JUDGEMENT OF THE COURT:
(Being an Appeal against the Judgment by Hon Y.M. Barasa (P.M.) in Chief Magistrate Court at Thika Case No. E065 of 2025, Delivered on 28th November, 2025).
1. The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka & Others, Criminal Appeal No. 637 of 2015 where it was held that t he appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
2 . I n Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated that 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.
3. In the case of Odhiambo Vs Republic Criminal App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that on a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.
4. S.W. (PW1) through her mother and intermediary told court that she is in class Five (5) at Maria Magdaline Special School . The accused removed her clothes and inserted his penis into her vagina. He touched her private parts and vagina. The appellant is her school teacher. Later she disclosed what had happened to her grandparents. She took her father to school and pointed to the teacher(appellant). Under cross examination, the witness said that at the time the incident took place, the other pupils had left and it was the third time, the appellant committed similar act. The appellant sucked her breasts and committed the offence while standing. She was warned not to tell anybody.
5. Leonard Kariri Maina Kiarie(PW2) told court that she was informed by her house help that the subject had been defiled and a report was made to Makongeni Police Station . The subject was examined at Makongeni Medical and issued with treatment notes marked as MFI 1, P3 Form as MFI 2, PRC Form as MFI 3 and birth certificate as exhibit 4. The subject was taken to school and pointed the appellant out, as the assailant. Under cross examination, the witness said that the subject took the witness to school and was able to identify the appellant as the assailant.
6. Mercy Wangare (PW3) told court on 2/2/2023, the victim told her that she was feeling pain in her private parts (vagina) and the witness informed her grandfather. The victim told the witness that her teacher put his penis into her vagina and warned her not to disclose to anyone. Further, she said that the teacher had in several times committed this offence. Under cross examination, the witness said that the victim said it was her teacher who committed the offence.
7. Monicah Wangui Ngina(PW4) is a clinician and that she examined the victim and noted old broken hymen with foul smell discharge. The witness prepared the Treatment notes, PRC Form and P3 Form which she produced as Exhibits 1, 2 and 3 respectively. Under cross examination, the witness indeed examined the victim and issued all the three exhibits.
8. Joan Kiarie(PW5) told court that she accompanied the victim and her father to the hospital and were issued with a P3 Form. Thereafter, they went to school and the victim pointed at the appellant as who defiled her. Under cross examination, the witness said that she accompanied the child to the hospital and was present when the appellant was arrested.
9. Corporal Mwanjuma Jinango(PW6 ) was the Investigation Officer in this matter and that upon reporting the matter, she interrogated the victim who disclosed that indeed the appellant, severally defiled her. The witness recorded her statement as well as those of the other witnesses and caused the arrest of the appellant. The witness learnt that the appellant was the only male teacher in that school. Under cross examination, the witness said that she had speech issues and the statement was recorded with the assistance of the mother. Further, the witness said that there was no need for identification as the Victim pointed at the Appellant. She did not have original birth certificate for the victim. There was no letter from school as they had declined to record a statement.
10. Being satisfied with the evidence on record, the Investigation Officer charged the appellant with the offence of defilement of a child contrary to Section 9(1)(3) of the Sexual Offences Act No 3 of 2006. Particulars of the offence are that on diverse dates between 1 st July 2022 and 2 nd February, 2023 at Landless Area of Thika West Sub-County within Kiambu County, intentionally and unlawfully caused his penis to penetrate the Vagina of S.W. A child aged 13 years of age.
11. In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence are that on diverse dates between 1 st July 2022 and 2 nd February, 2023 at Landless Area of Thika West Sub-County within Kiambu County, intentionally touched the vagina of S.W. a child aged 13 years.
12. In his defense, the appellant herein gave an account of his scheme of activities spanning the period between 26 th June 2022 till 2 nd February 2023. Come 3 rd February 2023, he was arrested and put in a probox car which was being driven by the Complaint’s Dad and taken to Kivulini. He was charged with this offence but he is in dark as to the allegations. Under cross examination, the witness said that he commenced as a teacher of the school in the year 2022 and apart from him as a male teacher, there is another by the name James. The arresting officers demanded a sum of Kshs200,000/ but he did not make lodge any complaint.
13. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on the basis of the testimony of a minor whose competence had not been adequately tested through a proper voire dire examination. The minor lacked sufficient understanding of the duty to speak the truth, thus her evidence required corroboration.
b. That the Learned Trial Magistrate erred in law and fact by convicting the appellant based on the testimony of the complainant, who was not a credible witness having given inconsistent, contradictory and selective evidence that cast serious doubt on her reliability.
c. That the Learned Trial Magistrate erred in law and fact by relying on the evidence that was riddled with contradictions, inconstancies and discrepancies particularly in the testimony of the minor, which could not be relied upon without corroboration therefore section 124 of the Evidence Act was inapplicable.
d. That the Learned Trial Magistrate erred in law and fact by convicting the appellant where the crucial elements of defilement namely age, penile penetration and positive identification were not proven beyond reasonable doubt, thereby rendering the conviction unsafe.
e. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on the testimony of a minor whose narration could not be ascertained as credible without corroboration.
f. That the Learned Trial Magistrate erred in law and fact convicting the appellant on a malicious prosecution which was based on suspicion.
g. That the Learned Trial Magistrate erred in law and fact by ignoring the appellant’s cogent defence which was not properly shaken and rebutted.
h. That the 20 years sentence meted out on the grounds that the Trial Magistrates’ hands were tied, was illegal, fettering his discretion which contravenes the doctrine of separation of power and contravenes the applicant’s right to mitigation contrary to proviso to section 216 and 369 of the criminal Procedure Code.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the Petition of Appeal, written submissions made by the Appellant and since the grounds of appeal overlap one another, I collapse them into one issue for determination. Whether or not the prosecution proved their case beyond reasonable doubt.
Age of the victim:
16. In Hudson Ali Mwachungo Vs R {2016} eKLR, it was held by the Court of Appeal; “The importance of proving the age of the victim of defilement under the Sexual Offences Act, by cogent evidence cannot be gain said. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge, because the prescribed sentence is dependent on the age of the victim.
17. Equally in Hilary Nyongesa Vs R HCCRA NO. 123 OF 2009 ,the court held; “In defilement cases medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim’s parents or guardian and by observance and common sense.”
18. It is in evidence by a copy of birth certificate, that indeed the victim was born on 25 th December, 2009 and therefore as at 2 nd February, 2023, she was 13 years old. In respect to age, the element has been conclusively proven.
Penetration:
19. In respect of penetration, the Supreme Court of Uganda in Hussein Bassita Vs Uganda CR Appeal No. 35 of 1995 held; “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
20. It is in evidence that the appellant sexually assaulted the victim on diverse dates including the 2 nd February 2023. It is further in evidence, that the victim is a child with speech challenges, however, she was able to point at the appellant on 3 rd February, 2023 at the school. I also note that there are two male teachers. However, she identified the appellant by recognition as the assailant. I did not gather any bad blood between the appellant and the parents of the victim to infer a framed-up charge. Instead, the learned Trial Magistrate had this to record at paragraph 60 of his Judgement which is an inference of the proviso under Section 124 of the Evidence Act; “…it is important to note that the complainant is a child with disability as she has difficulty with her speech. She however, managed to testify on her own and was able to recollect events. I have no reason to discredit her evidence”. Having found the victim credible in her testimony, there was no need for corroboration".
21 . I must hasten to say, that this paragraph is purely premised on the demeaner of the victim’s testimony. I did not have the opportunity to hear her testimony and so, there are plethora of case laws which provide that appellate courts, must give allowances to such statements. I am not alone. In Kanyi Vs Republic [1991] KEHC 22 (KLR) , it was held; “ However, this is one of those instances where the entire decision of the Court hinges upon the demeanour of the witnesses, their credibility and their veracity. The trial magistrate only who has the conduct of the trial, who has the opportunity to see the witnesses, observe them, hear them, is the one who is, in my view, capable of arriving at a decision affecting the weight to be attached to the evidence adduced before the Court. ( Peters Vs Sunday Post (1958) EA 424.)
Additionally, PW4 examined the victim and found the hymen was missing with old scar. There was a foul smell and the history, as well as the clinical finding, was consistent with the offence of defilement.
Positive identification of the assailant:
22.In respect to positive identification of the Appellant, I have reminded myself of the guidelines in the case of Mwaura Vs Republic [1987] KLR 645, in which the Court of Appeal held, inter alia; “In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”.
23. In the case of R Vs Turnbull [1976] 3 All ER 549, where the court stated that the following should be considered: “How long did the witness have the accused under observation”, At what distance and in what light; Was the observation impeded in any way e.g by passing traffic or a presence of people? Had the witness ever seen the Accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long had lapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and accused’s actual appearance?
24. The victim said that the appellant was her teacher at the school. The appellant on the other hand did not deny this fact. The victim continued to say, that the appellant had on several occasions defiled her and this was demeanor gauged by the trial magistrate in his findings. I do not fathom any mistaken identity of the assailant. But more importantly, the appellant neither denies being at a teacher at that school nor being arrested from the same school. Basically, this was identification by recognition and did not require identification parade to be mounted.
Voire dire examination:
25. It is a requirement under Section 19 of the Oaths and Statutory Declarations Act that voire dire examination must be carried out on children of tender age. The said provision states that where in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed on sufficient intelligence to justify the reception of the evidence, and is possessed of sufficient intelligence of justify the reception of the evidence, and understands the duty of speaking the truth.
26. Section 2 of the Children’s’ Act defines who a child of tender years is, as “a child under the age of 10 years”. The Act is not, however, explicit that this age accrues to exception to conducting a voire dire examination to children under the age of 10 years. Indeed, only the case law has settled this question, generally holding that for purposes of conducting a voire dire examination, a child of tender years is one below the age of 14 year.
27. I n Aml Vs Republic [2012] KEHC 2554 (KLR) the court held that o n the first ground the Appellant submits that the failure by the trial magistrate to conduct a voire dire examination on the complainant rendered her evidence inadmissible and was thus fatal to the prosecution case. The term ‘ voire dire’ is a French term and literally means ‘tell the truth’. The law requires that a voire dire examination be conducted on a child of tender years before his/her evidence is received in court. The purpose of such an examination is to enable the trial court determine firstly whether the child in question comprehends the nature and effect of an oath and secondly whether that child understands the importance of telling the truth.
28. The Court of Appeal in Patrick Kathurima Vs Republic [2015] eKLR held that the requirement of voire dire examination resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of Section 19 of Cap 15. I am aware that Section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, Cap 15. I have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.
29. The lower court proceedings show that on 26 th June, 2023, a voire dire examination was conducted and the trial court allowed the mother to testify as intermediary. At paragraph 60 of his Judgement, which is an inference of the proviso under Section 124 of the Evidence Act; “…it is important to note that the complainant is a child with disability as she has difficulty with her speech. She however, managed to testify on her own and was able to recollect events. I have no reason to discredit her evidence ”. To my understanding, the trial magistrate was convinced that the victim knew the meaning of oath. But importantly, there is a condition as settled by decisional law, that the Appeal Court must give some allowance in respect to demeanor. A case in point is the famous case of Okeno V. Republic [1972] EA 32 where it was held that the first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala VS. R. (1975) EA 57). 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; it must make its own findings and draw its own 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 . I am convicted that voire dire was indeed conducted as required by law. Emphasis supplied.
Excessive Sentence:
30. In Bernard Kimani Gacheru Vs. Republic, Cr App No. 188 of 2000 the Court of Appeal stated; “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.
31. Therefore, it is quite pellucid, that sentencing is a discretion of the trial court and the Appellate Court cannot interfere unless it is excessive in the circumstances. Where a minimum sentence is provided by the Statute, the court is put on straight jacket. I find that the sentence meted out was a lawful sentence provided by the statute.
Mitigation and Sentence:
32. The trial court record does show that the appellant was never released on bond from the day of arrest to conviction and sentence. This then triggers section 333(2) of the Criminal Procedure Code. The provision of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19 th June 2012.”
33. The charge sheet show that the appellant was arrested on 6 th February, 2023 and remained in police custody and in remand till 8 th December, 2025 when he was sentenced. This is a period of two (2) years two (2) months and two (2 days). This ought to have been credited to the appellant.
34. In disposal, the court make a finding;
i. The conviction is upheld.
j. With respect to sentence, the appeal partly succeeds. Credit of two (2) years two (2) months and two (2) days to be subtracted from sentence meted out by the Trial Court.
Delivered virtually this 10 th September, 2026 in the presence of the Appellant and Ms Tolosi for ODPP.
R.K. Ondieki.
Judge.
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(Being an Appeal against the Judgment by Hon Y.M. Barasa (P.M.) in Chief Magistrate Court at Thika Case No. E065 of 2025, Delivered on 28th November, 2025).
1. The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka & Others, Criminal Appeal No. 637 of 2015 where it was held that t he appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
2 . I n Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated that 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.
3. In the case of Odhiambo Vs Republic Criminal App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that on a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.
4. S.W. (PW1) through her mother and intermediary told court that she is in class Five (5) at Maria Magdaline Special School . The accused removed her clothes and inserted his penis into her vagina. He touched her private parts and vagina. The appellant is her school teacher. Later she disclosed what had happened to her grandparents. She took her father to school and pointed to the teacher(appellant). Under cross examination, the witness said that at the time the incident took place, the other pupils had left and it was the third time, the appellant committed similar act. The appellant sucked her breasts and committed the offence while standing. She was warned not to tell anybody.
5. Leonard Kariri Maina Kiarie(PW2) told court that she was informed by her house help that the subject had been defiled and a report was made to Makongeni Police Station . The subject was examined at Makongeni Medical and issued with treatment notes marked as MFI 1, P3 Form as MFI 2, PRC Form as MFI 3 and birth certificate as exhibit 4. The subject was taken to school and pointed the appellant out, as the assailant. Under cross examination, the witness said that the subject took the witness to school and was able to identify the appellant as the assailant.
6. Mercy Wangare (PW3) told court on 2/2/2023, the victim told her that she was feeling pain in her private parts (vagina) and the witness informed her grandfather. The victim told the witness that her teacher put his penis into her vagina and warned her not to disclose to anyone. Further, she said that the teacher had in several times committed this offence. Under cross examination, the witness said that the victim said it was her teacher who committed the offence.
7. Monicah Wangui Ngina(PW4) is a clinician and that she examined the victim and noted old broken hymen with foul smell discharge. The witness prepared the Treatment notes, PRC Form and P3 Form which she produced as Exhibits 1, 2 and 3 respectively. Under cross examination, the witness indeed examined the victim and issued all the three exhibits.
8. Joan Kiarie(PW5) told court that she accompanied the victim and her father to the hospital and were issued with a P3 Form. Thereafter, they went to school and the victim pointed at the appellant as who defiled her. Under cross examination, the witness said that she accompanied the child to the hospital and was present when the appellant was arrested.
9. Corporal Mwanjuma Jinango(PW6 ) was the Investigation Officer in this matter and that upon reporting the matter, she interrogated the victim who disclosed that indeed the appellant, severally defiled her. The witness recorded her statement as well as those of the other witnesses and caused the arrest of the appellant. The witness learnt that the appellant was the only male teacher in that school. Under cross examination, the witness said that she had speech issues and the statement was recorded with the assistance of the mother. Further, the witness said that there was no need for identification as the Victim pointed at the Appellant. She did not have original birth certificate for the victim. There was no letter from school as they had declined to record a statement.
10. Being satisfied with the evidence on record, the Investigation Officer charged the appellant with the offence of defilement of a child contrary to Section 9(1)(3) of the Sexual Offences Act No 3 of 2006. Particulars of the offence are that on diverse dates between 1 st July 2022 and 2 nd February, 2023 at Landless Area of Thika West Sub-County within Kiambu County, intentionally and unlawfully caused his penis to penetrate the Vagina of S.W. A child aged 13 years of age.
11. In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence are that on diverse dates between 1 st July 2022 and 2 nd February, 2023 at Landless Area of Thika West Sub-County within Kiambu County, intentionally touched the vagina of S.W. a child aged 13 years.
12. In his defense, the appellant herein gave an account of his scheme of activities spanning the period between 26 th June 2022 till 2 nd February 2023. Come 3 rd February 2023, he was arrested and put in a probox car which was being driven by the Complaint’s Dad and taken to Kivulini. He was charged with this offence but he is in dark as to the allegations. Under cross examination, the witness said that he commenced as a teacher of the school in the year 2022 and apart from him as a male teacher, there is another by the name James. The arresting officers demanded a sum of Kshs200,000/ but he did not make lodge any complaint.
13. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on the basis of the testimony of a minor whose competence had not been adequately tested through a proper voire dire examination. The minor lacked sufficient understanding of the duty to speak the truth, thus her evidence required corroboration.
b. That the Learned Trial Magistrate erred in law and fact by convicting the appellant based on the testimony of the complainant, who was not a credible witness having given inconsistent, contradictory and selective evidence that cast serious doubt on her reliability.
c. That the Learned Trial Magistrate erred in law and fact by relying on the evidence that was riddled with contradictions, inconstancies and discrepancies particularly in the testimony of the minor, which could not be relied upon without corroboration therefore section 124 of the Evidence Act was inapplicable.
d. That the Learned Trial Magistrate erred in law and fact by convicting the appellant where the crucial elements of defilement namely age, penile penetration and positive identification were not proven beyond reasonable doubt, thereby rendering the conviction unsafe.
e. That the Learned Trial Magistrate erred in law and fact by convicting the appellant on the testimony of a minor whose narration could not be ascertained as credible without corroboration.
f. That the Learned Trial Magistrate erred in law and fact convicting the appellant on a malicious prosecution which was based on suspicion.
g. That the Learned Trial Magistrate erred in law and fact by ignoring the appellant’s cogent defence which was not properly shaken and rebutted.
h. That the 20 years sentence meted out on the grounds that the Trial Magistrates’ hands were tied, was illegal, fettering his discretion which contravenes the doctrine of separation of power and contravenes the applicant’s right to mitigation contrary to proviso to section 216 and 369 of the criminal Procedure Code.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the Petition of Appeal, written submissions made by the Appellant and since the grounds of appeal overlap one another, I collapse them into one issue for determination. Whether or not the prosecution proved their case beyond reasonable doubt.
Age of the victim:
16. In Hudson Ali Mwachungo Vs R {2016} eKLR, it was held by the Court of Appeal; “The importance of proving the age of the victim of defilement under the Sexual Offences Act, by cogent evidence cannot be gain said. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge, because the prescribed sentence is dependent on the age of the victim.
17. Equally in Hilary Nyongesa Vs R HCCRA NO. 123 OF 2009 ,the court held; “In defilement cases medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim’s parents or guardian and by observance and common sense.”
18. It is in evidence by a copy of birth certificate, that indeed the victim was born on 25 th December, 2009 and therefore as at 2 nd February, 2023, she was 13 years old. In respect to age, the element has been conclusively proven.
Penetration:
19. In respect of penetration, the Supreme Court of Uganda in Hussein Bassita Vs Uganda CR Appeal No. 35 of 1995 held; “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
20. It is in evidence that the appellant sexually assaulted the victim on diverse dates including the 2 nd February 2023. It is further in evidence, that the victim is a child with speech challenges, however, she was able to point at the appellant on 3 rd February, 2023 at the school. I also note that there are two male teachers. However, she identified the appellant by recognition as the assailant. I did not gather any bad blood between the appellant and the parents of the victim to infer a framed-up charge. Instead, the learned Trial Magistrate had this to record at paragraph 60 of his Judgement which is an inference of the proviso under Section 124 of the Evidence Act; “…it is important to note that the complainant is a child with disability as she has difficulty with her speech. She however, managed to testify on her own and was able to recollect events. I have no reason to discredit her evidence”. Having found the victim credible in her testimony, there was no need for corroboration".
21 . I must hasten to say, that this paragraph is purely premised on the demeaner of the victim’s testimony. I did not have the opportunity to hear her testimony and so, there are plethora of case laws which provide that appellate courts, must give allowances to such statements. I am not alone. In Kanyi Vs Republic [1991] KEHC 22 (KLR) , it was held; “ However, this is one of those instances where the entire decision of the Court hinges upon the demeanour of the witnesses, their credibility and their veracity. The trial magistrate only who has the conduct of the trial, who has the opportunity to see the witnesses, observe them, hear them, is the one who is, in my view, capable of arriving at a decision affecting the weight to be attached to the evidence adduced before the Court. ( Peters Vs Sunday Post (1958) EA 424.)
Additionally, PW4 examined the victim and found the hymen was missing with old scar. There was a foul smell and the history, as well as the clinical finding, was consistent with the offence of defilement.
Positive identification of the assailant:
22.In respect to positive identification of the Appellant, I have reminded myself of the guidelines in the case of Mwaura Vs Republic [1987] KLR 645, in which the Court of Appeal held, inter alia; “In cases of visual identification by one or more witnesses, a reference to the circumstances usually requires a judge to deal with such matters as the length of time the witnesses had for seeing who was doing what is alleged, the position from the accused and the quality of light”.
23. In the case of R Vs Turnbull [1976] 3 All ER 549, where the court stated that the following should be considered: “How long did the witness have the accused under observation”, At what distance and in what light; Was the observation impeded in any way e.g by passing traffic or a presence of people? Had the witness ever seen the Accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long had lapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and accused’s actual appearance?
24. The victim said that the appellant was her teacher at the school. The appellant on the other hand did not deny this fact. The victim continued to say, that the appellant had on several occasions defiled her and this was demeanor gauged by the trial magistrate in his findings. I do not fathom any mistaken identity of the assailant. But more importantly, the appellant neither denies being at a teacher at that school nor being arrested from the same school. Basically, this was identification by recognition and did not require identification parade to be mounted.
Voire dire examination:
25. It is a requirement under Section 19 of the Oaths and Statutory Declarations Act that voire dire examination must be carried out on children of tender age. The said provision states that where in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed on sufficient intelligence to justify the reception of the evidence, and is possessed of sufficient intelligence of justify the reception of the evidence, and understands the duty of speaking the truth.
26. Section 2 of the Children’s’ Act defines who a child of tender years is, as “a child under the age of 10 years”. The Act is not, however, explicit that this age accrues to exception to conducting a voire dire examination to children under the age of 10 years. Indeed, only the case law has settled this question, generally holding that for purposes of conducting a voire dire examination, a child of tender years is one below the age of 14 year.
27. I n Aml Vs Republic [2012] KEHC 2554 (KLR) the court held that o n the first ground the Appellant submits that the failure by the trial magistrate to conduct a voire dire examination on the complainant rendered her evidence inadmissible and was thus fatal to the prosecution case. The term ‘ voire dire’ is a French term and literally means ‘tell the truth’. The law requires that a voire dire examination be conducted on a child of tender years before his/her evidence is received in court. The purpose of such an examination is to enable the trial court determine firstly whether the child in question comprehends the nature and effect of an oath and secondly whether that child understands the importance of telling the truth.
28. The Court of Appeal in Patrick Kathurima Vs Republic [2015] eKLR held that the requirement of voire dire examination resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of Section 19 of Cap 15. I am aware that Section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, Cap 15. I have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.
29. The lower court proceedings show that on 26 th June, 2023, a voire dire examination was conducted and the trial court allowed the mother to testify as intermediary. At paragraph 60 of his Judgement, which is an inference of the proviso under Section 124 of the Evidence Act; “…it is important to note that the complainant is a child with disability as she has difficulty with her speech. She however, managed to testify on her own and was able to recollect events. I have no reason to discredit her evidence ”. To my understanding, the trial magistrate was convinced that the victim knew the meaning of oath. But importantly, there is a condition as settled by decisional law, that the Appeal Court must give some allowance in respect to demeanor. A case in point is the famous case of Okeno V. Republic [1972] EA 32 where it was held that the first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala VS. R. (1975) EA 57). 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; it must make its own findings and draw its own 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 . I am convicted that voire dire was indeed conducted as required by law. Emphasis supplied.
Excessive Sentence:
30. In Bernard Kimani Gacheru Vs. Republic, Cr App No. 188 of 2000 the Court of Appeal stated; “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.
31. Therefore, it is quite pellucid, that sentencing is a discretion of the trial court and the Appellate Court cannot interfere unless it is excessive in the circumstances. Where a minimum sentence is provided by the Statute, the court is put on straight jacket. I find that the sentence meted out was a lawful sentence provided by the statute.
Mitigation and Sentence:
32. The trial court record does show that the appellant was never released on bond from the day of arrest to conviction and sentence. This then triggers section 333(2) of the Criminal Procedure Code. The provision of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19 th June 2012.”
33. The charge sheet show that the appellant was arrested on 6 th February, 2023 and remained in police custody and in remand till 8 th December, 2025 when he was sentenced. This is a period of two (2) years two (2) months and two (2 days). This ought to have been credited to the appellant.
34. In disposal, the court make a finding;
i. The conviction is upheld.
j. With respect to sentence, the appeal partly succeeds. Credit of two (2) years two (2) months and two (2) days to be subtracted from sentence meted out by the Trial Court.
Delivered virtually this 10 th September, 2026 in the presence of the Appellant and Ms Tolosi for ODPP.
R.K. Ondieki.
Judge.
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