JUDGMENT
(Being an Appeal from the decision by Hon. Onalo J.K Olga Senior Resident Magistrate in Malindi S.O No. E024 of 2021 dated 23 rd August, 2024)
Background:
1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and was convicted and subsequently sentenced to an imprisonment term of 20 years.
2. The particulars of the main charge were that on 8 th day of April, 2021 at (particulars withheld) within Kilifi County intentionally caused his penis to penetrate into the vagina of M.Z a girl aged 13 years.
3. The appellant was aggrieved by the conviction and sentence and lodged this appeal to the High Court. The appellant raised several grounds which can be compressed to the following grounds:
1. Failure to conduct DNA test fatally weakened the prosecution case;
2. The evidence adduced materially contradicted the charge;
3. Failure to conduct voire dire examination occasioned miscarriage of justice;
4. The investigation was shallow, incomplete and biased;
5. The evidence was unreliable, inconsistent and possibly coached;
6. The appellant’s conduct was inconsistent with guilt;
7. The defence was improperly dismissed.
Prosecution Case:
4. The prosecution case was founded on the evidence of four witnesses. The complainant testified that in 2020 the appellant started making advances to her and eventually had sex with her on several occasions. This happened sometimes on February, 2020 and December, 2020. In January, 2021 she missed her periods. In the Month April, 2021 one of the appellant’s child observed that there was something wrong with her. Upon inquiry and being beaten she said that she was pregnant and it is the appellant her grandfather who was responsible.
5. The complainant was taken to the police station by her grandfather apparently the appellant herein and later to the hospital where she was found to be 4 months pregnant. On the way back home, the appellant told her not to say that he is the one who had defiled her but by a mad man. The appellant also took her to a certain chemist to procure abortion. She was however rescued and taken to rescue home.
6. Festus Taura Samuel was informed that the complainant was pregnant by James Taura. On inquiry from the complainant, she said she was impregnated by the appellant. Later he was informed that the appellant had been arrested. He picked the complainant from a children home and took her to hospital.
7. Corporal Marian Hussein of Malindi police station investigated the case which was reported to her on 9 th April, 2021. Her evidence was that she was called and informed that there was a man who had impregnated a girl and was planning to help her procure an abortion. She went to the scene and arrested the appellant and rescued the complainant. She took the complainant to the hospital where she was examined and a P3 Form was filled. In the course of investigations, she established that the appellant was grandfather to the complainant.
8. Dr. Ibrahim Abdullahi of Malindi Sub County hospital examined the complainant on 15 th April, 2021 on allegation of defilement. He found that the complainant was 16 weeks pregnant. Her hymen was broken. He concluded that there was vaginal penetration. He produced in court as exhibits the P3 Form, treatment notes and laboratory results.
Defence Case:
9. The appellant when placed on his defence he opted to give a sworn statement. He stated that on 8 th April, 2021 he saw his children asking the complainant whether she was pregnant. He joined them and asked them what was happening. They started beating him. He went to hospital with the complainant where upon examination she was found to be pregnant. From the hospital they went to the police station where a P3 Form was issued. The appellant denied committing the offence.
Finding of the Trial Court:
10. The trial court identified the issues for determination as to whether the offence of defilement had been proved as required and whether the appellant’s defence was sustainable. The trial court appreciated that for the offence to be proved the prosecution must establish the three main ingredients to wit, age of the victim, proof of penetration and proper identification of the perpetrator.
11. The trial court after evaluating the evidence adduced before her she found that the offence of defilement was proved as required and found the appellant guilty and accordingly convicted and sentenced him to serve 20 years imprisonment.
Appellant’s Submissions:
12. The appellant submitted that since the complainant was found to be pregnant, it was necessary to conduct DNA test which would have conclusively determined whether he was responsible for the pregnancy. According to the appellant such evidence was necessary to directly link him with the pregnancy.
13. The appellant further submitted that the evidence of PW1 materially contradicted the charge. He argued that the charge sheet stated that the offence was committed on 8 th April, 2021 but the evidence of PW1 substantially departed from the particulars contained in the charge. The appellant submitted that PW1 in her testimony talked of having been defiled in February, 2020 and December, 2020. For that reason, the appellant argue that this was a material inconsistency going to the root of the substance of the charge. He cited Section 134 of the Criminal Procedure Code which require a charge to contain sufficient particulars to enable an accused person to adequately prepare his defence. He cited the case of Yongo vs Republic.
14. The appellant further faulted the trial court for failing to conduct voire dire examination to determine whether the complainant was possessed of sufficient intelligence and mental capacity to testify in court, whether she understood the nature of and solemnity of the oath and whether she appreciates the duty of speaking the truth. The appellant argued that the complainant being a child of tender age, it was necessary for the trial court to conduct voire dire examination to determine the competence and credibility of the complainant.
15. The appellant further submitted that the investigations were shallow and incomplete. He alluded to failure by the investigating officer to undertake DNA test which would have been the most reliable evidence in the circumstances of the case.
16. The appellant further argued that the evidence of PW1 which the trial court relied on to find conviction was unreliable and unsafe as it was not supported by any independent evidence. It was argued by the appellant that no medical evidence was adduced to link him with the pregnancy.
17. The appellant argued that his conduct was inconsistent with guilt. He argued that he is the one who rescued the complainant when she was locked inside the house by his sons. He further argued that he is the one who took the complainant to police station and facilitated her access to medical attention. He submitted that such conduct is fundamentally inconsistent with guilty mind.
18. Finally, the appellant submitted that the trial court failed to consider his defence.
Respondent’s Submissions:
19. The respondent submitted that all the necessary elements of the offence of defilement were proved as required. It was submitted that the evidence of the complainant that the appellant had sex with her was corroborated by the medical evidence.
20. It was also submitted that the appellant was properly identified as the perpetrator as he was well known to the complainant.
21. The respondent submitted that there were no contradictions or inconsistencies in the prosecution case as argued by the appellant. the respondent relied on the case of Richard Munene vs Republic (2018) e KLR on when inconsistencies and contradictions can create doubt in the mind of the court.
22. The respondent further submitted that the trial court properly considered the appellant’s defence and found the same untenable and dismissed the same.
Analysis and Determination:
23. This being the first appeal to the High Court, and as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own conclusions. I have done so not overlooking the fact that I did not have the advantage of seeing and hearing the witnesses testify unlike the trial court. (See Okeno vs Republic (1972) E.A 32).
24. Further I have reminded myself that it is the cardinal principle of criminal law that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in numerous decisions like the case of Stephen Ngui Mulili vs Republic (2014) e KLR where the court cited the famous case of DPP vs Woolmington (1935) UKHL 1 and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position.
25. Guided by the foregoing, I have re-examined the evidence adduced by the prosecution and the appellant’s defence. The appellant first argued that failure to conduct DNA test weakened the prosecution case. Section 36 of the Sexual Offences Act provides:
“Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing including a DNA test, in order to gather evidence and ascertain whether or not the accused committed the offence.”
26. The forgoing provision gives discretion to the court to order for forensic or other scientific testing including the DNA test. That section does not make it mandatory for DNA test to be conducted in all cases. It is imperative to note that Section 124 of the Evidence Act remains relevant in the circumstances which gives the court power to convict in sexual offences on the evidence of the victim alone.
27. It is thus clear that it is not necessary and fatal for failure to conduct DNA as argued by the appellant. All what the prosecution is required is to prove penetration which can be proved through other evidence other than DNA test. In any case, if the evidence adduced is sufficient, the court can convict without necessarily ordering for DNA test.
28. The appellant argued that the evidence adduced was in variance with the charge sheet. I have looked at the charge sheet and note that the offence is alleged to have been committed on 8 th April, 2021. The evidence adduced by the complainant indicates that the offence was committed February, 2020 and December, 2020. It is clear that there was variance between the charge sheet and the evidence adduced.
29. Section 134 of the Criminal Procedure Code provides that:
“Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as the nature of the offence.”
30. Looking at the charge sheet in this case, I find that it fully complied with the above provision. It contains a statement of the offence charged and the particulars which sufficiently disclosed the nature of the offence charged.
31. In the case of Jason Yongo vs Republic (1983) e KLR it was held that a charge sheet is defective if:
a) It does not accord with the evidence in criminal proceedings because of inaccuracies or deficiencies in the charge.
b) If it gives a misconception of the alleged offences in its particulars, or
c) Mistaken description in particulars, the original charge is therefore defective within the meaning of Section 214 of the Criminal Procedure Code.
32. Section 214 of the Criminal Procedure Code provides:
“214(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by substitution or addition of new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that-
i) Where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
ii) Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.”
33. From the foregoing it is clear that variance between the charge and the evidence adduced in support of it with respect to the time of the alleged commission of the offence is not material. Similarly, where there is variance between the charge and the evidence adduced, the court shall if it is of the opinion that the accused has been misled or deceived, the court may either convict or pass a sentence upon or make an order of acquittal.
34. In the instant case as observed, the charge sheet indicated the offence was committed on 8 th April, 2021. The evidence of the complainant was that the appellant started incessantly asking for sex from her in December, 2020 and the last time he had sex with her was 8 th April, 2021. In my considered view the alleged variance taken together with the evidence adduced before the court was not material so as to have render the charge defective. It is clear that the charges were read out to the appellant. He pleaded to the same and offered his defence. It cannot be said that the appellant was prejudiced.
35. The appellant faulted the trial court for not conducting voire dire examination. Under Section 19(1) of the Oaths and Statutory Declaration Act, where a child of tender years is called to give evidence in court, such evidence may be received and relied upon by the trial court if in the opinion of the court that such child is possessed of sufficient intelligence to testify.
36. Section 19 of the Oaths and Statutory Declaration Act does not define who is a child of tender years. The Children Act 2022 defines child of tender age to meat child under the age of ten years. However, with respect to criminal proceedings, in the case of Kabageny vs Republic (1959) E.A 92 the court rendered itself thus:
“There is no definition in Oaths and Statutory Declaration Ordinance of the explanation ‘child of tender years’ for purposes of Section 19. But we take it to mean, in absence of special circumstances, any child of an age, or apparent age of under fourteen years.”
37. In the instant case, the complainant is indicated to have been aged 13 years at the time of the alleged offence. The record shows that at the time she testified in court she was aged 15 years. Going by the holding in Kibageny case the complainant was not a child of tender years so to require the court to conduct voire dire examination. That ground of appeal must fail.
38. The appellant argued that the investigations were shallow because the investigating officer did not conduct DNA test so as to link him with the offence. As I have indicated in this judgment, it is not a necessary requirement that in cases of defilement DNA test must be conducted. What all matters is whether sufficient evidence has been adduced to link an accused with the offence. In this case the trial court believed the evidence of the complainant pursuant to Section 124 of the Evidence Act.
39. The appellant argued that the evidence of the complainant which the trial court relied on was uncorroborated by independent evidence. I have examined the record and particularly the evidence of the complainant. She was consistent in her testimony on how the appellant preyed on her for sex until she became pregnant. It was her evidence that the appellant attempt to lure her to procure abortion. The medical evidence adduced also confirmed that the complainant’s hymen was broken and she was found to be pregnant. The trial court believed the evidence of the complainant pursuant to Section 124 of the Evidence Act. On my part I find the evidence of the complainant was not only corroborated by the medical evidence adduced before the court but was consistent.
The appellant argued that the trial court did not consider that his action of taking the appellant to hospital was inconsistent with guilt mind and that the same was not considered by the trial court. The trial court considered the appellant’s defence and found that the same did not dislodge the prosecution case. On my part I have considered the appellant’s defence which I find looked against the prosecution case, the same was correctly rejected by the trial court. I have no reason to fault the trial court for rejecting the same.
Regarding the sentence, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The penal section which is Section 8(3) of the Act provides for a sentence of not less than 20 years. The appellant was sentenced to 20 years which is lawful sentence provided for under the Act. I have no reason to interfere with the same.
Consequently, I find that the appeal has no merit and I dismiss the same. The finding of the trial court is upheld.
Dated, signed and delivered virtually this 18 th day of August, 2026.
Francis Kyambia
Judge
2
(Being an Appeal from the decision by Hon. Onalo J.K Olga Senior Resident Magistrate in Malindi S.O No. E024 of 2021 dated 23 rd August, 2024)
Background:
1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and was convicted and subsequently sentenced to an imprisonment term of 20 years.
2. The particulars of the main charge were that on 8 th day of April, 2021 at (particulars withheld) within Kilifi County intentionally caused his penis to penetrate into the vagina of M.Z a girl aged 13 years.
3. The appellant was aggrieved by the conviction and sentence and lodged this appeal to the High Court. The appellant raised several grounds which can be compressed to the following grounds:
1. Failure to conduct DNA test fatally weakened the prosecution case;
2. The evidence adduced materially contradicted the charge;
3. Failure to conduct voire dire examination occasioned miscarriage of justice;
4. The investigation was shallow, incomplete and biased;
5. The evidence was unreliable, inconsistent and possibly coached;
6. The appellant’s conduct was inconsistent with guilt;
7. The defence was improperly dismissed.
Prosecution Case:
4. The prosecution case was founded on the evidence of four witnesses. The complainant testified that in 2020 the appellant started making advances to her and eventually had sex with her on several occasions. This happened sometimes on February, 2020 and December, 2020. In January, 2021 she missed her periods. In the Month April, 2021 one of the appellant’s child observed that there was something wrong with her. Upon inquiry and being beaten she said that she was pregnant and it is the appellant her grandfather who was responsible.
5. The complainant was taken to the police station by her grandfather apparently the appellant herein and later to the hospital where she was found to be 4 months pregnant. On the way back home, the appellant told her not to say that he is the one who had defiled her but by a mad man. The appellant also took her to a certain chemist to procure abortion. She was however rescued and taken to rescue home.
6. Festus Taura Samuel was informed that the complainant was pregnant by James Taura. On inquiry from the complainant, she said she was impregnated by the appellant. Later he was informed that the appellant had been arrested. He picked the complainant from a children home and took her to hospital.
7. Corporal Marian Hussein of Malindi police station investigated the case which was reported to her on 9 th April, 2021. Her evidence was that she was called and informed that there was a man who had impregnated a girl and was planning to help her procure an abortion. She went to the scene and arrested the appellant and rescued the complainant. She took the complainant to the hospital where she was examined and a P3 Form was filled. In the course of investigations, she established that the appellant was grandfather to the complainant.
8. Dr. Ibrahim Abdullahi of Malindi Sub County hospital examined the complainant on 15 th April, 2021 on allegation of defilement. He found that the complainant was 16 weeks pregnant. Her hymen was broken. He concluded that there was vaginal penetration. He produced in court as exhibits the P3 Form, treatment notes and laboratory results.
Defence Case:
9. The appellant when placed on his defence he opted to give a sworn statement. He stated that on 8 th April, 2021 he saw his children asking the complainant whether she was pregnant. He joined them and asked them what was happening. They started beating him. He went to hospital with the complainant where upon examination she was found to be pregnant. From the hospital they went to the police station where a P3 Form was issued. The appellant denied committing the offence.
Finding of the Trial Court:
10. The trial court identified the issues for determination as to whether the offence of defilement had been proved as required and whether the appellant’s defence was sustainable. The trial court appreciated that for the offence to be proved the prosecution must establish the three main ingredients to wit, age of the victim, proof of penetration and proper identification of the perpetrator.
11. The trial court after evaluating the evidence adduced before her she found that the offence of defilement was proved as required and found the appellant guilty and accordingly convicted and sentenced him to serve 20 years imprisonment.
Appellant’s Submissions:
12. The appellant submitted that since the complainant was found to be pregnant, it was necessary to conduct DNA test which would have conclusively determined whether he was responsible for the pregnancy. According to the appellant such evidence was necessary to directly link him with the pregnancy.
13. The appellant further submitted that the evidence of PW1 materially contradicted the charge. He argued that the charge sheet stated that the offence was committed on 8 th April, 2021 but the evidence of PW1 substantially departed from the particulars contained in the charge. The appellant submitted that PW1 in her testimony talked of having been defiled in February, 2020 and December, 2020. For that reason, the appellant argue that this was a material inconsistency going to the root of the substance of the charge. He cited Section 134 of the Criminal Procedure Code which require a charge to contain sufficient particulars to enable an accused person to adequately prepare his defence. He cited the case of Yongo vs Republic.
14. The appellant further faulted the trial court for failing to conduct voire dire examination to determine whether the complainant was possessed of sufficient intelligence and mental capacity to testify in court, whether she understood the nature of and solemnity of the oath and whether she appreciates the duty of speaking the truth. The appellant argued that the complainant being a child of tender age, it was necessary for the trial court to conduct voire dire examination to determine the competence and credibility of the complainant.
15. The appellant further submitted that the investigations were shallow and incomplete. He alluded to failure by the investigating officer to undertake DNA test which would have been the most reliable evidence in the circumstances of the case.
16. The appellant further argued that the evidence of PW1 which the trial court relied on to find conviction was unreliable and unsafe as it was not supported by any independent evidence. It was argued by the appellant that no medical evidence was adduced to link him with the pregnancy.
17. The appellant argued that his conduct was inconsistent with guilt. He argued that he is the one who rescued the complainant when she was locked inside the house by his sons. He further argued that he is the one who took the complainant to police station and facilitated her access to medical attention. He submitted that such conduct is fundamentally inconsistent with guilty mind.
18. Finally, the appellant submitted that the trial court failed to consider his defence.
Respondent’s Submissions:
19. The respondent submitted that all the necessary elements of the offence of defilement were proved as required. It was submitted that the evidence of the complainant that the appellant had sex with her was corroborated by the medical evidence.
20. It was also submitted that the appellant was properly identified as the perpetrator as he was well known to the complainant.
21. The respondent submitted that there were no contradictions or inconsistencies in the prosecution case as argued by the appellant. the respondent relied on the case of Richard Munene vs Republic (2018) e KLR on when inconsistencies and contradictions can create doubt in the mind of the court.
22. The respondent further submitted that the trial court properly considered the appellant’s defence and found the same untenable and dismissed the same.
Analysis and Determination:
23. This being the first appeal to the High Court, and as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own conclusions. I have done so not overlooking the fact that I did not have the advantage of seeing and hearing the witnesses testify unlike the trial court. (See Okeno vs Republic (1972) E.A 32).
24. Further I have reminded myself that it is the cardinal principle of criminal law that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in numerous decisions like the case of Stephen Ngui Mulili vs Republic (2014) e KLR where the court cited the famous case of DPP vs Woolmington (1935) UKHL 1 and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position.
25. Guided by the foregoing, I have re-examined the evidence adduced by the prosecution and the appellant’s defence. The appellant first argued that failure to conduct DNA test weakened the prosecution case. Section 36 of the Sexual Offences Act provides:
“Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing including a DNA test, in order to gather evidence and ascertain whether or not the accused committed the offence.”
26. The forgoing provision gives discretion to the court to order for forensic or other scientific testing including the DNA test. That section does not make it mandatory for DNA test to be conducted in all cases. It is imperative to note that Section 124 of the Evidence Act remains relevant in the circumstances which gives the court power to convict in sexual offences on the evidence of the victim alone.
27. It is thus clear that it is not necessary and fatal for failure to conduct DNA as argued by the appellant. All what the prosecution is required is to prove penetration which can be proved through other evidence other than DNA test. In any case, if the evidence adduced is sufficient, the court can convict without necessarily ordering for DNA test.
28. The appellant argued that the evidence adduced was in variance with the charge sheet. I have looked at the charge sheet and note that the offence is alleged to have been committed on 8 th April, 2021. The evidence adduced by the complainant indicates that the offence was committed February, 2020 and December, 2020. It is clear that there was variance between the charge sheet and the evidence adduced.
29. Section 134 of the Criminal Procedure Code provides that:
“Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as the nature of the offence.”
30. Looking at the charge sheet in this case, I find that it fully complied with the above provision. It contains a statement of the offence charged and the particulars which sufficiently disclosed the nature of the offence charged.
31. In the case of Jason Yongo vs Republic (1983) e KLR it was held that a charge sheet is defective if:
a) It does not accord with the evidence in criminal proceedings because of inaccuracies or deficiencies in the charge.
b) If it gives a misconception of the alleged offences in its particulars, or
c) Mistaken description in particulars, the original charge is therefore defective within the meaning of Section 214 of the Criminal Procedure Code.
32. Section 214 of the Criminal Procedure Code provides:
“214(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by substitution or addition of new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that-
i) Where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
ii) Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.”
33. From the foregoing it is clear that variance between the charge and the evidence adduced in support of it with respect to the time of the alleged commission of the offence is not material. Similarly, where there is variance between the charge and the evidence adduced, the court shall if it is of the opinion that the accused has been misled or deceived, the court may either convict or pass a sentence upon or make an order of acquittal.
34. In the instant case as observed, the charge sheet indicated the offence was committed on 8 th April, 2021. The evidence of the complainant was that the appellant started incessantly asking for sex from her in December, 2020 and the last time he had sex with her was 8 th April, 2021. In my considered view the alleged variance taken together with the evidence adduced before the court was not material so as to have render the charge defective. It is clear that the charges were read out to the appellant. He pleaded to the same and offered his defence. It cannot be said that the appellant was prejudiced.
35. The appellant faulted the trial court for not conducting voire dire examination. Under Section 19(1) of the Oaths and Statutory Declaration Act, where a child of tender years is called to give evidence in court, such evidence may be received and relied upon by the trial court if in the opinion of the court that such child is possessed of sufficient intelligence to testify.
36. Section 19 of the Oaths and Statutory Declaration Act does not define who is a child of tender years. The Children Act 2022 defines child of tender age to meat child under the age of ten years. However, with respect to criminal proceedings, in the case of Kabageny vs Republic (1959) E.A 92 the court rendered itself thus:
“There is no definition in Oaths and Statutory Declaration Ordinance of the explanation ‘child of tender years’ for purposes of Section 19. But we take it to mean, in absence of special circumstances, any child of an age, or apparent age of under fourteen years.”
37. In the instant case, the complainant is indicated to have been aged 13 years at the time of the alleged offence. The record shows that at the time she testified in court she was aged 15 years. Going by the holding in Kibageny case the complainant was not a child of tender years so to require the court to conduct voire dire examination. That ground of appeal must fail.
38. The appellant argued that the investigations were shallow because the investigating officer did not conduct DNA test so as to link him with the offence. As I have indicated in this judgment, it is not a necessary requirement that in cases of defilement DNA test must be conducted. What all matters is whether sufficient evidence has been adduced to link an accused with the offence. In this case the trial court believed the evidence of the complainant pursuant to Section 124 of the Evidence Act.
39. The appellant argued that the evidence of the complainant which the trial court relied on was uncorroborated by independent evidence. I have examined the record and particularly the evidence of the complainant. She was consistent in her testimony on how the appellant preyed on her for sex until she became pregnant. It was her evidence that the appellant attempt to lure her to procure abortion. The medical evidence adduced also confirmed that the complainant’s hymen was broken and she was found to be pregnant. The trial court believed the evidence of the complainant pursuant to Section 124 of the Evidence Act. On my part I find the evidence of the complainant was not only corroborated by the medical evidence adduced before the court but was consistent.
The appellant argued that the trial court did not consider that his action of taking the appellant to hospital was inconsistent with guilt mind and that the same was not considered by the trial court. The trial court considered the appellant’s defence and found that the same did not dislodge the prosecution case. On my part I have considered the appellant’s defence which I find looked against the prosecution case, the same was correctly rejected by the trial court. I have no reason to fault the trial court for rejecting the same.
Regarding the sentence, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The penal section which is Section 8(3) of the Act provides for a sentence of not less than 20 years. The appellant was sentenced to 20 years which is lawful sentence provided for under the Act. I have no reason to interfere with the same.
Consequently, I find that the appeal has no merit and I dismiss the same. The finding of the trial court is upheld.
Dated, signed and delivered virtually this 18 th day of August, 2026.
Francis Kyambia
Judge
2