(Being an appeal from the original conviction and sentence by Hon. M.O Obiero in Sexual Offences Case No. 039 of 2024 of the Kehancha SPM Cour)
1. The Appellant herein was convicted on the charge of defilement of a girl aged 6 years contrary to section 8(1) and (2) of the Sexual Offences Act No. 3 of 2006.
2. He was charged with an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006.
3. He also faced a second count of being unlawfully in Kenya without a valid entry visa or permit contrary to section 53 (1) of the Kenya Citizenship and Immigration Act No. 12 of 2011.
4. He was convicted on the charge of defilement and sentenced to life imprisonment on the 3 rd day of September 2025.
5. Being dissatisfied with the conviction and sentence, he filed this appeal and raised the following grounds of appeal:
(i) That the trial court erred by convicting him against the weight of the evidence.
(ii) The court erred by superficially and perfunctorily analysing prosecution evidence devoid of the requisite standard of proof.
(iii) The trial court erred by failing to appreciate that the prosecution had not proved the case beyond reasonable doubt.
(iv) The court erred by failing to afford the prosecution evidence particularly the evidence of the doctor which did not find any evidence of penetration of the victim.
(v) The court erred in relying on uncorroborated evidence of the minor.
(vi) The court erred in convicting the Appellant considering the Appellant was not picked out in the identification parade.
(vii) The was no sufficient proof to convict the Appellant.
6. The Appellant filed his undated written submissions while those of the Respondent were dated 9 th May, 2026. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety.
7. Being the first appeal, the Court is bound to evaluate the evidence adduced before the trial court in order to arrive at its own independent conclusion and for the ends of justice to be met.
8. This position was settled in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 where the court therein held that the appellant court was not bound by the findings of fact of the trial court but that in re-considering and evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify.
Appellant’s Submissions
9. The Appellant submitted that the burden of proof rested entirely upon the prosecution to prove its case beyond reasonable doubt. He further submitted that suspicion, however strong, cannot form the basis of a conviction and that the prosecution was required to present credible, cogent and consistent evidence directly linking him to the offence.
10. He submitted that the prosecution's evidence was fundamentally deficient, particularly on the issue of penetration. He argued that the medical examination report, including the P3 Form and treatment notes, did not conclusively establish penetration.
11. The Appellant maintained that penetration is an essential ingredient of the offence and that proof of the same was necessary before a conviction could be sustained.
12. He strongly submitted that the identification parade was fundamentally flawed and incapable of sustaining a conviction. He argued that the complainant identified a different person during the identification parade and not him. He contended that this raised serious doubt as to the Appellant's involvement in the offence and should not have been relied on to convict him.
13. He further argued that the identification of another person during the parade directly contradicted the witness’s subsequent testimony implicating him and constituted a material inconsistency.
14. The Appellant further argued that the trial court failed or was reluctant to conduct a voire dire examination of the complainant despite the fact that it was confirmed that the minor could utter some few words as strongly stated by PW3, the mother.
15. He argued that the court reliance on complainant’s evidence through the mother was unfair and prejudicial to his case. The production of a letter dated 5/9/2024 indicating that the minor had delayed speech was not sufficient for the purposes of a fair hearing. He contended that the letter was written on 5/9/2024 September yet the offence was allegedly committed on 18/08/2014.
16. In conclusion, the Appellant urged the court to find that the prosecution failed to prove its case to the required standard and accordingly acquit him for fairness and administration of justice.
Respondent’s Submissions
17. The Respondent submitted that the Appellant was properly convicted and sentenced for the offence of defilement under Section 8 of the Sexual Offences Act and argued that all the ingredients of defilement were proven beyond reasonable doubt.
18. The Respondent cited the case of Dominic Kibet Mwareng v Republic [2013] 1 eKLR , where the court outlined the essential ingredients of the offence of defilement as the age of the complainant, proof of penetration and positive identification of the assailant. Counsel submitted that all these ingredients were proved beyond reasonable doubt and that no contradictions existed in the prosecution's case as alleged by the Appellant.
19. Regarding identification, the Respondent submitted that the complainant positively identified the Appellant because she already knew him before the incident. Counsel argued that the complainant's mother was properly allowed to testify on behalf of the child pursuant to Section 31 of the Children's Act owing to the child's medical challenges. The Respondent further submitted that the evidence showed that the complainant went missing and was later seen by her siblings in the company of the Appellant as they moved away from the gate. The Respondent further stated that the complainant identified the Appellant in court while crying and covering her face, thereby positively linking him to the offence.
20. The Respondent further submitted that the complainant informed her mother that she had slept with "uncle" and had seen "dudu". Upon examining the child, the mother detected a foul smell and observed a whitish discharge from the child's genital area. The matter was thereafter reported to Mabera Police Station and the complainant was taken to hospital for examination. Counsel further pointed out that the complainant's birth certificate was produced in evidence and established that she was six years old at the time of the offence, thereby proving the age element of the charge.
21. Regarding penetration, the Respondent submitted that the clinical officer who examined the complainant observed bruising on the posterior aspect of the vagina, noted that the anal area was soiled with faeces and found that the minor's trouser was torn. The officer further observed that the complainant appeared anxious, had bruising on the vagina, a whitish discharge and evidence of vaginal assault. The treatment notes, PRC Form and P3 Form were produced in evidence. The Respondent argued that these findings demonstrated penetration and supported the prosecution's case.
22. The Respondent rejected the Appellant's contention that the prosecution evidence required corroboration and relied on Section 124 of the Evidence Act. The Respondent submitted that under the proviso to Section 124, a court may convict on the sole evidence of a victim in a sexual offence case where the court is satisfied that the victim is telling the truth and records the reasons for that finding. It was therefore argued that corroboration was not mandatory in the circumstances of the case and that the complainant's evidence was sufficient, particularly when considered alongside the medical evidence adduced by the prosecution.
23. The Respondent finally submitted that the Appellant failed to rebut any of the prosecution evidence during the trial and that the prosecution's case remained watertight and proved to the required standard. The Respondent argued that the Appellant had not presented any material evidence capable of persuading the appellate court to interfere with the decision of the trial court. It was therefore submitted that the trial did not infringe upon the Appellant's rights, that the trial magistrate properly considered all the ingredients of the offence and the evidence on record, and that the appeal should be dismissed for lack of merit.
ISSUES FOR DETERMINATION
24. Having evaluated the evidence of the trial court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, in my view, the appeal raises two issues for determination as follows-
(i) Whether the prosecution proved its case beyond reasonable doubt considering the three ingredients forming the offence of defilement; and
(ii) Whether the evidence of a minor through the mother was sufficient to convict the Appellant.
25. In determining whether or not the prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads.
A. Age of the Complainant
26. The Appellant did not submit on the issue of age. On its part, the Respondent submitted that PW 1, Faith Nchagwa Daniel the mother of the complainant produced the minor’s birth certificate as an exhibit which indicated that she was born on 17 th December 2017, thus, meant that she was six years at the time of the incident. The trial Court however, indicated on record that the birth certificate indicated that the child was born on 17 th December, 2019. The birth certificate on record specifies 17 th December 2017 as the date of birth therefore the child was six years at the time of the incident.
27. The Appellant did not challenge the production of the birth certificate and/or rebut the said evidence by adducing any evidence to the contrary. This court is satisfied that the complainant was a child at the time of the incident.
B. Identification
28. The Appellant extensively submitted on this issue. He argued that the prosecution's evidence was fundamentally deficient on the issue of identification. He argued that the medical examination report, including the P3 Form and treatment notes, did not conclusively establish penetration.
29. The Respondent submitted that the Appellant was positively identified as he was known to the complainant before the incident. The mother and the siblings had seen the Appellant in the company of the minor. The Respondent also pointed out that the complainant identified the Appellant in court while crying and covering her face.
30. From the analysis of evidence on record, PW1, Faith Nchagwa Daniel testified that on 18 August 2024 at about 10.00 a.m., after returning from work, she was at home undertaking household chores when she noticed that the minor had been missing for some time. She instructed her other children to look for her. The children later informed her that they had seen Appellant with minor moving out of the gate and away from the homestead.
31. She stated that Appellant lived near her home and was known to him. When the minor returned, she informed her that she had slept with “uncle” and had seen “dudu.”
32. PW1 explained the minor referred the Appellant as “uncle”. She stated that she examined the minor and noticed a foul smell emanating from the child’s private parts and observed a whitish discharge. She stated that she called her husband and together they proceeded to Mabera Police Post where they reported the matter and were referred to Bugumbe Hospital for medical examination.
33. She further testified that she personally saw the minor with the Appellant coming from his place of work. She stated that the child pointed at the Appellant when he passed by. She identified the accused in court and explained that he worked for her in-law.
34. PW2, Faith Nchagwa Daniel, also testified again on behalf of the complainant in the complainant’s presence. She stated that the complainant was her child aged six years and suffered from speech difficulties, although doctors had advised that therapy would eventually improve her communication.
35. She reiterated that on 18 th August 2024 she did not see the minor around the homestead and instructed her siblings to search for her. She later personally saw the minor walking together with the Appellant from the gate. When she called the child, she responded with the words “uncle, lala, tanda, ona dudu.”
36. From the proceedings, the trial court noted the child was able to identify the Appellant in court that “while crying and covering her face, she pointed the Appellant and repeated, “Uncle, lala, tanda, dudu.”
37. She reiterated that the Appellant worked near her home and that the minor knew him as “uncle”. During cross-examination, PW2 maintained that she saw the accused with the child while she was going to the well. She stated that the minor could not lie to her and that even when bathing her thereafter, the child continued repeating the same words. She further testified that the child’s private parts were bruised on the material day.
38. PW3, No. 256987 Police Constable (W) Zedi Zainabu of Mabera Police Station, testified that she was the investigating officer in the matter. She stated that on 18 th August 2024 at approximately 3.00 p.m., a report of defilement was made and she was assigned to investigate. She interviewed the complainant, who was six years old and accompanied by her mother.
39. She stated that although the child had delayed speech, PW3 testified that she was able to obtain some information from her. According to PW3, the child stated, “ Nililala kitanda na uncle na nikaona dudu.”
40. PW3 further testified that the complainant’s father, Benard Sureti, later took the suspect to Mabera Police Station. An identification parade was subsequently conducted at Isebania Police Station by Inspector Ngenga Malika. PW3 testified that during the parade the child identified the perpetrator by touching him. She identified the accused in court as the person referred to by the child as “uncle.”
41. PW1, Faith Nchagwa Daniel, was later recalled for further cross-examination. She reiterated that she was the complainant’s mother and that her daughter had been defiled. She admitted that she did not witness the incident and did not see the person who defiled the child. She testified that the child informed her that she had slept with “uncle” on a bed and had seen “dudu”. She further stated that she saw the Appellant and the child coming from Joseph’s home. She took the child to hospital where the doctor informed her that the child had bruises on her genitalia. She testified that she neither washed the child nor changed her clothes and that she handed the clothes to the doctor.
42. PW5, No. 239026 Inspector Ngenga Malika of Isebania Police Station, testified that on 19 th August 2024 the Appellant was taken to Mabera Police Station for purposes of conducting an identification parade. He conducted the parade and stated that it was successful. He testified that eight members participated and that the Appellant was satisfied with the manner in which the parade was conducted. He signed the Identification Parade Report and produced it as Exhibit 8.
43. During cross-examination, PW5 testified that the Appellant according to the parade form, was placed at position 6 while position 4 was occupied by Bivon Moseti Omwenga and position 3 by Richard Moseti. He confirmed that the individual identified during the parade was the person standing at position 4. He confirmed that the accused was comfortable communicating in Swahili and that portions of the form were completed in Kiswahili. He also stated that the accused voluntarily appended his thumbprint to the Parade form confirming the outcome and was not forced to do so.
44. This court finds that the Appellant was positively identified. There was no mistaken identity or error as he was known to the complainant and the complainant’s mother. He was also picked out from the parade by the minor out of eight other people. The complainant was also able to recognize and identify the Appellant in court.
45. This court is of the firm opinion that the identification parade was superfluous as the Appellant was known by recognition. He was known to the complainant who referred him as “uncle”, the mother to the complainant as they lived close by. The Appellant’s contention that he was not picked by the complainant in the parade cannot sway the identification by recognition .
C. Penetration
46. The Appellant submitted that the evidence of the Clinical Officer, Marwa David Okari - PW 4 did not find any evidence of penetration of the complainant. He was emphatic that the evidence of PW1 and other witnesses were not corroborated hence leaving the prime ingredient of defilement weak.
47. Although the Appellant submitted that he was framed, the evidence on record shows that the complainant was defiled. The evidence was corroborated by the scientific evidence of PW4. As per the medical report and treatment notes on record, he examined her on 18 th August, 2024 the same date of the incident and observed that there was bruising at the posterior fourchette, with presence of whitish discharge, the vagina was bruised and tender. He concluded that there was evidence of sexual vaginal assault.
48. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not err in convicting the appellant for defilement. The appeal on conviction, lacks merit and is hereby dismissed.
The next issue is whether the evidence of the minor through an intermediary was sufficient to convict the Appellant.
49. It is not in dispute that the minor did not testify directly in the trial court as she was declared a vulnerable witness. The Appellant’s contention was that the letter from the hospital indicating that the minor had delayed speech was an afterthought as it was produced after the alleged offence had taken place. He also argued that voir dire examination was not conducted by the trial court and the evidence tendered on behalf of the minor should not have been relied on to convict him.
50. Article 50(7) of the Constitution provides that-
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court”
51. On the other hand, section 31 of the Sexual Offences Act puts in place measures to protect a child. The prosecution may apply that the child be declared a vulnerable witness. In addition, the court, on its own motion, has discretion to invoke Section 31 of the Act and appoint an intermediary where the witness is a child. Section 31 (10) however states that-
‘(10)A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.
52. The Court of Appeal in the case of MM v R [2014] eKLR states as follows:
“It is clear from the section 31(2) and 32 that first and foremost section 31 (2) and 32 that it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court as we have earlier observed, can on its own motion through “voir dire” examination declare a witness vulnerable and proceed to appoint an intermediary.... The procedure of appointing an intermediary precedes the testimony of the intended vulnerable witness even where the court does so sue moto.’
53. The position in law is that absence of voir dire examination is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.
54. This position was echoed by the Court of Appeal in Athumani Ali Mwinyi v Republic, Criminal Appeal No.11 of 2015 where the court stated that: “In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”
55. From the record, the complainant was declared a vulnerable witness on the application of the prosecution due to her medical condition. The mother was appointed the intermediary which the Appellant did not object.
56. The trial court invoked section 31 of the Sexual offences correctly considering the medical condition of the minor. The evidence of PW1 who testified as an intermediary was corroborated by medical evidence tendered by PW4 and other prosecution witnesses. It is on record the Appellant did not object the mother being appointed as the intermediary witness. This court finds that the Appellant was not prejudiced in any way as the court considered the evidence of other witnesses. On this limb, the appeal fails.
57. Based on the analysis above, I find that all the elements of defilement namely, penetration, minority age of the complainant and positive identification of the perpetrator were proved beyond reasonable doubt. The conviction and sentence were therefore proper.
58. From the foregoing reasons, the grounds of appeal dated 5 th November, 2025 are not merited and hereby dismissed. The Appellant’s conviction and sentence are upheld.
Judgment delivered virtually in the presence of:
Daniel Chacha Getangita- Appellant -present
Susan Nzioka – Court Assistant
Respondent-Absent
Page | 6
1. The Appellant herein was convicted on the charge of defilement of a girl aged 6 years contrary to section 8(1) and (2) of the Sexual Offences Act No. 3 of 2006.
2. He was charged with an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006.
3. He also faced a second count of being unlawfully in Kenya without a valid entry visa or permit contrary to section 53 (1) of the Kenya Citizenship and Immigration Act No. 12 of 2011.
4. He was convicted on the charge of defilement and sentenced to life imprisonment on the 3 rd day of September 2025.
5. Being dissatisfied with the conviction and sentence, he filed this appeal and raised the following grounds of appeal:
(i) That the trial court erred by convicting him against the weight of the evidence.
(ii) The court erred by superficially and perfunctorily analysing prosecution evidence devoid of the requisite standard of proof.
(iii) The trial court erred by failing to appreciate that the prosecution had not proved the case beyond reasonable doubt.
(iv) The court erred by failing to afford the prosecution evidence particularly the evidence of the doctor which did not find any evidence of penetration of the victim.
(v) The court erred in relying on uncorroborated evidence of the minor.
(vi) The court erred in convicting the Appellant considering the Appellant was not picked out in the identification parade.
(vii) The was no sufficient proof to convict the Appellant.
6. The Appellant filed his undated written submissions while those of the Respondent were dated 9 th May, 2026. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety.
7. Being the first appeal, the Court is bound to evaluate the evidence adduced before the trial court in order to arrive at its own independent conclusion and for the ends of justice to be met.
8. This position was settled in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 where the court therein held that the appellant court was not bound by the findings of fact of the trial court but that in re-considering and evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify.
Appellant’s Submissions
9. The Appellant submitted that the burden of proof rested entirely upon the prosecution to prove its case beyond reasonable doubt. He further submitted that suspicion, however strong, cannot form the basis of a conviction and that the prosecution was required to present credible, cogent and consistent evidence directly linking him to the offence.
10. He submitted that the prosecution's evidence was fundamentally deficient, particularly on the issue of penetration. He argued that the medical examination report, including the P3 Form and treatment notes, did not conclusively establish penetration.
11. The Appellant maintained that penetration is an essential ingredient of the offence and that proof of the same was necessary before a conviction could be sustained.
12. He strongly submitted that the identification parade was fundamentally flawed and incapable of sustaining a conviction. He argued that the complainant identified a different person during the identification parade and not him. He contended that this raised serious doubt as to the Appellant's involvement in the offence and should not have been relied on to convict him.
13. He further argued that the identification of another person during the parade directly contradicted the witness’s subsequent testimony implicating him and constituted a material inconsistency.
14. The Appellant further argued that the trial court failed or was reluctant to conduct a voire dire examination of the complainant despite the fact that it was confirmed that the minor could utter some few words as strongly stated by PW3, the mother.
15. He argued that the court reliance on complainant’s evidence through the mother was unfair and prejudicial to his case. The production of a letter dated 5/9/2024 indicating that the minor had delayed speech was not sufficient for the purposes of a fair hearing. He contended that the letter was written on 5/9/2024 September yet the offence was allegedly committed on 18/08/2014.
16. In conclusion, the Appellant urged the court to find that the prosecution failed to prove its case to the required standard and accordingly acquit him for fairness and administration of justice.
Respondent’s Submissions
17. The Respondent submitted that the Appellant was properly convicted and sentenced for the offence of defilement under Section 8 of the Sexual Offences Act and argued that all the ingredients of defilement were proven beyond reasonable doubt.
18. The Respondent cited the case of Dominic Kibet Mwareng v Republic [2013] 1 eKLR , where the court outlined the essential ingredients of the offence of defilement as the age of the complainant, proof of penetration and positive identification of the assailant. Counsel submitted that all these ingredients were proved beyond reasonable doubt and that no contradictions existed in the prosecution's case as alleged by the Appellant.
19. Regarding identification, the Respondent submitted that the complainant positively identified the Appellant because she already knew him before the incident. Counsel argued that the complainant's mother was properly allowed to testify on behalf of the child pursuant to Section 31 of the Children's Act owing to the child's medical challenges. The Respondent further submitted that the evidence showed that the complainant went missing and was later seen by her siblings in the company of the Appellant as they moved away from the gate. The Respondent further stated that the complainant identified the Appellant in court while crying and covering her face, thereby positively linking him to the offence.
20. The Respondent further submitted that the complainant informed her mother that she had slept with "uncle" and had seen "dudu". Upon examining the child, the mother detected a foul smell and observed a whitish discharge from the child's genital area. The matter was thereafter reported to Mabera Police Station and the complainant was taken to hospital for examination. Counsel further pointed out that the complainant's birth certificate was produced in evidence and established that she was six years old at the time of the offence, thereby proving the age element of the charge.
21. Regarding penetration, the Respondent submitted that the clinical officer who examined the complainant observed bruising on the posterior aspect of the vagina, noted that the anal area was soiled with faeces and found that the minor's trouser was torn. The officer further observed that the complainant appeared anxious, had bruising on the vagina, a whitish discharge and evidence of vaginal assault. The treatment notes, PRC Form and P3 Form were produced in evidence. The Respondent argued that these findings demonstrated penetration and supported the prosecution's case.
22. The Respondent rejected the Appellant's contention that the prosecution evidence required corroboration and relied on Section 124 of the Evidence Act. The Respondent submitted that under the proviso to Section 124, a court may convict on the sole evidence of a victim in a sexual offence case where the court is satisfied that the victim is telling the truth and records the reasons for that finding. It was therefore argued that corroboration was not mandatory in the circumstances of the case and that the complainant's evidence was sufficient, particularly when considered alongside the medical evidence adduced by the prosecution.
23. The Respondent finally submitted that the Appellant failed to rebut any of the prosecution evidence during the trial and that the prosecution's case remained watertight and proved to the required standard. The Respondent argued that the Appellant had not presented any material evidence capable of persuading the appellate court to interfere with the decision of the trial court. It was therefore submitted that the trial did not infringe upon the Appellant's rights, that the trial magistrate properly considered all the ingredients of the offence and the evidence on record, and that the appeal should be dismissed for lack of merit.
ISSUES FOR DETERMINATION
24. Having evaluated the evidence of the trial court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, in my view, the appeal raises two issues for determination as follows-
(i) Whether the prosecution proved its case beyond reasonable doubt considering the three ingredients forming the offence of defilement; and
(ii) Whether the evidence of a minor through the mother was sufficient to convict the Appellant.
25. In determining whether or not the prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads.
A. Age of the Complainant
26. The Appellant did not submit on the issue of age. On its part, the Respondent submitted that PW 1, Faith Nchagwa Daniel the mother of the complainant produced the minor’s birth certificate as an exhibit which indicated that she was born on 17 th December 2017, thus, meant that she was six years at the time of the incident. The trial Court however, indicated on record that the birth certificate indicated that the child was born on 17 th December, 2019. The birth certificate on record specifies 17 th December 2017 as the date of birth therefore the child was six years at the time of the incident.
27. The Appellant did not challenge the production of the birth certificate and/or rebut the said evidence by adducing any evidence to the contrary. This court is satisfied that the complainant was a child at the time of the incident.
B. Identification
28. The Appellant extensively submitted on this issue. He argued that the prosecution's evidence was fundamentally deficient on the issue of identification. He argued that the medical examination report, including the P3 Form and treatment notes, did not conclusively establish penetration.
29. The Respondent submitted that the Appellant was positively identified as he was known to the complainant before the incident. The mother and the siblings had seen the Appellant in the company of the minor. The Respondent also pointed out that the complainant identified the Appellant in court while crying and covering her face.
30. From the analysis of evidence on record, PW1, Faith Nchagwa Daniel testified that on 18 August 2024 at about 10.00 a.m., after returning from work, she was at home undertaking household chores when she noticed that the minor had been missing for some time. She instructed her other children to look for her. The children later informed her that they had seen Appellant with minor moving out of the gate and away from the homestead.
31. She stated that Appellant lived near her home and was known to him. When the minor returned, she informed her that she had slept with “uncle” and had seen “dudu.”
32. PW1 explained the minor referred the Appellant as “uncle”. She stated that she examined the minor and noticed a foul smell emanating from the child’s private parts and observed a whitish discharge. She stated that she called her husband and together they proceeded to Mabera Police Post where they reported the matter and were referred to Bugumbe Hospital for medical examination.
33. She further testified that she personally saw the minor with the Appellant coming from his place of work. She stated that the child pointed at the Appellant when he passed by. She identified the accused in court and explained that he worked for her in-law.
34. PW2, Faith Nchagwa Daniel, also testified again on behalf of the complainant in the complainant’s presence. She stated that the complainant was her child aged six years and suffered from speech difficulties, although doctors had advised that therapy would eventually improve her communication.
35. She reiterated that on 18 th August 2024 she did not see the minor around the homestead and instructed her siblings to search for her. She later personally saw the minor walking together with the Appellant from the gate. When she called the child, she responded with the words “uncle, lala, tanda, ona dudu.”
36. From the proceedings, the trial court noted the child was able to identify the Appellant in court that “while crying and covering her face, she pointed the Appellant and repeated, “Uncle, lala, tanda, dudu.”
37. She reiterated that the Appellant worked near her home and that the minor knew him as “uncle”. During cross-examination, PW2 maintained that she saw the accused with the child while she was going to the well. She stated that the minor could not lie to her and that even when bathing her thereafter, the child continued repeating the same words. She further testified that the child’s private parts were bruised on the material day.
38. PW3, No. 256987 Police Constable (W) Zedi Zainabu of Mabera Police Station, testified that she was the investigating officer in the matter. She stated that on 18 th August 2024 at approximately 3.00 p.m., a report of defilement was made and she was assigned to investigate. She interviewed the complainant, who was six years old and accompanied by her mother.
39. She stated that although the child had delayed speech, PW3 testified that she was able to obtain some information from her. According to PW3, the child stated, “ Nililala kitanda na uncle na nikaona dudu.”
40. PW3 further testified that the complainant’s father, Benard Sureti, later took the suspect to Mabera Police Station. An identification parade was subsequently conducted at Isebania Police Station by Inspector Ngenga Malika. PW3 testified that during the parade the child identified the perpetrator by touching him. She identified the accused in court as the person referred to by the child as “uncle.”
41. PW1, Faith Nchagwa Daniel, was later recalled for further cross-examination. She reiterated that she was the complainant’s mother and that her daughter had been defiled. She admitted that she did not witness the incident and did not see the person who defiled the child. She testified that the child informed her that she had slept with “uncle” on a bed and had seen “dudu”. She further stated that she saw the Appellant and the child coming from Joseph’s home. She took the child to hospital where the doctor informed her that the child had bruises on her genitalia. She testified that she neither washed the child nor changed her clothes and that she handed the clothes to the doctor.
42. PW5, No. 239026 Inspector Ngenga Malika of Isebania Police Station, testified that on 19 th August 2024 the Appellant was taken to Mabera Police Station for purposes of conducting an identification parade. He conducted the parade and stated that it was successful. He testified that eight members participated and that the Appellant was satisfied with the manner in which the parade was conducted. He signed the Identification Parade Report and produced it as Exhibit 8.
43. During cross-examination, PW5 testified that the Appellant according to the parade form, was placed at position 6 while position 4 was occupied by Bivon Moseti Omwenga and position 3 by Richard Moseti. He confirmed that the individual identified during the parade was the person standing at position 4. He confirmed that the accused was comfortable communicating in Swahili and that portions of the form were completed in Kiswahili. He also stated that the accused voluntarily appended his thumbprint to the Parade form confirming the outcome and was not forced to do so.
44. This court finds that the Appellant was positively identified. There was no mistaken identity or error as he was known to the complainant and the complainant’s mother. He was also picked out from the parade by the minor out of eight other people. The complainant was also able to recognize and identify the Appellant in court.
45. This court is of the firm opinion that the identification parade was superfluous as the Appellant was known by recognition. He was known to the complainant who referred him as “uncle”, the mother to the complainant as they lived close by. The Appellant’s contention that he was not picked by the complainant in the parade cannot sway the identification by recognition .
C. Penetration
46. The Appellant submitted that the evidence of the Clinical Officer, Marwa David Okari - PW 4 did not find any evidence of penetration of the complainant. He was emphatic that the evidence of PW1 and other witnesses were not corroborated hence leaving the prime ingredient of defilement weak.
47. Although the Appellant submitted that he was framed, the evidence on record shows that the complainant was defiled. The evidence was corroborated by the scientific evidence of PW4. As per the medical report and treatment notes on record, he examined her on 18 th August, 2024 the same date of the incident and observed that there was bruising at the posterior fourchette, with presence of whitish discharge, the vagina was bruised and tender. He concluded that there was evidence of sexual vaginal assault.
48. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not err in convicting the appellant for defilement. The appeal on conviction, lacks merit and is hereby dismissed.
The next issue is whether the evidence of the minor through an intermediary was sufficient to convict the Appellant.
49. It is not in dispute that the minor did not testify directly in the trial court as she was declared a vulnerable witness. The Appellant’s contention was that the letter from the hospital indicating that the minor had delayed speech was an afterthought as it was produced after the alleged offence had taken place. He also argued that voir dire examination was not conducted by the trial court and the evidence tendered on behalf of the minor should not have been relied on to convict him.
50. Article 50(7) of the Constitution provides that-
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court”
51. On the other hand, section 31 of the Sexual Offences Act puts in place measures to protect a child. The prosecution may apply that the child be declared a vulnerable witness. In addition, the court, on its own motion, has discretion to invoke Section 31 of the Act and appoint an intermediary where the witness is a child. Section 31 (10) however states that-
‘(10)A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.
52. The Court of Appeal in the case of MM v R [2014] eKLR states as follows:
“It is clear from the section 31(2) and 32 that first and foremost section 31 (2) and 32 that it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court as we have earlier observed, can on its own motion through “voir dire” examination declare a witness vulnerable and proceed to appoint an intermediary.... The procedure of appointing an intermediary precedes the testimony of the intended vulnerable witness even where the court does so sue moto.’
53. The position in law is that absence of voir dire examination is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.
54. This position was echoed by the Court of Appeal in Athumani Ali Mwinyi v Republic, Criminal Appeal No.11 of 2015 where the court stated that: “In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”
55. From the record, the complainant was declared a vulnerable witness on the application of the prosecution due to her medical condition. The mother was appointed the intermediary which the Appellant did not object.
56. The trial court invoked section 31 of the Sexual offences correctly considering the medical condition of the minor. The evidence of PW1 who testified as an intermediary was corroborated by medical evidence tendered by PW4 and other prosecution witnesses. It is on record the Appellant did not object the mother being appointed as the intermediary witness. This court finds that the Appellant was not prejudiced in any way as the court considered the evidence of other witnesses. On this limb, the appeal fails.
57. Based on the analysis above, I find that all the elements of defilement namely, penetration, minority age of the complainant and positive identification of the perpetrator were proved beyond reasonable doubt. The conviction and sentence were therefore proper.
58. From the foregoing reasons, the grounds of appeal dated 5 th November, 2025 are not merited and hereby dismissed. The Appellant’s conviction and sentence are upheld.
Judgment delivered virtually in the presence of:
Daniel Chacha Getangita- Appellant -present
Susan Nzioka – Court Assistant
Respondent-Absent
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