REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E082 OF 2023
PETER KYAU MAINGI ...........................................................................APPELLANT
-VERSUS-
REPUBLIC .........................................................................................RESPONDENT
(Being an appeal from conviction and sentence delivered on 14th December 2023 by M. A. Otindo (PM) in Magistrate 's Court in Machakos in S.O. Case No. 60 of 2019)
JUDGEMENT
A. Background
1. The Appellant Peter Kyau Maingi was charged with 2 counts of defilement. In count I the Applicant was charged with section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006. The particulars are that on 14th day of October 2019 at Kiangini village in Mumbuni Location in Machakos Sub County, intentionally and unlawfully caused penis to penetrate the vagina of E.M.M (name withheld) a child aged 5 years in violation of section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. In the alternative he was charged with the offence of committing an Indecent Act with a child contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 14th day of October 2019 at Kiangini village in Mumbuni Location Machakos Sub- County within Machakos County intentionally touched the vagina of E.M.M (name withheld) a child aged 5 years with his penis contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006.
3. In count Il the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 14th day of October 2019 at Kiangini village in Mumbuni location in Machakos sub county, intentionally and unlawfully caused penis to penetrate the vagina of T.M.M. (name withhold) a child aged 5 years in violation of Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
4. In the alternative he 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. The particulars are that on the 14th day of October 2019 at Kiangini village in Mumbuni Location Machakos Sub-county within Machakos County intentionally touched the vagina of T.M.M. (name withheld) a child aged 5 years with his penis contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006.
5. The Appellant pleaded not guilty to the main charges and the alternative charge and the matter was set down for hearing. The prosecution called eight (8) witnesses in proving its case. The Appellant was convicted on both counts of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced serve 40 years imprisonment for each count on 14th December 2023 and the sentences were to run concurrently.
B. Petition of Appeal
6. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds;
i. THAT the learned trial magistrate erred in both fact ad law by convicting on evidence that didn't meet the minimum threshold to uphold a conviction.
ii. THAT the learned trial magistrate erred in both fact and law by not considering his sworn defence
7. The Appellant has through his submission amended his Petition of appeal and raised the following grounds of appeal:
i. THAT the trial court infringed his fundamental rights.
ii. THAT the learned magistrate erred in law and fact in convicting and sentencing him yet the case replete with contradictions and inconsistencies.
iii. THAT the learned magistrate erred in law and fact by convicting and sentencing him yet the witnesses were incredible.
iv. THAT the medical evidence relied upon are contradictory and unprocedurally before the court hence inadmissible.
v. THAT, key ingredients of the offence were not proved.
vi. THAT, the sentence is harsh and excessive
8. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 28th April 2025 and his rebuttal submissions are dated 5th June 2025 while the Respondent’s submissions are dated on 16th May 2025 filed by Ms. Agatha Abang, prosecution counsel.
C. Parties’ Submissions
Appellant’s submissions
9. The Appellant submits that he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. He was charged with two counts that on the 14th day of October 2019 at Kiangini Village, in Mumbuni Location Machakos county, he intentionally and unlawfully caused my penis to penetrate the vaginas of E.M.M. and T.M.M. children aged 5 years which is defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006.1n the alternative, it is alleged that on the same date and place, he touched the vaginas of the said girls with my penis which is an indecent act with a child contrary to section 11(1) of the aforementioned act.
10. That the prosecution marshalled a total of eight witnesses in a bid to prove its case. In his defence, he stated that on 18/10/2019, he was approached by two people who informed him that he was needed in a local primary school. He readily went with them in the hope that the school head teacher was going to pay him for shoes he had sold to him. When they got to the school, he got a rude shock when the said teacher indicated that he should be tied as he accused him of having defiled the two girls. He was taken to the police station and charged with the offences herein.
11. The Appellant submitted that the trial court however found him guilty and sentenced him to 40 years imprisonment in the two main counts and that it is on these convictions and sentences that he is appealing against. The Appellant submitted under various grounds as follows:
1. That his Constitutional rights were infringed
12. The Appellant averred that the trial infringed his fundamental rights as enshrined in the constitution. First and foremost, he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. This is a duration of one week and that this offends Article 49(f) of the Constitution of Kenya, 2010 which provides for an accused person to be brought before a court as soon as reasonably possible but not later than;
i. Twenty-four hours after being arrested or
ii. If the twenty-four hours ends outside ordinary court hours, or a day that is not an ordinary court day, the end of the next court day.
13. The Appellant submits that this case had two complainants; TMM and EMM. TMM testified on 23/01/2020 a whole three months after his arrest. On the same date EMM was also to testify and was in court for the same. But the prosecution noted that TMM'S testimony was not enough to send somebody to the gallows, they decided not bring EMM in order to prepare, her properly. He has referred the court at page 9 of the trial court’s proceedings which shows as follows:
Prosecutor: The other child has been availed but she does not look well. She has fewer. (sic).
Order: The child does not look well and is fearing. Matter is adjourned to 6/2/2020.
14. The Appellant questions how the prosecutor knew that the child had fever. That the prosecutor asked for adjournment on the account that the child had fever but the court proceeded and granted the adjournment on account that the child was fearing.
15. The Appellant asserts that the fear and fever persisted and the child could not be brought to court until three years later when she came to testify on 07/03/2022. That all these delays offended Article 47(1), 49(1) and 50(2)(e) of the Constitution of Kenya 2010.
16. The Appellant cited Article 50(2) of the Constitution which stipulates thus:
“Every accused person has right to a fair trial, which includes the right;-
e) to have the trial begin and conclude without unreasonable delay.
17. The Appellant claims that it took the prosecution three years to deal with this fear and fever. This delay is unreasonable and was not explained
The Appellant drew the court’s attention to CRIMINAL APPEAL NO 120 OF 2004 ALBANUS MWASIA MUTUA eKLR where it was held that:
"At the end of the day, it is the duty of the courts to enforce the provisions of the constitution, otherwise there would be no reason for having those provisions in the first place. The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right would normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. "
18. The Appellant contended that the violations he has cited above are all unexplained and somewhat inexcusable. He implored the court to agree with the reasoning above and acquit him.
2.There were contradictions and inconsistences in the prosecutions evidence:
19. On this ground, the Appellant submits that this case is replete with incurable contradictions and inconsistencies. That PW1, TMM, opened her examination in chief by saying; "Nobody has ever done anything wrong to me.". He refers at Page 7 of the trial court’s proceedings.
20. The Appellants contends that “Nobody” here includes him. Most importantly the statement confirms that the allegations herein are not true. That being defiled is something wrong and if the child says nobody has ever done anything wrong to me is tantamount to saying that nobody has ever defiled her.
21. That after some prompting, she says; "That person did bad manners to me (points at accused). When I and Emma are going to school, he would call us to his house and do bad manners”.
She confirms at page 8 of the trial court’s proceedings that; "He would use his hand to do bad manners to us here (points at vagina). .. I did not see what he was using to do bad manners to me. He was using ile kitu ya kushika na mkono.
22. The Appellant referred to a book titled SEXUAL OFFENCES ACT NO 3 OF 2006 THE PROSECUTORS'S MANUAL vague and ambiguous terms such as "alinifanya tabia mbaya" are frowned at and are inadmissible. This is exactly what PW I used. He did "bad manners." is anything that is not good and is prone to myriad interpretations.
23. Secondly, PWI says she did not see what was used to do bad manners to her. It is erroneous for one to believe that this thing that the complainant did not see is penis. That aside the girl is categorical at page 8 that; "He would use his hand to do bad manners to us here (points at vagina). "
24. The Appellant asserts that the above statement leads to important observations;
• "He would use his hands to do bad manners to us" means that the charge sheets were defective. The explanation given by PW1 removes the offence from defilement to sexual assault.
• That the Appellant ought to have been charged under Section 5 of the sexual offences Act and not Section 8.
• "...to us" means both TMM and EMM. For EMM to come three years later to give a different version means that she is not telling the truth.
25. That PW2 M.M, grandmother to TMM testified (from pages 27-30 of the proceedings). It was her testimony at page 28 that on 14/10/2019 at 3:00 p.m. while she was cleaning, a coin dropped and her granddaughter came very fast. That the following day while trying to wash her, she was in so much pain. This is not true going by what her granddaughter says at page 8 that; "I did not tell shosho because she knew"
26. The Appellant’s questions when she knew. What she did about it. Why she decided to take action at this time and not earlier.
27. That TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.” while her grandmother said (at page 28) that; "they said they had been given 10/=four times. "
28. The Appellant believes that this means that this was not the first time and questions when does somebody experience excruciating pain; during the first or the fourth time?
29. The Appellant submits that the medical reports indicate that both TMM and EMM had their hymen completely raptured something that could only be occasioned by full penetration. That this allegation cannot be true because:
• A five-year-old defiled by a 21-year-old man must bleed because the hymen being a living membrane, must bleed when raptured. That the TMM and EMM did not bleed is the surest proof that what is said here did not take place.
• A five-year-old penetrated by an adult, apart from bleeding, will be rendered immobile but if she is lucky to walk, then she would walk with lots of difficulty and in an unfamiliar gait. The fact that both TMM and EMM never walked in an unfamiliar gait or could not walk at all, is another proof that the allegations herein did not take place.
• Had TMM and EMM bled and walked in unfamiliar gait then the same would have been noticed by their respective grandmothers. The Appellant poses to ask, but even if it is assumed that the grandmothers were naive, what about neighbours, fellow pupils, teachers and playmates? Were all these equally naive? Why didn't they notice this? The truth is that they could not notice as there was nothing to be noticed because nothing happened.
30. The Appellant submits that PW2 M.M testified (at page 28 of the Proceedings) that having noted that the child was in pain when she tried to wash her; she tried to interrogate her but in vain. She decided to report to the school to interrogate her. She found the class teacher but because the head teacher was not in, she went back home and went back to school on 18/10/2019.
31. The Appellant finds this to be abnormal as there were teachers in school including the class teacher who under normal circumstances is closer to the child compared to other teachers. The Appellant questions why couldn't PW2 discuss this with any other teacher instead of waiting for the Head teacher. He further, argues that sensitive cases involving female pupils are usually handled by female teachers and again questions why PW2 would just wait for the Headteacher who is a male yet there were many female teachers in the school including the class teacher. To the Appellant, this fortifies his assertion that the head teacher colluded with these grannies to implicate him in this case so as not to pay his debt.
32. The Appellant submits that PWI, TMM testified that they were defiled on the "mud floor" (at page 7 of the proceedings) but EMM the other complainant testified they were made to lie on bed. (at page 37 of the proceedings).
That PW1, TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.”, but PW3 her friend in her testimony talked of one single date 14/10/2019 while TMM'S grandmother talked of four times.
33. The Appellant submitted that his name is Peter Kyau Maingi with no alias. PW3 testifies (at page 36 of the proceedings) that; "We were going to school with my friend Angel. Yohanna held us. He did tabia mbaya to us. "
The Appellant argues that the above is very significant. It shows that PW3 knows the perpetrator herein by name and he is called Yohanna. This also lends credence to what PW1 said that she did not report to her grandmother because she knew. From PW3's testimony it is clear that these two grannies are protecting the real perpetrator herein and implicating him
34. The Appellant further submits that PW3 also testified that immediately after being defiled on 14/10/2019 she went to school and told the head teacher. He questions what action the head teacher took and why he had to wait till 18/10/2019 for the grandmother to come to school for him to act. He wonders whether the head teacher has any connection with Yohanna for him to protect him and implicate the Appellant.
35. PW4, RMW, EMM's grandmother in her testimony which runs from pages 38 to 40 of the proceedings, testified that on 14/10/2019 she woke up in the morning and heard MM (PW2) a neighbour calling her. PW4 asked her if she knew what her grandchild was going through. PW2 informed her (granny) that there is a boy who takes the children to his house defiles them and then gives them Kshs.10/=. She said she would investigate.
36. The Appellant asserts that this is not possible because in PW2’s own testimony, the shilling dropped on 14/10/2019 at 3:00 p.m. when she was cleaning. The following day (15/10/2019) when she was trying to bath PW1, she felt pain. She interrogated her but nothing came out. She took her to school but did not make any report because the head teacher was not in. She went back on 18/10/2019 and that is when she knew about the defilement. How could she report the defilement issue to PW4 four days before she knew of the same. The Appellant submits that this is a serious pointer to the existence of a frame up between PW2 and the head teacher, that's why she could not deal with any other teacher.
37. The Appellant submitted that PW4 RM said she told PW2 that she would investigate. The Appellant’s questions whether she ever investigated and what her findings was and why did she wait until 18/10/2019 when she was called by the school.
38. Again, the Appellant submits that the details of arrest as narrated by PW5 and PW6 do not agree. PW5 Charles Kasyoka says at page 41 that they did not go to the Appellant’s place with the kids while his colleague PW6 Robert Mbau testified (at pages 42-43 of the proceedings) that they went with the two children to the Appellant’s place and the children pointed at the Appellant. It is also PW6’s testimony that at the headmaster's office, they found four children who had allegedly been defiled. "At school I found 4 children and the parents while in the head teacher's office. "
39. The Appellant questions what happened to the other two children or their parents Could they have refused to play ball? That this is confirmed by PW2 (at page 28 of the proceedings): "The head teacher entered the accused's home. The children Marion and Terry said they are always put in that house?. Where did Marion and the other girl disappear to? Why did the head teacher have to come to the Appellant’s place yet the community policing guys had been called? The Appellant believes this was so because the headteacher had a personal stake in this case.
40. The Appellant submits further the charge sheet records the date of incident as 14/10/2019 but the investigating officer testified (at page 64 of the proceedings) that a report was made on 08/10/2019. It is also her testimony that this is the day the Appellant was arrested. The Appellant submits that it then means that these allegations took place when he was in custody and there is no way he could have been involved in them. He sees this as another proof of frame-up.
41. The Appellant cited the case of BAKARE VS. STATE (1987) 1 NWLR (PT 52) 579 on proof beyond reasonable doubt which states thus;
“.....but it does admit of a degree of cogency consistent with an equally high degree of probability"
42. The Appellant submitted that the listed contradictions and inconsistencies are the direct opposite of the above. They push cogency and probability to their lowest degree if not making them non-existent altogether.
43. The Appellant also referred to MTG V REPUBLIC (CRIMINAL APPEAL E067 OF 2021 [20221 KEHC 189 (KLR) (15TH MARCH 2022) JUDGMENT that:
"Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. "
44. The Appellant drew the court’s attention to SECTION 111(1) OF THE EVIDENCE ACT which states:
"Provided further that the person accused shall be entitled to be acquitted of the offence which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused in respect of the offence. "
45. The Appellant invited the court to have a look at CRIMINAL APPEAL NO 76 OF 2012 PHILIP MUIRURI VS REPUBLIC where the COURT OF APPEAL stated that;
"To give the accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating doubt in a prudent mind about the guilt of accused is sufficient. The accused's entitlement to the benefit of doubt is not a matter of grace and concession but a matter of right. An accused person is the most favoured child of the law and every benefit of doubt goes to him. "
3. Credibility of witnesses-
46. On this ground, the Appellant submitted that, the fact that the colossal number of contradictions and inconsistencies discussed in ground 2 above emanate from the witnesses is an attestation to their unreliability, untrustworthiness and unbelievability. To this end the Appellant sought to have the arguments advanced in ground 2 to be adopted as supportive of ground 3 as well.
47. The Appellant invited this court to also look at the decision in KIMANI NDUNG'U VS. REPUBLIC [19791 KLR 282 where the Court of Appeal stated;
"The witness whose evidence is proposed to rely should not create an impression in the mind of the court that he/she is not a straight forward person or raise suspicion about his/her trustworthiness or do or say something which indicates that he/she is a person of doubtful integrity and therefore unreliable which makes it unsafe to accept his/her evidence. "
48. Reliance was also placed on CRIMINAL APPEAL NO. 59 OF 2011 HENRY AND MANNING V. REPUBLIC where it was held that:
"It has been said again and again that in cases of alleged sexual offences, it is really dangerous to convict on the evidence of the Woman or Girl. It is dangerous because human experience has shown that girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes for no reasons at all. "
49. The Applicant holds that in this; the children and their grandmothers were used by the headteacher to implicate him in the case.
4. Medical documents-
50. On this ground, the Appellant submits that the medical documents relied on herein are questionable and inadmissible. That Medical evidence is expert evidence and should be devoid of any bias and subjectivism. A medical officer can only prove that there was penetration but there is no test that accurately gives the cause and weapon of penetration. But in this case the presenter comfortably said "penis".
51. The Appellant submits that the medical evidence corroborates the complainant's testimony only if it establishes a scientific nexus between an accused person and the offence. These ones do not.
52. The Appellant submits that the medical documents were tabled in court by the two grandmothers PW2 and PW4. PW2 at page 29 and PW4 at page 39. This makes them inadmissible as the two grannies are not medics. In a bid to rectify this, the prosecution brought in PW7 Dr Kirisha Edmond but this did not help as he himself is not the author of the said documents. Reliance was placed on the case of LONJERAT LEURA DIRA VS. REPUBLIC (2008) eKLR where it was held that:
"Even if we turn a blind eye to this obviously conjured up evidence and accept that indeed PW1 was assaulted, we would still have a problem of convicting the appellant on the charge of assault. Reason; the P3 form was tendered in evidence in contravention of the law under Section 77 of the Evidence Act. A document purporting to be a report under the hand of a government Analyst, medical practitioner etc. upon any person, matter or thing submitted to him for examination or analysis can be tendered by any other person other than the maker. However, before such a person can be allowed to do so, the trial court is obliged to inform the accused of his right to insist that the maker be called for cross-examination on the document... in the instant case the learned magistrate without taking the trouble to informing the appellant of this aforesaid rights merely acceded to the application by the prosecutor to have Pw3, the investigating officer produce the P3 under Section 77 of the Evidence Act. This was misdirection in law and was prejudicial to the appellant. That being the case the evidence of P3 form must be disregarded. Such evidence having been disregarded there is no other evidence upon which the offence of the assault can be founded. "
53. The Appellant submits that the above is an exact replica of this case and technically expunges the PRC and P3 Form.
54. The Applicant cited the case of JAMES BANI MUNYONIS VS. REPUBLIC (2010) eKLR where the court was faced with a similar situation such as obtains in this instance where a doctor called just told the trial court that he was familiar with the handwriting of the author of a medical report. Justice Sergon had this to say:
"It is not enough for a witness to state that he is familiar with the handwriting of a particular witness. The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond the prosecution 's control. "
55. The Appellant submits that the medical documents used in this case, apart from being contradictory, are unprocedurally before the court and ought to be expunged forthwith.
5. Ingredients of the offence not proved-
56. On this ground, the Appellant submits that the ingredients that ought to be proved in a defilement case are penetration, identification and age.
57. That on penetration, the evidence relied upon by the courts to prove penetration is the complainant's testimony which is usually corroborated by the medical evidence presented by the medical officer. He argues that ground 4 has rendered the medical evidence contradictory, unprocedural and therefore inadmissible.
58. The Appellant submits that, PW1 testified that what was done to them was bad manners and it was done using the hand which effectively transfers this case from defilement to sexual assault- from Section 8 to Section 5 of the sexual offences Act No.3 of 2006.
59. That PW6 testified that there was penetration because the hymen was missing. The Appellant cited the Court of Appeal case in David Mwingiria Vs Republic [2017] eKLR, where Maraga and Rawal (JJA) as they were then held thus;
"In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when the hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding and gymnastics. There can also be a natural tearing of the hymen. See the Canadian Case of The Queen Vs Manuel Vincent Quintanila [1999] AB QB 769."
60. The Appellant submits that the above displaces the testimony of PW6 which the trial magistrate heavily relied on.
61. The Appellant maintained that no five-year-old would be penetrated and her hymen gets completely raptured but does not bleed, walks normally and the guardians, neighbours, playmates, pupils and teachers fail to notice.
62. That the medical report says that there was penile penetration but does not say by who. The fact that the Appellant was not examined by Machakos Level 5 Hospital means that there is no credible evidence whatsoever pointing the court to the direction that he indeed committed the offence.
63. Reference was made to CRIMINAL APPEAL NO 155 OF 2011 AT KISUMU in a defilement case such as this where Omollo, Githinji and Onyang Otieno held that:
"Corroboration in law is evidence to show not only that an offence was committed but also the identity of the person who committed the offence. "
64. Lastly the Appellant submitted that PW3, EMM stated that the person who did bad manners to them is called Yohanna yet he is Peter Kyau Maingi with no alias name. The Appellant submits that penetration was not proved.
65. On identification, the Appellant submits that the learned magistrate found that the victims identified him because he was a neighbour. That this is true and it stops at that; The Appellant admitted that he was a neighbour whom they had been coached to implicate. The surest proof that he was not the perpetrator herein came from PW4 when she said that it is Yohanna who had been doing bad manners to them. The Appellant denied that he was Yohanna and that he was being forced to carry Yohanna's cross.
66. The Appellant relied on the case of NJOROGE VS REPUBLIC (1987) KLR 19 the court of appeal stated that:
"Dock identification is worthless. The court should not rely on dock identification. A witness should be asked description of the accused and the prosecution should then arrange a fair identification parade. "
67. That in as much as the above did not take place in his case it remains dock identification which the court says is worthless.
68. Also relied upon was the case of RORIA VS REPUBLIC EA 583 AT PAGE 584 where the Court of Appeal remarked:
"In the present case the learned trial Judge thought Samaji an honest witness. We do not quarrel with the assessment of her honesty but a witness may be honest yet mistaken and excluding the possibility of a mistake on her part, the learned judge, with respect, erred in our view. "
69. The Appellant submits that it is said that recognition is stronger than identification. That may be so but an honest recognition yet mistaken. The question the Appellant pose therefore is; are there reasons pointing to the fact that the complainants could have been mistake. The Appellant answers in affirmative and adds that it i
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E082 OF 2023
PETER KYAU MAINGI ...........................................................................APPELLANT
-VERSUS-
REPUBLIC .........................................................................................RESPONDENT
(Being an appeal from conviction and sentence delivered on 14th December 2023 by M. A. Otindo (PM) in Magistrate 's Court in Machakos in S.O. Case No. 60 of 2019)
JUDGEMENT
A. Background
1. The Appellant Peter Kyau Maingi was charged with 2 counts of defilement. In count I the Applicant was charged with section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006. The particulars are that on 14th day of October 2019 at Kiangini village in Mumbuni Location in Machakos Sub County, intentionally and unlawfully caused penis to penetrate the vagina of E.M.M (name withheld) a child aged 5 years in violation of section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. In the alternative he was charged with the offence of committing an Indecent Act with a child contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 14th day of October 2019 at Kiangini village in Mumbuni Location Machakos Sub- County within Machakos County intentionally touched the vagina of E.M.M (name withheld) a child aged 5 years with his penis contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006.
3. In count Il the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 14th day of October 2019 at Kiangini village in Mumbuni location in Machakos sub county, intentionally and unlawfully caused penis to penetrate the vagina of T.M.M. (name withhold) a child aged 5 years in violation of Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
4. In the alternative he 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. The particulars are that on the 14th day of October 2019 at Kiangini village in Mumbuni Location Machakos Sub-county within Machakos County intentionally touched the vagina of T.M.M. (name withheld) a child aged 5 years with his penis contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006.
5. The Appellant pleaded not guilty to the main charges and the alternative charge and the matter was set down for hearing. The prosecution called eight (8) witnesses in proving its case. The Appellant was convicted on both counts of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced serve 40 years imprisonment for each count on 14th December 2023 and the sentences were to run concurrently.
B. Petition of Appeal
6. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds;
i. THAT the learned trial magistrate erred in both fact ad law by convicting on evidence that didn't meet the minimum threshold to uphold a conviction.
ii. THAT the learned trial magistrate erred in both fact and law by not considering his sworn defence
7. The Appellant has through his submission amended his Petition of appeal and raised the following grounds of appeal:
i. THAT the trial court infringed his fundamental rights.
ii. THAT the learned magistrate erred in law and fact in convicting and sentencing him yet the case replete with contradictions and inconsistencies.
iii. THAT the learned magistrate erred in law and fact by convicting and sentencing him yet the witnesses were incredible.
iv. THAT the medical evidence relied upon are contradictory and unprocedurally before the court hence inadmissible.
v. THAT, key ingredients of the offence were not proved.
vi. THAT, the sentence is harsh and excessive
8. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 28th April 2025 and his rebuttal submissions are dated 5th June 2025 while the Respondent’s submissions are dated on 16th May 2025 filed by Ms. Agatha Abang, prosecution counsel.
C. Parties’ Submissions
Appellant’s submissions
9. The Appellant submits that he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. He was charged with two counts that on the 14th day of October 2019 at Kiangini Village, in Mumbuni Location Machakos county, he intentionally and unlawfully caused my penis to penetrate the vaginas of E.M.M. and T.M.M. children aged 5 years which is defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006.1n the alternative, it is alleged that on the same date and place, he touched the vaginas of the said girls with my penis which is an indecent act with a child contrary to section 11(1) of the aforementioned act.
10. That the prosecution marshalled a total of eight witnesses in a bid to prove its case. In his defence, he stated that on 18/10/2019, he was approached by two people who informed him that he was needed in a local primary school. He readily went with them in the hope that the school head teacher was going to pay him for shoes he had sold to him. When they got to the school, he got a rude shock when the said teacher indicated that he should be tied as he accused him of having defiled the two girls. He was taken to the police station and charged with the offences herein.
11. The Appellant submitted that the trial court however found him guilty and sentenced him to 40 years imprisonment in the two main counts and that it is on these convictions and sentences that he is appealing against. The Appellant submitted under various grounds as follows:
1. That his Constitutional rights were infringed
12. The Appellant averred that the trial infringed his fundamental rights as enshrined in the constitution. First and foremost, he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. This is a duration of one week and that this offends Article 49(f) of the Constitution of Kenya, 2010 which provides for an accused person to be brought before a court as soon as reasonably possible but not later than;
i. Twenty-four hours after being arrested or
ii. If the twenty-four hours ends outside ordinary court hours, or a day that is not an ordinary court day, the end of the next court day.
13. The Appellant submits that this case had two complainants; TMM and EMM. TMM testified on 23/01/2020 a whole three months after his arrest. On the same date EMM was also to testify and was in court for the same. But the prosecution noted that TMM'S testimony was not enough to send somebody to the gallows, they decided not bring EMM in order to prepare, her properly. He has referred the court at page 9 of the trial court’s proceedings which shows as follows:
Prosecutor: The other child has been availed but she does not look well. She has fewer. (sic).
Order: The child does not look well and is fearing. Matter is adjourned to 6/2/2020.
14. The Appellant questions how the prosecutor knew that the child had fever. That the prosecutor asked for adjournment on the account that the child had fever but the court proceeded and granted the adjournment on account that the child was fearing.
15. The Appellant asserts that the fear and fever persisted and the child could not be brought to court until three years later when she came to testify on 07/03/2022. That all these delays offended Article 47(1), 49(1) and 50(2)(e) of the Constitution of Kenya 2010.
16. The Appellant cited Article 50(2) of the Constitution which stipulates thus:
“Every accused person has right to a fair trial, which includes the right;-
e) to have the trial begin and conclude without unreasonable delay.
17. The Appellant claims that it took the prosecution three years to deal with this fear and fever. This delay is unreasonable and was not explained
The Appellant drew the court’s attention to CRIMINAL APPEAL NO 120 OF 2004 ALBANUS MWASIA MUTUA eKLR where it was held that:
"At the end of the day, it is the duty of the courts to enforce the provisions of the constitution, otherwise there would be no reason for having those provisions in the first place. The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right would normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. "
18. The Appellant contended that the violations he has cited above are all unexplained and somewhat inexcusable. He implored the court to agree with the reasoning above and acquit him.
2.There were contradictions and inconsistences in the prosecutions evidence:
19. On this ground, the Appellant submits that this case is replete with incurable contradictions and inconsistencies. That PW1, TMM, opened her examination in chief by saying; "Nobody has ever done anything wrong to me.". He refers at Page 7 of the trial court’s proceedings.
20. The Appellants contends that “Nobody” here includes him. Most importantly the statement confirms that the allegations herein are not true. That being defiled is something wrong and if the child says nobody has ever done anything wrong to me is tantamount to saying that nobody has ever defiled her.
21. That after some prompting, she says; "That person did bad manners to me (points at accused). When I and Emma are going to school, he would call us to his house and do bad manners”.
She confirms at page 8 of the trial court’s proceedings that; "He would use his hand to do bad manners to us here (points at vagina). .. I did not see what he was using to do bad manners to me. He was using ile kitu ya kushika na mkono.
22. The Appellant referred to a book titled SEXUAL OFFENCES ACT NO 3 OF 2006 THE PROSECUTORS'S MANUAL vague and ambiguous terms such as "alinifanya tabia mbaya" are frowned at and are inadmissible. This is exactly what PW I used. He did "bad manners." is anything that is not good and is prone to myriad interpretations.
23. Secondly, PWI says she did not see what was used to do bad manners to her. It is erroneous for one to believe that this thing that the complainant did not see is penis. That aside the girl is categorical at page 8 that; "He would use his hand to do bad manners to us here (points at vagina). "
24. The Appellant asserts that the above statement leads to important observations;
• "He would use his hands to do bad manners to us" means that the charge sheets were defective. The explanation given by PW1 removes the offence from defilement to sexual assault.
• That the Appellant ought to have been charged under Section 5 of the sexual offences Act and not Section 8.
• "...to us" means both TMM and EMM. For EMM to come three years later to give a different version means that she is not telling the truth.
25. That PW2 M.M, grandmother to TMM testified (from pages 27-30 of the proceedings). It was her testimony at page 28 that on 14/10/2019 at 3:00 p.m. while she was cleaning, a coin dropped and her granddaughter came very fast. That the following day while trying to wash her, she was in so much pain. This is not true going by what her granddaughter says at page 8 that; "I did not tell shosho because she knew"
26. The Appellant’s questions when she knew. What she did about it. Why she decided to take action at this time and not earlier.
27. That TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.” while her grandmother said (at page 28) that; "they said they had been given 10/=four times. "
28. The Appellant believes that this means that this was not the first time and questions when does somebody experience excruciating pain; during the first or the fourth time?
29. The Appellant submits that the medical reports indicate that both TMM and EMM had their hymen completely raptured something that could only be occasioned by full penetration. That this allegation cannot be true because:
• A five-year-old defiled by a 21-year-old man must bleed because the hymen being a living membrane, must bleed when raptured. That the TMM and EMM did not bleed is the surest proof that what is said here did not take place.
• A five-year-old penetrated by an adult, apart from bleeding, will be rendered immobile but if she is lucky to walk, then she would walk with lots of difficulty and in an unfamiliar gait. The fact that both TMM and EMM never walked in an unfamiliar gait or could not walk at all, is another proof that the allegations herein did not take place.
• Had TMM and EMM bled and walked in unfamiliar gait then the same would have been noticed by their respective grandmothers. The Appellant poses to ask, but even if it is assumed that the grandmothers were naive, what about neighbours, fellow pupils, teachers and playmates? Were all these equally naive? Why didn't they notice this? The truth is that they could not notice as there was nothing to be noticed because nothing happened.
30. The Appellant submits that PW2 M.M testified (at page 28 of the Proceedings) that having noted that the child was in pain when she tried to wash her; she tried to interrogate her but in vain. She decided to report to the school to interrogate her. She found the class teacher but because the head teacher was not in, she went back home and went back to school on 18/10/2019.
31. The Appellant finds this to be abnormal as there were teachers in school including the class teacher who under normal circumstances is closer to the child compared to other teachers. The Appellant questions why couldn't PW2 discuss this with any other teacher instead of waiting for the Head teacher. He further, argues that sensitive cases involving female pupils are usually handled by female teachers and again questions why PW2 would just wait for the Headteacher who is a male yet there were many female teachers in the school including the class teacher. To the Appellant, this fortifies his assertion that the head teacher colluded with these grannies to implicate him in this case so as not to pay his debt.
32. The Appellant submits that PWI, TMM testified that they were defiled on the "mud floor" (at page 7 of the proceedings) but EMM the other complainant testified they were made to lie on bed. (at page 37 of the proceedings).
That PW1, TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.”, but PW3 her friend in her testimony talked of one single date 14/10/2019 while TMM'S grandmother talked of four times.
33. The Appellant submitted that his name is Peter Kyau Maingi with no alias. PW3 testifies (at page 36 of the proceedings) that; "We were going to school with my friend Angel. Yohanna held us. He did tabia mbaya to us. "
The Appellant argues that the above is very significant. It shows that PW3 knows the perpetrator herein by name and he is called Yohanna. This also lends credence to what PW1 said that she did not report to her grandmother because she knew. From PW3's testimony it is clear that these two grannies are protecting the real perpetrator herein and implicating him
34. The Appellant further submits that PW3 also testified that immediately after being defiled on 14/10/2019 she went to school and told the head teacher. He questions what action the head teacher took and why he had to wait till 18/10/2019 for the grandmother to come to school for him to act. He wonders whether the head teacher has any connection with Yohanna for him to protect him and implicate the Appellant.
35. PW4, RMW, EMM's grandmother in her testimony which runs from pages 38 to 40 of the proceedings, testified that on 14/10/2019 she woke up in the morning and heard MM (PW2) a neighbour calling her. PW4 asked her if she knew what her grandchild was going through. PW2 informed her (granny) that there is a boy who takes the children to his house defiles them and then gives them Kshs.10/=. She said she would investigate.
36. The Appellant asserts that this is not possible because in PW2’s own testimony, the shilling dropped on 14/10/2019 at 3:00 p.m. when she was cleaning. The following day (15/10/2019) when she was trying to bath PW1, she felt pain. She interrogated her but nothing came out. She took her to school but did not make any report because the head teacher was not in. She went back on 18/10/2019 and that is when she knew about the defilement. How could she report the defilement issue to PW4 four days before she knew of the same. The Appellant submits that this is a serious pointer to the existence of a frame up between PW2 and the head teacher, that's why she could not deal with any other teacher.
37. The Appellant submitted that PW4 RM said she told PW2 that she would investigate. The Appellant’s questions whether she ever investigated and what her findings was and why did she wait until 18/10/2019 when she was called by the school.
38. Again, the Appellant submits that the details of arrest as narrated by PW5 and PW6 do not agree. PW5 Charles Kasyoka says at page 41 that they did not go to the Appellant’s place with the kids while his colleague PW6 Robert Mbau testified (at pages 42-43 of the proceedings) that they went with the two children to the Appellant’s place and the children pointed at the Appellant. It is also PW6’s testimony that at the headmaster's office, they found four children who had allegedly been defiled. "At school I found 4 children and the parents while in the head teacher's office. "
39. The Appellant questions what happened to the other two children or their parents Could they have refused to play ball? That this is confirmed by PW2 (at page 28 of the proceedings): "The head teacher entered the accused's home. The children Marion and Terry said they are always put in that house?. Where did Marion and the other girl disappear to? Why did the head teacher have to come to the Appellant’s place yet the community policing guys had been called? The Appellant believes this was so because the headteacher had a personal stake in this case.
40. The Appellant submits further the charge sheet records the date of incident as 14/10/2019 but the investigating officer testified (at page 64 of the proceedings) that a report was made on 08/10/2019. It is also her testimony that this is the day the Appellant was arrested. The Appellant submits that it then means that these allegations took place when he was in custody and there is no way he could have been involved in them. He sees this as another proof of frame-up.
41. The Appellant cited the case of BAKARE VS. STATE (1987) 1 NWLR (PT 52) 579 on proof beyond reasonable doubt which states thus;
“.....but it does admit of a degree of cogency consistent with an equally high degree of probability"
42. The Appellant submitted that the listed contradictions and inconsistencies are the direct opposite of the above. They push cogency and probability to their lowest degree if not making them non-existent altogether.
43. The Appellant also referred to MTG V REPUBLIC (CRIMINAL APPEAL E067 OF 2021 [20221 KEHC 189 (KLR) (15TH MARCH 2022) JUDGMENT that:
"Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. "
44. The Appellant drew the court’s attention to SECTION 111(1) OF THE EVIDENCE ACT which states:
"Provided further that the person accused shall be entitled to be acquitted of the offence which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused in respect of the offence. "
45. The Appellant invited the court to have a look at CRIMINAL APPEAL NO 76 OF 2012 PHILIP MUIRURI VS REPUBLIC where the COURT OF APPEAL stated that;
"To give the accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating doubt in a prudent mind about the guilt of accused is sufficient. The accused's entitlement to the benefit of doubt is not a matter of grace and concession but a matter of right. An accused person is the most favoured child of the law and every benefit of doubt goes to him. "
3. Credibility of witnesses-
46. On this ground, the Appellant submitted that, the fact that the colossal number of contradictions and inconsistencies discussed in ground 2 above emanate from the witnesses is an attestation to their unreliability, untrustworthiness and unbelievability. To this end the Appellant sought to have the arguments advanced in ground 2 to be adopted as supportive of ground 3 as well.
47. The Appellant invited this court to also look at the decision in KIMANI NDUNG'U VS. REPUBLIC [19791 KLR 282 where the Court of Appeal stated;
"The witness whose evidence is proposed to rely should not create an impression in the mind of the court that he/she is not a straight forward person or raise suspicion about his/her trustworthiness or do or say something which indicates that he/she is a person of doubtful integrity and therefore unreliable which makes it unsafe to accept his/her evidence. "
48. Reliance was also placed on CRIMINAL APPEAL NO. 59 OF 2011 HENRY AND MANNING V. REPUBLIC where it was held that:
"It has been said again and again that in cases of alleged sexual offences, it is really dangerous to convict on the evidence of the Woman or Girl. It is dangerous because human experience has shown that girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes for no reasons at all. "
49. The Applicant holds that in this; the children and their grandmothers were used by the headteacher to implicate him in the case.
4. Medical documents-
50. On this ground, the Appellant submits that the medical documents relied on herein are questionable and inadmissible. That Medical evidence is expert evidence and should be devoid of any bias and subjectivism. A medical officer can only prove that there was penetration but there is no test that accurately gives the cause and weapon of penetration. But in this case the presenter comfortably said "penis".
51. The Appellant submits that the medical evidence corroborates the complainant's testimony only if it establishes a scientific nexus between an accused person and the offence. These ones do not.
52. The Appellant submits that the medical documents were tabled in court by the two grandmothers PW2 and PW4. PW2 at page 29 and PW4 at page 39. This makes them inadmissible as the two grannies are not medics. In a bid to rectify this, the prosecution brought in PW7 Dr Kirisha Edmond but this did not help as he himself is not the author of the said documents. Reliance was placed on the case of LONJERAT LEURA DIRA VS. REPUBLIC (2008) eKLR where it was held that:
"Even if we turn a blind eye to this obviously conjured up evidence and accept that indeed PW1 was assaulted, we would still have a problem of convicting the appellant on the charge of assault. Reason; the P3 form was tendered in evidence in contravention of the law under Section 77 of the Evidence Act. A document purporting to be a report under the hand of a government Analyst, medical practitioner etc. upon any person, matter or thing submitted to him for examination or analysis can be tendered by any other person other than the maker. However, before such a person can be allowed to do so, the trial court is obliged to inform the accused of his right to insist that the maker be called for cross-examination on the document... in the instant case the learned magistrate without taking the trouble to informing the appellant of this aforesaid rights merely acceded to the application by the prosecutor to have Pw3, the investigating officer produce the P3 under Section 77 of the Evidence Act. This was misdirection in law and was prejudicial to the appellant. That being the case the evidence of P3 form must be disregarded. Such evidence having been disregarded there is no other evidence upon which the offence of the assault can be founded. "
53. The Appellant submits that the above is an exact replica of this case and technically expunges the PRC and P3 Form.
54. The Applicant cited the case of JAMES BANI MUNYONIS VS. REPUBLIC (2010) eKLR where the court was faced with a similar situation such as obtains in this instance where a doctor called just told the trial court that he was familiar with the handwriting of the author of a medical report. Justice Sergon had this to say:
"It is not enough for a witness to state that he is familiar with the handwriting of a particular witness. The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond the prosecution 's control. "
55. The Appellant submits that the medical documents used in this case, apart from being contradictory, are unprocedurally before the court and ought to be expunged forthwith.
5. Ingredients of the offence not proved-
56. On this ground, the Appellant submits that the ingredients that ought to be proved in a defilement case are penetration, identification and age.
57. That on penetration, the evidence relied upon by the courts to prove penetration is the complainant's testimony which is usually corroborated by the medical evidence presented by the medical officer. He argues that ground 4 has rendered the medical evidence contradictory, unprocedural and therefore inadmissible.
58. The Appellant submits that, PW1 testified that what was done to them was bad manners and it was done using the hand which effectively transfers this case from defilement to sexual assault- from Section 8 to Section 5 of the sexual offences Act No.3 of 2006.
59. That PW6 testified that there was penetration because the hymen was missing. The Appellant cited the Court of Appeal case in David Mwingiria Vs Republic [2017] eKLR, where Maraga and Rawal (JJA) as they were then held thus;
"In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when the hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding and gymnastics. There can also be a natural tearing of the hymen. See the Canadian Case of The Queen Vs Manuel Vincent Quintanila [1999] AB QB 769."
60. The Appellant submits that the above displaces the testimony of PW6 which the trial magistrate heavily relied on.
61. The Appellant maintained that no five-year-old would be penetrated and her hymen gets completely raptured but does not bleed, walks normally and the guardians, neighbours, playmates, pupils and teachers fail to notice.
62. That the medical report says that there was penile penetration but does not say by who. The fact that the Appellant was not examined by Machakos Level 5 Hospital means that there is no credible evidence whatsoever pointing the court to the direction that he indeed committed the offence.
63. Reference was made to CRIMINAL APPEAL NO 155 OF 2011 AT KISUMU in a defilement case such as this where Omollo, Githinji and Onyang Otieno held that:
"Corroboration in law is evidence to show not only that an offence was committed but also the identity of the person who committed the offence. "
64. Lastly the Appellant submitted that PW3, EMM stated that the person who did bad manners to them is called Yohanna yet he is Peter Kyau Maingi with no alias name. The Appellant submits that penetration was not proved.
65. On identification, the Appellant submits that the learned magistrate found that the victims identified him because he was a neighbour. That this is true and it stops at that; The Appellant admitted that he was a neighbour whom they had been coached to implicate. The surest proof that he was not the perpetrator herein came from PW4 when she said that it is Yohanna who had been doing bad manners to them. The Appellant denied that he was Yohanna and that he was being forced to carry Yohanna's cross.
66. The Appellant relied on the case of NJOROGE VS REPUBLIC (1987) KLR 19 the court of appeal stated that:
"Dock identification is worthless. The court should not rely on dock identification. A witness should be asked description of the accused and the prosecution should then arrange a fair identification parade. "
67. That in as much as the above did not take place in his case it remains dock identification which the court says is worthless.
68. Also relied upon was the case of RORIA VS REPUBLIC EA 583 AT PAGE 584 where the Court of Appeal remarked:
"In the present case the learned trial Judge thought Samaji an honest witness. We do not quarrel with the assessment of her honesty but a witness may be honest yet mistaken and excluding the possibility of a mistake on her part, the learned judge, with respect, erred in our view. "
69. The Appellant submits that it is said that recognition is stronger than identification. That may be so but an honest recognition yet mistaken. The question the Appellant pose therefore is; are there reasons pointing to the fact that the complainants could have been mistake. The Appellant answers in affirmative and adds that it i
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