'
1. The appellant was in Kilungu MCR S.O E012/2021 charged with:
Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars being that Kimuyu on the 13th day of January 2022 at Ngaa village Ilima location in Makueni County intentionally caused his penis to penetrate the vagina of F.M.N a child aged 6 years.
2. 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 No. 3 of 2006. Particulars being that on the 13th day of January 2022 at Ngaa village Ilima location in Makueni County intentionally touched the vagina of F.M.N with his penis a child aged 6 years.
3. He denied the offence and the case proceeded for hearing.
4. After hearing five witnesses – PW1 the minor FM, PW2 EKM, Father to PW1, PW3, Petronila Wavinya Kimondio, PW4 Erick Kasyamani the clinical officer, PW5 No. 242340 PC Victor Musyoka Kyambeke Police Station, the accused was found to have case to answer . he was put on his defence.
5. The accused gave a sworn statement of defense he did not call any witness.
6. The trial court found him guilty and convicted him on the main count on 6/9/2022. On 8/9/2022 he was sentenced to 25 years imprisonment.
7. It is against this conviction and sentence that the appellant filed his appeal on the following grounds:-
1) That, I pleaded not guilty to the charges during trial.
2) That, the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted acquittal verdict.
3) That, the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.
4) That, I can’t recall all that transpired during trial hence plead to this Hon. Court to furnish me with lower court proceeding and judgment transcripts.
8. The case for the prosecution was that the trial court conducted voire dire examination and found that the complainant did not understand the oath and directed that she would give unsworn testimony and the appellant would get the opportunity to ask questions. The record states as follows with regard to the testimony of the complainant one KING’ANG’I removed her clothes and removed his clothes and he then he inserted his thing inside her thing. That when he could not insert his thing, he touched hers using his fingers and that it happened in a bush in the day. That when he finished, she went home. She found her mother and told her what King’ang’i had done. That King’ang’i was from their home area and his other name was Muthiani. There was no else. That she was not injured but she was taken to hospital. That she did not know whether they went to hospital. She did not know the person appearing on the laptop screen.
9. On cross examination the complainant told the court that when she got home her mother checked her private parts. She told her mother that King’ang’i pushed me to the ground and she injured her knee.
10. The Prosecution did not examine the witness. The record indicates that thereafter the court cross examined the complainant but it did not allow the appellant or DPP to cross examine the complainant. Under cross examination by the court she told the court that the thing he inserted was the one he used to urinate in to the thing she used to urinate. That she met King’ang’i along the road.
11. PW2 EKM testified that on 13/01/2022 he daughter returned from school in the afternoon while crying. She told her that King’ang’i had done bad manners to her that he pulled her from the road on her way from school and removed her trouser because she had trouser. She checked her vagina did not understand everything. She said she saw a black thing which she did not understand. The PW1 took her to where the incident took place and on the way they found children sitting under a tree. The children told her that they had spotted King’ang’i with PW1 who was crying . That he was holding a bottle of alcohol. That when they asked him what had he done to her he said they should ask her. The children told them that King’ang’i did that to the children often and sometimes enticed the children to his house with the promise of soda or meat. She returned home and later reported to the police. Her mother (Pw1’s grandmother) took her to hospital.
She said that her daughter was born on 25/08/2016 . She produced the birth notification (as P exhibit 1.
She also produced the treatment notes, she identified the P3 form and PRC form. She told the court that King’ang’i was also Muthiani and he lived close to them and that other than this incident they had never quarreled she identified him as the one on the laptop screen. That is all.
12. On Cross examination she told the court that they took PW1 to hospital for the doctor’s to establish whether there were sperms. She did not know how far the assistant chief’s office was from her home. She said there was one Muinde Mbulo who saw the accused with the child in the bush. That it was her mother who took PW1 to hospital. That the chief and assistant chief were not witnesses in this case; that PW1’s clothes did not have blood stains.
13. PW3 PWK was a housewife and a retired teacher at the material time. She told the court that on 13/01/2022 at 1PM she was at home having lunch when PW1 came home crying and said that the accused had defiled her. That PW2 told her about the issue and she took PW1 to Muani dispensary and was referred to another hospital. She reported to the police . She was attended at Kyambeke hospital for emergency intervention and the next day she was attended to at Mutungu hospital. She said she was present when the doctor examined PW1 saw her genitalia was not normal. She identified King’ang’i as the accused person appearing on the screen.
14. On Cross Examination she said she had given the accused work many times, but she could not remember the number; that she had fully paid him for all the work. She denied demanding sex from the accused person before she paid him for his work. She said she did not know whether PW1 was bleeding when she got home. She denied framing the accused for refusing to have sex with her. She said that the accused was not arrested immediately because they were following up on PW1’s medical examination and not because she was fabricating evidence. She denied examining PW1 at home and I only took her hospital. She said she took action immediately and did not give her a bath before taking her to hospital. She said that the doctor is the one who would say whether or not he found sperms. She did not know whether the accused was examined.
15. PW4 Examination Erick Kasyamani a Clinical Officer from Kilungu sub county hospital produced the P3 form for FMN a six years old who gave a history of being defiled by a person known to her on 13/01/2022 at 2pm. She stated she was defiled inside a bush. On examination, her vagina had a bruise and the hymen was broken. He concluded that she had been defiled, filled the P3 form on 14/01/2022. He testified that he relied on the treatment card from Kyambeke health Centre to fill the P3 form. He also filled a PRC form. He produced the treatment notes as P exhibit 2, P3 form exhibit 3 and PRC form P exhibit 4. On Cross examination of PW4 by the accused, he told the court that the patient was treated on 13/1/2022 at Kyambeke health centre. She had already taken a bath before being examined. He did not attend to or examine the accused person. That he had many years’ experience in defilement cases. That it was possible for a six year old to walk after being defiled. That he was not given any blood stained clothes belonging to the complainant. That no sperms were found in the complainant’s body. That he did not know whether the accused suffered from syphilis or whether the accused defiled the complainant. Tat it was the complainant who implicated the accused person. That the broken hymen and bruise showed that she was defiled. These observations could be seen 48 hours later. On Re-examination by Prosecutor the he stated that it was not a must for a defiled person to get infected with syphilis if the defiler had it.
16. PW5 no. 242340 PC Victor Musyoka of Kyambeke police station was the investigating officer in this case. He testified that on 13/01/2022 in the evening the OCS assigned him this case. He escorted the complainant to Kyambeke health centre for treatment and the next day for filling of the P3 form. He visited the scene and arrested the accused person. The complainant told him that King’ang’i defiled her. Her grandmother pointed out King’ang’i to him and the girl positively identified him. The scene was some bushes near the road. He got a witness who was a family member to the accused person but had since fled from the area. That this witness recorded his statement that he saw the accused coming out of the bushes with the complainant and he had dust on his knees. That the accused told him that he was drunk and did not know what he was doing. He testified that King’ang’i was the accused person appearing on the monitor screen. On Cross Examination he said that the defilement took place on the 13/01/2022. That Kyambeke has a Chief, Assistant Chief and village elder. That Defilement cases are serious and are dealt with by the police. That he did not witness the defilement. That the complainant’s testimony implicated the accused person. That he did not take photographs of the scene of the crime. That he would not know what lead the accused to defile the girl. That the girl had no reason to frame the accused person. That an old man such as the accused person was capable of defiling a child. That he took a while before arresting the accused person because he was carrying out investigations. That the accused was not lynched by members of the public because the information did not leak to the public. That there were no people on the road at the time of the incident. That the only other witness was threatened by accused’s family and he had fled the area and switched off his phone.
17. In his defence the appellant stated that he was a stone mason and worked at complainant’s house for many years .The complainant and her family knew him very well. He said he was framed because I have quarreled with her grandmother. The grandmother wanted to pay him with sex and he refused. He said he would never defile a small child. That he was an old man and could not do such a thing. That no Chief or Assistant Chief had ever come to his home. The complainant took very many days to report to the police meaning he had been framed. That the the complainant’s grandmother was of loose morals and was known by everyone at home.
18. On Cross Examination by Prosecutor, he said that he was known as King’ang’i at home. That the complainant knew him as King’ang’i; that on 13/01/2022 he worked at his shamba up to 1pm and went to the market later. That he never met the complainant on that day. That he drank alcohol up to 4pm and blacked out on the road. That he never saw any children along the road. That he had witnesses who knew he worked for the complainant’s grandmother but could not name any one of them.
19. To argue the appeal the parties filed written submissions:-
The appellant chose to argue his appeal on the following issues:
I) Recognition identification.
He argues that in criminal matters – the positive identification of the accused person must be thoroughly and carefully scrutinized to avoid miscarriage of justice – he cites Kariuki Njiru and 7 Others vs- R Cr Appeal 6/2001 unreported.
He submits that he was not identified or recognized by the complainant because during the trial she told the court she could not identify the person on the computer screen – that she actually stated “ I do not know the person on the screen”.
II) Defective charge
He argues that the charge sheet does not contain the words “unlawfully and without consent” and is fatally defective. He relies on Achoki v R (2002) E A 288.
III) Credibility of evidence by PW1,2,3,4 and 5
That though the complainant stated that one King’ang’i removed her clothes and defiled her she did not identify the said King’ang’i as accused and the evidence of the other witnesses does not support her testimony – because they were not there at the scene and cannot know who the child was referring to as King’ang’i.
IV) Contradictions – that the evidence of PW3 that she did not give the child a bath before taking her to the hospital and that of clinical officer that the child had taken a bath at the time of the examination.
V) Penetration:
That there was no evidence of penetration from the complainant and the medical evidence and that a broken hymen per se is not proof of defilement. That the court could not have relied on section 124 of the Evidence Act.
That the prosecution failed to prove the charge beyond a reasonable doubt. He submits that upon conducting voire dire the court found that the minor did not understand the importance of telling the truth. That the court did not explain - why it believed the complainant and not the appellant. Hence the case was not proved beyond a reasonable doubt and that any doubt ought to be resolved in his favour.
20. I did not find any submissions by the State in the file.
21. This court is guided by the principles in Okeno vs R on the duty of the first appellate court to re-assess the evidence and draw its own conclusions.
22. The issue for determination is whether the prosecution did prove the charge against the appellant beyond a reasonable doubt to warrant the conviction.
23. The ingredients for defilement are age, penetration, the identified perpetrator and the circumstances of the offence.
24. On age, a birth notification produced as PEx-1 shows that the complainant was born on 25/8/2016 and the offence was committed on 13/1/2022. She was about 6 years old.
25. On penetration, the trial court found that this was proved through the evidence of PW4, the clinical officer. That the accompanying treatment notes, P3 form, PRC form , the vaginal bruise and the broken hymen were indicative of penetration.
It is noteworthy that on penetration the trial court did not rely on the testimony of the child but on medical evidence.
The medical evidence was clearly insufficient.
The complainant stated that she was taken to hospital and in the same sentence she said she did not know whether they had gone to hospital The C.O who testified stated that he relied on the treatment notes from Kyambeke health centre to fill the P3 form and the PRC form.
On cross examination he said there was no blood stain clothes from the complainant – that the hymen was broken – no discharge no bleeding. Bruise on the left labia, normal vagina walls. This evidence does not support the complainant’s testimony that “a thing was inserted into her thing”
The record shows that there no treatment notes from Kyambeke only from a document hand written Muani. This document did not have any name or designation of the person who filled it out. The C.O did not state that he knew the hand writing or signature of that person in order to rely on it yet it is out of what was written there that he drew the conclusion that the complainant was defiled.
The complainant also told the court that she was not hurt. She said that she was hurt at the knee after King’ang’i pushed her down.
He told the court that the bruise and the broken hymen were proof of defilement. It is now trite that a broken hymen per se is not proof of penetration. It has been found a hymen can break through other ways
Secondly the mother of the child told the court that she examined the child’s vagina. How did she do it? Could she have injured the child? This question is pertinent because in her quest to check the child’s vagina she could have caused the child injury. The prosecution did not pursue this sufficiently to confirm just how she examined the complainant’s vagina to rule out that possibility.
The treatment notes indicate that the child was examined on 13/1/2022. There was no vaginal discharge or bleeding but the hymen was broken with a bruise on the left labia. The trial court drew the conclusion that there had been penile penetration of the child leading to the broken hymen. Yet the Clinical officer, the mother and grand mother testified that there was no bleeding, or any discharge.
There was contradicting evidence as to whether by the time the child was examined whether or not she had taken a bath. PW4 said that she had. However more importantly did not himself examine the child but relied on the treatment notes
This complainant in her evidence in chief told the court that the appellant put his thing in her thing. She said she was not injured. On cross examination she told the court when she got home “I told my mother that King’ang’i pushed me to the ground and I injured my knee” .
The complainant presents two versions of what happened. One that a thing and fingers were inserted in her vagina, and that the appellant merely pushed her to the ground and she injured her knee. Section 19 of the Oaths and Statutory Declarations Act provides for Evidence of children of tender years thus;
(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
In this the court merely stated that the child would give evidence without being sworn but did not draw an opinion as to the intelligence of the child to justify the reception of the evidence.
The complainant’s testimony was not steady and the Prosecution did not pursue the gaps sufficiently to close them up as complainant’s testimony presented two scenarios that are contradictory.
26. PW2 her mother tells the court that the child told her King’ang’i had done her bad manners. However, the child says that she told her mother that King’ang’i pushed her down and she hurt her knee.
27. On the identity of the perpetrator the complainant presented with the person she referred to as King’ang’i she told the court she did not know him . The children who were said to have seen the said King’ang’i with her were not found to come and testify. They would have confirmed whether or not the King’ang’i in court was the one they saw with the complainant, Even the adult who was said to have seen the complainant with the said King’ang’i did not testify. They are reported by the PW2 to have told her a lot of things. However, the I.O did not follow up on these crucial witnesses who were the first persons to see the complainant emerge from the bush, with the PW1. All the things the children allegedly told her were hearsay.
28. The I.O also spoke about an adult witness who he claimed was from the family of the appellant. His name came up during the cross examination of the PW2. That he saw the child in the bush with the appellant. The PW2 did not tell the court that this witness was related to thee appellant. Her evidence on what the children told her is pure hearsay and cannot be used against the appellant. The mother named one Muinde Mbulo as having seen the child in the bush, with the appellant but he never testified.
29. Without other evidence her evidence becomes unreliable and not safe to found a conviction. From the record the evidence does not support the prosecution’s case that indeed the appellant’s penis penetrated the complainant’s vagina – the clinical officer did not explain the normal vaginal walls of the 6 year old and the broken hymen without any bleeding or discharge – yet she was allegedly examined a few hours after the alleged defilement. There was one bruise on the left labia – her own mother also examined the child’s vagina – and it cannot be ruled out that she too could have caused the said bruise. As far as penetration and identity of the penetrator is concerned the complainant’s testimony is insufficient.
30. The I.O did not carry out any investigations other than recording statements . There were serious allegations by PW2 against the appellant that he was a serial defiler of children enticing them with meat/soda. This was not investigated . The other children were not spoken to, making the PW2’a testimony exaggerated and unreliable. If the adult could not come to testify why did the I.O not follow up on the children who allegedly saw the appellant with the child? The case of Bukenya vs Uganda comes up for the proposition that even if they were called their testimony would not have supported the case for prosecution.
31. While the PW1 could name the appellant, she could not identify him as the alleged perpetrator. She told the court she did not know the person on the screen. The only other persons who could confirm that indeed the appellant had been seen with the PW1 emerging from the bush did not testify. PW1 said she did not know the appellant when she testified. The testimonies of PW2 and PW3 cannot be relied upon as proof that the person who was in the bush with the PW1 was the appellant.
32. From the foregoing it is evident that something happened on 13/1/2022. The police did not investigate the case, and the medical evidence was unreliable and the complainant and her mother’s was inconsistent and also contained hearsay. The standard of proof for the charge facing the appellant is one of beyond a reasonable doubt. The prosecution established the age of the PW1 but on penile penetration of her vagina, the identification of the appellant by the complainant were doubtful, These must be resolved in favour of the appellant.
The appeal is merited ,
It is allowed
The conviction is quashed, the sentence set aside and the appellant be set at liberty unless otherwise legally held.
Dated , signed and delivered virtually this 23rd day of October 2025
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present
Kazungu for state
'
1. The appellant was in Kilungu MCR S.O E012/2021 charged with:
Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars being that Kimuyu on the 13th day of January 2022 at Ngaa village Ilima location in Makueni County intentionally caused his penis to penetrate the vagina of F.M.N a child aged 6 years.
2. 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 No. 3 of 2006. Particulars being that on the 13th day of January 2022 at Ngaa village Ilima location in Makueni County intentionally touched the vagina of F.M.N with his penis a child aged 6 years.
3. He denied the offence and the case proceeded for hearing.
4. After hearing five witnesses – PW1 the minor FM, PW2 EKM, Father to PW1, PW3, Petronila Wavinya Kimondio, PW4 Erick Kasyamani the clinical officer, PW5 No. 242340 PC Victor Musyoka Kyambeke Police Station, the accused was found to have case to answer . he was put on his defence.
5. The accused gave a sworn statement of defense he did not call any witness.
6. The trial court found him guilty and convicted him on the main count on 6/9/2022. On 8/9/2022 he was sentenced to 25 years imprisonment.
7. It is against this conviction and sentence that the appellant filed his appeal on the following grounds:-
1) That, I pleaded not guilty to the charges during trial.
2) That, the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted acquittal verdict.
3) That, the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.
4) That, I can’t recall all that transpired during trial hence plead to this Hon. Court to furnish me with lower court proceeding and judgment transcripts.
8. The case for the prosecution was that the trial court conducted voire dire examination and found that the complainant did not understand the oath and directed that she would give unsworn testimony and the appellant would get the opportunity to ask questions. The record states as follows with regard to the testimony of the complainant one KING’ANG’I removed her clothes and removed his clothes and he then he inserted his thing inside her thing. That when he could not insert his thing, he touched hers using his fingers and that it happened in a bush in the day. That when he finished, she went home. She found her mother and told her what King’ang’i had done. That King’ang’i was from their home area and his other name was Muthiani. There was no else. That she was not injured but she was taken to hospital. That she did not know whether they went to hospital. She did not know the person appearing on the laptop screen.
9. On cross examination the complainant told the court that when she got home her mother checked her private parts. She told her mother that King’ang’i pushed me to the ground and she injured her knee.
10. The Prosecution did not examine the witness. The record indicates that thereafter the court cross examined the complainant but it did not allow the appellant or DPP to cross examine the complainant. Under cross examination by the court she told the court that the thing he inserted was the one he used to urinate in to the thing she used to urinate. That she met King’ang’i along the road.
11. PW2 EKM testified that on 13/01/2022 he daughter returned from school in the afternoon while crying. She told her that King’ang’i had done bad manners to her that he pulled her from the road on her way from school and removed her trouser because she had trouser. She checked her vagina did not understand everything. She said she saw a black thing which she did not understand. The PW1 took her to where the incident took place and on the way they found children sitting under a tree. The children told her that they had spotted King’ang’i with PW1 who was crying . That he was holding a bottle of alcohol. That when they asked him what had he done to her he said they should ask her. The children told them that King’ang’i did that to the children often and sometimes enticed the children to his house with the promise of soda or meat. She returned home and later reported to the police. Her mother (Pw1’s grandmother) took her to hospital.
She said that her daughter was born on 25/08/2016 . She produced the birth notification (as P exhibit 1.
She also produced the treatment notes, she identified the P3 form and PRC form. She told the court that King’ang’i was also Muthiani and he lived close to them and that other than this incident they had never quarreled she identified him as the one on the laptop screen. That is all.
12. On Cross examination she told the court that they took PW1 to hospital for the doctor’s to establish whether there were sperms. She did not know how far the assistant chief’s office was from her home. She said there was one Muinde Mbulo who saw the accused with the child in the bush. That it was her mother who took PW1 to hospital. That the chief and assistant chief were not witnesses in this case; that PW1’s clothes did not have blood stains.
13. PW3 PWK was a housewife and a retired teacher at the material time. She told the court that on 13/01/2022 at 1PM she was at home having lunch when PW1 came home crying and said that the accused had defiled her. That PW2 told her about the issue and she took PW1 to Muani dispensary and was referred to another hospital. She reported to the police . She was attended at Kyambeke hospital for emergency intervention and the next day she was attended to at Mutungu hospital. She said she was present when the doctor examined PW1 saw her genitalia was not normal. She identified King’ang’i as the accused person appearing on the screen.
14. On Cross Examination she said she had given the accused work many times, but she could not remember the number; that she had fully paid him for all the work. She denied demanding sex from the accused person before she paid him for his work. She said she did not know whether PW1 was bleeding when she got home. She denied framing the accused for refusing to have sex with her. She said that the accused was not arrested immediately because they were following up on PW1’s medical examination and not because she was fabricating evidence. She denied examining PW1 at home and I only took her hospital. She said she took action immediately and did not give her a bath before taking her to hospital. She said that the doctor is the one who would say whether or not he found sperms. She did not know whether the accused was examined.
15. PW4 Examination Erick Kasyamani a Clinical Officer from Kilungu sub county hospital produced the P3 form for FMN a six years old who gave a history of being defiled by a person known to her on 13/01/2022 at 2pm. She stated she was defiled inside a bush. On examination, her vagina had a bruise and the hymen was broken. He concluded that she had been defiled, filled the P3 form on 14/01/2022. He testified that he relied on the treatment card from Kyambeke health Centre to fill the P3 form. He also filled a PRC form. He produced the treatment notes as P exhibit 2, P3 form exhibit 3 and PRC form P exhibit 4. On Cross examination of PW4 by the accused, he told the court that the patient was treated on 13/1/2022 at Kyambeke health centre. She had already taken a bath before being examined. He did not attend to or examine the accused person. That he had many years’ experience in defilement cases. That it was possible for a six year old to walk after being defiled. That he was not given any blood stained clothes belonging to the complainant. That no sperms were found in the complainant’s body. That he did not know whether the accused suffered from syphilis or whether the accused defiled the complainant. Tat it was the complainant who implicated the accused person. That the broken hymen and bruise showed that she was defiled. These observations could be seen 48 hours later. On Re-examination by Prosecutor the he stated that it was not a must for a defiled person to get infected with syphilis if the defiler had it.
16. PW5 no. 242340 PC Victor Musyoka of Kyambeke police station was the investigating officer in this case. He testified that on 13/01/2022 in the evening the OCS assigned him this case. He escorted the complainant to Kyambeke health centre for treatment and the next day for filling of the P3 form. He visited the scene and arrested the accused person. The complainant told him that King’ang’i defiled her. Her grandmother pointed out King’ang’i to him and the girl positively identified him. The scene was some bushes near the road. He got a witness who was a family member to the accused person but had since fled from the area. That this witness recorded his statement that he saw the accused coming out of the bushes with the complainant and he had dust on his knees. That the accused told him that he was drunk and did not know what he was doing. He testified that King’ang’i was the accused person appearing on the monitor screen. On Cross Examination he said that the defilement took place on the 13/01/2022. That Kyambeke has a Chief, Assistant Chief and village elder. That Defilement cases are serious and are dealt with by the police. That he did not witness the defilement. That the complainant’s testimony implicated the accused person. That he did not take photographs of the scene of the crime. That he would not know what lead the accused to defile the girl. That the girl had no reason to frame the accused person. That an old man such as the accused person was capable of defiling a child. That he took a while before arresting the accused person because he was carrying out investigations. That the accused was not lynched by members of the public because the information did not leak to the public. That there were no people on the road at the time of the incident. That the only other witness was threatened by accused’s family and he had fled the area and switched off his phone.
17. In his defence the appellant stated that he was a stone mason and worked at complainant’s house for many years .The complainant and her family knew him very well. He said he was framed because I have quarreled with her grandmother. The grandmother wanted to pay him with sex and he refused. He said he would never defile a small child. That he was an old man and could not do such a thing. That no Chief or Assistant Chief had ever come to his home. The complainant took very many days to report to the police meaning he had been framed. That the the complainant’s grandmother was of loose morals and was known by everyone at home.
18. On Cross Examination by Prosecutor, he said that he was known as King’ang’i at home. That the complainant knew him as King’ang’i; that on 13/01/2022 he worked at his shamba up to 1pm and went to the market later. That he never met the complainant on that day. That he drank alcohol up to 4pm and blacked out on the road. That he never saw any children along the road. That he had witnesses who knew he worked for the complainant’s grandmother but could not name any one of them.
19. To argue the appeal the parties filed written submissions:-
The appellant chose to argue his appeal on the following issues:
I) Recognition identification.
He argues that in criminal matters – the positive identification of the accused person must be thoroughly and carefully scrutinized to avoid miscarriage of justice – he cites Kariuki Njiru and 7 Others vs- R Cr Appeal 6/2001 unreported.
He submits that he was not identified or recognized by the complainant because during the trial she told the court she could not identify the person on the computer screen – that she actually stated “ I do not know the person on the screen”.
II) Defective charge
He argues that the charge sheet does not contain the words “unlawfully and without consent” and is fatally defective. He relies on Achoki v R (2002) E A 288.
III) Credibility of evidence by PW1,2,3,4 and 5
That though the complainant stated that one King’ang’i removed her clothes and defiled her she did not identify the said King’ang’i as accused and the evidence of the other witnesses does not support her testimony – because they were not there at the scene and cannot know who the child was referring to as King’ang’i.
IV) Contradictions – that the evidence of PW3 that she did not give the child a bath before taking her to the hospital and that of clinical officer that the child had taken a bath at the time of the examination.
V) Penetration:
That there was no evidence of penetration from the complainant and the medical evidence and that a broken hymen per se is not proof of defilement. That the court could not have relied on section 124 of the Evidence Act.
That the prosecution failed to prove the charge beyond a reasonable doubt. He submits that upon conducting voire dire the court found that the minor did not understand the importance of telling the truth. That the court did not explain - why it believed the complainant and not the appellant. Hence the case was not proved beyond a reasonable doubt and that any doubt ought to be resolved in his favour.
20. I did not find any submissions by the State in the file.
21. This court is guided by the principles in Okeno vs R on the duty of the first appellate court to re-assess the evidence and draw its own conclusions.
22. The issue for determination is whether the prosecution did prove the charge against the appellant beyond a reasonable doubt to warrant the conviction.
23. The ingredients for defilement are age, penetration, the identified perpetrator and the circumstances of the offence.
24. On age, a birth notification produced as PEx-1 shows that the complainant was born on 25/8/2016 and the offence was committed on 13/1/2022. She was about 6 years old.
25. On penetration, the trial court found that this was proved through the evidence of PW4, the clinical officer. That the accompanying treatment notes, P3 form, PRC form , the vaginal bruise and the broken hymen were indicative of penetration.
It is noteworthy that on penetration the trial court did not rely on the testimony of the child but on medical evidence.
The medical evidence was clearly insufficient.
The complainant stated that she was taken to hospital and in the same sentence she said she did not know whether they had gone to hospital The C.O who testified stated that he relied on the treatment notes from Kyambeke health centre to fill the P3 form and the PRC form.
On cross examination he said there was no blood stain clothes from the complainant – that the hymen was broken – no discharge no bleeding. Bruise on the left labia, normal vagina walls. This evidence does not support the complainant’s testimony that “a thing was inserted into her thing”
The record shows that there no treatment notes from Kyambeke only from a document hand written Muani. This document did not have any name or designation of the person who filled it out. The C.O did not state that he knew the hand writing or signature of that person in order to rely on it yet it is out of what was written there that he drew the conclusion that the complainant was defiled.
The complainant also told the court that she was not hurt. She said that she was hurt at the knee after King’ang’i pushed her down.
He told the court that the bruise and the broken hymen were proof of defilement. It is now trite that a broken hymen per se is not proof of penetration. It has been found a hymen can break through other ways
Secondly the mother of the child told the court that she examined the child’s vagina. How did she do it? Could she have injured the child? This question is pertinent because in her quest to check the child’s vagina she could have caused the child injury. The prosecution did not pursue this sufficiently to confirm just how she examined the complainant’s vagina to rule out that possibility.
The treatment notes indicate that the child was examined on 13/1/2022. There was no vaginal discharge or bleeding but the hymen was broken with a bruise on the left labia. The trial court drew the conclusion that there had been penile penetration of the child leading to the broken hymen. Yet the Clinical officer, the mother and grand mother testified that there was no bleeding, or any discharge.
There was contradicting evidence as to whether by the time the child was examined whether or not she had taken a bath. PW4 said that she had. However more importantly did not himself examine the child but relied on the treatment notes
This complainant in her evidence in chief told the court that the appellant put his thing in her thing. She said she was not injured. On cross examination she told the court when she got home “I told my mother that King’ang’i pushed me to the ground and I injured my knee” .
The complainant presents two versions of what happened. One that a thing and fingers were inserted in her vagina, and that the appellant merely pushed her to the ground and she injured her knee. Section 19 of the Oaths and Statutory Declarations Act provides for Evidence of children of tender years thus;
(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
In this the court merely stated that the child would give evidence without being sworn but did not draw an opinion as to the intelligence of the child to justify the reception of the evidence.
The complainant’s testimony was not steady and the Prosecution did not pursue the gaps sufficiently to close them up as complainant’s testimony presented two scenarios that are contradictory.
26. PW2 her mother tells the court that the child told her King’ang’i had done her bad manners. However, the child says that she told her mother that King’ang’i pushed her down and she hurt her knee.
27. On the identity of the perpetrator the complainant presented with the person she referred to as King’ang’i she told the court she did not know him . The children who were said to have seen the said King’ang’i with her were not found to come and testify. They would have confirmed whether or not the King’ang’i in court was the one they saw with the complainant, Even the adult who was said to have seen the complainant with the said King’ang’i did not testify. They are reported by the PW2 to have told her a lot of things. However, the I.O did not follow up on these crucial witnesses who were the first persons to see the complainant emerge from the bush, with the PW1. All the things the children allegedly told her were hearsay.
28. The I.O also spoke about an adult witness who he claimed was from the family of the appellant. His name came up during the cross examination of the PW2. That he saw the child in the bush with the appellant. The PW2 did not tell the court that this witness was related to thee appellant. Her evidence on what the children told her is pure hearsay and cannot be used against the appellant. The mother named one Muinde Mbulo as having seen the child in the bush, with the appellant but he never testified.
29. Without other evidence her evidence becomes unreliable and not safe to found a conviction. From the record the evidence does not support the prosecution’s case that indeed the appellant’s penis penetrated the complainant’s vagina – the clinical officer did not explain the normal vaginal walls of the 6 year old and the broken hymen without any bleeding or discharge – yet she was allegedly examined a few hours after the alleged defilement. There was one bruise on the left labia – her own mother also examined the child’s vagina – and it cannot be ruled out that she too could have caused the said bruise. As far as penetration and identity of the penetrator is concerned the complainant’s testimony is insufficient.
30. The I.O did not carry out any investigations other than recording statements . There were serious allegations by PW2 against the appellant that he was a serial defiler of children enticing them with meat/soda. This was not investigated . The other children were not spoken to, making the PW2’a testimony exaggerated and unreliable. If the adult could not come to testify why did the I.O not follow up on the children who allegedly saw the appellant with the child? The case of Bukenya vs Uganda comes up for the proposition that even if they were called their testimony would not have supported the case for prosecution.
31. While the PW1 could name the appellant, she could not identify him as the alleged perpetrator. She told the court she did not know the person on the screen. The only other persons who could confirm that indeed the appellant had been seen with the PW1 emerging from the bush did not testify. PW1 said she did not know the appellant when she testified. The testimonies of PW2 and PW3 cannot be relied upon as proof that the person who was in the bush with the PW1 was the appellant.
32. From the foregoing it is evident that something happened on 13/1/2022. The police did not investigate the case, and the medical evidence was unreliable and the complainant and her mother’s was inconsistent and also contained hearsay. The standard of proof for the charge facing the appellant is one of beyond a reasonable doubt. The prosecution established the age of the PW1 but on penile penetration of her vagina, the identification of the appellant by the complainant were doubtful, These must be resolved in favour of the appellant.
The appeal is merited ,
It is allowed
The conviction is quashed, the sentence set aside and the appellant be set at liberty unless otherwise legally held.
Dated , signed and delivered virtually this 23rd day of October 2025
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present
Kazungu for state
'