MICKY LEMAIYAN VS The Republic MICKY LEMAIYAN VS The Republic

The appellant M.L. a minor aged 17 years at the time of arraignment was charged and convicted of the offense of defilement contrary to section 8(1) as read together with section (8)(2) of the Sexual Offences Act, (Cap. 63A) Laws of Kenya. He also faced an alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The victim A. W. was aged 7 years at the time. The appellant was sentenced to life imprisonment.
The offences were alleged to have been committed on 4/11/2019 at the Dagoretti area of Kikuyu Sub-County in Kiambu County within the Central region.
The prosecution called four witnesses at the trial. PW 1, M. W., the complainant’s mother; PW 2, John Njuguna is a clinical officer from Nairobi Women’s Hospital who produced the P3 form and PRC form completed by his colleague at the hospital where the complainant was attended to following the incident; PW 3, AWW was the complainant and PW 4, Snr Sgt Hadija Ibrahim was the investigating officer.
In his defense, the appellant gave sworn evidence as DW 1 and called three witnesses to support his case. DW 2, A. M. is the appellant’s mother; DW 3, Wachiego Riziki, and DW 4, Waicigo are neighbours of the complainant and the appellant.
A summary of the evidence at trial was that the complainant and the appellant are cousins. Their parents are siblings, the complainant’s father being a brother to the appellant's mother. They stay within the same expansive compound. Their respective family residences are not far from each other.
The prosecution’s case is that on the morning of 4/11/2019 at around 7.00 a.m. the complainant went to the appellant's house for a phone. The appellant stays in the house with his mother and Aunty. The complainant found the appellant who took hold of her, led her into his bedroom pushed her to the bed, and defiled her for one hour while blocking her mouth. She went home and reported to the mother PW 1, who then took her to hospital.
According to PW 1, the complainant’s mother heard a distress call from a neighbor’s house, the appellant’s mother’s house where he stays with the mother. She responded to the call and saw the complainant approaching her while bleeding from the vagina. She took the complainant to Nairobi Women's Hospital where she was attended to.
The medical evidence produced by the clinical officer PW 2 showed that the complainant’s genitalia had a white discharge in the vagina with redness at the 6.00 o’clock point and her panties were stained with the discharge. She had on the clothes she was wearing during the incident. However, they did not have blood stains.
In his defense, the appellant denied that he committed the offense. He said he never met the complainant on the material day. He had gone to purchase “mandazi” and when he came back home he found the complainant’s mother raising an alarm alleging that he had defiled her daughter. She wanted to assault him but she restrained herself.
The appellant’s mother said that the allegations against her son arose out of differences she had with the complainant’s mother, PW 1. They had fought the previous evening when she went to draw water at the complainant’s mother stopped her. She owed PW 1 KShs 5,000/=. After the fight the complainant’s mother vowed that she will call upon her for forgiveness. On the material day in the morning she gave her son, the appellant money to go and buy “mandazi.” The complainant’s mother was screaming alleging that the appellant had defiled her daughter in their house. She said that PW 1 paid for the appellant’s cash bail in the trial court and if indeed the appellant had defiled her daughter, she would not have done so.
DW 3 Wachiego Riziki said she was the one who separated the complainant’s mother and the appellant’s mother when they fought on 3/11/2019 after a querrel.
The following morning, the complainant’s mother raised an alarm saying that the appellant had defiled her daughter. DW 3 said she met the appellant carrying mandazi. His mother was washing clothes. DW 3 also said that if indeed the appellant had defiled the complainant, PW 1 would not have paid for his release on cash bail.
DW 4 said that the PW 1 and DW 2 were engaged in a querrel on 3/11/2019 as the complainant’s mother was asking the appellant’s mother for money.
On the morning of 4/11/2019 the appellant went to his house and asked him for KShs 20/=. He was carrying mandazi. At the same time the complainant’s mother was screaming that the appellant had defiled her daughter and he went and assaulted the appellant who ran away.
Upon that evidence, the trial court convicted the appellant on the principal charge of defilement and sentenced him.
The appellant was aggrieved by the decision of the trial court and now appeals against the conviction and sentence on grounds that the learned trial magistrate erred in law and fact:
in taking the child witness as truthful without corroboration.
by failing to appreciate the prosecution witnesses were contradictory and gave different places on the crime scene.
by failing to appreciate the medical evidence did not link the accused person to the offence.
by contravening section 124 of the Evidence Act by deciding that since the child witness was coherent then she was truthful.
in failing to consider that the prosecution witnesses’ allegations were fueled by malice.
in failing to consider that the purported scene of crime was unknown to the victim and the investigation officer and decreased the probability of the commission of the offence.
in failing to consider that it was unsafe to convict the accused person and erroneous determination.
in convicting the accused person based on suspicion on the occurrence of the offence.
This appeal coming up under the RRI programme was disposed of by way of oral submissions made by learned counsel for the appellant Dr. Khaminwa. Learned counsel for the respondent indicated that they would file written submissions but I have not seen any hard copy or soft-copy in the court’s e-filing system.
Learned counsel for the appellant Dr. Khaminwa submits that the learned trial magistrate ought to have warned herself of the dangers of relying on uncorroborated evidence of a minor.
Learned counsel submits that even though the trial magistrate acknowledged that there were discrepancies in the evidence of the complainant and her mother on where the complainant’s clothes were she did not she did not evaluate how this affected the testimony of the complainant and simply stated that complainant’s evidence had to be believed and that should not have been the position.
Learned counsel submits further that the ingredient of penetration for an offence of defilement was not proved and there was no evidence of such. He submits further that the presence of blood in itself does not prove penetration and the clothes said to have been stained with blood were not produced as exhibits in court. Further that the medical evidence produced did not link the appellant with the offence.
Learned counsel further submits that it is evident that there were differences between the appellant’s and complainant’s mother that led to a fight between them the previous evening which would have led the complainant’s mother to frame the appellant in order to get back at his mother.
I have carefully considered the grounds in the petition of appeal, the evidence tendered at the trial and the trial court’s findings thereon and the submissions by learned counsel for the appellant herein. The issue for determination is whether the prosecution proved a case of defilement against the appellant beyond a reasonable doubt as found by the trial court.
This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;

“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”

At the trial PW 3, the complainant was the main prosecution witness. The trial court conducted a voire dire examination of PW 3, AWW, aged 10 years at the time of giving evidence. She gave sworn evidence of what had happened to her leading to the arrest of the accused person.
On the issue raised by learned counsel for the appellant on reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, the issue has been determined 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, 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…

… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful (emphasis mine).

From the above exposition of the law on the how the court should treat the evidence of the victim in a sexual offence case where the complainant is the only witness on any of the ingredients of the offence, this court is enjoined to evaluate the evidence and find out whether there was corroboration and even if there is none whether the complainant was telling the truth. In determining the second issue of truthfulness this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
Sections 8(1) and 8(2) of the Sexual Offences Act under which the accused person is charged with the principal charge provides as follows:

8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are as set out in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 as follows:

“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

The alternative charge of committing an indecent act with a child is provided for under section 11(1)(a) of the Act as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
In this case, the age of the complainant was proved by the evidence of her mother PW 1 and production of her certificate of birth (Exh. 1) which shows her date of birth as 3/10/2011, so that at the time of the alleged sexual assault upon her on 4/11/2019 she was just about eight years, shy by one month.
Accordingly, I find that the prosecution proved beyond a reasonable doubt that the complainant was a child aged 7 years and 11 months. The trial court correctly evaluated the evidence on the issue of the complainant’s age and arrived at the correct finding that she was a child aged 7 years and 11 months at the time the alleged offence was committed.
There is also no dispute that the complainant and the appellant are related and they stay within the same homestead and therefore are well known to each other. Nothing therefore turns on the issue of identification of the appellant as the assailant, if at all the final ingredient of penetration is proved.
The final issue to consider is on a charge of defilement whether or not penetration was proved by the prosecution. Under Section 2 of the said Act:

“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The evidence on record shows that the only eye witness to the act of penetration allegedly committed upon the complainant was the complainant herself.
The complainant said when she knocked at the door, the appellant opened and held her hand, took her to the aunty’s bedroom, where according to her, the appellant shared with the aunty, and pushed her to the bed. He removed her pair of trousers and also removed his pair of trousers. He then lay on her and inserted his male genital organ into hers. She felt pain and she bled. He then defiled her for about one hour. As he defiled her, he blocked her mouth so that she could not scream. He left her and went to the kitchen and that is when she got a chance and limped home to her mother. She could not walk properly. She raised an alarm when she reached their home and banged the door asking the mother to open the door. The mother, PW 2 opened the door for her. They boarded a motorcycle and went to Chandaria hospital and then to Nairobi Womens hospital. Her panties was blood stained and she was in pain. The panties was produced in evidence as exhibit with the court noting that it was blood-stained.
In cross-examination, the complainant said she carried her trouser from the appellant’s house to their house. She said that the doctor at Nairobi Womens hospital saw the blood on the panties.
The other evidence meant to prove penetration was that of the complainant’s mother, PW 1. She said in evidence that she heard a distress call from a neighbour’s house and responded to it. She saw her daughter, the complainant approaching. She was crying and bleeding from her private parts. PW 1 also said that the panties for the complainant was recovered from the appellant’s house and it was blood stained. She took her to hospital.
The third piece of evidence regarding penetration was medical evidence tendered by PW 2, the clinical officer.
The learned trial magistrate found that the complainant was presented to hospital immediately after occurrence of the incident. Indeed, this is in line with the evidence of the complainant and her mother both who testified that the complainant was taken to hospital and examined shortly after the incident. According to the P3 form and PRC form, there was no physical injuries to the vagina but there were injuries to the vagina with redness at 6.00 O’clock. The learned trial magistrate further found that there was no forced trauma penetration of the genitalia of the complainant. This is in line with the medical evidence which showed that examination of the genital organ of the complainant shortly after the alleged incident indicated a white discharge in her vagina with redness. The complainant wore the clothes that she had on during the incident and the panties was stained with discharge with no noted physical injuries except for redness at 6.00 o’clock.
In cross-examination, PW 2 said that there was no blood noted on the complainant’s panties other than the whitish discharge. He went on to state that redness of vagina can be caused by other forces apart from penile penetration such as accidental genital trauma or infection to the vaginal wall. It is worth noting that the complainant said in her evidence that at the hospital “It was noted I suffered an infection.”
As indicated above, there is either corroboration of the complainant’s evidence on that issue or if corroboration is lacking, it is sufficient if the complainant was found to have been a witness of truth. The trial court appreciated this issue of law as much when it stated that the evidence of a minor in sexual offences does not require corroboration as long as the court believes the minor is saying the truth and further that defilement can be proved without medical evidence as long as the victim is believed to be saying the truth. Consequently, the trial court seems to have been clear, and I agree with the learned magistrate that there was no corroboration of the complainant’s evidence on the issue of penetration. That then left the issue to be determined on the truthfulness or otherwise of the complainant. In that situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant.
There are several pertinent issues that arise from the evidence of the complainant, her mother and the medical evidence that call for careful scrutiny to determine whether the complainant passes the test of being a truthful witness.
First, the complainant said the appellant engaged in sexual intercourse with her for a very long time, about an hour. The complainant’s evidence that the ordeal took so long would tend to be supportive of her evidence and that of the mother that she bled from the vagina. However, their evidence of per vaginal bleeding is discounted by the medical evidence that there was no such bleeding other than redness which could be properly explained by the fact that the complainant had an infection as she said in her own evidence.
Furthermore, the evidence by the clinical officer was that there were no blood stains but a whitish discharge on the complainant’s panties when she presented the same at the hospital shortly after the alleged incident. This is in spite of the evidence by the complainant and her mother that she bled from the alleged encounter with the appellant. The trial court was shown a panties in court and identified by the complainant as the one she had on the material day. The court then noted that it was blood stained. How the court arrived at the conclusion that whatever was on the panties were blood stains is not fathomable. At the time of the hearing, the trial court ought only to have noted that the panties was stained with what appeared to be blood. The confirmation that it was blood, and that it was that of the complainant would then be subject to other evidence corroborating it. Given the medical evidence that there was no blood stain on the panties, such corroboration would not have been and was not had.
The learned trial magistrate found that medical evidence was not necessary to prove penetration for as long as the complainant could be believed. Indeed, in the case of Kassim Ali v Republic [2006] eKLR it was held:

“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

From this decision, the finding by the trial court herein would be appropriate where there is no medical evidence at all. But where there is medical evidence inconsistent with that tendered by the complainant, as in the present case, it must be considered as not only not being corroborative but contrary. It then becomes necessary to have that contradiction resolved. The learned trial magistrate never sought for such evidence to resolve the inconsistence but again there was none. This means that a major inconsistence was left unresolved in the prosecution’s case and this should have led to a doubt in the court’s mind as to whether indeed there was penetration or not.
The complainant’s mother said that the complainant’s clothes were recovered from the appellant’s house yet the complainant said she carried her trouser to their house. PW 1 never said which clothes were then recovered as alleged, by whom they were recovered and when. The complainant never spoke of her leaving any of her clothes in the appellant’s house and the same being retrieved afterwards. This creates a doubt on whether any clothes were recovered from the appellant’s house. It would then be proper to surmise that the complainant’s mother only wanted to bolster her case by alleging that some clothes were so recovered.
Secondly, the complainant said she screamed when she reached their house door, banged on it and called the mother to open. The mother on her part said she heard a distress call from a neighbour’s house and responded to the same. These are two different versions of the same incident being presented by prosecution witnesses, a mother and her daughter. The question arises, did the complainant reach their house and bang at the door as she called out for the mother or did the mother hear the distress call, then get out and met the complainant coming? The learned trial magistrate appreciated this discrepancy and then found that what the two said could be resolved as being one and the same thing. It was not and so it could only be resolved by evidence of another independent witness which was lacking.
Thirdly, how come the complainant’s mother was never concerned that her daughter, who had only gone to get a phone had taken so long? This is when the complainant’s mother had just engaged in a bitter querrel with the appellant’s mother the previous evening. It is difficult to believe that she would have left her daughter to stay in the appellant’s mother’s house when they had a simmering hostility between them.
The trial court found that the complainant had no reason to fabricate a case against the appellant and that is why she went to get the phone from their house in spite of their parents being engaged in bitter feuds. However, she failed to look at the other side of the matter, that is, the complainant’s mother trying to get at the appellant’s mother through whatever means that would inflict maximum pain upon her, by implicating her only son in a very serious crime. She indeed had vowed to teach her a lesson after their bitter querrel the previous evening. It is therefore not correct, as found by the trial court, that there was no possibility of ill-motive to the allegations made against the appellant. The possibility that it was instigated by the complainant’s mother as a way of getting at the appellant’s mother is very real. That is what would lead to the two witnesses, mother and daughter giving contradictory versions of the same story.
The fourth issue is that the parties are agreed that they stay in the same expansive homestead. The incident is alleged to have happened on a Monday morning at around 7.00 a.m. during school holidays. The complainant’s mother says there were people who were present but they declined to be involved in the case. However, I note that none of such people was mentioned by name during the testimony of the complainant and her mother. The question then is, if the incident indeed happened, who were these unnamed people who declined to be participate. My finding is that there were no such people who witnessed the alleged incident.
To the contrary, there is evidence by DW 3 and DW 4 that such an incident is not likely to have taken place because that morning each of them met the appellant carrying “mandazi” that he had just purchased as the complainant’s mother was screaming that he had defiled her daughter. At what point could the appellant have left the house, gone to purchase the “mandazi” and be back before the complainant reached her mother’s house and for her to come back screaming.
Further, there is evidence by the defence and which the trial court confirmed upon visiting the locus in quo that the appellant stayed in a separate structure from that of her mother and not in the same house with separate rooms as alleged by the complainant. Where did the complainant get the idea of referring the two separate houses as one with several rooms?
The trial magistrate found that the evidence tendered by the defence had been controverted by the prosecution evidence but that was a grave error, given the unresolved contradictions and discrepancies in the evidence of the prosecution. When properly appraised, the evidence of the defence should clearly have created a doubt in the mind of the court because there was clearly a motive for the complainant’s mother to want to hit back at the appellant’s mother after their querrel and fight the previous evening; there is no reason why the two defence witnesses, DW 3 and DW 4 would have wanted to lie. Their evidence remaining unchallenged then weighed against that of the prosecution should have led to a doubt in the mind of the court on the veracity of the evidence of PW 1 and PW 3.
I therefore find that the learned trial magistrate failed to fully appraise the evidence presented to the court and take note of the glaring contradictions and discrepancies in the evidence of key prosecution witnesses which if she had would have arrived at a different conclusion.
In Jackson Mwanzia Musembi v Republic [2017] eKLR the court relied on the case of Uganda Court of Appeal in Twehangane Alfred v Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA, 6, where the court noted that it is not every contradiction that warrants rejection of evidence. There the court stated:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

The contradictions and discrepancies in this case were not minor but major and going to the root of the case, to determine the truthfulness of the complainant herein. I note that there was nowhere in the proceedings where the trial magistrate expressly noted that she believed the complainant was a truthful witness. Moreover, even after finding that the complainant’s evidence of penetration was not corroborated, I do not find anywhere in the judgment where the trial court warned itself of the danger of basing a conviction upon uncorroborated evidence of the complainant.
In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt in light of glaring contradictions and discrepancies in the evidence of the key prosecution witnesses on the issue of penetration. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
The offence the appellant was charged with carries a very severe sentence of life imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:

“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”

Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. The accused person is set at liberty forthwith unless otherwise lawfully held.

Orders accordingly.

Signed, Dated and Delivered at Kiambu this 24^th Day of June, 2024.

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