at the shop that the complainant had said that the person had a beard. It was not the complainant describing such a person at the time. It is not stated anywhere that the complainant was present at the shop that evening and made such a description. As stated above, if she was, it would have been quite easy for her to point out who her assailant was but that was not the case.
The incident indeed happened around the Samsung shop where the appellant worked, but the identity of the appellant as the perpetrator has not been established beyond a reasonable doubt. It is possible that the assailant was lurking around the Samsung shop when the complainant went there but that it was the appellant, there are grave doubts in the evidence of the prosecution to establish the same.
The complainant’s evidence does not require corroboration as a matter of law if the court believes that she was telling the truth. However, it has been held that as a matter of practice, especially where the testimony was unsworn, the court should look for corroboration. For instance, the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR stated that:

“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is a requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”

Therefore, 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 judgment of the trial court and the record itself must show that the trial court was so satisfied. It was therefore held in Omuroni vs. Republic (2002) 2 EA 508 that:

“Trial courts can decide cases one way or the other on the basis of demeanour of a witness or witnesses particularly where the issue of credibility of such witness is decisive. In such a case the trial judge must point out instances of demeanour which he noted and upon which he relies. The trial court must point out what constituted the demeanour which influenced the trial judge to make favourable or unfavourable impression about the credibility of a particular witness.”

In the present case, there are various material contradictions and inconsistencies in the complainant’s evidence which I have pointed out above which make it difficult to find that she was an entirely truthful witness. Therefore, whereas she may not have been deliberately lying, it is quite possible that she was mistaken or could not properly identify her assailant, thereby making her evidence doubtful. The learned trial magistrate does not seem to have given due regard to these contradictions and inconsistencies.
There was no evidence corroborating the evidence of the complainant regarding the fact of identification of the appellant.
I agree with learned counsel for the appellant that the trial court erred in its finding that the appellant had been properly identified as the perpetrator of the offence against the complainant.
The trial magistrate dismissed the evidence tendered by the appellant in the form of an alibi. The appellant tendered a receipt for sending the parcel from Great Rift Valley Shuttle and text messages he shared with his wife while he was traveling. The trial court dismissed them by stating that they were not authentic. With great respect to the learned magistrate, the appellant tendered the evidence he had. He had not burden to prove his case. If the documents were not authentic, it was upon the prosecution to discredit it by tendering contrary evidence or demonstrating through cross-examination that indeed the documents could not be relied upon. That was not done by the prosecution.
The Court of Appeal in the case of Erick Otieno Meda v Republic [2019] eKLR, said of an alibi defence:

“In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.”

The appellant backed the documentary exhibits with evidence from other witnesses. I have not found anywhere the trial magistrate discredited those witnesses who supported the evidence of the appellant that he was not at the shop at the time of the incident.
The trial magistrate asked herself what motive the complainant would have had to implicate the appellant in such a serious offence and found that there was none. On that basis, he concluded that the complainant was a truthful witness. However, I find that this was a misdirection on the part of the learned magistrate. In Ayub Muchele vs. The Republic [1980] KLR 44, Trevelyan and Sachdeva, JJ held that:

“Just as animosity is a factor which is properly to be taken into account where required, so is lack of animosity. We see nothing wrong in an appropriate case for the court to ask “What reason had the witness to lie?”…The fact that people have no grudge against someone does not mean that they cannot, at the same time, be mistaken or, for that matter, deliberately untruthful…There are spiteful people about.”

Having considered the evidence placed before me in this case, I find that the same fell short of the standard expected in criminal cases on the identification of the appellant as the complainant’s assailant. The law is that where a reasonable doubt is created as to whether or not an accused committed an offence, that benefit must be in favour of the accused. In this case, the reasonable doubt was created by lack of corroboration of the identification of the appellant as the culprit which in the absence of an express finding as to the truthfulness of the complainant falls short of the proof required in this type of cases. This, coupled with the evidence tendered in defence by the appellant that he was not around at the time of the alleged offence further makes the evidence of the complainant on identification doubtful.
The trial court ought to take into account the opinion of the Court of Appeal concerning heavy minimum sentences in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:

“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”

Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. The accused person is set at liberty forthwith unless otherwise lawfully held.

63. It is so ordered.

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