1. The Appellant herein, was convicted in Kilifi Sexual Offences Case No. E059 of 2020, of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 20 years imprisonment. The particulars of the offence are that on 1.11.2020 at Kachororoni village, Ganze sub-county within Kilifi county, intentionally and unlawfully caused his penis to penetrate the vagina of E. H. J., a child aged 13 years.
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized amended grounds of appeal are that the trial Magistrate erred by:
i) failing to consider that the age of the Complainant was not proved.
ii) failing to consider the great need to order DNA to prove the allegations that the Appellant impregnated the Complainant.
iii) failing to consider that the Complainant behaved like an adult.
The Appellant urged that the Appeal be allowed and that the conviction be quashed and the sentence set aside.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32. Even as I have reevaluated the evidence, I must say that it was a laborious task. The proceedings were not recorded very well and were difficult to follow.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. In her testimony, the Complainant stated that in 2020 when the incident is said to have occurred, she was 15 years old. Her mother, Mary Mkare Nzaro PW2 stated that the Complainant was born in 2003. She then stated that the birth certificate indicated she was born in 2007, but that that was an error as she was born in 2005. PW4, produced the Complainant’s birth certificate which indicated that she was born on 4.12.07 making her 13 at the time of the alleged incident. In the absence of any documentary evidence to the contrary, this Court finds that the age of the Complainant was 13 years at the time of the incident as indicated in the charge sheet. Accordingly, the element of age was established. In any event whether she was 13 or 15, the offence would still fall under Section 8(3) of the SOA which provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
7. As regards penetration, PW3 Bernard Otieno Oduor, a clinical officer at Kilifi County Hospital produced the P3 and PRC Forms. He stated that from examination, the Complainant was found to have a broken hymen and lab tests proved positive for pregnancy. The test of penetration was thus established.
8. I now turn to identification. The Complainant’s testimony is that her relationship with the Appellant began on 15.11.2020. She stated that they had sex from 16.11.2020 to 16.12.2020, yet the charge sheet indicates that the alleged offence took place on 1.11.2020. PW3 stated that the Complainant had her last menstruation on 24.12.2020. Further that the PRC form indicates that the perpetrators were 2 in number. PW4, the investigation officer told the trial court that according to the Complainant, she was not a virgin when she met the Appellant and knows when she lost her virginity. This evidence casts doubt on when the alleged offence took place and whether the Appellant was responsible.
9. There is also the DNA results that were not made available to the trial court and the Appellant. Pursuant to section 36(1) of the SOA, the trial court granted the prosecution’s application for a DNA test for the child, which was done on 6.10.22. Interestingly, the government analyst never attended court to produce the DNA results even after the prosecution was given up to 5 opportunities. On the last adjournment, in spite of summons being issued to both the government analyst and the investigating officer to attend court, they failed to honour the summons. The prosecution thus closed its case. In his defence, the Appellant stated that he was not given the DNA results to enable him prepare his defence.
10. The right to a fair trial includes the right of an accused person to have adequate time and facilities to prepare a defence. This right goes hand in hand with the right to be informed of, and to have in advance, the evidence the prosecution intends to rely on. Article 50(2) of the Constitution provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(c) to have adequate time and facilities to prepare a defence;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
11. The Appellant was entitled to be supplied with the DNA results to enable him prepare his defence. The prosecution was under a duty to supply the Appellant with the DNA results whether the same was inculpatory of exculpatory.
12. In the case of Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] eKLR
102. The right to be provided with? material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.
13. The fact that the prosecution failed to supply the DNA results to the Appellant and to have the same produced even after the Appellant subjected himself to the test was a violation of his right to a fair trial. Further, the question that lingers in the mind of the Court is, why was the prosecution unable to secure the attendance of the government analyst to produce the DNA results? Why was the Appellant not supplied with a copy of the same? What was contained in the results? Could it be that the said results were exculpatory? Clearly, doubt has been created in the mind of the court and the Appellant should benefit from the same.
14. After reexamining the evidence on record which is fraught with discrepancies, the conclusion that can be drawn is that there was proof of the age of the Complainant. Further, the undisputed fact of pregnancy established the ingredient of penetration. As to who the perpetrator was however, cannot be established from the evidence.
15. In the end, I find that the trial Magistrate misdirected herself in convicting the Appellant based on the evidence on record. The conviction is hereby quashed and the sentence is set aside. The Appellant is set at liberty unless otherwise lawfully held.
DATED, SIGNED and DELIVERED in Malindi this 30th day of May 2025
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized amended grounds of appeal are that the trial Magistrate erred by:
i) failing to consider that the age of the Complainant was not proved.
ii) failing to consider the great need to order DNA to prove the allegations that the Appellant impregnated the Complainant.
iii) failing to consider that the Complainant behaved like an adult.
The Appellant urged that the Appeal be allowed and that the conviction be quashed and the sentence set aside.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32. Even as I have reevaluated the evidence, I must say that it was a laborious task. The proceedings were not recorded very well and were difficult to follow.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. In her testimony, the Complainant stated that in 2020 when the incident is said to have occurred, she was 15 years old. Her mother, Mary Mkare Nzaro PW2 stated that the Complainant was born in 2003. She then stated that the birth certificate indicated she was born in 2007, but that that was an error as she was born in 2005. PW4, produced the Complainant’s birth certificate which indicated that she was born on 4.12.07 making her 13 at the time of the alleged incident. In the absence of any documentary evidence to the contrary, this Court finds that the age of the Complainant was 13 years at the time of the incident as indicated in the charge sheet. Accordingly, the element of age was established. In any event whether she was 13 or 15, the offence would still fall under Section 8(3) of the SOA which provides that a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
7. As regards penetration, PW3 Bernard Otieno Oduor, a clinical officer at Kilifi County Hospital produced the P3 and PRC Forms. He stated that from examination, the Complainant was found to have a broken hymen and lab tests proved positive for pregnancy. The test of penetration was thus established.
8. I now turn to identification. The Complainant’s testimony is that her relationship with the Appellant began on 15.11.2020. She stated that they had sex from 16.11.2020 to 16.12.2020, yet the charge sheet indicates that the alleged offence took place on 1.11.2020. PW3 stated that the Complainant had her last menstruation on 24.12.2020. Further that the PRC form indicates that the perpetrators were 2 in number. PW4, the investigation officer told the trial court that according to the Complainant, she was not a virgin when she met the Appellant and knows when she lost her virginity. This evidence casts doubt on when the alleged offence took place and whether the Appellant was responsible.
9. There is also the DNA results that were not made available to the trial court and the Appellant. Pursuant to section 36(1) of the SOA, the trial court granted the prosecution’s application for a DNA test for the child, which was done on 6.10.22. Interestingly, the government analyst never attended court to produce the DNA results even after the prosecution was given up to 5 opportunities. On the last adjournment, in spite of summons being issued to both the government analyst and the investigating officer to attend court, they failed to honour the summons. The prosecution thus closed its case. In his defence, the Appellant stated that he was not given the DNA results to enable him prepare his defence.
10. The right to a fair trial includes the right of an accused person to have adequate time and facilities to prepare a defence. This right goes hand in hand with the right to be informed of, and to have in advance, the evidence the prosecution intends to rely on. Article 50(2) of the Constitution provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(c) to have adequate time and facilities to prepare a defence;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
11. The Appellant was entitled to be supplied with the DNA results to enable him prepare his defence. The prosecution was under a duty to supply the Appellant with the DNA results whether the same was inculpatory of exculpatory.
12. In the case of Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] eKLR
102. The right to be provided with? material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defence.
13. The fact that the prosecution failed to supply the DNA results to the Appellant and to have the same produced even after the Appellant subjected himself to the test was a violation of his right to a fair trial. Further, the question that lingers in the mind of the Court is, why was the prosecution unable to secure the attendance of the government analyst to produce the DNA results? Why was the Appellant not supplied with a copy of the same? What was contained in the results? Could it be that the said results were exculpatory? Clearly, doubt has been created in the mind of the court and the Appellant should benefit from the same.
14. After reexamining the evidence on record which is fraught with discrepancies, the conclusion that can be drawn is that there was proof of the age of the Complainant. Further, the undisputed fact of pregnancy established the ingredient of penetration. As to who the perpetrator was however, cannot be established from the evidence.
15. In the end, I find that the trial Magistrate misdirected herself in convicting the Appellant based on the evidence on record. The conviction is hereby quashed and the sentence is set aside. The Appellant is set at liberty unless otherwise lawfully held.
DATED, SIGNED and DELIVERED in Malindi this 30th day of May 2025