(Being an Appeal against the judgment of the Chief Magistrate’s Court at Malindi E.K Usui Chief Magistrate in S.O No. E060 of 2024 delivered on 13 th February, 2025)
The appellant Mangi Kahindi Baya was charged before Malindi Chief Magistrate’s Court with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on the 30 th day of May, 2024 at Casurina area in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of N.B a girl aged 7 years. The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 30 th day of May, 2024 at Casurina area in Malindi Sub County within Kilifi County intentionally and unlawfully touched the vagina of N.B a child aged 7 years.
The prosecution called four witnesses to prove the charges against the appellant. The appellant gave unsworn statement in his defence. In a judgment delivered on 13 th February, 2025 the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and was accordingly convicted and sentenced to serve 25 years imprisonment.
Aggrieved by both the conviction and sentence he preferred this appeal. The appellant in a memorandum of appeal and amended grounds of appeal raised the following grounds:
1. That the learned trial magistrate erred in law and facts in failing to consider that the charges were framed against him.
2. That the learned trial magistrate erred in law and facts in failing to consider that the charges were not proved as required.
3. The learned trial magistrate erred in law and facts by failing to consider that the age of the complainant was not proved.
4. That the trial magistrate erred in law and facts by failing to there was no voire dire examination conducted to the victim a child of tender years contrary to Section 19(1) of the Oaths and Statutory Declaration Act.
The appeal was heard by way of written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the lower court to make my own independent decision. I have done so cautiously as I did not have the opportunity to hear or see the witnesses testify before the lower court. In the case of Kiilu & Another vs Republic (2005)1 KLR the Court of Appeal stated this mandated where it rendered itself thus:
“An Appellant on a first appeal is entitled to expect the evidence as awhole to be submitted to a fresh and exhaustive examination and tothe appellate Court’s own decision on the evidence. The firstappellate Court must itself weigh conflicting evidence and draw itsown conclusions. It is not the function of a first appellate Courtmerely to scrutinize the evidence to see if there was some evidenceto support the lower Court’s findings and conclusions; Only then canit decide whether the Magistrate’s findings should be supported. Indoing so, it should make allowance for the fact that the trial Courthas had the advantage of hearing and seeing the witnesses.”
The appellant faulted the trial court for not complying with Section 19(1) of the Oaths and Statutory Declaration Act by conducting voire dire examination on the victim who was a child of tender age. Section 19 of the Oaths and Statutory Declaration Act provides:
“(1) Where, in any proceedings before any court or person having bylaw or consent of parties authority to receive evidence, any child oftender years called as a witness does not, in the opinion of the courtor such person, understand the nature of an oath, his evidence maybe received, though not given upon oath, if, in the opinion of thecourt or such person, he is possessed of sufficient intelligence tojustify the reception of the evidence, and understands the duty ofspeaking the truth; and his evidence in any proceedings against anyperson for any offence, though not given on oath, but otherwisetaken and reduced into writing in accordance with section 233 of theCriminal Procedure Code (Cap. 75), shall be deemed to be adeposition within the meaning of that section.(2) If any child whose evidence is received under subsection (1)wilfully gives false evidence in such circumstances that he would, ifthe evidence had been given on oath, have been guilty of perjury, heshall be guilty of an offence and liable to be dealt with as if he hadbeen guilty of an offence punishable in the case of an adult withimprisonment.”
The essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath and whether the child is possessed of intelligence to testify under oath.
The appellant argued that the trial court did not record the questions and answers of the complainant in this case to decide whether she understood the nature of oath. I have looked at the proceedings before the lower court. It is indicated that the trial court conducted voire dire examination and stated that the victim who testified as PW2 was certainly intelligent, well oriented and know the difference between truth and lies. The trial court went ahead and allowed PW2 to give sworn testimony. What seems to be the argument by the appellant is that the trial court did not record the questions put to PW2 and answers verbatim in the proceedings.
In the case of Musili & Another vs Republic (Criminal Appeal E047 of 2025 (2026) KEHC 5066 (KLR) Mwongo J observed:
“A voire dire examination is required in specified cases but there is no specific formula for conducting it. Discretion is left to the trial court to determine how it will satisfy itself of the competency of a child witness. Courts have previously given guidance to the effect that before recording the testimony of a child witness, whether under oath or not, it is preferred that the trial magistrate records reasons why he/she thinks the witness is competent to testify under oath.”
In this case as I have indicated the trial magistrate did what she called preliminary test. She recorded what PW2 stated and made a finding that she was satisfied that PW2 was intelligent, well oriented and knew the difference between the truth and lies. It is therefore not correct as argued by the appellant that the trial court did not conduct voire dire examination. This ground must therefore fail.
The appellant argued that the age of the complainant was not proved as required. The law on the on importance of prove of age has been restated in numerous cases of this court and the Court of Appeal. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni – Versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000. It was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
From the foregoing it is clear that age of a victim in a defilement case may be proved through medical evidence by a doctor, birth certificate, the victim’s parents or guardian evidence or by observation and common sense. In this case the victim stated that she was in grade 2. PW3 the mother of the complainant testified that she was born on 10 th September, 2016. PW4 the investigating officer produced the complainant’s birth certificate as exhibit 4. All this proved that the complainant was aged 7 years as at the time of the commission of the offence. The trial court therefore correctly made a finding that the age of the complainant was proved as required and this ground of appeal must fail.
The other element which the prosecution was required to prove beyond reasonable doubt is penetration. Section 2 of the Sexual Offences Act defines penetration as follows:
“The partial or complete insertion of the genital organs into genital organ of another person.”
In this case the complaint testified that she was watching television which was in the appellant’s house. She stated that as she stepped into the house the appellant got hold of her and took her near the bed. Put her on the floor and removed her clothes. The appellant removed his clothes and did bad manners to her. She pointed at her vagina when giving evidence as to where the appellant did bad manners to her. PW2 her mother told the court that the appellant had a room where they lived. She also said that they had kept their television in the room where the appellant was staying. She said on the material date she arrived at home and did not find the complainant in their room. She said she found the appellant’s room closed. When she the door the knocked the appellant came out holding hos trouser. She entered the appellant’s house and found the complainant squatting. She said she noticed that the complainant was limping. She asked her what had happened but she said nothing. She threatened her but still she said nothing. She said upon checking her private parts she noticed that her vagina was reddened with watery discharge. At when she noticed the reddened vagina that she took her to hospital. At the hospital the complainant opened up and told the doctor that the appellant had defiled her. PW1 who produced the medical report told the court that upon examination there were whitish discharge with laceration and abrasion at labia minora and the vaginal wall and the hymen was fairly broken.
The trial magistrate evaluated the foregoing evidence and found that there was penetration. I have no reason to fault the trial court because the foregoing evidence was corroborative that the complainant’s genital organ namely vagina was penetrated.
The other element which the prosecution was required to prove was the positive identification of the appellant as the perpetrator. The evidence adduced by PW2 and PW3 they were living in the same compound with the appellant. Indeed, when PW3 arrived at home he found the appellant in his house. When she knocked the appellant’s house, he came out pulling his trousers. The appellant was not a stranger to the complainant and PW3. The trial court correctly found that the appellant was positively identified and I have no reason to fault that finding going by the evidence adduced by complainant and PW3.
The appellant faulted the trial magistrate for not considering his defence. The appellant in his unsworn defence denied committing the offence. He said when the complainant was examined the doctor found nothing wrong. He stated that the charges were a fabrication. From the judgment of the trial court, it is clear that the trial magistrate considered the appellant’s defence that the charges were a fabrication and found that the same was red-herring and rejected the same. It is therefore not correct that the trial court did not consider the appellant’s defence.
On the sentence, the appellant was charged under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. Section 8(2) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child aged eleven years or less shall be upon conviction be sentenced to imprisonment for life. The appellant was sentenced to serve twenty five years imprisonment. I find no fault in the sentence meted by the trial court.
The upshot is that the conviction and sentence by the trial court is upheld and the appeal is dismissed.
Dated, signed and delivered virtually this 28 th day of May, 2026.
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent appearing virtually
Ms. Millicent Otwo court assistant appearing physically
2
The appellant Mangi Kahindi Baya was charged before Malindi Chief Magistrate’s Court with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on the 30 th day of May, 2024 at Casurina area in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of N.B a girl aged 7 years. The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 30 th day of May, 2024 at Casurina area in Malindi Sub County within Kilifi County intentionally and unlawfully touched the vagina of N.B a child aged 7 years.
The prosecution called four witnesses to prove the charges against the appellant. The appellant gave unsworn statement in his defence. In a judgment delivered on 13 th February, 2025 the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and was accordingly convicted and sentenced to serve 25 years imprisonment.
Aggrieved by both the conviction and sentence he preferred this appeal. The appellant in a memorandum of appeal and amended grounds of appeal raised the following grounds:
1. That the learned trial magistrate erred in law and facts in failing to consider that the charges were framed against him.
2. That the learned trial magistrate erred in law and facts in failing to consider that the charges were not proved as required.
3. The learned trial magistrate erred in law and facts by failing to consider that the age of the complainant was not proved.
4. That the trial magistrate erred in law and facts by failing to there was no voire dire examination conducted to the victim a child of tender years contrary to Section 19(1) of the Oaths and Statutory Declaration Act.
The appeal was heard by way of written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the lower court to make my own independent decision. I have done so cautiously as I did not have the opportunity to hear or see the witnesses testify before the lower court. In the case of Kiilu & Another vs Republic (2005)1 KLR the Court of Appeal stated this mandated where it rendered itself thus:
“An Appellant on a first appeal is entitled to expect the evidence as awhole to be submitted to a fresh and exhaustive examination and tothe appellate Court’s own decision on the evidence. The firstappellate Court must itself weigh conflicting evidence and draw itsown conclusions. It is not the function of a first appellate Courtmerely to scrutinize the evidence to see if there was some evidenceto support the lower Court’s findings and conclusions; Only then canit decide whether the Magistrate’s findings should be supported. Indoing so, it should make allowance for the fact that the trial Courthas had the advantage of hearing and seeing the witnesses.”
The appellant faulted the trial court for not complying with Section 19(1) of the Oaths and Statutory Declaration Act by conducting voire dire examination on the victim who was a child of tender age. Section 19 of the Oaths and Statutory Declaration Act provides:
“(1) Where, in any proceedings before any court or person having bylaw or consent of parties authority to receive evidence, any child oftender years called as a witness does not, in the opinion of the courtor such person, understand the nature of an oath, his evidence maybe received, though not given upon oath, if, in the opinion of thecourt or such person, he is possessed of sufficient intelligence tojustify the reception of the evidence, and understands the duty ofspeaking the truth; and his evidence in any proceedings against anyperson for any offence, though not given on oath, but otherwisetaken and reduced into writing in accordance with section 233 of theCriminal Procedure Code (Cap. 75), shall be deemed to be adeposition within the meaning of that section.(2) If any child whose evidence is received under subsection (1)wilfully gives false evidence in such circumstances that he would, ifthe evidence had been given on oath, have been guilty of perjury, heshall be guilty of an offence and liable to be dealt with as if he hadbeen guilty of an offence punishable in the case of an adult withimprisonment.”
The essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath and whether the child is possessed of intelligence to testify under oath.
The appellant argued that the trial court did not record the questions and answers of the complainant in this case to decide whether she understood the nature of oath. I have looked at the proceedings before the lower court. It is indicated that the trial court conducted voire dire examination and stated that the victim who testified as PW2 was certainly intelligent, well oriented and know the difference between truth and lies. The trial court went ahead and allowed PW2 to give sworn testimony. What seems to be the argument by the appellant is that the trial court did not record the questions put to PW2 and answers verbatim in the proceedings.
In the case of Musili & Another vs Republic (Criminal Appeal E047 of 2025 (2026) KEHC 5066 (KLR) Mwongo J observed:
“A voire dire examination is required in specified cases but there is no specific formula for conducting it. Discretion is left to the trial court to determine how it will satisfy itself of the competency of a child witness. Courts have previously given guidance to the effect that before recording the testimony of a child witness, whether under oath or not, it is preferred that the trial magistrate records reasons why he/she thinks the witness is competent to testify under oath.”
In this case as I have indicated the trial magistrate did what she called preliminary test. She recorded what PW2 stated and made a finding that she was satisfied that PW2 was intelligent, well oriented and knew the difference between the truth and lies. It is therefore not correct as argued by the appellant that the trial court did not conduct voire dire examination. This ground must therefore fail.
The appellant argued that the age of the complainant was not proved as required. The law on the on importance of prove of age has been restated in numerous cases of this court and the Court of Appeal. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni – Versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000. It was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
From the foregoing it is clear that age of a victim in a defilement case may be proved through medical evidence by a doctor, birth certificate, the victim’s parents or guardian evidence or by observation and common sense. In this case the victim stated that she was in grade 2. PW3 the mother of the complainant testified that she was born on 10 th September, 2016. PW4 the investigating officer produced the complainant’s birth certificate as exhibit 4. All this proved that the complainant was aged 7 years as at the time of the commission of the offence. The trial court therefore correctly made a finding that the age of the complainant was proved as required and this ground of appeal must fail.
The other element which the prosecution was required to prove beyond reasonable doubt is penetration. Section 2 of the Sexual Offences Act defines penetration as follows:
“The partial or complete insertion of the genital organs into genital organ of another person.”
In this case the complaint testified that she was watching television which was in the appellant’s house. She stated that as she stepped into the house the appellant got hold of her and took her near the bed. Put her on the floor and removed her clothes. The appellant removed his clothes and did bad manners to her. She pointed at her vagina when giving evidence as to where the appellant did bad manners to her. PW2 her mother told the court that the appellant had a room where they lived. She also said that they had kept their television in the room where the appellant was staying. She said on the material date she arrived at home and did not find the complainant in their room. She said she found the appellant’s room closed. When she the door the knocked the appellant came out holding hos trouser. She entered the appellant’s house and found the complainant squatting. She said she noticed that the complainant was limping. She asked her what had happened but she said nothing. She threatened her but still she said nothing. She said upon checking her private parts she noticed that her vagina was reddened with watery discharge. At when she noticed the reddened vagina that she took her to hospital. At the hospital the complainant opened up and told the doctor that the appellant had defiled her. PW1 who produced the medical report told the court that upon examination there were whitish discharge with laceration and abrasion at labia minora and the vaginal wall and the hymen was fairly broken.
The trial magistrate evaluated the foregoing evidence and found that there was penetration. I have no reason to fault the trial court because the foregoing evidence was corroborative that the complainant’s genital organ namely vagina was penetrated.
The other element which the prosecution was required to prove was the positive identification of the appellant as the perpetrator. The evidence adduced by PW2 and PW3 they were living in the same compound with the appellant. Indeed, when PW3 arrived at home he found the appellant in his house. When she knocked the appellant’s house, he came out pulling his trousers. The appellant was not a stranger to the complainant and PW3. The trial court correctly found that the appellant was positively identified and I have no reason to fault that finding going by the evidence adduced by complainant and PW3.
The appellant faulted the trial magistrate for not considering his defence. The appellant in his unsworn defence denied committing the offence. He said when the complainant was examined the doctor found nothing wrong. He stated that the charges were a fabrication. From the judgment of the trial court, it is clear that the trial magistrate considered the appellant’s defence that the charges were a fabrication and found that the same was red-herring and rejected the same. It is therefore not correct that the trial court did not consider the appellant’s defence.
On the sentence, the appellant was charged under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. Section 8(2) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child aged eleven years or less shall be upon conviction be sentenced to imprisonment for life. The appellant was sentenced to serve twenty five years imprisonment. I find no fault in the sentence meted by the trial court.
The upshot is that the conviction and sentence by the trial court is upheld and the appeal is dismissed.
Dated, signed and delivered virtually this 28 th day of May, 2026.
In the presence of
Appellant appearing virtually
Ms. Mutua for the respondent appearing virtually
Ms. Millicent Otwo court assistant appearing physically
2