1. The appellant, Ngala Mwadzomba was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 6/7/2022 at Timbwani area in Likoni Sub-County within Mombasa County, unlawfully and intentionally caused his penis to penetrate the vagina of K.F. a child aged 15 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 (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 6/7/2022 at Timbwani area in Likoni Sub-County within Mombasa County, unlawfully and intentionally touched the vagina of K.F. a child aged 15 years with his penis.
3. The prosecution called 5 witnesses in support of its case. Upon being placed on his defence the appellant gave sworn evidence and called one witness to support his case.
4. At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
5. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 7/2/2023 has set out four griunds as follows:
a. that the trial court erred in law and in fact by failing to appreciate the burden of proof beyond reasonable doubt lies with the prosecution.
b. that the court erred in law and in fact by sentencing the accused person to 20 years.
c. the learned magistrate erred in law and in fact by relying on the evidence of the minor without proper corroboration.
d. the learned magistrate erred both in fact and law by not considering the evidence of the accused person.
6. The appeal was opposed by the respondent who filed grounds of opposition dated 19/6/2024 and filed in court on 19/6/2024 stating that:
a. identification of the appellant was established
b. the age of the minor was proved at the trial court.
c. the fact of penetration was proved.
d. the trial court guaranteed the appellant’s right to a fair trial.
e. the appellant’s defense was considered by the trial court and a finding made on the same.
f. the prosecution proved its case beyond reasonable doubt.
g. the period spent by the appellant in custody was considered during sentencing.
h. the sentence meted by the trial court was lawful.
7. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
8. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. Sections 8(1) and 8(3) of the Sexual Offences Act under which the accused person was charged with the principal charge provides as follows:
S. 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
11. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. (See the case of C.W.K v Republic [2015] eKLR).
12. The alternative charge of committing an indecent act with a child is provided for under section 11(1)(a) of the Act as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
13. At the trial PW 1, K.F. the complainant was the main prosecution witness. She gave evidence of what had happened to her leading to the arrest of the appellant.
14. The complainant narrated her story of what transpired leading to the incident of the defilement. She recounted several men she encountered in the process before the incident then pointed at the appellant as her assailant. First there was the boda boda rider who had left his phone with her for no apparent reason, by throwing it at her, and yet he was not known to her. She said she could not go home with the phone and so when the appellant shouted her name “M” she responded with the hope that he could help her get the owner of the phone. Second, there is the appellant whom when he called her by name, she asked him for water. He asked her to enter his house the house where he was and she did. There was another man standing at the door of the house holding a lady’s bag. She remained in the house with the appellant and the other man. The three of them spent the night in the house until the following morning when the second man left. The appellant also left at some point leaving her alone. The third mad was Ali who came to the house later with yet another boda boda man. As they were leaving, she decided to leave with them. She had left the phone for the first boda boda man in the house and wanted to go back and get it. The boda boda man Ali was with informed her that her mother was looking for her and she was at the police station and he was going to pick her.
15. The appellant then showed up with five other boys and they forced her to board a boda boda and she was taken to a different house. The appellant locked her inside the house and left. She tried to raise an alarm but there was no response. She spent the night there and the appellant came back the following day and gave her three biscuits and water and left her there promising to be back later. He went back to the house at night and that was when he engaged in sexual intercourse with her both the front and back genitalia. She struggled with him in the process and she sustained a bruise on the right hand. She said she had no otherwise but to spend the night there until the following day when she forced the door open and started walking home. She met other young men who told her that her mother was looking for her. They took her to a grocery shop and called her parents. Her father came over and took her to the police station and then to hospital. The appellant was arrested after one week. She was called to the police station where they found him. She identified him as her assailant. He was known to her as a boda boda rider and on this occasion his friends were referring to him as “Stone.”
16. In cross-examination, PW 1 said that the appellant was not known to her much other than as a boda boda rider. She also said that when she made food at the house there were two other young men known to her, besides the appellant who ate the food as well. She said that she could not trace the house the appellant took her later as she was previously not familiar with that area. When she forced the door open and left the house, she could not find her way home and she was rescued by other young men. She said that she did not know whether the house the appellant took her to was his or his friend’s and whether he had a wife or not.
17. PW 2, M.S. is the complainant’s mother. She said the complainant was born on 17/6/2007 and produced her certificate of birth. The complainant left home without information on 4/7/2021 in the morning. She looked for her that day but did not find her. The following day a boda boda young man went to her door asking for the complainant and saying he had left his phone with her. PW 2 told him she was also looking for her and if he saw her he should alert her.
18. On 6/7/2021 the boda boda man called to inform her that he had seen the complainant and that she had returned his phone. She traced the boda boda man the following day and learnt that his name was Ali. He took her to an informal settlement and told her he had gone there to pick his phone but had been threatened by a young man. He took her to a house where they found a man who was quite arrogant and he said he owned a tuk tuk. Upon her insistence, he told her that he had information that her daughter had been there. He also said his name was Ali. They tried calling the young men but they declined to come over.
19. She sent her son to call her husband A.A. PW 3, who came to Ali’s house. The appellant and another man were brought to Ali’s house. On being questioned about the whereabouts of the complainant, he said he knew nothing. His friends insisted that they had seen him with her. PW 3 threatened to take him to the police and he agreed to take them to where the complainant was. They boarded the tuk tuk and along the way the appellant said he would go to check if the complainant was at the beach. He left. He later called and said that he had not traced the complainant.
20. They proceeded to Shelly Beach police station and made a report there. While there, a boda boda man called her and informed her that he had seen the complainant. PW 3 went and picked her and took her to the police station and then to hospital.
21. In cross-examination, PW 2 said that the person who gave the complainant his phone was their neighbour. She denied that the complainant was in a relationship with the first Ali and that the second Ali was the appellant’s employer.
22. PW 4 Evans Nyayemi is a clinical officer working at the time at Likoni Sub-County hospital. He examined the complainant and completed her P3 form and PRC form which he produced in evidence as exhibits. The results confirmed that the complainant had vaginal and anal penetration as well as scratch marks on the right side of the neck.
23. PW 5, PC Sofia Salim conducted the investigations in the matter. He evidence is largely what the complainant and her parents recounted to her. She then got information that the appellant was a tuk tuk rider. She traced him on 13/7/2022 in a tuk tuk and arrested him based on intelligence.
24. The appellant gave sworn evidence in defence and called one witness. He said he is a musician known by the name of Stoni Brown and a general worker. He said he was arrested while from work and charged for the offence that he knew nothing about. They were three of them at the time of arrest but two of his colleagues were released. He said the complainant was not known to him at all.
25. DW 2, Juma Hussein gave evidence that he is a tuk tuk driver and the appellant is known to him. They were arrested together while in his tuk tuk but he paid KShs 1,000/= and he was released. He is a booster who gets him clients at Shelly Beach area. The complainant is not known to him. He said he did not know the charges the appellant was facing.
26. In his submissions, the appellant hinges this appeal on lack of identification of the perpetrator of the crime. He submitted that whereas there is no dispute that the complainant was defiled the evidence of the identity of the person who defiled her was a fabrication.
27. The appellant submits that the evidence by the complainant shows that she was not a stranger in the house where he allegedly took her at first. That she was familiar with it as this appears from her evidence of how she went around carrying out duties therein. That she stayed in the house for so long and even slept there and yet her evidence was that she had only gone there to get some water to drink.
28. He submits that from the complainant’s evidence, it is clear that she was treated fairly by the people who were in that house.
29. The appellant further submits that the complainant mentioned one Ali who came to the house in her testimony and that she had an opportunity to leave with him but nothing more was said of him. Yet at one point the complainant said that the appellant left the house yet she was there waiting for Ali who then gave her an opportunity to leave.
30. He submits that in fact, evidence showed that Ali was a neighbour of the complainant and a boda boda operator and that the said Ali was the one who had left the complainant with his phone yet the complainant alleged that he was not known to him. The said Ali having visited and seen the complainant at the house went ahead to ask her mother the following day where the complainant was.
31. It is his submission that when Ali realized that the matter had been reported at the police station, he then went to the complainant’s mother pretending that he did not know where the complainant was in order to escape being prosecuted. He submits further that from her evidence, Ali knew where she was and he was aware that she was with the complainant. Yet there is no indication that Ali informed the police that the complainant was with the appellant.
32. I have carefully re-evaluated the evidence by the prosecution and the defence, relied upon by the trial court to arrive at its decision as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
33. The appellant has no issue with the evidence proving the age of the complainant and penetration. His main contention is that he was not correctly identified as the one who committed the offence. That the perpetrator of the offence was well known to the complainant but through fabrication and lies the complainant implicated him in the matter. He therefore calls upon this court to critically re-evaluate the complainant’s evidence and find that on the issue of identification it was not credible and therefore was incapable of proving the charge.
34. The evidence on record shows that the only witness who testified to the identity of the alleged perpetrator of the offence was the complainant.
35. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, as raised by the appellant in this appeal, has been determined by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
36. From the above exposition of the law on the how the court should treat the evidence of the victim in a sexual offence case where the complainant is the only witness on any of the ingredients of the offence, this court is enjoined to evaluate the evidence and determine whether there was corroboration and even if there is none whether the complainant was telling the truth. In determining the second issue of truthfulness this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
37. In the case of Ndungu Kimani vs Republic [1979] 282 wherein it was held:
“We lay down the minimum standard as follows: The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not straight forward person and raise suspicion about his trust worthiness or do or say something which should indicate to court that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.”
38. As indicated above, there is either corroboration of the complainant’s evidence on the issue of identification or if corroboration is lacking, it is sufficient if the complainant was found to have been a witness of truth.
39. The trial court indicated that it believed the testimony of the complainant as she was able to express herself coherently. In that situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The trial magistrate did not sound that warning to herself. The failure to direct herself in that manner means she did not proceed correctly in evaluating the evidence. I also note that in the evaluation of the evidence, the learned trial magistrate separated the prosecution case, considering it first and finding it proved then turning to the defence case and dismissing it as unworthy of belief. That disjointed evaluation of evidence is not appropriate. Evidence ought to be considered as one wholesome unit, juxtaposing the one case against the other and determining the weight of each, always remembering the burden of proof is on the prosecution always and never shifts to the complainant.
40. There are several pertinent issues that arise from the evidence of the complainant that lead to the conclusion that she could not have been very honest in her testimony on the identity of the person who defiled her.
41. The complainant identified the appellant as a boda boda rider. The investigating officer said that she was given information that the appellant used to ride a tuk tuk. It was this information that helped her to stop the tuk tuk in which the appellant was riding but driven by DW 2. The other information that the appellant was a tuk tuk driver came from the complainant’s mother. It was however, not out of her own knowledge but what she was told by Ali, the man in whose house she first went to trace the complainant.
42. The issue of whether or not the appellant was a boda boda rider is quite pertinent to the case because, the complainant’s evidence revolves around boda boda riders. She mentioned several of them in her evidence but not a tuk tuk rider. The question where the investigating officer got the information to arrest a tuk tuk rider instead of a boda boda rider as the complainant’s assailant was left unanswered by the prosecution. Yet there were so many people who were not called as witnesses who it is alleged saw the appellant with the complainant. There is no explanation why the two Ali’s did not even record statements with the police yet they were available when the complainant was reunited with her parents. It is noteworthy that the first Ali is the one in whose house the complainant initially went and spent a night. His evidence was crucial to corroborate the complainant’s evidence that she spent the night there with the appellant. The second Ali, a boda boda rider was all over the place. He was the one reaching the complainant and then her mother on the same day and yet not informing her mother where the complainant was. In fact, at one time, he is said to have asked the mother where the complainant was when he very well knew that she was in the second Ali’s house.
43. The appellant’s conduct, upon being summoned to explain where the complainant was, does not fit the bill of a person who had committed this heinous act upon her. He was called to where the complainant’s parents were and he went. He denied any involvement with the complainant and only after he was threatened with being taken to the police station did he offer to assist in looking for her at the beach. He never said that he knew where she was. Even when he went to look for her, he called back to say that he had not found her. It is highly improbable that a person guilty of defilement and who had information that he was being sought after would be cooperative as the appellant was.
44. To me, the appellant turns out to be a victim of circumstances. His denial that he did not know the complainant completely may not be true. It is possible that he may have been with her at some point during that period. But that could have been in the same circumstances as the other men mentioned in the matter, where it is alleged that they had seen and even been with her but not having any involvement with her in the manner of sexual intercourse. This is a man who is alleged to have spent two nights with the complainant in a room alone without raising any issue with her such as approaching her for sexual intercourse.
45. Even though the medical evidence showed that there was penetration of the complainant’s genitalia, both front and back, the same is not conclusive that it was by the appellant. The evidence was that the penetration could have been done between one and seven days before the date of examination. The complainant’s evidence was that it was done just a day before her examination. The difference between one day and seven days is so long that the probability that the penetration could have been done other than on the date given by the complainant as the one the appellant allegedly defiled her cannot be ruled out. The complainant’s evidence is that the appellant spent two days and three nights with her yet he only allegedly defiled her on the third day. There is no indication that on the two previous days he made even an approach towards her. She alleges that he would leave her in the house the whole day and come back to her and do nothing. She said that on the second day when the appellant left her in the first house, two other men, Ali and another, went there in his absence. The possibility that these men could have done anything to her has not been ruled by the prosecution evidence.
46. The appellant has raised the issue of the complainant feeling so comfortable in the first house that she was able to prepare a meal and they ate. He submits that the complainant appears to have been familiar with this house and that assertion cannot be dismissed as baseless. It creates a doubt in the mind of the court on the complainant’s evidence that she was a stranger in that house. She said this house was for the appellant but her mother said it belonged to another Ali, the tuk tuk owner. The tuk tuk owner was not made available as a witness to testify on how the complainant found herself in his house and spent the night there. This creates a doubt in the mind of the court on whether or not this Ali may also have been a perpetrator of the offence.
47. I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that an important ingredient of the offence of defilement, the identity of the perpetrator, has not been proved beyond a reasonable doubt. There are major inconsistencies that were unresolved that must lead the court to find doubt in the prosecution’s case.
48. In the case of John Kenga Vs. Republic Criminal Appeal No. 118 of 1984 the Court of Appeal, in overturning a conviction, held:
“We acquit the appellant in this case due to the fact that some of the mentioned witnesses were not summoned during the trial to clear doubt of her arrest especially those who arrested him.”
49. I do not find anywhere in the judgment where the learned trial magistrate warned herself of the danger of basing a conviction upon uncorroborated evidence of the complainant.
50. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
51. The offence the appellant was charged with carries a very severe sentence of mandatory minimum twenty years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
52. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the identification of the appellant as the perpetrator of the offence.
53. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 2nd day of December 2024 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Nandi h/b for Mr. Ngiri for the respondent
Etropia 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 (Cap. 63A) Laws of Kenya. The particulars of the offence were that the appellant on 6/7/2022 at Timbwani area in Likoni Sub-County within Mombasa County, unlawfully and intentionally touched the vagina of K.F. a child aged 15 years with his penis.
3. The prosecution called 5 witnesses in support of its case. Upon being placed on his defence the appellant gave sworn evidence and called one witness to support his case.
4. At the end of the trial, the accused person was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment.
5. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 7/2/2023 has set out four griunds as follows:
a. that the trial court erred in law and in fact by failing to appreciate the burden of proof beyond reasonable doubt lies with the prosecution.
b. that the court erred in law and in fact by sentencing the accused person to 20 years.
c. the learned magistrate erred in law and in fact by relying on the evidence of the minor without proper corroboration.
d. the learned magistrate erred both in fact and law by not considering the evidence of the accused person.
6. The appeal was opposed by the respondent who filed grounds of opposition dated 19/6/2024 and filed in court on 19/6/2024 stating that:
a. identification of the appellant was established
b. the age of the minor was proved at the trial court.
c. the fact of penetration was proved.
d. the trial court guaranteed the appellant’s right to a fair trial.
e. the appellant’s defense was considered by the trial court and a finding made on the same.
f. the prosecution proved its case beyond reasonable doubt.
g. the period spent by the appellant in custody was considered during sentencing.
h. the sentence meted by the trial court was lawful.
7. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
8. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. Sections 8(1) and 8(3) of the Sexual Offences Act under which the accused person was charged with the principal charge provides as follows:
S. 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
11. From the above provisions of the law, the ingredients of the offence of defilement which the prosecution must prove beyond a reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. (See the case of C.W.K v Republic [2015] eKLR).
12. The alternative charge of committing an indecent act with a child is provided for under section 11(1)(a) of the Act as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
13. At the trial PW 1, K.F. the complainant was the main prosecution witness. She gave evidence of what had happened to her leading to the arrest of the appellant.
14. The complainant narrated her story of what transpired leading to the incident of the defilement. She recounted several men she encountered in the process before the incident then pointed at the appellant as her assailant. First there was the boda boda rider who had left his phone with her for no apparent reason, by throwing it at her, and yet he was not known to her. She said she could not go home with the phone and so when the appellant shouted her name “M” she responded with the hope that he could help her get the owner of the phone. Second, there is the appellant whom when he called her by name, she asked him for water. He asked her to enter his house the house where he was and she did. There was another man standing at the door of the house holding a lady’s bag. She remained in the house with the appellant and the other man. The three of them spent the night in the house until the following morning when the second man left. The appellant also left at some point leaving her alone. The third mad was Ali who came to the house later with yet another boda boda man. As they were leaving, she decided to leave with them. She had left the phone for the first boda boda man in the house and wanted to go back and get it. The boda boda man Ali was with informed her that her mother was looking for her and she was at the police station and he was going to pick her.
15. The appellant then showed up with five other boys and they forced her to board a boda boda and she was taken to a different house. The appellant locked her inside the house and left. She tried to raise an alarm but there was no response. She spent the night there and the appellant came back the following day and gave her three biscuits and water and left her there promising to be back later. He went back to the house at night and that was when he engaged in sexual intercourse with her both the front and back genitalia. She struggled with him in the process and she sustained a bruise on the right hand. She said she had no otherwise but to spend the night there until the following day when she forced the door open and started walking home. She met other young men who told her that her mother was looking for her. They took her to a grocery shop and called her parents. Her father came over and took her to the police station and then to hospital. The appellant was arrested after one week. She was called to the police station where they found him. She identified him as her assailant. He was known to her as a boda boda rider and on this occasion his friends were referring to him as “Stone.”
16. In cross-examination, PW 1 said that the appellant was not known to her much other than as a boda boda rider. She also said that when she made food at the house there were two other young men known to her, besides the appellant who ate the food as well. She said that she could not trace the house the appellant took her later as she was previously not familiar with that area. When she forced the door open and left the house, she could not find her way home and she was rescued by other young men. She said that she did not know whether the house the appellant took her to was his or his friend’s and whether he had a wife or not.
17. PW 2, M.S. is the complainant’s mother. She said the complainant was born on 17/6/2007 and produced her certificate of birth. The complainant left home without information on 4/7/2021 in the morning. She looked for her that day but did not find her. The following day a boda boda young man went to her door asking for the complainant and saying he had left his phone with her. PW 2 told him she was also looking for her and if he saw her he should alert her.
18. On 6/7/2021 the boda boda man called to inform her that he had seen the complainant and that she had returned his phone. She traced the boda boda man the following day and learnt that his name was Ali. He took her to an informal settlement and told her he had gone there to pick his phone but had been threatened by a young man. He took her to a house where they found a man who was quite arrogant and he said he owned a tuk tuk. Upon her insistence, he told her that he had information that her daughter had been there. He also said his name was Ali. They tried calling the young men but they declined to come over.
19. She sent her son to call her husband A.A. PW 3, who came to Ali’s house. The appellant and another man were brought to Ali’s house. On being questioned about the whereabouts of the complainant, he said he knew nothing. His friends insisted that they had seen him with her. PW 3 threatened to take him to the police and he agreed to take them to where the complainant was. They boarded the tuk tuk and along the way the appellant said he would go to check if the complainant was at the beach. He left. He later called and said that he had not traced the complainant.
20. They proceeded to Shelly Beach police station and made a report there. While there, a boda boda man called her and informed her that he had seen the complainant. PW 3 went and picked her and took her to the police station and then to hospital.
21. In cross-examination, PW 2 said that the person who gave the complainant his phone was their neighbour. She denied that the complainant was in a relationship with the first Ali and that the second Ali was the appellant’s employer.
22. PW 4 Evans Nyayemi is a clinical officer working at the time at Likoni Sub-County hospital. He examined the complainant and completed her P3 form and PRC form which he produced in evidence as exhibits. The results confirmed that the complainant had vaginal and anal penetration as well as scratch marks on the right side of the neck.
23. PW 5, PC Sofia Salim conducted the investigations in the matter. He evidence is largely what the complainant and her parents recounted to her. She then got information that the appellant was a tuk tuk rider. She traced him on 13/7/2022 in a tuk tuk and arrested him based on intelligence.
24. The appellant gave sworn evidence in defence and called one witness. He said he is a musician known by the name of Stoni Brown and a general worker. He said he was arrested while from work and charged for the offence that he knew nothing about. They were three of them at the time of arrest but two of his colleagues were released. He said the complainant was not known to him at all.
25. DW 2, Juma Hussein gave evidence that he is a tuk tuk driver and the appellant is known to him. They were arrested together while in his tuk tuk but he paid KShs 1,000/= and he was released. He is a booster who gets him clients at Shelly Beach area. The complainant is not known to him. He said he did not know the charges the appellant was facing.
26. In his submissions, the appellant hinges this appeal on lack of identification of the perpetrator of the crime. He submitted that whereas there is no dispute that the complainant was defiled the evidence of the identity of the person who defiled her was a fabrication.
27. The appellant submits that the evidence by the complainant shows that she was not a stranger in the house where he allegedly took her at first. That she was familiar with it as this appears from her evidence of how she went around carrying out duties therein. That she stayed in the house for so long and even slept there and yet her evidence was that she had only gone there to get some water to drink.
28. He submits that from the complainant’s evidence, it is clear that she was treated fairly by the people who were in that house.
29. The appellant further submits that the complainant mentioned one Ali who came to the house in her testimony and that she had an opportunity to leave with him but nothing more was said of him. Yet at one point the complainant said that the appellant left the house yet she was there waiting for Ali who then gave her an opportunity to leave.
30. He submits that in fact, evidence showed that Ali was a neighbour of the complainant and a boda boda operator and that the said Ali was the one who had left the complainant with his phone yet the complainant alleged that he was not known to him. The said Ali having visited and seen the complainant at the house went ahead to ask her mother the following day where the complainant was.
31. It is his submission that when Ali realized that the matter had been reported at the police station, he then went to the complainant’s mother pretending that he did not know where the complainant was in order to escape being prosecuted. He submits further that from her evidence, Ali knew where she was and he was aware that she was with the complainant. Yet there is no indication that Ali informed the police that the complainant was with the appellant.
32. I have carefully re-evaluated the evidence by the prosecution and the defence, relied upon by the trial court to arrive at its decision as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
33. The appellant has no issue with the evidence proving the age of the complainant and penetration. His main contention is that he was not correctly identified as the one who committed the offence. That the perpetrator of the offence was well known to the complainant but through fabrication and lies the complainant implicated him in the matter. He therefore calls upon this court to critically re-evaluate the complainant’s evidence and find that on the issue of identification it was not credible and therefore was incapable of proving the charge.
34. The evidence on record shows that the only witness who testified to the identity of the alleged perpetrator of the offence was the complainant.
35. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, as raised by the appellant in this appeal, has been determined by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
36. From the above exposition of the law on the how the court should treat the evidence of the victim in a sexual offence case where the complainant is the only witness on any of the ingredients of the offence, this court is enjoined to evaluate the evidence and determine whether there was corroboration and even if there is none whether the complainant was telling the truth. In determining the second issue of truthfulness this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
37. In the case of Ndungu Kimani vs Republic [1979] 282 wherein it was held:
“We lay down the minimum standard as follows: The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not straight forward person and raise suspicion about his trust worthiness or do or say something which should indicate to court that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.”
38. As indicated above, there is either corroboration of the complainant’s evidence on the issue of identification or if corroboration is lacking, it is sufficient if the complainant was found to have been a witness of truth.
39. The trial court indicated that it believed the testimony of the complainant as she was able to express herself coherently. In that situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The trial magistrate did not sound that warning to herself. The failure to direct herself in that manner means she did not proceed correctly in evaluating the evidence. I also note that in the evaluation of the evidence, the learned trial magistrate separated the prosecution case, considering it first and finding it proved then turning to the defence case and dismissing it as unworthy of belief. That disjointed evaluation of evidence is not appropriate. Evidence ought to be considered as one wholesome unit, juxtaposing the one case against the other and determining the weight of each, always remembering the burden of proof is on the prosecution always and never shifts to the complainant.
40. There are several pertinent issues that arise from the evidence of the complainant that lead to the conclusion that she could not have been very honest in her testimony on the identity of the person who defiled her.
41. The complainant identified the appellant as a boda boda rider. The investigating officer said that she was given information that the appellant used to ride a tuk tuk. It was this information that helped her to stop the tuk tuk in which the appellant was riding but driven by DW 2. The other information that the appellant was a tuk tuk driver came from the complainant’s mother. It was however, not out of her own knowledge but what she was told by Ali, the man in whose house she first went to trace the complainant.
42. The issue of whether or not the appellant was a boda boda rider is quite pertinent to the case because, the complainant’s evidence revolves around boda boda riders. She mentioned several of them in her evidence but not a tuk tuk rider. The question where the investigating officer got the information to arrest a tuk tuk rider instead of a boda boda rider as the complainant’s assailant was left unanswered by the prosecution. Yet there were so many people who were not called as witnesses who it is alleged saw the appellant with the complainant. There is no explanation why the two Ali’s did not even record statements with the police yet they were available when the complainant was reunited with her parents. It is noteworthy that the first Ali is the one in whose house the complainant initially went and spent a night. His evidence was crucial to corroborate the complainant’s evidence that she spent the night there with the appellant. The second Ali, a boda boda rider was all over the place. He was the one reaching the complainant and then her mother on the same day and yet not informing her mother where the complainant was. In fact, at one time, he is said to have asked the mother where the complainant was when he very well knew that she was in the second Ali’s house.
43. The appellant’s conduct, upon being summoned to explain where the complainant was, does not fit the bill of a person who had committed this heinous act upon her. He was called to where the complainant’s parents were and he went. He denied any involvement with the complainant and only after he was threatened with being taken to the police station did he offer to assist in looking for her at the beach. He never said that he knew where she was. Even when he went to look for her, he called back to say that he had not found her. It is highly improbable that a person guilty of defilement and who had information that he was being sought after would be cooperative as the appellant was.
44. To me, the appellant turns out to be a victim of circumstances. His denial that he did not know the complainant completely may not be true. It is possible that he may have been with her at some point during that period. But that could have been in the same circumstances as the other men mentioned in the matter, where it is alleged that they had seen and even been with her but not having any involvement with her in the manner of sexual intercourse. This is a man who is alleged to have spent two nights with the complainant in a room alone without raising any issue with her such as approaching her for sexual intercourse.
45. Even though the medical evidence showed that there was penetration of the complainant’s genitalia, both front and back, the same is not conclusive that it was by the appellant. The evidence was that the penetration could have been done between one and seven days before the date of examination. The complainant’s evidence was that it was done just a day before her examination. The difference between one day and seven days is so long that the probability that the penetration could have been done other than on the date given by the complainant as the one the appellant allegedly defiled her cannot be ruled out. The complainant’s evidence is that the appellant spent two days and three nights with her yet he only allegedly defiled her on the third day. There is no indication that on the two previous days he made even an approach towards her. She alleges that he would leave her in the house the whole day and come back to her and do nothing. She said that on the second day when the appellant left her in the first house, two other men, Ali and another, went there in his absence. The possibility that these men could have done anything to her has not been ruled by the prosecution evidence.
46. The appellant has raised the issue of the complainant feeling so comfortable in the first house that she was able to prepare a meal and they ate. He submits that the complainant appears to have been familiar with this house and that assertion cannot be dismissed as baseless. It creates a doubt in the mind of the court on the complainant’s evidence that she was a stranger in that house. She said this house was for the appellant but her mother said it belonged to another Ali, the tuk tuk owner. The tuk tuk owner was not made available as a witness to testify on how the complainant found herself in his house and spent the night there. This creates a doubt in the mind of the court on whether or not this Ali may also have been a perpetrator of the offence.
47. I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate, for the reason that an important ingredient of the offence of defilement, the identity of the perpetrator, has not been proved beyond a reasonable doubt. There are major inconsistencies that were unresolved that must lead the court to find doubt in the prosecution’s case.
48. In the case of John Kenga Vs. Republic Criminal Appeal No. 118 of 1984 the Court of Appeal, in overturning a conviction, held:
“We acquit the appellant in this case due to the fact that some of the mentioned witnesses were not summoned during the trial to clear doubt of her arrest especially those who arrested him.”
49. I do not find anywhere in the judgment where the learned trial magistrate warned herself of the danger of basing a conviction upon uncorroborated evidence of the complainant.
50. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
51. The offence the appellant was charged with carries a very severe sentence of mandatory minimum twenty years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
52. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the identification of the appellant as the perpetrator of the offence.
53. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 2nd day of December 2024 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Nandi h/b for Mr. Ngiri for the respondent
Etropia court assistant.