(Appeal against the conviction and sentence of 10 years in Criminal Case No. E007 of 2022 for the Offence of Defilement by CM’s Court at Mombasa before Honourable M. Mutuku CM dated and delivered on 24th October 2023)
1. The accused herein was charged with the offence of defilement contrary to Section 8(1) as read with Section (3) of the Sexual Offences Act 3 of 2006. The particulars of the offences are that,
The accused herein on the 15th Day of January 2022 at Chaani area in Changamwe Sub-County within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of E.K. a girl aged 13 years old.
2. After the trial, he was convicted and sentenced to a prison term of ten years.
3. Being dissatisfied with the Judgment delivered, and the sentence, he appealed against the judgment and all its consequential orders as set forth on the following grounds:
A. The Magistrate erred in law and fact in taking the testimony of the complainant as the whole truth without considering the fact that the complainant lied about her virginity.
B. The Magistrate erred in law and fact in not considering the issue of a grudge between the Appellant and the complainant’s parents.
C. The Magistrate erred in law and fact by proceeding to convict the Appellant despite the prosecution not proving their case beyond reasonable doubt.
D. The Magistrate erred in law by not recording the reasons why she believed the complainant was telling the truth.
E. The Magistrate erred in fact by not considering the character of the complainant.
4. The Appellant therefore prayed that the honourable court allows the Appeal and:
a. Acquits the Appellant and in the alternative,
1. Order a retrial of the Appellant. It is settled law that the duty of a first appellate court is to evaluate the evidence adduced before the trial court to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
2. If this was a first appeal, and this court would have a duty to analyse and evaluate the evidence which was adduced before the trial court and produce its own independent finding.
3. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
4. The leading authority on the subject is Okeno - Versus - Republic (1972) EA 32. In this case the court stated-
“The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself produce its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.”
5. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows: -
The duty of the first appellate court is to analyse, re-evaluate the
evidence which was before the trial court and itself produce its
own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depend on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions.
6. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
The court of appeal further stated that – “an appellant on a first appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
8. In doing so, it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
9. In the case of Gabriel Kamau Njoroge – Versus - Republic,
Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in
Nairobi, Platt & Apaloo, JA. A. and Masime Ag. J.A reiterated.
the duty of a first appellate court as follows:
“As this court has constantly explained, it is the duty of the first.
appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
7. It is, therefore, the duty of this court in this case to re-evaluate the
evidence adduced by the prosecution in support of the charges and by the defence, and to make its conclusion.
THE EVIDENCE
8. The first person to testify was the victim named E.K., and she testified that on the 15th of January 2022 at around 12.00pm she had returned home from school and was relaxing in their house. She stated that the accused called her to his house and had sex with her. she went home and he called her asecond time, the had sex then they were locked in the house.
9. The mother of the victim Mrs. Mariam Mathiani testified that she was not present during the incident. She further confirmed that there was an issue in regard to payment of electricity between the accused and the victim’s parents over electricity payment. Mariam Mutani confirmed that she was not at the scene but was informed that a grown-up man was found with a young lady in his hous.
10. The arresting officer SGT ERICK stated during cross-examination that the accused indicated in his testimony that the accused offered no explanation that was sufficient as he said that the little girl had come to the house to steal his money.
11. On whether the prosecution proved its case beyond a reasonable doubt, Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. While section 8(3) states that “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’’
12. In the case of George Opondo Olunga v Republic (2016) eKLR, the ingredients for the offence of defilement were set out as:
A. Proof of the age of the victim.
B. Proof of penetration or indecent act.
C. Identification of the perpetrator.
ISSUE FOR DETERMINATION
Whether the prosecution has established a prima facie case in regard to the offence.
13. At the end of the court, the court must ask itself three important points: was the age of the minor established, was there penetration and was the accused correctly identified.
ANALYSIS
14. The age and penetration are not in dispute and the main issue in this particular case is the issue of identification.
15. This is one of those cases that the men of old would have described as a hard nut to crack. This is because on the one hand, we have a minor locked indoors with a man. The medical examination indicates some sort of penetration occurred. There were lacerations around the vagina and a broken hymen. This appears to be an open and shut case as surely where there is some smoke, there must be a fire right? Most probably.
16. This appears to be the reasoning of the trial court because after having looked at these facts, the trial court said “that there was sufficient evidence as the accused person did not explain how the minor made her way into his house “pg. 20 of the Judgment (record).
17. There are however two versions as to how the minor made her way to the accused person’s house.
18. According to her, the accused person called her to his house, and she went, and they had sex the first time. She went back to her house. After a while, he called her again and they had sex a second time and this is the time they were locked in the house by the neighbor- a man and a crowd gathered.
19. According to the Appellant and his witness,DW2, he had come from work and was in his house sleeping when suddenly his door was banged open, the minor got in and then it was locked from outside. That was when he peeped outside, and he saw the lady who made allegations and the crowd gathered.
20. Now between the accused person and the minor, who was telling the truth?
21. The defense raised several issues as to the character and credibility of the minor complainant. I am fully aware that the minor is not the one on trial here. However, her credibility affects the quality and hence the weight accorded to her evidence. We note that basically on the penetration, it was her word against that of the accused person. It was a case of ‘she said, he said’.
22. The weakest point of the prosecution case was that the man who allegedly saw the minor get into the accused persons house, did not testify. We were not told why. If he had testified, the question as to how the minor got into the accused person’s house would have been settled. As things are now, we only have the evidence of the minor PW1. This evidence was however challenged by the defence.
23. MR. Manguro advocate highlighted the following discrepancies: When this minor was cross examined – (pg. 8 of the record) she stated that “The accused person did not promise me money... I felt pain when we had sex – I did not scream. … This is the first time Kwarokwaro had sex with me… I do not have a boyfriend. I have never had a boyfriend before.”
24. I have highlighted that evidence as it all turned out to be false. First ,it was pointed out that in the PRC, pw1 gave a history she was lured with money contrary to what she said in court. Secondly, her mother PW 3, admitted that indeed this complainant had been involved with a 26-year-old man called Musa with whom she had had sex with before. PW 3 the mother, admitted that she had even told the police about PW 1’s previous sex activities in her statement. This contradicts the minor’s evidence that she had not had sex before.
25. Then I note that PW 3 testified that she was not around when the incident occurred. However, we note – at page 7 of the record that PW 1 testified.
“That we opened the upper part of the door and peeped and saw many people gathered. I saw Mama Jay, auntie, MUM and their aunties.”
So, was her mum present at the scene? Was this another lie? We do not have the answer. Could the dispute between the neighbors have triggered this arrest?
26. The accused person advocate cross examined all the witnesses on the dispute over his unpaid share of electricity bills. This is what he raised in his defense. That there was some simmering dispute over the electricity bill. He also told the Investigating Officer that the minor used to steal money, and he brought it up again in his defense.
27. Against this background, I find that there are some serious doubts in the minor’s story. As noted in the medical notes, the hymen was not freshly torn, yet the minor said she had sex for the first time that day. This has been proved to be false by her own mother. We also note she said she felt pain. Yet, she went back into his house again.
28. In court, there was no mention that she was coerced into going into his house. So surely, if it was a painful experience, would this intelligent girl willingly take herself for a second dose of a painful experience? I think not.
29. Even though the medical notes pointed at some penetration, I find that there was no forensic evidence to pinpoint the accused person as the one who penetrated PW1’s vagina. He was arrested that very day, and he could have been examined and his DNA sample taken for comparison. This was not done.
30. The contradictions in the minor’s evidence went to the core of this case. I note that after the voire dire, the trial court recorded that “Minor quite intelligent. Understands the nature of oath and duty to tell the truth to give sworn evidence. Page 5 of the (record). Therefore, these lies were not from some very vulnerable confused child. She was reasonably intelligent and capable of lying.
31. These are not the kind of minor inconsistencies that ought to be ignored. AS POINTED OUT ABOVE, THE COURT FOUND THE MINOR TO BE INTELLIGENT, SHE HAD BEEN EXPOSED TO SEXUAL ENCOUNTER BEFORE TO THE EXTENT THAT HER MOTHER WAS WAS AWARE ,and she lied in court.
32. This makes her evidence suspect and in the absence of any independent evidence and especially the person who allegedly locked the door , the conviction was not safe.
33. I need not say more. As Benjamin Franklin said – “It is better that a hundred guilty persons should escape than one innocent person should suffer. The degree of proof in criminal cases, sexual offences included, remains one beyond reasonable doubt. Herein, there were huge gaps. Consequently, the conviction was unsafe, and I quash the same and set aside the sentence.
34. The appeal succeeds on both limbs. The accused person may be set at liberty.
35. It is so ordered.
Dated, signed and delivered in Open Court/online
through MS TEAMS,
this ……22nd …………day of ……………May……………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The appellant and his advocate Mr. Manguro
Mr. Ngiri for the prosecution
MS Maureen court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE