(Being an Appeal against the Judgment and Conviction of the Principal Magistrate’s Court at Kaloleni Hon. G. Mokua Resident Magistrate delivered on 11 th September, 2024)
The appellant was charged with the offence of defilement of a child contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars were that on 23 rd day of March, 2024 at Chandani Village, Kaloleni Location, Kaloleni Sub County in Kilifi County within Coast Region intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely vagina of M.R.P a child aged 16 years.
The appellant faces 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 23 rd day of March, 2024 at Chandani Village, Kaloleni Location, Kaloleni Sub County in Kilifi County within Coast Region intentionally and unlawfully committed an act which caused his male genital organ namely penis to touch the female genital organ namely vagina of M.R.P a child aged 16 years.
The appellant denied the charges when he was arraigned before the trial court. The prosecution called six (6) witnesses to prove the charges against the appellant. The appellant when placed on his defence he opted to give unsworn statement. The trial court after considering the evidence adduced by the prosecution and the appellant’s defence it found the appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve fifteen (15) years imprisonment.
Aggrieved by the conviction and sentence, the appellant preferred this appeal. The appellant in an amended grounds of appeal he raised eight (8) grounds which can be compressed as hereunder:
1. The appellant faulted the trial court for not considering that the appellant was not assisted with an interpreter and the language used by the complainant was not clearly indicated in the proceedings thus violating his right to fair trial as envisaged under Article 50(2) of the Constitution;
2. The appellant faulted the trial court for failing to consider that the evidence by the prosecution was obtained in a manner that violated his rights as the complainant was coerced and forced to implicate him;
3. The appellant faulted the trial court for failing to consider that the evidence adduced by the prosecution was a fabrication;
4. The appellant faulted the trial court for failing to conduct voire dire examination contrary to the provisions of the Oaths and Statutory Declaration Act Cap 19 Laws of Kenya;
5. The appellant faulted the trial court for not considering that no proper investigations were conducted and that crucial witnesses were not called;
6. The appellant faulted the trial court for relying on uncorroborated evidence; and
7. That the appellant faulted the trial court for not considering his defence.
Prosecution Case
The complainant testified as PW1. Her evidence was that she was aged 16 years and she knew the appellant. She told the trial court that on 23 rd March, 2024 at around noon she was at home when the appellant called her to his house which was next to there house. She went to the appellant house and they had sexual intercourse. The appellant gave her Kshs. 50/= and told her not to tell anyone. Later on, 24 th March, 2024 her grandfather who was with her mother canned her asking her if she had sex with anyone. She told her grandfather that she had sex with Dido (the appellant) and Benjamin. When Dido was questioned, he admitted having sex with her but Benjamin denied. She was later taken to Kaloleni Police station and thereafter taken to Mariakani Sub County hospital for examination. Later she was taken to the police station where she recorded statement and Dido was arrested. She said the appellant knew that she was in school. On cross-examination she said the appellant called her to his house at 12 noon. She further stated that the neighbours knew that the appellant defiled her.
PW2 stated that the complainant was her daughter aged 16 years. She produced copy of the complainant’s health card. She further stated that she knew the appellant as he was a neighbour. She told the court that on 24 th March, 2024 she arrived home from work at around 9pm and found that the complainant and her other daughter Penina were missing. Upon inquiry from her son Kevin, he told her that the complainant and her sister had left home with someone. She started looking for them. When they were later traced the village elder interrogated them and they said they did not know the person who picked them from home. The complainant was taken to another village elder by the name Cholo who upon interrogating her she said she had sexual intercourse with appellant and also with Benjamin. She said the appellant gave the complainant Kshs. 50/=. The appellant and Benjamin were interrogated and the appellant admitted having sexual intercourse with the complainant. Benjamin denied having sexual intercourse with the complainant. Thereafter the appellant and Benjamin in the company of the complainant were taken to the police station. The complainant was then taken for medical examination.
PW3 Baya Thoya Iha said he is a village elder of Wolea ‘A’ area. He told the court that he knew the complainant as she was his grandchild. He also said he knew the appellant as Dido. He said on 23 rd March, 2024 he was asleep when he was awoken by noises outside. When he went out, he found one Mary with the complainant’s mother and other neighbours. They explained to him that the complainant and her sister were missing. The complainant then resurfaced at around 12:00 midnight and told them that a certain man had informed them that her mother had fallen down whom they followed. He then canned the complainant but she denied having sex with the man who had called her. She however stated that she had sexual intercourse with the Dido and Mdzomba whom he knew. He went to the area where Dido and Mdzomba were residing. He contacted the area village elder and they went to the appellant’s home who upon interrogation admitted having defiled the complainant. Mdzomba however denied having any sexual intercourse with the complainant. Both the appellant and Mdzomba were taken to the police station where they were detained. The complainant was thereafter taken to hospital for medical examination. He later recorded statement with the police.
PW4 Mary Kadzo Pola the complainant’s aunt testified that on the night of 24 th March, 2024 she was at home when one Ema her aunt knocked at her door. She told her that the complainant and Penina were missing. They proceeded to complainant mother’s home. Shortly the complainant and Penina came. They questioned them where they were coming from and took them to the village elder. The complainant and Penina were taken to the appellant’s home. She said the complainant later told her that she had sexual intercourse with the appellant who gave her Kshs. 50/=. She said she was not sure whether the incident took place.
PW4 investigated the case. He told the court that on 24 th March, 2024 the complainant accompanied by the appellant were brought to the police station and a defilement case was reported. He issued the complainant with a P3 Form and escorted her to hospital for medical examination. After examination it was found that the complainant had been defiled. He then recorded statements from the witnesses and established that appellant had defiled the complainant. He also established that the complainant and the appellant were neighbours. After investigation he charged the appellant in court.
PW6 a clinical officer attached at Mariakani Sub County hospital examined the complainant on 25 th March, 2024 on allegations of having been defiled. Her genitalia were okay. She had hymen but the sphincter muscles were loose and she had a smelling discharge from her vagina. Other tests as to venereal diseases and pregnancy were negative. He filled the P3 Form and confirmed that the complainant had been defiled. He produced as exhibits the P3 Form, treatment notes, PRC Form, laboratory requests and results and Gender-Based Violence Form.
Defence Case
The appellant once placed on his defence he gave unsworn statement. He said he was 44 years and he was a palm wine tapper. He denied defiling the complainant and said he is impotent.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered.
Thia being the first appeal, this court is expected to analyze and re-evaluate the evidence adduced before the trial court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify. This principle was laid down in the celebrated case of Okeno vs Republic (1972) E.A 32.
Further to the forgoing, it must also be born in mind that it is the duty of the prosecution to prove the charges against an accused person beyond reasonable doubt. This is a cardinal principle of criminal law which need not be overemphasized. It has been restated in numerous authorities of this Court and the Court of Appeal (See Stephen Nguli Mulili vs Republic (2014) e KLR).
With the foregoing principles in mind, I have re-evaluated and reconsidered the evidence adduced by the prosecution in the lower court and the appellant’s defence. I will not consider the grounds proffered by the appellant in any particular order but I will endeavor to consider whether based on the said grounds and the evidence adduced before the trial court and making a finding on whether the prosecution case was proved beyond reasonable doubt.
The appellant argued that the trial court failed to conduct voire dire examination before recording the evidence of the complainant. The relevant provision regarding this ground is Section 19(1) of the Oaths and Statutory Declaration Act which provides as follow:
“19(1) Where, in any proceedings before any court or person having by law or consent of the 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 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.
From the foregoing, the essence of voire dire examination is for the trial court to determine first, whether the child is of tender years, and secondly whether the child is intelligent enough to speak the truth. Once the court determines that the child is of tender age, it is obligated to conduct voire dire examination as required under Section 19(1) of the Oaths and Statutory Declaration Act. The question is who is a child of tender years. Section 2 of the Children Act defines child of tender years to mean “a child under the age of 10 years. However various court decisions have maintained a higher threshold of 14 years and not 10 years whose evidence must be subjected to voire dire examination. This was the case in the case of Kibageny Arap Korir vs Republic (1959) E.A 92 where the Court of Appeal of Eastern Africa in determining the issue held that child of tender years means a child under the age of 14 years.
In the instant case, the complainant was said to be aged 16 years as per the charge sheet and the evidence adduced. From the definition of a child of tender years as per the Children Act and as espoused in numerous authorities, the complainant cannot be treated as a child of tender years so as for the voire dire examination to become necessary. This ground by the appellant must fail. The trial court did not need to conduct voire dire examination.
The appellant faulted the trial court for not considering that the appellant was not assisted with an interpreter and the language used by the complainant was not indicated. As such the appellant argued that his right to fair trial under Article 50(2) of the Constitution was violated. I have perused both the original record of the trial court and the typed proceedings recorded by the trial court; the original record shows that the language used by the court was English interpreted into the Swahili language. Further the record shows that all the witnesses who testified proceeded in Kiswahili language. The record further shows that the appellant cross-examined the witnesses especially the complainant and the doctor. This leaves no doubt that even though the proceedings of the trial court were in English, the proceedings were conducted in swahili. I find the appellant’s grievance that he was not accorded fair trial unmerited and that ground must fail.
The other grounds argued by the appellant were that the evidence the trial court relied on was a fabrication and obtained through coercion. The basis of this argument is that the complainant was canned by the village elder to admit that he had sexual intercourse with the appellant. I agree with the appellant that the complainant hesitantly admitted that she was defiled by the appellant after being canned. What I understand as the appellant’s argument is that the evidence adduced by the prosecution was not credible so as for the trial court to admit the same and find conviction.
In the persuasive case of S vs Sauls & Others (1981) (3) S.A 172 it was held:
“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider the merits and demerits and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradiction in the testimony, he is satisfied that the truth has been told.”
In the instant case there is no dispute that the complainant said she was defiled by the appellant after she was canned by PW3. This may raise the credibility of the complainant’s evidence as to whether the complainant was telling the truth. And is assessing whether the complainant was credible in her testimony the same must be looked together with all the other evidence adduced. In this case, the trial court dealt with the main ingredients of the offence of defilement without considering the credibility of the complainant vis a vis the evidence adduced. It was apparent from the evidence adduced that the complainant was with her sister Penina. According to the complainant she said she had sexual intercourse with Dido (apparently the appellant) and one Benjamin. It is only after she was canned that she said she had sex with the appellant. in view of this contradiction as to who she had sex with; it was apparently crucial that the prosecution called one Penina to corroborate the evidence of the complainant. I state so while well aware in my mind that there is no requirement for the prosecution to call any number of witnesses to prove its case, but in this case, it was crucial for Penina to be called to support the evidence adduced by the complainant. This coupled with the fact that the complainant mentioned the appellant after she was canned raises doubt in the credibility of the prosecution witnesses.
The appellant raised the issue of poor investigations of the case. I note from the evidence of the investigation officer that he only relied on what he was told by the complainant and other witnesses. There is nothing wrong with that but considering that the complainant had stated that she had sex with appellant and one Benjamin who was apparently arrested but was not charged after denying having sex with the complainant, it was incumbent for the investigating officer to do more that just charging the appellant.
Much as the essential ingredients of age and penetration may have been disclosed by the prosecution, the identity of the perpetrator remains in doubt in view of the contradictory evidence of the complainant as to who she had sex with. It is not clear whether it was the appellant or Benjamin. This creates doubt in the prosecution case and that doubt must be to the benefit of the appellant.
Having re-evaluated and reconsidered the entire evidence adduced by the prosecution and as much as the appellant’s defence was just mere denial, I find doubt in the prosecution case. Consequently, I arrive at the verdict that the charges were not proved as required before the trial court and the appeal herein must succeed. The conviction and sentence by the trial court are hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 17 th day of June, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi Prison.
Ms. Mutua for the respondent appearing virtually.
Ms. Otwo Court Assistant appearing virtually from Milimani Law Courts
2
The appellant was charged with the offence of defilement of a child contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars were that on 23 rd day of March, 2024 at Chandani Village, Kaloleni Location, Kaloleni Sub County in Kilifi County within Coast Region intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely vagina of M.R.P a child aged 16 years.
The appellant faces 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 23 rd day of March, 2024 at Chandani Village, Kaloleni Location, Kaloleni Sub County in Kilifi County within Coast Region intentionally and unlawfully committed an act which caused his male genital organ namely penis to touch the female genital organ namely vagina of M.R.P a child aged 16 years.
The appellant denied the charges when he was arraigned before the trial court. The prosecution called six (6) witnesses to prove the charges against the appellant. The appellant when placed on his defence he opted to give unsworn statement. The trial court after considering the evidence adduced by the prosecution and the appellant’s defence it found the appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve fifteen (15) years imprisonment.
Aggrieved by the conviction and sentence, the appellant preferred this appeal. The appellant in an amended grounds of appeal he raised eight (8) grounds which can be compressed as hereunder:
1. The appellant faulted the trial court for not considering that the appellant was not assisted with an interpreter and the language used by the complainant was not clearly indicated in the proceedings thus violating his right to fair trial as envisaged under Article 50(2) of the Constitution;
2. The appellant faulted the trial court for failing to consider that the evidence by the prosecution was obtained in a manner that violated his rights as the complainant was coerced and forced to implicate him;
3. The appellant faulted the trial court for failing to consider that the evidence adduced by the prosecution was a fabrication;
4. The appellant faulted the trial court for failing to conduct voire dire examination contrary to the provisions of the Oaths and Statutory Declaration Act Cap 19 Laws of Kenya;
5. The appellant faulted the trial court for not considering that no proper investigations were conducted and that crucial witnesses were not called;
6. The appellant faulted the trial court for relying on uncorroborated evidence; and
7. That the appellant faulted the trial court for not considering his defence.
Prosecution Case
The complainant testified as PW1. Her evidence was that she was aged 16 years and she knew the appellant. She told the trial court that on 23 rd March, 2024 at around noon she was at home when the appellant called her to his house which was next to there house. She went to the appellant house and they had sexual intercourse. The appellant gave her Kshs. 50/= and told her not to tell anyone. Later on, 24 th March, 2024 her grandfather who was with her mother canned her asking her if she had sex with anyone. She told her grandfather that she had sex with Dido (the appellant) and Benjamin. When Dido was questioned, he admitted having sex with her but Benjamin denied. She was later taken to Kaloleni Police station and thereafter taken to Mariakani Sub County hospital for examination. Later she was taken to the police station where she recorded statement and Dido was arrested. She said the appellant knew that she was in school. On cross-examination she said the appellant called her to his house at 12 noon. She further stated that the neighbours knew that the appellant defiled her.
PW2 stated that the complainant was her daughter aged 16 years. She produced copy of the complainant’s health card. She further stated that she knew the appellant as he was a neighbour. She told the court that on 24 th March, 2024 she arrived home from work at around 9pm and found that the complainant and her other daughter Penina were missing. Upon inquiry from her son Kevin, he told her that the complainant and her sister had left home with someone. She started looking for them. When they were later traced the village elder interrogated them and they said they did not know the person who picked them from home. The complainant was taken to another village elder by the name Cholo who upon interrogating her she said she had sexual intercourse with appellant and also with Benjamin. She said the appellant gave the complainant Kshs. 50/=. The appellant and Benjamin were interrogated and the appellant admitted having sexual intercourse with the complainant. Benjamin denied having sexual intercourse with the complainant. Thereafter the appellant and Benjamin in the company of the complainant were taken to the police station. The complainant was then taken for medical examination.
PW3 Baya Thoya Iha said he is a village elder of Wolea ‘A’ area. He told the court that he knew the complainant as she was his grandchild. He also said he knew the appellant as Dido. He said on 23 rd March, 2024 he was asleep when he was awoken by noises outside. When he went out, he found one Mary with the complainant’s mother and other neighbours. They explained to him that the complainant and her sister were missing. The complainant then resurfaced at around 12:00 midnight and told them that a certain man had informed them that her mother had fallen down whom they followed. He then canned the complainant but she denied having sex with the man who had called her. She however stated that she had sexual intercourse with the Dido and Mdzomba whom he knew. He went to the area where Dido and Mdzomba were residing. He contacted the area village elder and they went to the appellant’s home who upon interrogation admitted having defiled the complainant. Mdzomba however denied having any sexual intercourse with the complainant. Both the appellant and Mdzomba were taken to the police station where they were detained. The complainant was thereafter taken to hospital for medical examination. He later recorded statement with the police.
PW4 Mary Kadzo Pola the complainant’s aunt testified that on the night of 24 th March, 2024 she was at home when one Ema her aunt knocked at her door. She told her that the complainant and Penina were missing. They proceeded to complainant mother’s home. Shortly the complainant and Penina came. They questioned them where they were coming from and took them to the village elder. The complainant and Penina were taken to the appellant’s home. She said the complainant later told her that she had sexual intercourse with the appellant who gave her Kshs. 50/=. She said she was not sure whether the incident took place.
PW4 investigated the case. He told the court that on 24 th March, 2024 the complainant accompanied by the appellant were brought to the police station and a defilement case was reported. He issued the complainant with a P3 Form and escorted her to hospital for medical examination. After examination it was found that the complainant had been defiled. He then recorded statements from the witnesses and established that appellant had defiled the complainant. He also established that the complainant and the appellant were neighbours. After investigation he charged the appellant in court.
PW6 a clinical officer attached at Mariakani Sub County hospital examined the complainant on 25 th March, 2024 on allegations of having been defiled. Her genitalia were okay. She had hymen but the sphincter muscles were loose and she had a smelling discharge from her vagina. Other tests as to venereal diseases and pregnancy were negative. He filled the P3 Form and confirmed that the complainant had been defiled. He produced as exhibits the P3 Form, treatment notes, PRC Form, laboratory requests and results and Gender-Based Violence Form.
Defence Case
The appellant once placed on his defence he gave unsworn statement. He said he was 44 years and he was a palm wine tapper. He denied defiling the complainant and said he is impotent.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered.
Thia being the first appeal, this court is expected to analyze and re-evaluate the evidence adduced before the trial court and arrive at its own independent decision, of course noting that it did not have the opportunity to hear and see the witnesses testify. This principle was laid down in the celebrated case of Okeno vs Republic (1972) E.A 32.
Further to the forgoing, it must also be born in mind that it is the duty of the prosecution to prove the charges against an accused person beyond reasonable doubt. This is a cardinal principle of criminal law which need not be overemphasized. It has been restated in numerous authorities of this Court and the Court of Appeal (See Stephen Nguli Mulili vs Republic (2014) e KLR).
With the foregoing principles in mind, I have re-evaluated and reconsidered the evidence adduced by the prosecution in the lower court and the appellant’s defence. I will not consider the grounds proffered by the appellant in any particular order but I will endeavor to consider whether based on the said grounds and the evidence adduced before the trial court and making a finding on whether the prosecution case was proved beyond reasonable doubt.
The appellant argued that the trial court failed to conduct voire dire examination before recording the evidence of the complainant. The relevant provision regarding this ground is Section 19(1) of the Oaths and Statutory Declaration Act which provides as follow:
“19(1) Where, in any proceedings before any court or person having by law or consent of the 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 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.
From the foregoing, the essence of voire dire examination is for the trial court to determine first, whether the child is of tender years, and secondly whether the child is intelligent enough to speak the truth. Once the court determines that the child is of tender age, it is obligated to conduct voire dire examination as required under Section 19(1) of the Oaths and Statutory Declaration Act. The question is who is a child of tender years. Section 2 of the Children Act defines child of tender years to mean “a child under the age of 10 years. However various court decisions have maintained a higher threshold of 14 years and not 10 years whose evidence must be subjected to voire dire examination. This was the case in the case of Kibageny Arap Korir vs Republic (1959) E.A 92 where the Court of Appeal of Eastern Africa in determining the issue held that child of tender years means a child under the age of 14 years.
In the instant case, the complainant was said to be aged 16 years as per the charge sheet and the evidence adduced. From the definition of a child of tender years as per the Children Act and as espoused in numerous authorities, the complainant cannot be treated as a child of tender years so as for the voire dire examination to become necessary. This ground by the appellant must fail. The trial court did not need to conduct voire dire examination.
The appellant faulted the trial court for not considering that the appellant was not assisted with an interpreter and the language used by the complainant was not indicated. As such the appellant argued that his right to fair trial under Article 50(2) of the Constitution was violated. I have perused both the original record of the trial court and the typed proceedings recorded by the trial court; the original record shows that the language used by the court was English interpreted into the Swahili language. Further the record shows that all the witnesses who testified proceeded in Kiswahili language. The record further shows that the appellant cross-examined the witnesses especially the complainant and the doctor. This leaves no doubt that even though the proceedings of the trial court were in English, the proceedings were conducted in swahili. I find the appellant’s grievance that he was not accorded fair trial unmerited and that ground must fail.
The other grounds argued by the appellant were that the evidence the trial court relied on was a fabrication and obtained through coercion. The basis of this argument is that the complainant was canned by the village elder to admit that he had sexual intercourse with the appellant. I agree with the appellant that the complainant hesitantly admitted that she was defiled by the appellant after being canned. What I understand as the appellant’s argument is that the evidence adduced by the prosecution was not credible so as for the trial court to admit the same and find conviction.
In the persuasive case of S vs Sauls & Others (1981) (3) S.A 172 it was held:
“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider the merits and demerits and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradiction in the testimony, he is satisfied that the truth has been told.”
In the instant case there is no dispute that the complainant said she was defiled by the appellant after she was canned by PW3. This may raise the credibility of the complainant’s evidence as to whether the complainant was telling the truth. And is assessing whether the complainant was credible in her testimony the same must be looked together with all the other evidence adduced. In this case, the trial court dealt with the main ingredients of the offence of defilement without considering the credibility of the complainant vis a vis the evidence adduced. It was apparent from the evidence adduced that the complainant was with her sister Penina. According to the complainant she said she had sexual intercourse with Dido (apparently the appellant) and one Benjamin. It is only after she was canned that she said she had sex with the appellant. in view of this contradiction as to who she had sex with; it was apparently crucial that the prosecution called one Penina to corroborate the evidence of the complainant. I state so while well aware in my mind that there is no requirement for the prosecution to call any number of witnesses to prove its case, but in this case, it was crucial for Penina to be called to support the evidence adduced by the complainant. This coupled with the fact that the complainant mentioned the appellant after she was canned raises doubt in the credibility of the prosecution witnesses.
The appellant raised the issue of poor investigations of the case. I note from the evidence of the investigation officer that he only relied on what he was told by the complainant and other witnesses. There is nothing wrong with that but considering that the complainant had stated that she had sex with appellant and one Benjamin who was apparently arrested but was not charged after denying having sex with the complainant, it was incumbent for the investigating officer to do more that just charging the appellant.
Much as the essential ingredients of age and penetration may have been disclosed by the prosecution, the identity of the perpetrator remains in doubt in view of the contradictory evidence of the complainant as to who she had sex with. It is not clear whether it was the appellant or Benjamin. This creates doubt in the prosecution case and that doubt must be to the benefit of the appellant.
Having re-evaluated and reconsidered the entire evidence adduced by the prosecution and as much as the appellant’s defence was just mere denial, I find doubt in the prosecution case. Consequently, I arrive at the verdict that the charges were not proved as required before the trial court and the appeal herein must succeed. The conviction and sentence by the trial court are hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 17 th day of June, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi Prison.
Ms. Mutua for the respondent appearing virtually.
Ms. Otwo Court Assistant appearing virtually from Milimani Law Courts
2