1. The appellant Moses Musyimi alias Kababa was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 4/2/2022 at around 1830 Hours at Manyatta village of Mwaluvanga location in Kwale County within Coast region, intentionally and unlawfully caused his penis to penetrate the vagina of E.M. a child aged 7 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of being that on the same day, time and place as in the principal charge he intentionally and unlawfully touched the vagina of E.M. a child aged 7 years with his penis.
3. The accused person pleaded not guilty to all the charges. After a full trial, he was convicted of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment.
4. The appellant was dissatisfied with both conviction and sentence and has appealed to this court through a petition of appeal dated 11/4/2024 on the grounds that the learned trial magistrate erred in law and in fact by:
a. finding that there was sufficient evidence to support the charge of sexual assault contrary to section 5(1)(a)(i) of the Sexual Offences Act.
b. failing to establish whether the semen and blood stains on the clothes of the complainant belonged to the appellant.
c. failing to appreciate that the appellant was not properly identified by PW 3.
d. failing to conduct voire dire examination in respect of PW 3 to establish the veracity of her testimony.
e. failing to observe the irreconcilable contradictions in the prosecution case.
f. failing to consider the evidence of the appellant and his witness.
g. that the decision of the learned magistrate was in whole an impropriety.
5. The appeal was canvassed through written submissions. However, only learned counsel for the appellant filed their submissions. In spite of time indulgence extended to the learned counsel for the respondent, they never filed their submissions.
6. I have considered the grounds of appeal, the submissions by the appellant, the record of the trial court and the judgment and sentence of the trial court.
7. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence tendered at the trial 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.”
8. The prosecution called 4 witnesses to support their case. PW 1, J.N was the complainant’s mother, PW 2 Irate Mukami is a clinical officer who conducted a medical examination upon the complainant; PW 3 E.M. was the complainant, a girl aged 7 years who gave her evidence with her mother as her intermediary and PW 4, PC Pius Kamende was the arresting as well as investigating officer in the case.
9. The appellant gave sworn evidence as DW 1 and called one witness DW 2, Muoki Julius, in defence.
10. The prosecution case was that PW 1, the complainant’s mother was looking for her around her business area in the evening of 4/2/2022 when she heard whimpering sound from a latrine. She pushed the latrine door open and saw her daughter sprawled on the floor and immediately the accused person whom she identified as Kababa or Simon fled from the latrine holding his jeans trousers. The girl was crying with blood trickling from her vagina and she looked frightened. She told the mother that Kababa took her clothes and put his “kadudu”.
11. PW 1 went to her business nearby holding the child’s blood-stained panties. The appellant was around there at the stage looking for a “boda boda” while the complainant was pointing at him saying that’s him. PW 1 asked the appellant why he had done that to the child and he asked for forgiveness from her. PW 1 told him that she could not. Coincidentally, there was a police motor vehicle coming by and PW 1 stopped it. She showed the police officers the blood-stained panties. Among the police officers was PW 4.
12. PW 4 said that they found the appellant being held by the complainant’s mother while the complainant was crying pointing at the appellant and saying “kababa” and also saying that she was in pain. The complainant also said “nimeshikwa na kababa” translated to I have been held by Kababa. The police officers arrested the accused person and together with PW 1 and the complainant, they were taken to the police station where they booked the appellant and escorted the complainant to hospital.
13. PW 1 said that there was a strike by workers at the government hospital. They took the complainant to a government hospital the following day.
14. PW 4 visited the scene the following day where he established that PW 1 operated a hotel, the appellant owned a video shop next and then there was a latrine.
15. The complainant in this case, PW 3, E.M. a girl aged 7 years gave evidence with her mother PW 1 as her intermediary. She was not sworn and the court did not conduct a voire dire examination to determine whether or not she was capable of understanding the duty of speaking the truth and the nature of an oath as provided for under section 19(1) of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya. She gave her evidence in bits, at each time the court noting that she had broken down and was unable to carry on with her testimony and so had to be stood down for some time. On the first occasion the court noted that she had been completely unable to give evidence on account of trauma. The court thus appointed her mother, who had testified as PW 1 as an intermediary.
16. In her bits of testimony, she said she was 7 years old in grade two in a named school. She also said that she knew Kababa and pointed at the accused person. At one point she would say that she did not know Kababa and then immediately change and say she knew him. At several points she was noted to be crying and was stood down. She went on to say that he locked her in a toilet, removed her panties and injected her while touching her private area. She also said that she bled when he injected her. She went on to say that he injected her with his hand. and she cried. She said that he went out of the toilet and left her with her mother.
17. PW 2 Irate Mukami the clinical officer examined the complainant on 5/2/2022, the following day after the alleged incident. She said her clothes were dirty and had dried blood stains. She had bruises around the vagina with bleeding. The vaginal wall was reddened and the hymen tampered with. PW 2 produced as exhibit the P3 form she completed for the complainant.
18. The burden to prove the case was upon the prosecution as provided under section 107 of the Evidence Act (Cap. 80) Laws of Kenya. The standard of proof is beyond a reasonable doubt.
19. The offence of sexual assault is provided for under section 5 of the Sexual Offences Act as follows:
(1). Any person who unlawfully—
(a)penetrates the genital organs of another person with— (i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.”
20. From this provision the ingredients of the offence of sexual assault are penetration of the genital organ of another and the identification of the perpetrator.
21. The Court of Appeal in the case of John Irungu v Republic [2016] KECA 516 (KLR) pronounced itself on the essential ingredients of the offence of sexual assault as follows:
“…. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”
22. The complainant testified through an intermediary. The use of an intermediary in evidence is provided for under Article 50(7) of the Constitution which protects fair trial provides thus:
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”
23. Section 2 of the Sexual Offences Act, defines an intermediary to mean:
“…..a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.”
24. I have considered the proceedings before the trial court and I note that indeed the child was declared a vulnerable witness on account of age and trauma and was therefore required to testify through an intermediary. An intermediary, PW 1, her mother, was therefore appointed in line with the provisions of Section 31(3) and (5) of the Sexual Offences Act.
25. The procedure for conducting trial through an intermediary has been explained by the Court of Appeal in M. M. vs. Republic [2014] eKLR thus:
“It is difficult for a child or indeed a victim of a sexual attack to publicly relive the most traumatic and humiliating experience of their lives in order to get justice, more so, if they have to be subjected to the rigors of daunting and intimidating cross-examination. The thinking behind the enactment of section 31 was, in our view, to moderate these traumatic effects in criminal proceedings…
We have seen that in Article 50 (7) of the Constitution an intermediary is a medium through which the accused person or complainant communicates with the court. In our understanding, the evidence to be presented is not that of the intermediary himself or herself but that of the witness relayed to court through the intermediary. The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross- examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties.”
26. I have considered the record of the trial court it is clear from the proceedings that the complainant being a child of tender years, suffering trauma and the sensitive nature of the evidence she was to tender, was a vulnerable witness and there was therefore need for her to testify through the intermediary. I am also satisfied that the provisions set down by the law under section 31 of the Sexual Offences Act were adhered to.
27. Learned counsel for the appellant submitted that the failure to conduct a voire dire examination of the complainant was fatal to the prosecution case. She has cited two decisions on that issue that is Samuel Warui Karimi v Republic [2016] eKLR and Sammy Ngetich v Republic [2018] eKLR where it was held that where a viore dire examination is not conducted the trial becomes problematic.
28. Voire dire examination is commonly conducted on complainants who are of tender years before they testify, so that the court can determine whether or not the minor appreciates the solemnity of the proceedings and understands the nature of an oath if she is to give sworn evidence. In the appeal before me, the complainant’s age was given as 7 years and therefore a child of tender years.
29. As noted above the learned trial magistrate did not conduct voire dire examination before taking her testimony. I have also found that the minor testified through an intermediary who had been appointed by court since the minor had been declared a vulnerable witness and also the intermediary was sworn in before testifying.
30. In the case of Maripett Loonkomok v Republic [2016] eKLR, the Court of Appeal sitting at Mombasa expounding on the issue of failure by a trial court to conduct a voire dire examination held that:
“It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found 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.”
31. In the case cited by learned counsel for the appellant of Haji V Republic [2018] eKLR the court expressed itself as follows: -
‘In this case, the child who was aged 11 years gave evidence on oath without voir dire examination being conducted on him. The trial magistrate in convicting the appellant of the charge stated that he had observed the complainant when he was testifying and there was nothing from his demeanor to suggest that he was lying. It is clear from the judgment of the trial magistrate that he did not place the evidence of the child in its proper place. The court did not examine the child to ascertain whether he understood the meaning of an oath and the duty of telling the truth. The magistrate in the circumstances could not form a sufficient basis of the demeanor of the child when he did not test through a voir dire examination the competency of the child to give evidence on oath. The law is that where voir dire examination is not conducted the evidence of the child cannot be used as he basis of a conviction on an accused person unless there is some other independent evidence to support the charge. (Emphasis mine)
32. From the foregoing decisions, the court has to determine where there is other sufficient independent evidence that a conviction can be based upon besides that of the child of tender years. In this case, it was not only the evidence of the complainant as to what happened to her and who did it. There was also the evidence of her mother that she found the appellant in a state of sexually assaulting the complainant and that of PW 4 who upon coming to the area found the child crying, frightened, with blodd stains on her panties and pointing at the appellant who was present as her assailant. I therefore find that the trial of the appellant was not rendered fatal by the failure to conduct voire dire examination by the trial magistrate. So that even without the testimony of the complainant, the offence of sexual assault was proved. There was also the uncontested medical evidence tendered as well as the appellant’s conduct of asking the mother for forgiveness when she confronted him.
33. Learned counsel for the appellant submits that the evidence of the appellant was not considered by the trial court. The learned trial magistrate fully considered the evidence by the appellant at paragraphs 46 and 47 of the judgment and arrived at the conclusion that the defence by the appellant placed him at the scene of the incident. I note that his witness had no evidence to challenge what was said by the prosecution as he was not there. He appeared later when there was a commotion and saw that the appellant was under arrest.
34. The appellant was known to the complainant and her mother. The complainant not only pointed him out at the scene but said his name Kababa. There is no reason to imagine that within the very short time that PW 1 found her daughter in that sorry state, the young girl would have had the time to be couched to fabricate evidence against the appellant as her assailant.
35. PW 1 also knew the appellant as they operated their respective businesses next to each other in the same area. There is no indication that they had any differences that would have caused PW 1 to fabricate the case against him. There is also no cause to find that PW 1 was mistaken in her identification of the appellant as the perpetrator of the act as submitted by learned counsel. Learned counsel seems to suggest that the act took place in a residential house where the assailant walked into and committed the act.
36. That the two knew the appellant was not contested by the appellant even as he appeared to suggest that he had only appeared there to purchase a cigarette. The immediate identification of the appellant by the complainant at the scene (not even her testimony in court) as her assailant corroborates the evidence of PW 1, that he was properly identified.
37. Learned counsel submitted that there were major contradictions and inconsistencies in the evidence of PW 1. However, as was held in the case cited by learned counsel for the appellant of Richard Munene v R [2018] eKLR:
‘it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
1. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
38. I am satisfied that PW 1 was a witness of truth and what she stated was what she witnessed. The contradictions in her evidence do not imply that she was being dishonest. In addition, the conduct of the appellant upon confronting him was that of guilt and that corroborates her evidence that the appellant had committed the act upon the complainant.
39. From the foregoing, I find that the two ingredients of the offence of sexual assault being penetration of genital organ and identification of the perpetrator were proved beyond reasonable doubt.
40. I will not therefore interfere with conviction by the trial court on its finding on the same. The appeal on conviction is therefore dismissed.
41. On sentence the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act carries a minimum sentence of ten years imprisonment and a maximum sentence of life imprisonment. The learned trial magistrate imposed the maximum term of life imprisonment.
42. Sentencing is at the discretion of the trial court. In the case of Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal considering this issued said:-
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
43. I find that taking everything into consideration, this court would have been inclined to pass a lesser sentence of imprisonment upon the appellant seeing that he was a first offender and that he did not escape from the area and go into hiding after he was found to have committed the act. He took off from the toilet when he was ambushed by the complainant’s mother but went outside where the complainant’s mother found and detained him without any resistance. The complainant’s mother said that he expressed remorse to her right after the she confronted and apprehended him. It is therefore not true as observed by the learned trial magistrate that the appellant had never shown remorse for the actions. He was cooperative even when the police arrived and that enabled his immediate apprehension. The learned trial magistrate took extraneous factors in determining that the appellant had absconded court. First, in spite of absconding himself from court, he was never apprehended but kept returning to court on his own volition. Secondly, for his absconding without good cause, his bond was withdrawn and he remained in custody until conclusion of his case. He was therefore sufficiently punished for absconding court and that conduct should not have been considered to be an aggravating factor for purposes of his sentence as was done by the learned trial magistrate.
44. I therefore find that having failed to take into account the above said relevant factors and also having taken into account extraneous factors that she ought not to, I agree with learned counsel for the appellant that the learned trial magistrate imposed a harsh and excessive sentence.
45. The learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. If the same was to remain, it would have been appropriate for this court to review the same and impose a determinate term in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Julius Kitsao Manyeso v Republic-Malindi (Court of Appeal) Criminal Appeal No. 12 of 2021, Evans Nyamari Ayako v. Republic (Court of Appeal at Kisumu) Criminal Appeal No. 22 of 2018 and MB v Republic (Criminal Appeal 219 of 2019) [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment to a term sentence of 30 years’ imprisonment.
46. In this case, I have found that life imprisonment was not justified. I therefore substitute it with fifteen (15) years imprisonment. The same will take into account the period the appellant was in custody from the time he took plea both before and after he was released on bond.
47. Otherwise the appeal on conviction is dismissed.
48. Orders accordingly.
49. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teans at Kwale this 17th day of January 2025 in the presence of:
The appellant in person.
Ms Mboya for the appellant.
Ms Valerie for the respondent.
Daniel court assistant.
2. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of being that on the same day, time and place as in the principal charge he intentionally and unlawfully touched the vagina of E.M. a child aged 7 years with his penis.
3. The accused person pleaded not guilty to all the charges. After a full trial, he was convicted of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment.
4. The appellant was dissatisfied with both conviction and sentence and has appealed to this court through a petition of appeal dated 11/4/2024 on the grounds that the learned trial magistrate erred in law and in fact by:
a. finding that there was sufficient evidence to support the charge of sexual assault contrary to section 5(1)(a)(i) of the Sexual Offences Act.
b. failing to establish whether the semen and blood stains on the clothes of the complainant belonged to the appellant.
c. failing to appreciate that the appellant was not properly identified by PW 3.
d. failing to conduct voire dire examination in respect of PW 3 to establish the veracity of her testimony.
e. failing to observe the irreconcilable contradictions in the prosecution case.
f. failing to consider the evidence of the appellant and his witness.
g. that the decision of the learned magistrate was in whole an impropriety.
5. The appeal was canvassed through written submissions. However, only learned counsel for the appellant filed their submissions. In spite of time indulgence extended to the learned counsel for the respondent, they never filed their submissions.
6. I have considered the grounds of appeal, the submissions by the appellant, the record of the trial court and the judgment and sentence of the trial court.
7. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence tendered at the trial 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.”
8. The prosecution called 4 witnesses to support their case. PW 1, J.N was the complainant’s mother, PW 2 Irate Mukami is a clinical officer who conducted a medical examination upon the complainant; PW 3 E.M. was the complainant, a girl aged 7 years who gave her evidence with her mother as her intermediary and PW 4, PC Pius Kamende was the arresting as well as investigating officer in the case.
9. The appellant gave sworn evidence as DW 1 and called one witness DW 2, Muoki Julius, in defence.
10. The prosecution case was that PW 1, the complainant’s mother was looking for her around her business area in the evening of 4/2/2022 when she heard whimpering sound from a latrine. She pushed the latrine door open and saw her daughter sprawled on the floor and immediately the accused person whom she identified as Kababa or Simon fled from the latrine holding his jeans trousers. The girl was crying with blood trickling from her vagina and she looked frightened. She told the mother that Kababa took her clothes and put his “kadudu”.
11. PW 1 went to her business nearby holding the child’s blood-stained panties. The appellant was around there at the stage looking for a “boda boda” while the complainant was pointing at him saying that’s him. PW 1 asked the appellant why he had done that to the child and he asked for forgiveness from her. PW 1 told him that she could not. Coincidentally, there was a police motor vehicle coming by and PW 1 stopped it. She showed the police officers the blood-stained panties. Among the police officers was PW 4.
12. PW 4 said that they found the appellant being held by the complainant’s mother while the complainant was crying pointing at the appellant and saying “kababa” and also saying that she was in pain. The complainant also said “nimeshikwa na kababa” translated to I have been held by Kababa. The police officers arrested the accused person and together with PW 1 and the complainant, they were taken to the police station where they booked the appellant and escorted the complainant to hospital.
13. PW 1 said that there was a strike by workers at the government hospital. They took the complainant to a government hospital the following day.
14. PW 4 visited the scene the following day where he established that PW 1 operated a hotel, the appellant owned a video shop next and then there was a latrine.
15. The complainant in this case, PW 3, E.M. a girl aged 7 years gave evidence with her mother PW 1 as her intermediary. She was not sworn and the court did not conduct a voire dire examination to determine whether or not she was capable of understanding the duty of speaking the truth and the nature of an oath as provided for under section 19(1) of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya. She gave her evidence in bits, at each time the court noting that she had broken down and was unable to carry on with her testimony and so had to be stood down for some time. On the first occasion the court noted that she had been completely unable to give evidence on account of trauma. The court thus appointed her mother, who had testified as PW 1 as an intermediary.
16. In her bits of testimony, she said she was 7 years old in grade two in a named school. She also said that she knew Kababa and pointed at the accused person. At one point she would say that she did not know Kababa and then immediately change and say she knew him. At several points she was noted to be crying and was stood down. She went on to say that he locked her in a toilet, removed her panties and injected her while touching her private area. She also said that she bled when he injected her. She went on to say that he injected her with his hand. and she cried. She said that he went out of the toilet and left her with her mother.
17. PW 2 Irate Mukami the clinical officer examined the complainant on 5/2/2022, the following day after the alleged incident. She said her clothes were dirty and had dried blood stains. She had bruises around the vagina with bleeding. The vaginal wall was reddened and the hymen tampered with. PW 2 produced as exhibit the P3 form she completed for the complainant.
18. The burden to prove the case was upon the prosecution as provided under section 107 of the Evidence Act (Cap. 80) Laws of Kenya. The standard of proof is beyond a reasonable doubt.
19. The offence of sexual assault is provided for under section 5 of the Sexual Offences Act as follows:
(1). Any person who unlawfully—
(a)penetrates the genital organs of another person with— (i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.”
20. From this provision the ingredients of the offence of sexual assault are penetration of the genital organ of another and the identification of the perpetrator.
21. The Court of Appeal in the case of John Irungu v Republic [2016] KECA 516 (KLR) pronounced itself on the essential ingredients of the offence of sexual assault as follows:
“…. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”
22. The complainant testified through an intermediary. The use of an intermediary in evidence is provided for under Article 50(7) of the Constitution which protects fair trial provides thus:
“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”
23. Section 2 of the Sexual Offences Act, defines an intermediary to mean:
“…..a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.”
24. I have considered the proceedings before the trial court and I note that indeed the child was declared a vulnerable witness on account of age and trauma and was therefore required to testify through an intermediary. An intermediary, PW 1, her mother, was therefore appointed in line with the provisions of Section 31(3) and (5) of the Sexual Offences Act.
25. The procedure for conducting trial through an intermediary has been explained by the Court of Appeal in M. M. vs. Republic [2014] eKLR thus:
“It is difficult for a child or indeed a victim of a sexual attack to publicly relive the most traumatic and humiliating experience of their lives in order to get justice, more so, if they have to be subjected to the rigors of daunting and intimidating cross-examination. The thinking behind the enactment of section 31 was, in our view, to moderate these traumatic effects in criminal proceedings…
We have seen that in Article 50 (7) of the Constitution an intermediary is a medium through which the accused person or complainant communicates with the court. In our understanding, the evidence to be presented is not that of the intermediary himself or herself but that of the witness relayed to court through the intermediary. The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross- examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties.”
26. I have considered the record of the trial court it is clear from the proceedings that the complainant being a child of tender years, suffering trauma and the sensitive nature of the evidence she was to tender, was a vulnerable witness and there was therefore need for her to testify through the intermediary. I am also satisfied that the provisions set down by the law under section 31 of the Sexual Offences Act were adhered to.
27. Learned counsel for the appellant submitted that the failure to conduct a voire dire examination of the complainant was fatal to the prosecution case. She has cited two decisions on that issue that is Samuel Warui Karimi v Republic [2016] eKLR and Sammy Ngetich v Republic [2018] eKLR where it was held that where a viore dire examination is not conducted the trial becomes problematic.
28. Voire dire examination is commonly conducted on complainants who are of tender years before they testify, so that the court can determine whether or not the minor appreciates the solemnity of the proceedings and understands the nature of an oath if she is to give sworn evidence. In the appeal before me, the complainant’s age was given as 7 years and therefore a child of tender years.
29. As noted above the learned trial magistrate did not conduct voire dire examination before taking her testimony. I have also found that the minor testified through an intermediary who had been appointed by court since the minor had been declared a vulnerable witness and also the intermediary was sworn in before testifying.
30. In the case of Maripett Loonkomok v Republic [2016] eKLR, the Court of Appeal sitting at Mombasa expounding on the issue of failure by a trial court to conduct a voire dire examination held that:
“It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found 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.”
31. In the case cited by learned counsel for the appellant of Haji V Republic [2018] eKLR the court expressed itself as follows: -
‘In this case, the child who was aged 11 years gave evidence on oath without voir dire examination being conducted on him. The trial magistrate in convicting the appellant of the charge stated that he had observed the complainant when he was testifying and there was nothing from his demeanor to suggest that he was lying. It is clear from the judgment of the trial magistrate that he did not place the evidence of the child in its proper place. The court did not examine the child to ascertain whether he understood the meaning of an oath and the duty of telling the truth. The magistrate in the circumstances could not form a sufficient basis of the demeanor of the child when he did not test through a voir dire examination the competency of the child to give evidence on oath. The law is that where voir dire examination is not conducted the evidence of the child cannot be used as he basis of a conviction on an accused person unless there is some other independent evidence to support the charge. (Emphasis mine)
32. From the foregoing decisions, the court has to determine where there is other sufficient independent evidence that a conviction can be based upon besides that of the child of tender years. In this case, it was not only the evidence of the complainant as to what happened to her and who did it. There was also the evidence of her mother that she found the appellant in a state of sexually assaulting the complainant and that of PW 4 who upon coming to the area found the child crying, frightened, with blodd stains on her panties and pointing at the appellant who was present as her assailant. I therefore find that the trial of the appellant was not rendered fatal by the failure to conduct voire dire examination by the trial magistrate. So that even without the testimony of the complainant, the offence of sexual assault was proved. There was also the uncontested medical evidence tendered as well as the appellant’s conduct of asking the mother for forgiveness when she confronted him.
33. Learned counsel for the appellant submits that the evidence of the appellant was not considered by the trial court. The learned trial magistrate fully considered the evidence by the appellant at paragraphs 46 and 47 of the judgment and arrived at the conclusion that the defence by the appellant placed him at the scene of the incident. I note that his witness had no evidence to challenge what was said by the prosecution as he was not there. He appeared later when there was a commotion and saw that the appellant was under arrest.
34. The appellant was known to the complainant and her mother. The complainant not only pointed him out at the scene but said his name Kababa. There is no reason to imagine that within the very short time that PW 1 found her daughter in that sorry state, the young girl would have had the time to be couched to fabricate evidence against the appellant as her assailant.
35. PW 1 also knew the appellant as they operated their respective businesses next to each other in the same area. There is no indication that they had any differences that would have caused PW 1 to fabricate the case against him. There is also no cause to find that PW 1 was mistaken in her identification of the appellant as the perpetrator of the act as submitted by learned counsel. Learned counsel seems to suggest that the act took place in a residential house where the assailant walked into and committed the act.
36. That the two knew the appellant was not contested by the appellant even as he appeared to suggest that he had only appeared there to purchase a cigarette. The immediate identification of the appellant by the complainant at the scene (not even her testimony in court) as her assailant corroborates the evidence of PW 1, that he was properly identified.
37. Learned counsel submitted that there were major contradictions and inconsistencies in the evidence of PW 1. However, as was held in the case cited by learned counsel for the appellant of Richard Munene v R [2018] eKLR:
‘it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
1. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
38. I am satisfied that PW 1 was a witness of truth and what she stated was what she witnessed. The contradictions in her evidence do not imply that she was being dishonest. In addition, the conduct of the appellant upon confronting him was that of guilt and that corroborates her evidence that the appellant had committed the act upon the complainant.
39. From the foregoing, I find that the two ingredients of the offence of sexual assault being penetration of genital organ and identification of the perpetrator were proved beyond reasonable doubt.
40. I will not therefore interfere with conviction by the trial court on its finding on the same. The appeal on conviction is therefore dismissed.
41. On sentence the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act carries a minimum sentence of ten years imprisonment and a maximum sentence of life imprisonment. The learned trial magistrate imposed the maximum term of life imprisonment.
42. Sentencing is at the discretion of the trial court. In the case of Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal considering this issued said:-
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
43. I find that taking everything into consideration, this court would have been inclined to pass a lesser sentence of imprisonment upon the appellant seeing that he was a first offender and that he did not escape from the area and go into hiding after he was found to have committed the act. He took off from the toilet when he was ambushed by the complainant’s mother but went outside where the complainant’s mother found and detained him without any resistance. The complainant’s mother said that he expressed remorse to her right after the she confronted and apprehended him. It is therefore not true as observed by the learned trial magistrate that the appellant had never shown remorse for the actions. He was cooperative even when the police arrived and that enabled his immediate apprehension. The learned trial magistrate took extraneous factors in determining that the appellant had absconded court. First, in spite of absconding himself from court, he was never apprehended but kept returning to court on his own volition. Secondly, for his absconding without good cause, his bond was withdrawn and he remained in custody until conclusion of his case. He was therefore sufficiently punished for absconding court and that conduct should not have been considered to be an aggravating factor for purposes of his sentence as was done by the learned trial magistrate.
44. I therefore find that having failed to take into account the above said relevant factors and also having taken into account extraneous factors that she ought not to, I agree with learned counsel for the appellant that the learned trial magistrate imposed a harsh and excessive sentence.
45. The learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. If the same was to remain, it would have been appropriate for this court to review the same and impose a determinate term in line with recent Court of Appeal decisions determining that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Julius Kitsao Manyeso v Republic-Malindi (Court of Appeal) Criminal Appeal No. 12 of 2021, Evans Nyamari Ayako v. Republic (Court of Appeal at Kisumu) Criminal Appeal No. 22 of 2018 and MB v Republic (Criminal Appeal 219 of 2019) [2024] KECA 324 (KLR). In the cases of in Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) the Court of Appeal substituted indeterminate life imprisonment to a term sentence of 30 years’ imprisonment.
46. In this case, I have found that life imprisonment was not justified. I therefore substitute it with fifteen (15) years imprisonment. The same will take into account the period the appellant was in custody from the time he took plea both before and after he was released on bond.
47. Otherwise the appeal on conviction is dismissed.
48. Orders accordingly.
49. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teans at Kwale this 17th day of January 2025 in the presence of:
The appellant in person.
Ms Mboya for the appellant.
Ms Valerie for the respondent.
Daniel court assistant.