REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCCRA NO. E081 OF 2024
(An appeal against the conviction in judgment at Chief Magistrate’s Court at Mombasa (Hon. R. Orora (SRM) in Criminal Case No. E101 of 2023 delivered on 15th August 2024)
The Charges
1. The Appellant was charged with the following two counts:
i. Count 1-Defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006
Particulars are that on 17th November 2021 at Mburukenge, Tudor area in Mvita sub county within Mombasa County intentionally and unlawfully committed an act which caused penetration of your male genital organ namely (penis) into female genital organ namely (vagina) of B.A a child aged 14 years.
ii. Alternative count-Committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act CAP 63
Particulars are that on 17th November 2021 at Mburukenge, Tudor area in Mvita sub county within Mombasa County intentionally and unlawfully committed an indecent act by touching female private parts namely vagina of B.A a child aged 14 years with your penis.
2. The prosecution produced eight witnesses and on 21st September 2023, the trial court found that he had a case to answer and put him on his defence. The appellant was the sole witness and the court convicted him on 23rd February 2024 and sentenced him to 15 years imprisonment.
3. The grounds of the appeal set out by the appellant are as follows:
a) That the trial court erred in law and fact by not observing that the issue of visual identification was made to stand on some in criminative aspect.
b) That the learned trial court erred in not considering that penetration was based on unfounded facts.
c) The learned trial court erred in law and fact by failing to evaluate the inconsistencies in the doctor’s testimony and also failing to observe the mass contradictions in the prosecution’s case.
d) That the learned trial court erred in law and fact for not observing that the crucial witness was not availed to clear the doubts on his arrest.
e) That the trial court erred in law and fact by failing to interrogate the production of the PRC and the P3 forms which he deems questionable.
f) That the learned trial court failed to offer an acquittal even after receiving DNA report which revealed he was not involved.
The Law
4. Section 8 (1) of the Sexual Offences Act which provides for Count 1 that:
“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
Summary of the evidence
5. PW 1 was the victim B.A who testified that she was a 15-year-old girl who resided with her aunt and grandmother at Moroto . She recalled that on 17th November 2021 she was fetching water when she was informed by her friend named Mary, that the appellant had summoned her. She knew the appellant as she used to greet her whenever she met him on the road. She testified that the appellant told her to get inside his house while he goes to get a soda but it was a ruse as he locked the door and undressed himself and proceeded to undress her. She Aadded that the appellant put on a condom and told her to lie on the bed. From there she stated he had intercourse with her twice and she felt pain as she had never been sexually active. That One Mama Lavi who sells water found her inside the appellant’s house but she was fully dressed and took her to the village elder to whom she revealed all the events. The village elder called the police and she went to the hospital where her grandmother was called via phone to the hospital.
6. PW 2 Dr. Mtsango produced the PRC form on behalf of Loise Njiru who is the only nurse at the Gender Based violence clinic. He was allowed to testify as, the office would have to be closed and SGBV patients would not be attended to. He added that the P3 form was filled by one Dr. Falim Swaleh who was on study leave for 3 years at the time of testifying. He described the genital areas as having discharge, hymen was broken and there was an old scar. He further added that when the P3 form was being filled the victim had changed her clothes.
7. PW 3 Mwidadi Omar was a government pathologist and he produced a DNA report signed on 4th March 2022 and a memo form received on 18th November 2021. It forwarde a pink inner wear, HIV swabs of the victim and buccal swabs of the appellant and victim. He asserted that the inner pant which had sperm cells could not generate a DNA profile as the vaginal cells were in more quantity than the sperm cells. Instead they were only able to get female DNA profile in the samples above mentioned.
8. PW 4 Kenga Katana was the nyumba kumi elder . He testified that on 17th November 2021 he was in the house when one Anne informed him that the victim was in the appellant’s house and when he went to the appellant’s house he found him without a shirt on and the victim had run away. He followed the victim to her grandmother’s house and he interrogated her. She revealed that she had intercourse with the appellant and had been taken to his house by another girl. At that point he called Makupa Police Station and an officer came to the scene while the appellant had gone to report to the police station that he had been assaulted by the victim. On cross examination he stated that he found the appellant in the house with no shirt on and that the appellant took himself to his office.
9. PW 5 Joyce Atieno Okello stated that she lives with her daughter Esther Adhiambo and B.A who is her granddaughter. She produced the victim’s birth certificate and she knows the appellant as her neighbour. She recalled that she was at work when she was called by the said Anne and PW 4 and therefore, she went home and found many people in her compound. She was informed that the appellant had defiled her grandchild. She stated that she went to the appellant’s house to interrogate him but he denied the offence. She stated that she found the victim hiding in the toilet and the police came to take the appellant and the victim to the police station. On cross examination she denied that she tried to settle the matter
10. PW 6 Anne Awuor testified that she sells water and that on 27th November 2021 at 6.00 pm an unspecified lady called and told her that the victim had entered the house of the appellant, whom she referred to as Baba Kim. She immediately went to knock at the door but it was not opened and she decided to scream which attracted nearby people. The appellant had only his trousers on while the victim was fully dressed but then she ran away from the room. Thereafter, she decided to tell the events to PW 5. On cross-examination she denied that she informed PW 4.
11. PW 7 P.C Anne Maingi was attached to the Crime and Gender department at Makupa Police Station and on 17th November 2021 she was on patrol duty with CPL Onduso when he was summoned and instructed to head to Burukenge where there were chaos because a child had been defiled. She further stated that they were given the number of the village elder who directed them to the scene and upon arriving they found a group of people in fear and the village elder who handed over the victim and they apprehended the appellant. They escorted the victim and PW 5 to the station and thereafter to the hospital. The following day she took the appellant to Coast General hospital on filing of the PRC and collection of the aforementioned samples. She produced the appellant’s pink underwear and an exhibit memo form.
12. DW 1 the appellant testified that he would take 30 minutes to get to work from home. He then narrated that he had a disagreement with PW 6 . He stated that PW 6 used to send his child to buy charcoal and would tell her to keep change and when a “headteacher” told him that his child was sighted at the cyber and was asking who had given the child money. He then reported to the village elder but PW 6 went to Makupa police station and later came back with PW 4 and the victim
The duty of the court
13. As a first appellant court, it is now settled as was held in Okeno V Republic (1977) EA 32 that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them giving evidence and give allowance for that.
In Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated thus:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the
appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
The above position is supported by Abanga alias Onyango v. Republic, Cr. App. No 32 of 1990 and Sawe v. Republic [2003] eKLR,
14. The court has found the issues for determination are as follows:
i. Whether or not the prosecution proved identification and penetration beyond reasonable doubt?
ii. Whether or not there are any inconsistencies in the prosecution’s evidence and testimony?
15. In John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the court of appeal held:
“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:
(i) The victim must be a minor, and
(ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.
Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt…”
16. The above was reiterated in Peter Mokami Nahashon vs Republic [2014] eKLR stated as follows on the offence of defilement: -
“A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person. (Emphasis supplied)”
17. PW 1 came out vividly and recounted that the appellant tricked her into going into his house and proceeded to have intercourse with her twice. The PRC form indicated that there were copious amounts of whitish discharge and the hymen was a broken old scar. The same was reiterated by the P3 form. PW 3 produced the report dated 4th March 2022 stating that the high vaginal swab did not indicate any male DNA profile.
18.One must bear in mind that a broken hymen is not necessarily proof of penetration as was held in David Mwingirwa –vs- R [2017] eKLR. It is possible that it could have been as a result of strenuous activity as was held in the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769 . .One must evaluate the evidence as a whole.
In this case we have the evidence of the victim which was considered unde section 124 of the Evidence Act. In John Mutua Munyoki vs Republic [2017] eKLR it was stated that :
“What is required as we have already pointed out is for the trial court to be satisfied first, that the victim is telling the truth and thereafter record reasons for such belief.”
19. The victim stated that the appellant put on a condom and told her to lie on the bed and he then inserted his “dudu” where she uses to pee and she felt pain. It is plain that the victim was referring to her vagina as the trial court held. she said that the appellant had intercourse twice with her on that day. PW 1 further stated that Mama Lavil referring to PW 6 found her in the appellant's house. pw6 confirmed that she found PW 1 in the appellant’s house. The child testified that the appellant used a condom, and that would explain the lack of spermatotoa.
She was taken to the hospital that very day and some white discharge was found. Her evidence was corroborated by PW6 AND PW5
.
20. On Identification, PW 1 was well known to the appellant, a neighbour. The appellant also admitted that he was well known to the child and he even spoke to her that day.He claimed that he is being framed as a result of a tiff with PW 6. He addmitted that he knows PW 4 the village elder. PW 1 testified that she used to greet the appellant whenever she met him and was even comfortable enough to enter his house where he tricked her.
The court is satisfied that the child was well known to the appellant.
21. When we go to the inconsistencies ,the appellant said that PW 2 testified on behalf of Dr. Falim Swaleh and Loise Njiru which the court held is allowed by section 33 of the Evidence Act. That bwas a proper application of the law as the documents were not shown to have any disrepancy.
22.The appellant also pointed out that PW 4 testified that she was informed by one Anne while PW 6 testified that she did not inform PW 4 but instead notified PW 5. PW 4’s name is also Anne which any reasonable person would infer is PW 4 but the court does not see any substantial miscarriage of justice. The appellant did also not guide this court on which crucial witness was missing and the court will leave it at that.
23. From the totality of evidence, this court finds that all the ingredients of the offence of defilement were proved. There were no significant discrepancies , and the court does not see the need to disturb the findings of the trial court. Both the conviction and the sentence are upheld.
24.The entire appeal is dismissed
25. It is so ordered.
Dated, signed , and delivered in Open Court/Online through MS TEAMS , this …28th…… day of …May…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The appellant in person
Mr. SIRIMA For the State
Bebora Court Assistant
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCCRA NO. E081 OF 2024
(An appeal against the conviction in judgment at Chief Magistrate’s Court at Mombasa (Hon. R. Orora (SRM) in Criminal Case No. E101 of 2023 delivered on 15th August 2024)
The Charges
1. The Appellant was charged with the following two counts:
i. Count 1-Defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006
Particulars are that on 17th November 2021 at Mburukenge, Tudor area in Mvita sub county within Mombasa County intentionally and unlawfully committed an act which caused penetration of your male genital organ namely (penis) into female genital organ namely (vagina) of B.A a child aged 14 years.
ii. Alternative count-Committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act CAP 63
Particulars are that on 17th November 2021 at Mburukenge, Tudor area in Mvita sub county within Mombasa County intentionally and unlawfully committed an indecent act by touching female private parts namely vagina of B.A a child aged 14 years with your penis.
2. The prosecution produced eight witnesses and on 21st September 2023, the trial court found that he had a case to answer and put him on his defence. The appellant was the sole witness and the court convicted him on 23rd February 2024 and sentenced him to 15 years imprisonment.
3. The grounds of the appeal set out by the appellant are as follows:
a) That the trial court erred in law and fact by not observing that the issue of visual identification was made to stand on some in criminative aspect.
b) That the learned trial court erred in not considering that penetration was based on unfounded facts.
c) The learned trial court erred in law and fact by failing to evaluate the inconsistencies in the doctor’s testimony and also failing to observe the mass contradictions in the prosecution’s case.
d) That the learned trial court erred in law and fact for not observing that the crucial witness was not availed to clear the doubts on his arrest.
e) That the trial court erred in law and fact by failing to interrogate the production of the PRC and the P3 forms which he deems questionable.
f) That the learned trial court failed to offer an acquittal even after receiving DNA report which revealed he was not involved.
The Law
4. Section 8 (1) of the Sexual Offences Act which provides for Count 1 that:
“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
Summary of the evidence
5. PW 1 was the victim B.A who testified that she was a 15-year-old girl who resided with her aunt and grandmother at Moroto . She recalled that on 17th November 2021 she was fetching water when she was informed by her friend named Mary, that the appellant had summoned her. She knew the appellant as she used to greet her whenever she met him on the road. She testified that the appellant told her to get inside his house while he goes to get a soda but it was a ruse as he locked the door and undressed himself and proceeded to undress her. She Aadded that the appellant put on a condom and told her to lie on the bed. From there she stated he had intercourse with her twice and she felt pain as she had never been sexually active. That One Mama Lavi who sells water found her inside the appellant’s house but she was fully dressed and took her to the village elder to whom she revealed all the events. The village elder called the police and she went to the hospital where her grandmother was called via phone to the hospital.
6. PW 2 Dr. Mtsango produced the PRC form on behalf of Loise Njiru who is the only nurse at the Gender Based violence clinic. He was allowed to testify as, the office would have to be closed and SGBV patients would not be attended to. He added that the P3 form was filled by one Dr. Falim Swaleh who was on study leave for 3 years at the time of testifying. He described the genital areas as having discharge, hymen was broken and there was an old scar. He further added that when the P3 form was being filled the victim had changed her clothes.
7. PW 3 Mwidadi Omar was a government pathologist and he produced a DNA report signed on 4th March 2022 and a memo form received on 18th November 2021. It forwarde a pink inner wear, HIV swabs of the victim and buccal swabs of the appellant and victim. He asserted that the inner pant which had sperm cells could not generate a DNA profile as the vaginal cells were in more quantity than the sperm cells. Instead they were only able to get female DNA profile in the samples above mentioned.
8. PW 4 Kenga Katana was the nyumba kumi elder . He testified that on 17th November 2021 he was in the house when one Anne informed him that the victim was in the appellant’s house and when he went to the appellant’s house he found him without a shirt on and the victim had run away. He followed the victim to her grandmother’s house and he interrogated her. She revealed that she had intercourse with the appellant and had been taken to his house by another girl. At that point he called Makupa Police Station and an officer came to the scene while the appellant had gone to report to the police station that he had been assaulted by the victim. On cross examination he stated that he found the appellant in the house with no shirt on and that the appellant took himself to his office.
9. PW 5 Joyce Atieno Okello stated that she lives with her daughter Esther Adhiambo and B.A who is her granddaughter. She produced the victim’s birth certificate and she knows the appellant as her neighbour. She recalled that she was at work when she was called by the said Anne and PW 4 and therefore, she went home and found many people in her compound. She was informed that the appellant had defiled her grandchild. She stated that she went to the appellant’s house to interrogate him but he denied the offence. She stated that she found the victim hiding in the toilet and the police came to take the appellant and the victim to the police station. On cross examination she denied that she tried to settle the matter
10. PW 6 Anne Awuor testified that she sells water and that on 27th November 2021 at 6.00 pm an unspecified lady called and told her that the victim had entered the house of the appellant, whom she referred to as Baba Kim. She immediately went to knock at the door but it was not opened and she decided to scream which attracted nearby people. The appellant had only his trousers on while the victim was fully dressed but then she ran away from the room. Thereafter, she decided to tell the events to PW 5. On cross-examination she denied that she informed PW 4.
11. PW 7 P.C Anne Maingi was attached to the Crime and Gender department at Makupa Police Station and on 17th November 2021 she was on patrol duty with CPL Onduso when he was summoned and instructed to head to Burukenge where there were chaos because a child had been defiled. She further stated that they were given the number of the village elder who directed them to the scene and upon arriving they found a group of people in fear and the village elder who handed over the victim and they apprehended the appellant. They escorted the victim and PW 5 to the station and thereafter to the hospital. The following day she took the appellant to Coast General hospital on filing of the PRC and collection of the aforementioned samples. She produced the appellant’s pink underwear and an exhibit memo form.
12. DW 1 the appellant testified that he would take 30 minutes to get to work from home. He then narrated that he had a disagreement with PW 6 . He stated that PW 6 used to send his child to buy charcoal and would tell her to keep change and when a “headteacher” told him that his child was sighted at the cyber and was asking who had given the child money. He then reported to the village elder but PW 6 went to Makupa police station and later came back with PW 4 and the victim
The duty of the court
13. As a first appellant court, it is now settled as was held in Okeno V Republic (1977) EA 32 that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them giving evidence and give allowance for that.
In Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated thus:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the
appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
The above position is supported by Abanga alias Onyango v. Republic, Cr. App. No 32 of 1990 and Sawe v. Republic [2003] eKLR,
14. The court has found the issues for determination are as follows:
i. Whether or not the prosecution proved identification and penetration beyond reasonable doubt?
ii. Whether or not there are any inconsistencies in the prosecution’s evidence and testimony?
15. In John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the court of appeal held:
“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:
(i) The victim must be a minor, and
(ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.
Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt…”
16. The above was reiterated in Peter Mokami Nahashon vs Republic [2014] eKLR stated as follows on the offence of defilement: -
“A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person. (Emphasis supplied)”
17. PW 1 came out vividly and recounted that the appellant tricked her into going into his house and proceeded to have intercourse with her twice. The PRC form indicated that there were copious amounts of whitish discharge and the hymen was a broken old scar. The same was reiterated by the P3 form. PW 3 produced the report dated 4th March 2022 stating that the high vaginal swab did not indicate any male DNA profile.
18.One must bear in mind that a broken hymen is not necessarily proof of penetration as was held in David Mwingirwa –vs- R [2017] eKLR. It is possible that it could have been as a result of strenuous activity as was held in the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769 . .One must evaluate the evidence as a whole.
In this case we have the evidence of the victim which was considered unde section 124 of the Evidence Act. In John Mutua Munyoki vs Republic [2017] eKLR it was stated that :
“What is required as we have already pointed out is for the trial court to be satisfied first, that the victim is telling the truth and thereafter record reasons for such belief.”
19. The victim stated that the appellant put on a condom and told her to lie on the bed and he then inserted his “dudu” where she uses to pee and she felt pain. It is plain that the victim was referring to her vagina as the trial court held. she said that the appellant had intercourse twice with her on that day. PW 1 further stated that Mama Lavil referring to PW 6 found her in the appellant's house. pw6 confirmed that she found PW 1 in the appellant’s house. The child testified that the appellant used a condom, and that would explain the lack of spermatotoa.
She was taken to the hospital that very day and some white discharge was found. Her evidence was corroborated by PW6 AND PW5
.
20. On Identification, PW 1 was well known to the appellant, a neighbour. The appellant also admitted that he was well known to the child and he even spoke to her that day.He claimed that he is being framed as a result of a tiff with PW 6. He addmitted that he knows PW 4 the village elder. PW 1 testified that she used to greet the appellant whenever she met him and was even comfortable enough to enter his house where he tricked her.
The court is satisfied that the child was well known to the appellant.
21. When we go to the inconsistencies ,the appellant said that PW 2 testified on behalf of Dr. Falim Swaleh and Loise Njiru which the court held is allowed by section 33 of the Evidence Act. That bwas a proper application of the law as the documents were not shown to have any disrepancy.
22.The appellant also pointed out that PW 4 testified that she was informed by one Anne while PW 6 testified that she did not inform PW 4 but instead notified PW 5. PW 4’s name is also Anne which any reasonable person would infer is PW 4 but the court does not see any substantial miscarriage of justice. The appellant did also not guide this court on which crucial witness was missing and the court will leave it at that.
23. From the totality of evidence, this court finds that all the ingredients of the offence of defilement were proved. There were no significant discrepancies , and the court does not see the need to disturb the findings of the trial court. Both the conviction and the sentence are upheld.
24.The entire appeal is dismissed
25. It is so ordered.
Dated, signed , and delivered in Open Court/Online through MS TEAMS , this …28th…… day of …May…… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The appellant in person
Mr. SIRIMA For the State
Bebora Court Assistant