(Being an Appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. Irene Thamara Resident Magistrate delivered on 3oth March, 2023 in S.O No. E041 of 2021)
JUDGEMENT
Background
The Appellant was charged with the offence of defilement contrary to Section 8(1) a read with Section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the 1 st day of June, 2022 at Furinzi area within Malindi Sub County in Kilifi County, intentionally and unlawfully caused his penis to penetrate into the vagina of P.O.A a girl aged 13 years. In the alternative, the Appellant 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 were that on the 1 st day of June, 2022 at Furinzi area within Malindi Sub County within Kilifi County intentionally and unlawfully committed an indecent act by touching the vagina of P.O.A a girl aged 13 years by using his penis.
The Appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and did not call any witness. In a judgment delivered on 30 th March, 2023, the trial magistrate found the Appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve thirty (30) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal. The appellant has raised several grounds of appeal to wit:
1. That the learned trial magistrate erred in both law and facts by relying on unreliable exhibits to convict the appellant;
2. That the learned trial magistrate erred in both law and facts by failing to appreciate that there was poor and shoddy investigations;
3. That the learned trial magistrate erred in both law and facts by failing to consider sharp contradictions in prosecution witnesses;
4. That the learned trial magistrate erred in law and facts by failing to consider that the case was not proved beyond reasonable doubt;
The appellant amended the grounds of appeal stating that the learned trial magistrate erred in law and facts in failing to consider that defilement as defined in the Sexual Offences Act was not satisfactorily proved as required.
The prosecution case.
The prosecution case briefly is that PW1 Dr. Moses Rimba of Malindi Sub County hospital testified on behalf of Dr. Ibrahim who examined the complainant. He said he had worked with him for over 9 years and he was conversant with his handwriting. He gave narration of what the complainant told Dr. Ibrahim. He produced a P3 Form filled by Dr. Ibrahim whose finding were that the victim was not a virgin and that there were no fresh injuries. Further tests revealed that there were no infections and that pregnancy test was negative. He produced treatment notes, birth immunization card, laboratory results and the P3 Form. In cross-examination he said the victim was examined on 2 nd June, 2022 and the alleged act of defilement happened on 1 st June, 2022. He said the accused was not examined.
The complainant PW2 who gave unsworn testimony after voire dire examination stated that on 1 st June, 2022 she was at the borehole fetching water when the accused who was not known to her came with a motor cycle. He asked her to get onto the motor cycle. He took her to his home where she slept till morning. She said the accused “aliniyanyia tabia mbaya.” She said in the morning the accused took her home on foot. On the way they met with her brother. The accused was then arrested and taken to the police station. She was later taken to hospital for examination. In cross-examination she maintained that she knew the accused on that day. She further stated that there were no people at the borehole when the accused picked her. She further stated that there was also no one in the accused house.
PW3 the father of the complainant stated that the complainant was a student at Sir Ali School which is a special school where she is in class 3. He stated that on the 1 st June, 2022 he came from work at 6.30pm. He asked his deceased wife where was the complainant who told him that she had been seen outside holding cigarettes. His wife asked one Ega whether he is the one who had sent the complainant cigarettes which he denied. He was informed that the complainant had been away from 4pm. The complainant did not come home. The following day he went and reported at Malindi Police station and an OB was recorded. He was advised that a report of a missing person can only be done after 24 hours. He continued searching for the complainant until around 3pm when he was told by a motor cycle rider that the complainant had been seen the previous night at Alaskan area but he was not told who was with the complainant. Later the rider who told him that he had seen the complainant came to him and asked for 50/= to fuel his motor cycle to and search for the complainant. While at Furinzi area in the company of Enos they saw the complainant on a motor cycle which was being ridden by the accused. They stopped the accused and he was called by Enos and informed that they had arrested the accused with the complainant. He went to the scene and asked the accused why he had spent night with the complainant who told him that the complainant was studying with his children at Sir Ali School. When he inquired from the complainant she told her that the accused had slept with her. To be precise she told him that the accused “amenidhulumu.” He went to the police station and reported. He was advised to take the complainant to hospital. The accused was left at the station. In cross-examination he said the accused was caught by the young men in the company of the complainant. He maintained that the complainant told him that the accused slept with her.
PW4 Corporal Marian Hussein attached at Malindi Police station investigated the case. She said that on 2 nd June, 2022 the complainant in the company of her father PW3 arrived at the station wit the accused person herein. It was reported that the accused had taken the complainant to his house on 1 st June, 2022 and slept with her until 2 nd June, 2022. That while they were in the process of looking for the complainant they saw her with the accused. She recorded the report, looked up the accused and took the complainant to Malindi Sub County hospital for medical examination. She issued the complainant with a P3 Form that was filled by the doctor. She also narrated what the complaint and her father told her. She also interrogated the accused who did not deny that he was with the complainant. She later arraigned the accused in court for the offence of defilement.
Defence case.
The accused in his defence stated that on 1 st June, 2022 he was coming from Star Hospital where his wife was admitted. He reached home at around 2pm where he found his daughter Emily with another girl. He said Emily was a student at Sir Ali Special School. His other daughter Anita told him that the girl he did not know was schooling with Emily at Sir Ali Special School. He stated that he took all the children including the new girl to school. He dropped them and went to the ocean to fish. He said they spent the time fishing until the following day on 2 nd June, 2022 at around 11.30am. He took his motor cycle and headed home in Furinzi. At a place called Kawayeni he found the new girl at home playing with his children. He went and reported to the village elder that the girl who was not known to hin had returned. The girl said she lives in Msabaha. They took a motor cycle to take the girl to Msabaha at around 1.30pm. At Msabaha the girl was unknown there. As they were going back towards the Airport direction they were involved in an accident with another motor cycle and fell down. At that point the girl started running away as she knew the people they had been involved in an accident with. The people in the other motor cycle started beating them accusing them of having been with the girl since the previous day. At that point the village elder ran away. On the way they met a gang along the road who started beating him. He was later taken to the police station where it was allleged that he had defiled the minor. He denied the charges.
Appellant’s submissions.
The Appellant filed home made submissions. He submitted that the prosecution did not proof penetration as required. He attacked the findings in the P3 Form to the effect that the doctor found that though the complainant was not a virgin, there were no fresh injuries noted. It is his submission that the trial magistrate relied on the finding that the hymen was broken which to him is not is not a conclusive proof of defilement. He decried what he called a societal problem where young girls engage in sexual intercourse and then later the boy child is left to face the consequences of the law on sexual offences. He cited the case of Eliud Waweru Wambui vs Republic (2019)eKLR where the court alluded to need for review of the Sexual Offences Act which at times has been used to settle personal vendetta among other reasons.
In his further submissions he argued that the court relied on the medical evidence which indicated that there were no visible injuries save that the hymen was broken. It is his argument that lack of hymen is not proof of defilement especially where the age of the broken hymen is not established as in the instant matter. It was his argument that there are minors who are born without hymen. He relied on the case of PKW vs Republic (2012)eKLR to emphasize his submission that broken hymen is not sole prove of penetration. In the circumstances the appellant argued that prosecution failed to prove beyond reasonable doubt that there was penetration into the complainant’s genitalia.
The Appellant in his further submissions alluded to contradiction in the prosecution evidence and especially the evidence of the complainant and her father. According to him there was contradiction as to the time the complainant is said to have been at the borehole when she is alleged to have met the appellant. The basis of the appellant submissions on this issue is found on the evidence of PW3 who said that when he inquired from his deceased wife she told him that the complainant was outside. This was at 6.30pm which the appellant argues that it is contrary to the complainant’s evidence that at around 4pm that she was at the borehole.
The Appellant further argued that investigations were shoddily done. He attacked the evidence of the complainant and particularly whether the same was enough to proof that there was penetration into her genital organ. It is his submissions that the complainant did not explicitly states that the appellant penetrated her save for saying that “alinifanyia tabia mbaya” and “alinifira”. He relied on the case of Julius Kioko Kivuva vs Republic (2015)eKLR.
Respondent’s submissions
The respondent submitted that the prosecution established all the ingredients of the offence of defilement. They relied on the case of George Opondo Olunga vs Republic (2016)eKLR on the ingredients of the offence of defilement to wit, proof of the age of the victim, penetration and positive identification of the perpetrator. It was submitted that the age of the victim was proved as required by production of immunization card which showed that the complainant was born on 25 th June, 2008 and thus she was aged 13 years at the time of the offence. It is submitted that this fact was corroborated by the evidence of PW3. Reliance was place on the case of Musyoki Mwakavi vs Republic (2014)eKLR where the court emphasized that apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense.
Regarding penetration, the respondent relied on the case of Mohamed vs Republic (2008)eKLR where the court observed that penetration may be proved directly or circumstantially. It was submitted that in the instant case the complainant stated that the accused did to her “tabia mbaya” in his house. Further it is submitted that though the treatment notes indicated that there were no bruises or tear on labia, her hymen was however not intact as the complainant had history of sexual activity. The prosecution appeared to concede that penetration was not proved as required.
On the identification of the appellant as the perpetrator, relied on the case of Peter Musau Mwanza vs Republic (2008)eKLR where the court expressed itself on the issue of identification as follows:
“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.”
The respondent appeared to concede that this element was not proved by submitting that the complainant had stated that she had seen the appellant for the first time at the borehole, he was not known to her and that the complainant had mental condition of poor memory.
Analysis and determination.
It is trite that the duty of the first appellate court is to re-evaluate and analyse the evidence adduced before the trial court to reach its own independent decision. Of course the the first appellate court must be cautious to the fact that it did not have the benefit of hearing and seeing the witnesses testify. This position has been restated in numerous decisions of this court and the court of appeal. For instance in the case of Jona Akuno O’Kubasu vs Republic (2000)eKLR the Court of Appeal held that:
“It is correct that on first appeal the appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and make its own decision thereon. It has the duty to rehear the case and reconsider the material before the judge or magistrate with such other material as it may decide to admit. The appellate court must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demenour, the appellate court must be guided by the impression made on the judge or magistrate who saw the witnesses, but there may be other circumstances, quite apart from manner or demenour which may show whether a statement is credible or not which may warrant the court in differing from the judge or magistrate even on question of facts turning on the credibility of witnesses whom the appellate court has not seen.”
Bearing the foregoing in mind, it must be remembered that it the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This cardinal principle in criminal law has been restated in numerous cases. In the case of Stephen Nguli Mulili vs Republic ((2014)eKLR the court emphasized the prosecution duty in criminal case and stated that:
“...it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the kenyan position.”
In the instant case the appellant was charged and convicted of the offence of defilement contrary to Section 8(1) of the Sexual Offences Act. That Section provides as follows:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which the prosecution must establish are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the victim in this case, the trial magistrate correctly observed that age may be proved through birth certificate, any school document or in a baptismal card or similar document as provided for under Rule 4 of the Sexual Offences Rules of Court, 2014. In this case, the prosecution produced the victims immunization showing that the complainant was born on 25 th June, 2008. The offence was committed on 1 st June, 2022. The trial magistrate correctly made a finding that age was proved as requierd.
Regarding the element of penetration, the same is defined under Section 2 of the Sexual Offences Act as:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
The appellant argue that the prosecution did not prove penetration. The trial magistrate in making a finding that penetration was proved, stated in her judgment:
“ It is PW2’s testimony that when the accused took her to his house. She stated the accused “alinifira” and “alinifanyia tabia mbaya”. PW1 testified that upon examination, the doctor found PW2 was not a virgin. The treatment notes dated 2 nd June, 2022 indicated that on examination, PW2 had no tear or bruises in both labia, vaginal orifice was open, hymen was not intact and that there was history of sexual activity. The P3 Form also indicates that the hymen was broken. This medical evidence therefore shows that there was penetration into the vagina of PW2 as defined under section 2 of the Sexual Offences Act.”
The trial magistrate went ahead and relied on the case of Too vs Republic (2020)eKLR where the court observed that to minors, cases like these the word ‘tabia mbaya’ means nothing short of defilement.
Having set out the finding of the trial magistrate, it is important to evaluate the evidence and make my own finding as to whether penetration was proved. It is not enough for the trial magistrate to merely state that “tabia mbaya” means defilement. There is need for other independent evidence to support that there was penetration. I am stating so having in mind the the provision of Section 124 of the Evidence Act which provides:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act )Cap 15), where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
In the instant case, the direct evidence supporting the element of penetration is that of the complainant. According to the evidence on record, the complainant said she met the appellant for the first time at the borehole and he took her to his house and defiled her. In her evidence she used the words I have indicated in the extract of the judgment of the trial court to the effect ‘alinifira’ ‘alinifanyia tabia mbaya’. I agree with the trial court and the decision of Too vs Republic (supra) that in many cases those words to the minors may imply sexual intercourse. The complainant according to the report produced in court as exhibit 5 was said to have learning disability with poor memory. In the circumstances it was crucial for the prosecution to adduce corroborative evidence to proof penetration. In finding that there was penetration, the trial court relied on the medical evidence produced in court by PW1. According to the treatment notes, the vaginal examination revealed that there no tear or bruises on both labia, vaginal orifice was open, hymen not intact and that the complainant had history of previous sexual activity. Thus there was need for independent corroborative evidence notwithstanding the proviso to section 124 of the Evidence Act in the circumstances of this case.
It is notable from the evidence on record that the complainant was defiled on 1 st June, 2022 and she was taken for medical examination on 2 nd June, 2022 less than one day later after the alleged incident. It would have been expected that on examination notable injuries like tear or bruises would have been noted. The medical evidence did not reveal the same. The trial magistrate appeared to have found that there was penetration because the complainant’s hymen was broken. The trial court seems to have overlooked the medical examination finding that the complainant had previous history of sexual activity, which might have contributed to the breaking of her hymen. It is notable that the evidence on record shows that the complainant met the appellant for the first time during the incident and as such the broken hymen may not necessarily be attributed to the appellant. No wonder the respondent in its submissions conceded that penetration was not proved beyond reasonable doubt. I therefore find that the element of penetration was not proved as required and the trial court fell into error in finding that there was penetration without considering the evidence in its entirety.
The other element which is critical is the identification of the appellant as the perpetrator. From the evidence adduced before the trial court, the complainant is said to have met the appellant for the first time at the borehole where he took her to his house. As indicated earlier in this judgment, the complainant according to exhibit 5 she had poor memory. As stated in the case of Peter Musau Mwakavi vs Republic (supra) there was no indication that the complainant knew the appellant before the incident. Similarly, the appellant was a stranger to PW3 the father of the complainant. None of the two witnesses stated that they had contact with the appellant before the alleged incident. Further to the foregoing, it emerged from evidence that the appellant was apprehended by one Enos and another rider. Much as the prosecution is not required to call every witness, it is my view that the said Enos and the other rider were critical witnesses to give evidence on the apprehension of the appellant.
Conclusion
Having considered the appeal herein and also evaluated the evidence adduced before the trial court, I come to the finding that the charges were not proved beyond reasonable doubt and the conviction and sentence imposed against the appellant is hereby set aside. The appeal is accordingly allowed and the appellant is hereby ordered released from custody unless otherwise lawfully held.
Dated, signed and delivered virtually this 21 st day of May, 2026.
Read out virtually in presence of appellant(virtual)
Ms Mutua for the respondent (virtual)
Ms Millicent Otwo court assistant (physical)
2 | Page
JUDGEMENT
Background
The Appellant was charged with the offence of defilement contrary to Section 8(1) a read with Section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the 1 st day of June, 2022 at Furinzi area within Malindi Sub County in Kilifi County, intentionally and unlawfully caused his penis to penetrate into the vagina of P.O.A a girl aged 13 years. In the alternative, the Appellant 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 were that on the 1 st day of June, 2022 at Furinzi area within Malindi Sub County within Kilifi County intentionally and unlawfully committed an indecent act by touching the vagina of P.O.A a girl aged 13 years by using his penis.
The Appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and did not call any witness. In a judgment delivered on 30 th March, 2023, the trial magistrate found the Appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve thirty (30) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal. The appellant has raised several grounds of appeal to wit:
1. That the learned trial magistrate erred in both law and facts by relying on unreliable exhibits to convict the appellant;
2. That the learned trial magistrate erred in both law and facts by failing to appreciate that there was poor and shoddy investigations;
3. That the learned trial magistrate erred in both law and facts by failing to consider sharp contradictions in prosecution witnesses;
4. That the learned trial magistrate erred in law and facts by failing to consider that the case was not proved beyond reasonable doubt;
The appellant amended the grounds of appeal stating that the learned trial magistrate erred in law and facts in failing to consider that defilement as defined in the Sexual Offences Act was not satisfactorily proved as required.
The prosecution case.
The prosecution case briefly is that PW1 Dr. Moses Rimba of Malindi Sub County hospital testified on behalf of Dr. Ibrahim who examined the complainant. He said he had worked with him for over 9 years and he was conversant with his handwriting. He gave narration of what the complainant told Dr. Ibrahim. He produced a P3 Form filled by Dr. Ibrahim whose finding were that the victim was not a virgin and that there were no fresh injuries. Further tests revealed that there were no infections and that pregnancy test was negative. He produced treatment notes, birth immunization card, laboratory results and the P3 Form. In cross-examination he said the victim was examined on 2 nd June, 2022 and the alleged act of defilement happened on 1 st June, 2022. He said the accused was not examined.
The complainant PW2 who gave unsworn testimony after voire dire examination stated that on 1 st June, 2022 she was at the borehole fetching water when the accused who was not known to her came with a motor cycle. He asked her to get onto the motor cycle. He took her to his home where she slept till morning. She said the accused “aliniyanyia tabia mbaya.” She said in the morning the accused took her home on foot. On the way they met with her brother. The accused was then arrested and taken to the police station. She was later taken to hospital for examination. In cross-examination she maintained that she knew the accused on that day. She further stated that there were no people at the borehole when the accused picked her. She further stated that there was also no one in the accused house.
PW3 the father of the complainant stated that the complainant was a student at Sir Ali School which is a special school where she is in class 3. He stated that on the 1 st June, 2022 he came from work at 6.30pm. He asked his deceased wife where was the complainant who told him that she had been seen outside holding cigarettes. His wife asked one Ega whether he is the one who had sent the complainant cigarettes which he denied. He was informed that the complainant had been away from 4pm. The complainant did not come home. The following day he went and reported at Malindi Police station and an OB was recorded. He was advised that a report of a missing person can only be done after 24 hours. He continued searching for the complainant until around 3pm when he was told by a motor cycle rider that the complainant had been seen the previous night at Alaskan area but he was not told who was with the complainant. Later the rider who told him that he had seen the complainant came to him and asked for 50/= to fuel his motor cycle to and search for the complainant. While at Furinzi area in the company of Enos they saw the complainant on a motor cycle which was being ridden by the accused. They stopped the accused and he was called by Enos and informed that they had arrested the accused with the complainant. He went to the scene and asked the accused why he had spent night with the complainant who told him that the complainant was studying with his children at Sir Ali School. When he inquired from the complainant she told her that the accused had slept with her. To be precise she told him that the accused “amenidhulumu.” He went to the police station and reported. He was advised to take the complainant to hospital. The accused was left at the station. In cross-examination he said the accused was caught by the young men in the company of the complainant. He maintained that the complainant told him that the accused slept with her.
PW4 Corporal Marian Hussein attached at Malindi Police station investigated the case. She said that on 2 nd June, 2022 the complainant in the company of her father PW3 arrived at the station wit the accused person herein. It was reported that the accused had taken the complainant to his house on 1 st June, 2022 and slept with her until 2 nd June, 2022. That while they were in the process of looking for the complainant they saw her with the accused. She recorded the report, looked up the accused and took the complainant to Malindi Sub County hospital for medical examination. She issued the complainant with a P3 Form that was filled by the doctor. She also narrated what the complaint and her father told her. She also interrogated the accused who did not deny that he was with the complainant. She later arraigned the accused in court for the offence of defilement.
Defence case.
The accused in his defence stated that on 1 st June, 2022 he was coming from Star Hospital where his wife was admitted. He reached home at around 2pm where he found his daughter Emily with another girl. He said Emily was a student at Sir Ali Special School. His other daughter Anita told him that the girl he did not know was schooling with Emily at Sir Ali Special School. He stated that he took all the children including the new girl to school. He dropped them and went to the ocean to fish. He said they spent the time fishing until the following day on 2 nd June, 2022 at around 11.30am. He took his motor cycle and headed home in Furinzi. At a place called Kawayeni he found the new girl at home playing with his children. He went and reported to the village elder that the girl who was not known to hin had returned. The girl said she lives in Msabaha. They took a motor cycle to take the girl to Msabaha at around 1.30pm. At Msabaha the girl was unknown there. As they were going back towards the Airport direction they were involved in an accident with another motor cycle and fell down. At that point the girl started running away as she knew the people they had been involved in an accident with. The people in the other motor cycle started beating them accusing them of having been with the girl since the previous day. At that point the village elder ran away. On the way they met a gang along the road who started beating him. He was later taken to the police station where it was allleged that he had defiled the minor. He denied the charges.
Appellant’s submissions.
The Appellant filed home made submissions. He submitted that the prosecution did not proof penetration as required. He attacked the findings in the P3 Form to the effect that the doctor found that though the complainant was not a virgin, there were no fresh injuries noted. It is his submission that the trial magistrate relied on the finding that the hymen was broken which to him is not is not a conclusive proof of defilement. He decried what he called a societal problem where young girls engage in sexual intercourse and then later the boy child is left to face the consequences of the law on sexual offences. He cited the case of Eliud Waweru Wambui vs Republic (2019)eKLR where the court alluded to need for review of the Sexual Offences Act which at times has been used to settle personal vendetta among other reasons.
In his further submissions he argued that the court relied on the medical evidence which indicated that there were no visible injuries save that the hymen was broken. It is his argument that lack of hymen is not proof of defilement especially where the age of the broken hymen is not established as in the instant matter. It was his argument that there are minors who are born without hymen. He relied on the case of PKW vs Republic (2012)eKLR to emphasize his submission that broken hymen is not sole prove of penetration. In the circumstances the appellant argued that prosecution failed to prove beyond reasonable doubt that there was penetration into the complainant’s genitalia.
The Appellant in his further submissions alluded to contradiction in the prosecution evidence and especially the evidence of the complainant and her father. According to him there was contradiction as to the time the complainant is said to have been at the borehole when she is alleged to have met the appellant. The basis of the appellant submissions on this issue is found on the evidence of PW3 who said that when he inquired from his deceased wife she told him that the complainant was outside. This was at 6.30pm which the appellant argues that it is contrary to the complainant’s evidence that at around 4pm that she was at the borehole.
The Appellant further argued that investigations were shoddily done. He attacked the evidence of the complainant and particularly whether the same was enough to proof that there was penetration into her genital organ. It is his submissions that the complainant did not explicitly states that the appellant penetrated her save for saying that “alinifanyia tabia mbaya” and “alinifira”. He relied on the case of Julius Kioko Kivuva vs Republic (2015)eKLR.
Respondent’s submissions
The respondent submitted that the prosecution established all the ingredients of the offence of defilement. They relied on the case of George Opondo Olunga vs Republic (2016)eKLR on the ingredients of the offence of defilement to wit, proof of the age of the victim, penetration and positive identification of the perpetrator. It was submitted that the age of the victim was proved as required by production of immunization card which showed that the complainant was born on 25 th June, 2008 and thus she was aged 13 years at the time of the offence. It is submitted that this fact was corroborated by the evidence of PW3. Reliance was place on the case of Musyoki Mwakavi vs Republic (2014)eKLR where the court emphasized that apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense.
Regarding penetration, the respondent relied on the case of Mohamed vs Republic (2008)eKLR where the court observed that penetration may be proved directly or circumstantially. It was submitted that in the instant case the complainant stated that the accused did to her “tabia mbaya” in his house. Further it is submitted that though the treatment notes indicated that there were no bruises or tear on labia, her hymen was however not intact as the complainant had history of sexual activity. The prosecution appeared to concede that penetration was not proved as required.
On the identification of the appellant as the perpetrator, relied on the case of Peter Musau Mwanza vs Republic (2008)eKLR where the court expressed itself on the issue of identification as follows:
“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident.”
The respondent appeared to concede that this element was not proved by submitting that the complainant had stated that she had seen the appellant for the first time at the borehole, he was not known to her and that the complainant had mental condition of poor memory.
Analysis and determination.
It is trite that the duty of the first appellate court is to re-evaluate and analyse the evidence adduced before the trial court to reach its own independent decision. Of course the the first appellate court must be cautious to the fact that it did not have the benefit of hearing and seeing the witnesses testify. This position has been restated in numerous decisions of this court and the court of appeal. For instance in the case of Jona Akuno O’Kubasu vs Republic (2000)eKLR the Court of Appeal held that:
“It is correct that on first appeal the appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and make its own decision thereon. It has the duty to rehear the case and reconsider the material before the judge or magistrate with such other material as it may decide to admit. The appellate court must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demenour, the appellate court must be guided by the impression made on the judge or magistrate who saw the witnesses, but there may be other circumstances, quite apart from manner or demenour which may show whether a statement is credible or not which may warrant the court in differing from the judge or magistrate even on question of facts turning on the credibility of witnesses whom the appellate court has not seen.”
Bearing the foregoing in mind, it must be remembered that it the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This cardinal principle in criminal law has been restated in numerous cases. In the case of Stephen Nguli Mulili vs Republic ((2014)eKLR the court emphasized the prosecution duty in criminal case and stated that:
“...it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the kenyan position.”
In the instant case the appellant was charged and convicted of the offence of defilement contrary to Section 8(1) of the Sexual Offences Act. That Section provides as follows:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which the prosecution must establish are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the victim in this case, the trial magistrate correctly observed that age may be proved through birth certificate, any school document or in a baptismal card or similar document as provided for under Rule 4 of the Sexual Offences Rules of Court, 2014. In this case, the prosecution produced the victims immunization showing that the complainant was born on 25 th June, 2008. The offence was committed on 1 st June, 2022. The trial magistrate correctly made a finding that age was proved as requierd.
Regarding the element of penetration, the same is defined under Section 2 of the Sexual Offences Act as:
“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”
The appellant argue that the prosecution did not prove penetration. The trial magistrate in making a finding that penetration was proved, stated in her judgment:
“ It is PW2’s testimony that when the accused took her to his house. She stated the accused “alinifira” and “alinifanyia tabia mbaya”. PW1 testified that upon examination, the doctor found PW2 was not a virgin. The treatment notes dated 2 nd June, 2022 indicated that on examination, PW2 had no tear or bruises in both labia, vaginal orifice was open, hymen was not intact and that there was history of sexual activity. The P3 Form also indicates that the hymen was broken. This medical evidence therefore shows that there was penetration into the vagina of PW2 as defined under section 2 of the Sexual Offences Act.”
The trial magistrate went ahead and relied on the case of Too vs Republic (2020)eKLR where the court observed that to minors, cases like these the word ‘tabia mbaya’ means nothing short of defilement.
Having set out the finding of the trial magistrate, it is important to evaluate the evidence and make my own finding as to whether penetration was proved. It is not enough for the trial magistrate to merely state that “tabia mbaya” means defilement. There is need for other independent evidence to support that there was penetration. I am stating so having in mind the the provision of Section 124 of the Evidence Act which provides:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act )Cap 15), where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
In the instant case, the direct evidence supporting the element of penetration is that of the complainant. According to the evidence on record, the complainant said she met the appellant for the first time at the borehole and he took her to his house and defiled her. In her evidence she used the words I have indicated in the extract of the judgment of the trial court to the effect ‘alinifira’ ‘alinifanyia tabia mbaya’. I agree with the trial court and the decision of Too vs Republic (supra) that in many cases those words to the minors may imply sexual intercourse. The complainant according to the report produced in court as exhibit 5 was said to have learning disability with poor memory. In the circumstances it was crucial for the prosecution to adduce corroborative evidence to proof penetration. In finding that there was penetration, the trial court relied on the medical evidence produced in court by PW1. According to the treatment notes, the vaginal examination revealed that there no tear or bruises on both labia, vaginal orifice was open, hymen not intact and that the complainant had history of previous sexual activity. Thus there was need for independent corroborative evidence notwithstanding the proviso to section 124 of the Evidence Act in the circumstances of this case.
It is notable from the evidence on record that the complainant was defiled on 1 st June, 2022 and she was taken for medical examination on 2 nd June, 2022 less than one day later after the alleged incident. It would have been expected that on examination notable injuries like tear or bruises would have been noted. The medical evidence did not reveal the same. The trial magistrate appeared to have found that there was penetration because the complainant’s hymen was broken. The trial court seems to have overlooked the medical examination finding that the complainant had previous history of sexual activity, which might have contributed to the breaking of her hymen. It is notable that the evidence on record shows that the complainant met the appellant for the first time during the incident and as such the broken hymen may not necessarily be attributed to the appellant. No wonder the respondent in its submissions conceded that penetration was not proved beyond reasonable doubt. I therefore find that the element of penetration was not proved as required and the trial court fell into error in finding that there was penetration without considering the evidence in its entirety.
The other element which is critical is the identification of the appellant as the perpetrator. From the evidence adduced before the trial court, the complainant is said to have met the appellant for the first time at the borehole where he took her to his house. As indicated earlier in this judgment, the complainant according to exhibit 5 she had poor memory. As stated in the case of Peter Musau Mwakavi vs Republic (supra) there was no indication that the complainant knew the appellant before the incident. Similarly, the appellant was a stranger to PW3 the father of the complainant. None of the two witnesses stated that they had contact with the appellant before the alleged incident. Further to the foregoing, it emerged from evidence that the appellant was apprehended by one Enos and another rider. Much as the prosecution is not required to call every witness, it is my view that the said Enos and the other rider were critical witnesses to give evidence on the apprehension of the appellant.
Conclusion
Having considered the appeal herein and also evaluated the evidence adduced before the trial court, I come to the finding that the charges were not proved beyond reasonable doubt and the conviction and sentence imposed against the appellant is hereby set aside. The appeal is accordingly allowed and the appellant is hereby ordered released from custody unless otherwise lawfully held.
Dated, signed and delivered virtually this 21 st day of May, 2026.
Read out virtually in presence of appellant(virtual)
Ms Mutua for the respondent (virtual)
Ms Millicent Otwo court assistant (physical)
2 | Page