REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. 30 OF 2023
MAJELE LUBANDO…………………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the conviction and sentence of Hon. Joy Mutimba, RM in Msambweni Magistrates S.O. Case No. E020 of 2022 delivered on 4/10/2023)
J U D G M E N T
1. The appellant, Majele Lubando was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with sub-section (3) of the Sexual Offences Act (Cap. 63A) (SoA) Laws of Kenya (SOA). The particulars of offence were that on 2/3/2022 at Mamba in Dzombo location of Lunga Lunga Sub-County within Kwale County he intentionally and unlawfully caused his penis to penetrate the vagina of J.W. a child aged 13 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he intentionally and unlawfully touched the vagina of J.W. a child aged 13 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his grounds of appeal in the petition dated 3/11/2023: -
a. The learned trial magistrate erred in law and facts for not appreciating that the prosecution case was not proved beyond a reasonable doubt.
b. The learned trial magistrate erred in fact and law by relying entirely on the uncorroborated evidence of the complainant who was a minor and whose evidence was contradictory.
c. The learned trial magistrate erred in law and facts for not noticing the medical evidence was not established to corroborate the medical officer’s evidence.
d. The learned magistrate erred in law and facts for not considering that crucial witnesses were not summoned in court.
e. The learned magistrate erred in law and facts for dismissing the appellant’s defence without legal basis.
f. The appellant’s rights under article 50(2)(g) and (h) of the Constitution was breached as the appellant did not understand the proceedings.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, J.W. was the complainant born on 1/4/2009, and a pupil in primary school at the time. PW 2 also J.W. of similar name is the complainant’s grandmother and guardian who was staying with her at the time of the alleged incident. PW 3, PC Justus Rottomoi was the investigating officer in the case. PW 4, Dr. Alfred Baya attended to the complainant at Kikomani health centre, examined her and completed her P3 form.
10. DW 1, Majele Lubando was the appellant. He gave sworn evidence in defence and denied that he committed the offence. He alleged that he was framed up by PW 2 who was his previous employer of 20 years for leaving her employment to start his own business.
11. It is not disputed that the complainant knew the appellant well. The appellant worked for the complainant’s grandmother PW 2, as a cook in her hotel business for long.
12. The prosecution’s case was that on the material day 2/3/2022 at around midday, PW 1, the complainant, went to the toilet for a call of nature. The appellant, who they referred to as Megowa followed her there and engaged in sexual intercourse with her. She said in her testimony that he raped her.
13. Her testimony was that she closed the door but did not lock it. The appellant went there and found after she had helped herself and without talking, raped her. He pushed her back, tore her shirt and removed her panties and made her lie on the toilet floor with the hole in the middle. He then threatened her not to report the incident or he would kill her. She said she could not tell whether he used a condom. She appeared not to know what that was as she asked the prosecution counsel what that was. She said the appellant left the toilet first and the complainant left and went to shower. PW 1 said that she was walking “badly” because she had pain in her private parts after the incident.
14. The complainant’s grandmother, PW 2 said that on 3/2/2022 (I believe this should have been an error of transposition by the learned magistrate and ought to be 2/3/2022) she noticed that the complainant was walking unusually in a crouched position. PW 2 asked her why but she did not disclose the reason. The grandmother beat her up. The complainant’s uncle heard the commotion and went to find out why. He also beat her but she could not disclose the reason. They made a report at Mamba police station. The police advised that they do not beat her more but take her to hospital. She was taken to Kikoneni hospital.
15. PW 4, the doctor said that he examined the complainant. He did not state the date in his evidence in chief but in cross-examination he said that he examined her on 13th and that was the day she went to the hospital and it was the only time she went there. She was in fair general condition. She had a normal external genitalia with a broken hymen. No discharge or blood or venereal infection was noted in her genitalia. All other tests showed no significant findings.
16. In his defence, the appellant, DW 1, denied that he committed the offence. He said that he lives at Mlavyeni which is far from the complainant’s home at Bao and he did not know her. He said that at the time the complainant said the incident happened, he was at his home. He said he spent the day looking after his cows in the fields.
17. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
18. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
19. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
20. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above. She set them out and evaluated the evidence tendered in proof of each of them, relying on various decided cases.
21. The appellant submits that he has no problem with proof of the ingredients of penetration and age of the victim. On those two ingredients, the findings of the learned trial magistrate remain and this court will not revaluate the evidence and make its findings upon the same.
22. On the remaining issue of identification, the appellant conceded that he was well known to the complainant. He however denies vehemently that he was the perpetrator of the offence.
23. On the same issue, learned counsel for the respondent submits that the victim bore no grudge against the complainant and therefore no reason to implicate him. That may be true, but at the same time, it should be remembered that an accused person bears no burden to disprove the existence of motive in a criminal case. Therefore, the fact that motive has not been established cannot mean that the prosecution evidence is foolproof.
24. The complainant gave sworn evidence after a voire dire examination. There is no doubt that the complainant was the only witness of identification of her assailant. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
25. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… 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.”
26. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
27. The learned trial magistrate upon evaluating the evidence of identification warned herself on the dangers of relying and basing a conviction on the uncorroborated evidence of the visual identification by a single witness. Whereas the learned trial magistrate was correct in warning herself as such, the issue of identification was not per se on the visual identification of the appellant under difficult circumstances as that warning would properly apply. It was whether the complainant was an honest and truthful witness in her identification of the appellant as the perpetrator of the defilement as required under the proviso to section 124 of the Evidence Act. Under the proviso, in order to rely on the evidence of the complainant alone, there must be reasons for the court to believe that the complainant was telling the truth.
28. The learned trial magistrate dismissed the appellant’s defence that he had been framed by the complainant’s grandmother. She found that the defence was far fetched because, even by the time the grandmother went to report to the police, she did not know who the perpetrator was. I would equally find the appellant’s defence to be without merit.
29. In the present case, the victim gave sworn evidence. The court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
30. The appellant submits that the beating of the complainant by her grandmother and uncle caused her to lose her balance and then she had to find any possible way out to rescue herself. He submits further that according to the evidence of the complainant, the incident took place in a toilet during the day yet nobody else witnessed it. He submits further that the complainant said in cross-examination that her grandmother beat her on allegations that she was talking to boys and not because she was walking in a “bad way.” These submissions are not without weight.
31. The narrative arising from the prosecution evidence does not neatly and unequivocally tie the appellant as the person who had caused the complainant’s hymen to be broken as alleged. The narrative of the sequence of events by the complainant and her grandmother from the time the incident allegedly took place, through reporting to the police and then to the time the medical examination was done would tend to show that the events took place in quick succession, one after the other, the same day. Indeed, the investigating officer said that he came across the case assigned to him for investigations on 2/3/2022 meaning that it had been reported the same day of the incident.
32. The treatment notes show that the complainant was attended to at Kikoneni health centre on 3/3/2022, a day after the alleged incident. The doctor, PW 4 said he saw the complainant for the first time on 13/3/2022. It was then that he examined the complainant and completed the P3 form. It follows that, besides his examination of the complainant, he relied on the treatment notes to complete the P3 form. In his evidence, he made no reference to the treatment notes. All the same, the treatment notes do not show that at the time she went for treatment at the health centre on 3/3/2022 the complainant was in any form of pain either in or around her genital organ arising from a sexual assault or even the rest of the body, arising from the severe beatings by the grandmother and uncle.
33. PW 4, the doctor said in cross-examination that the complainant had a broken hymen. Other than the complainant’s word, there was no other evidence to show that the same was occasioned by the appellant on 2/3/2022 at 12.00 noon. The grandmother said she noticed the complainant’s unusual walking style on 2/3/2022, and she beat her up thoroughly and her uncle also joined in and beat her yet she did not budge to disclose the reason why she was walking unusually.
34. But the evidence of medical examination conducted the following day does not support the issue of the complainant having been painfully penetrated in her genital organ just a day before. The medical treatment notes do not indicate any of such findings. The P3 form which PW 4 completed, indeed indicates that she appeared normal upon examination. Therefore, her condition at the time of medical examination does not corroborate her evidence of having had painful sexual intercourse just a day before. The evidence of her hymen being broken would be an indicator of penetration of her genitalia. However, seeing that the same was not indicated as fresh nor that she had any pain in or around her genital organ, it is difficult to believe the complainant’s story that the appellant had sexual intercourse with her a day before as alleged and that the same caused her such pain that she was walking in a crouched position.
35. It is possible that the complainant’s grandmother for some reason had suspicion that she was engaging in sexual intercourse at her age which was not proper. She therefore beat her thoroughly and this beating eventually yielded the answer through the medical examination afterwards, that the complainant’s hymen was broken, an indication that she was sexually active at that age which she should not. However, that medical evidence does not support the conclusion that it was perpetrated by the appellant in the immediate past of one day before as testified herein and as found by the learned trial magistrate. The appellant, being well known and readily available, may as well have been an easy scape goat for the complainant to point at in order to avoid further beatings since she was under pressure to explain her engagement in sexual intercourse to her grandmother. It is therefore difficult to see how the learned trial magistrate would have found that the complainant was a truthful witness.
36. Considering the judgment by the learned trial magistrate I find that she did not ask herself whether the complainant was telling the truth and her sole evidence could be solely relied upon as a foundation for the conviction of the appellant. She only warned herself on the dangers of relying on the evidence of a single witness of identification.
37. Having considered the evidence tendered before the trial court and the submissions of the parties, I find that the complainant’s evidence alone on the identity of the person who had caused her a broken hymen did not satisfy the requirements of section 124 of the Evidence Act on the truthfulness of the victim of a sexual offence. I am inclined to agree with the appellant’s submissions that the evidence tendered by the complainant could not be relied upon to prove that the complainant was telling nothing but the truth with regard to the identity of her assailant as the appellant herein. I find that the learned trial magistrate was in error to rely on that evidence.
38. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
39. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
40. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 29th day of April 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. 30 OF 2023
MAJELE LUBANDO…………………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the conviction and sentence of Hon. Joy Mutimba, RM in Msambweni Magistrates S.O. Case No. E020 of 2022 delivered on 4/10/2023)
J U D G M E N T
1. The appellant, Majele Lubando was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with sub-section (3) of the Sexual Offences Act (Cap. 63A) (SoA) Laws of Kenya (SOA). The particulars of offence were that on 2/3/2022 at Mamba in Dzombo location of Lunga Lunga Sub-County within Kwale County he intentionally and unlawfully caused his penis to penetrate the vagina of J.W. a child aged 13 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place as in the principal charge, he intentionally and unlawfully touched the vagina of J.W. a child aged 13 years.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per his grounds of appeal in the petition dated 3/11/2023: -
a. The learned trial magistrate erred in law and facts for not appreciating that the prosecution case was not proved beyond a reasonable doubt.
b. The learned trial magistrate erred in fact and law by relying entirely on the uncorroborated evidence of the complainant who was a minor and whose evidence was contradictory.
c. The learned trial magistrate erred in law and facts for not noticing the medical evidence was not established to corroborate the medical officer’s evidence.
d. The learned magistrate erred in law and facts for not considering that crucial witnesses were not summoned in court.
e. The learned magistrate erred in law and facts for dismissing the appellant’s defence without legal basis.
f. The appellant’s rights under article 50(2)(g) and (h) of the Constitution was breached as the appellant did not understand the proceedings.
5. The appellant therefore prays that the appeal be allowed, conviction quashed and sentence set aside.
6. The appeal was canvassed through written submissions filed by both the appellant and the respondent which I have duly considered.
7. As a first appellate court, I am duty bound to examine, re-evaluate and reconsider all the evidence on record afresh and come to my own independent conclusions and inferences bearing in mind that I did not see or hear the witnesses testify first-hand as guided by the case of Okeno v Republic (1972) EA 32.
8. At the trial, the prosecution called four witnesses. The appellant in defence tendered sworn evidence and called no witness.
9. PW 1, J.W. was the complainant born on 1/4/2009, and a pupil in primary school at the time. PW 2 also J.W. of similar name is the complainant’s grandmother and guardian who was staying with her at the time of the alleged incident. PW 3, PC Justus Rottomoi was the investigating officer in the case. PW 4, Dr. Alfred Baya attended to the complainant at Kikomani health centre, examined her and completed her P3 form.
10. DW 1, Majele Lubando was the appellant. He gave sworn evidence in defence and denied that he committed the offence. He alleged that he was framed up by PW 2 who was his previous employer of 20 years for leaving her employment to start his own business.
11. It is not disputed that the complainant knew the appellant well. The appellant worked for the complainant’s grandmother PW 2, as a cook in her hotel business for long.
12. The prosecution’s case was that on the material day 2/3/2022 at around midday, PW 1, the complainant, went to the toilet for a call of nature. The appellant, who they referred to as Megowa followed her there and engaged in sexual intercourse with her. She said in her testimony that he raped her.
13. Her testimony was that she closed the door but did not lock it. The appellant went there and found after she had helped herself and without talking, raped her. He pushed her back, tore her shirt and removed her panties and made her lie on the toilet floor with the hole in the middle. He then threatened her not to report the incident or he would kill her. She said she could not tell whether he used a condom. She appeared not to know what that was as she asked the prosecution counsel what that was. She said the appellant left the toilet first and the complainant left and went to shower. PW 1 said that she was walking “badly” because she had pain in her private parts after the incident.
14. The complainant’s grandmother, PW 2 said that on 3/2/2022 (I believe this should have been an error of transposition by the learned magistrate and ought to be 2/3/2022) she noticed that the complainant was walking unusually in a crouched position. PW 2 asked her why but she did not disclose the reason. The grandmother beat her up. The complainant’s uncle heard the commotion and went to find out why. He also beat her but she could not disclose the reason. They made a report at Mamba police station. The police advised that they do not beat her more but take her to hospital. She was taken to Kikoneni hospital.
15. PW 4, the doctor said that he examined the complainant. He did not state the date in his evidence in chief but in cross-examination he said that he examined her on 13th and that was the day she went to the hospital and it was the only time she went there. She was in fair general condition. She had a normal external genitalia with a broken hymen. No discharge or blood or venereal infection was noted in her genitalia. All other tests showed no significant findings.
16. In his defence, the appellant, DW 1, denied that he committed the offence. He said that he lives at Mlavyeni which is far from the complainant’s home at Bao and he did not know her. He said that at the time the complainant said the incident happened, he was at his home. He said he spent the day looking after his cows in the fields.
17. I have examined the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the appellant and the respondent herein.
18. Sections 8(1) and 8(3) of the Sexual Offences Act under which the appellant was charged and convicted provide as follows: S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
19. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
20. The learned trial magistrate properly appraised the provisions of the law on the essential ingredients to be established by the prosecution in order to prove the offence of defilement as outlined above. She set them out and evaluated the evidence tendered in proof of each of them, relying on various decided cases.
21. The appellant submits that he has no problem with proof of the ingredients of penetration and age of the victim. On those two ingredients, the findings of the learned trial magistrate remain and this court will not revaluate the evidence and make its findings upon the same.
22. On the remaining issue of identification, the appellant conceded that he was well known to the complainant. He however denies vehemently that he was the perpetrator of the offence.
23. On the same issue, learned counsel for the respondent submits that the victim bore no grudge against the complainant and therefore no reason to implicate him. That may be true, but at the same time, it should be remembered that an accused person bears no burden to disprove the existence of motive in a criminal case. Therefore, the fact that motive has not been established cannot mean that the prosecution evidence is foolproof.
24. The complainant gave sworn evidence after a voire dire examination. There is no doubt that the complainant was the only witness of identification of her assailant. In that case, the provisions of section 124 of the Evidence Act (Cap. 80) Laws of Kenya come into play. The said section provides with respect to the evidence of the victim of a sexual offence case that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
25. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“… 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.”
26. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
27. The learned trial magistrate upon evaluating the evidence of identification warned herself on the dangers of relying and basing a conviction on the uncorroborated evidence of the visual identification by a single witness. Whereas the learned trial magistrate was correct in warning herself as such, the issue of identification was not per se on the visual identification of the appellant under difficult circumstances as that warning would properly apply. It was whether the complainant was an honest and truthful witness in her identification of the appellant as the perpetrator of the defilement as required under the proviso to section 124 of the Evidence Act. Under the proviso, in order to rely on the evidence of the complainant alone, there must be reasons for the court to believe that the complainant was telling the truth.
28. The learned trial magistrate dismissed the appellant’s defence that he had been framed by the complainant’s grandmother. She found that the defence was far fetched because, even by the time the grandmother went to report to the police, she did not know who the perpetrator was. I would equally find the appellant’s defence to be without merit.
29. In the present case, the victim gave sworn evidence. The court could rely on her uncorroborated evidence if it was satisfied that she was a witness of truth provided it recorded its reasons for doing so and upon warning itself appropriately on the danger of relying on uncorroborated evidence.
30. The appellant submits that the beating of the complainant by her grandmother and uncle caused her to lose her balance and then she had to find any possible way out to rescue herself. He submits further that according to the evidence of the complainant, the incident took place in a toilet during the day yet nobody else witnessed it. He submits further that the complainant said in cross-examination that her grandmother beat her on allegations that she was talking to boys and not because she was walking in a “bad way.” These submissions are not without weight.
31. The narrative arising from the prosecution evidence does not neatly and unequivocally tie the appellant as the person who had caused the complainant’s hymen to be broken as alleged. The narrative of the sequence of events by the complainant and her grandmother from the time the incident allegedly took place, through reporting to the police and then to the time the medical examination was done would tend to show that the events took place in quick succession, one after the other, the same day. Indeed, the investigating officer said that he came across the case assigned to him for investigations on 2/3/2022 meaning that it had been reported the same day of the incident.
32. The treatment notes show that the complainant was attended to at Kikoneni health centre on 3/3/2022, a day after the alleged incident. The doctor, PW 4 said he saw the complainant for the first time on 13/3/2022. It was then that he examined the complainant and completed the P3 form. It follows that, besides his examination of the complainant, he relied on the treatment notes to complete the P3 form. In his evidence, he made no reference to the treatment notes. All the same, the treatment notes do not show that at the time she went for treatment at the health centre on 3/3/2022 the complainant was in any form of pain either in or around her genital organ arising from a sexual assault or even the rest of the body, arising from the severe beatings by the grandmother and uncle.
33. PW 4, the doctor said in cross-examination that the complainant had a broken hymen. Other than the complainant’s word, there was no other evidence to show that the same was occasioned by the appellant on 2/3/2022 at 12.00 noon. The grandmother said she noticed the complainant’s unusual walking style on 2/3/2022, and she beat her up thoroughly and her uncle also joined in and beat her yet she did not budge to disclose the reason why she was walking unusually.
34. But the evidence of medical examination conducted the following day does not support the issue of the complainant having been painfully penetrated in her genital organ just a day before. The medical treatment notes do not indicate any of such findings. The P3 form which PW 4 completed, indeed indicates that she appeared normal upon examination. Therefore, her condition at the time of medical examination does not corroborate her evidence of having had painful sexual intercourse just a day before. The evidence of her hymen being broken would be an indicator of penetration of her genitalia. However, seeing that the same was not indicated as fresh nor that she had any pain in or around her genital organ, it is difficult to believe the complainant’s story that the appellant had sexual intercourse with her a day before as alleged and that the same caused her such pain that she was walking in a crouched position.
35. It is possible that the complainant’s grandmother for some reason had suspicion that she was engaging in sexual intercourse at her age which was not proper. She therefore beat her thoroughly and this beating eventually yielded the answer through the medical examination afterwards, that the complainant’s hymen was broken, an indication that she was sexually active at that age which she should not. However, that medical evidence does not support the conclusion that it was perpetrated by the appellant in the immediate past of one day before as testified herein and as found by the learned trial magistrate. The appellant, being well known and readily available, may as well have been an easy scape goat for the complainant to point at in order to avoid further beatings since she was under pressure to explain her engagement in sexual intercourse to her grandmother. It is therefore difficult to see how the learned trial magistrate would have found that the complainant was a truthful witness.
36. Considering the judgment by the learned trial magistrate I find that she did not ask herself whether the complainant was telling the truth and her sole evidence could be solely relied upon as a foundation for the conviction of the appellant. She only warned herself on the dangers of relying on the evidence of a single witness of identification.
37. Having considered the evidence tendered before the trial court and the submissions of the parties, I find that the complainant’s evidence alone on the identity of the person who had caused her a broken hymen did not satisfy the requirements of section 124 of the Evidence Act on the truthfulness of the victim of a sexual offence. I am inclined to agree with the appellant’s submissions that the evidence tendered by the complainant could not be relied upon to prove that the complainant was telling nothing but the truth with regard to the identity of her assailant as the appellant herein. I find that the learned trial magistrate was in error to rely on that evidence.
38. On account of the foregoing determinations, I find that it was unsafe for the trial court to convict the appellant for the offence of defilement.
39. Consequently, and for the above reasons, I allow the appeal, quash the conviction of the appellant for the offence of defilement contrary to section 8(1) as read with 8(3) of the SoA and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.
40. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 29th day of April 2025 in the presence of:
The appellant in person from Shimo La Tewa Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.
ANDAYI W. FRANCIS
JUDGE