1. The Appellant PETER NDIRANGU MWANGI has filed this petition of Appeal dated 7 th November 2024 challenging his conviction and sentence by the Magistrates Court in Othaya.
2. The Appellant had been arraigned in the Lower court on a charge of DEFILEMENT CONTRARY TO SECTION 8(1) (3) OF THE SEXUAL OFFENCES ACT 2006 . The particulars of the charge were that:-
“ On the 12 th day of December 2022 at around 2030 hours at Ruruguti Village in Nyeri South Sub-county within Nyeri County intentionally caused his penis to penetrate the anus of J.N.M a child aged 17 (seventeen) years.”
3. The Appellant faced an alternative charge of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 1(1) OF THE SEXUAL OFFENCES ACT 2006 .
4. Finally the Appellant was charged on a second count of ASSAULT
CAUSING ACTUAL BODILY HARM CONTRARY TO SECTION 251 OF THE PENAL CODE . The particulars of the charge were that:-
“On the 1 st day of May 2023 at around 1710 hours at Ruruguti Village in Nyeri South Sub-county within Nyeri county unlawfully assaulted J.N.M thereby occasioning him actual bodily harm.”
5. The Appellant entered a plea of ‘ Not Guilty’ to all the charges and his trial commenced on 1 st August 2023 . The prosecution called five (5) witnesses in support of their case.
6. PW1 P.M was the mother of the complainant. She told the court that her son was born on 4 th May 2005 and produces his birth certificate Pexb 1 . The witness stated that she lived in Naivasha but had left her seventeen (17) year old son living with his grandmothers in Kihuri village.
7. PW1 stated that on 1 st May 2023 at about 5.00pm she received a
phone call from the appellant who told her to tell her son to return the keys of his motor cycle. PW1 explained that sometime in the year 2022 her son had informed her that he had moved to live in the home of the appellant and his family for purpose of assistance and mentorship. PW1 stated that since the appellant was a Pastor she had no fear as she believed that her son would be safe in the home.
8. After receiving the phone call from the appellant PW1 travelled back home to Kihuri village to find out what the problem was. She met with her son who reported to her that the appellant had assaulted him and had also sodomized him. PW1 noted that her son’s head was swollen. She reported the matter to police who referred them to Othaya Hospital. PW1 went with complainant to the hospital where he was examined and treated. The appellant was later arrested and charged.
9. PW2 THOMAS MWANGI was a clinical officer based at the Othaya Sub County Hospital. He confirmed that on 2 nd May 2023 the complainant was attended to at the facility. PW2 produces the complainant’s P3 form Pexb 2 and the PRC form Pexb 3 .
10. PW3 J.N.M was the complainant. He told the court that he was aged seventeen (17) years having been born on 4 th May 2005 . The
complainant stated that in July 2022 he was living with his grandmother’s home in Othaya. That he approached the appellant who was a Pastor and asked the appellant to lend him a motorcycle to use to earn an income for himself. The appellant was agreeable and would allow the complainant to use his motorcycle from time to time.
11. After sometime in August 2022 the appellant invited the complainant to live in his family home so that the young man could be transporting the appellant to places he needed to go to. The complainant then moved from his grandmother’s home and went to live with the Appellant, his wife and children.
12. The complainant went on to testify that during the period he stayed in the appellant’s home, the appellant sodomized him on several occasions. He states that he reported the incidences to the appellant’s wife and child but they took no action. The complainant states that he made no report to a person in authority because the appellant had threatened to take away the motorcycle if he reported.
13. The complainant stated that on 1 st May 2023 when the complainant had gone to pick the appellant using a motorcycle, the appellant directed the young man to meet him at the police station and demanded that the motorcycle be returned. The complainant stated that on that day the Appellant also beat him physically. The appellant then phoned the complainant’s mother and told her that the complainant had stolen his motorcycle. When PW1 came the complainant informed her that the appellant had been sodomizing him. The matter was then reported to police.
14. PW4 JOSEPH KIMONDO WANGECHI is a boda boda rider who lived in the same village. PW4 told the court that on 1 st May 2022 , the complainant’s mother phoned him and told him to search for her son and tell him to return the keys to the appellant’s motorcycle.
15. PW5 CORPORAL DOROTHY ODHIAMBO was the investigating
officer.
16. At the close of the prosecution case the appellant was found to have a case to answer and was placed on his defence. The appellant gave a sworn defence in which he denied having defiled the complainant. The appellant called two (2) witnesses in support of his defence.
17. On 5 th November 2024 Hon. W. WANJA Resident Magistrate delivered her judgment in which she acquitted the appellant on the charge of Assault. The trial court convicted the appellant on the charge of defilement and thereafter sentenced him to serve fifteen
(15) years imprisonment.
18. Being aggrieved by his conviction and sentence the Appellant filed this appeal which is premised upon the following grounds:-
“1. THAT the Learned Trial Magistrate erred in fact and in law in passing judgment convicting the Appellant when the Prosecution had not proved its case by discharging the required burden of proof, thereby occasioning a gross miscarriage of justice.
2. THAT the Learned Trial Magistrate erred in fact and in law in failing to acknowledge that the complaints attending the charges and the criminal prosecution in the matter was as a result of the animosity that existed involving the Appellant and the Complainant, thereby occasioning a gross miscarriage of justice.
3. THAT the Learned Magistrate erred in law and in fact in convicting the Appellant on the uncorroborated and or insufficiently corroborated evidence of a minor, thereby occasioning gross miscarriage of justice.
4. THAT the Learned Magistrate erred in law and in fact in
convicting the Appellant whereas the medical evidence
was insufficient to prove penetration, thereby occasioning a gross miscarriage of justice.
5. THAT , the Learned Trial Magistrate erred in fact and in law in reaching an erroneous finding from the Defence and the evidence of the Appellant as well as his submissions, thereby occasioning a gross miscarriage of justice.
6. THAT , in any event, the Learned Magistrate erred in fact in meting out consider the mitigating circumstances as contained in the Victim Impact Assessment Report as read with the Pre-sentence Report, thereby occasioning a gross miscarriage of justice.”
ANALYSIS AND DETERMINATION
19. I have carefully considered the appeal before this court, the record
of the trial before the Lower Court as well as the written submissions
filed by both parties.
20. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and
to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the
appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
21. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs- REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse and
re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that 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 decisions.”
22. On the question of age the complainant told the court that he was born
on 4 th May 2005 and was aged seventeen (17) years old , PW1
who was the complainants mother confirmed that her son was aged
aged seventeen (17) years. Both PW1 and the complainant identify the complainants birth certificate Serial No 976470 which was produced as an exhibit by the investigating officer ( Pexb 3 ). I therefore find that it was satisfactorily proved that the complainant was aged seventeen (17) years and was therefore a minor at the time of the incident.
23. The next element of the offence of defilement requiring proof is that of
penetration. Section 2(1) of the Sexual Offences Act defines
penetration as
“the partial or complete insertion of the genital organs of a
person into the genital organs of another person.”
24. The complainant told the court that the appellant sodomized him on
several occasions. In particular the complainant refers to an incident which occurred on 12 th December 2022 . He states that on that day the appellant accosted him as he was going to take a bath. That the appellant who was naked from the waist downwards grabbed the complainant who only had a towel tied around his waist. The complainant states that the appellant pushed him onto the sofa, held him down and overpowered him and proceeded to sodomize him.
25. PW2 told the court that the complainant was examined at Othaya Sub-
County hospital on 2 nd May 2023 . PW2 produced the P3 form and
PRC form Pexb 2 and Pexb 3 . The doctor stated that upon
examination it was noted that the complainant’s anus had reddening
on it. Under cross-examination PW2 stated that
“ Examination of the Victim’s agent anus was reddish/had reddened as opposed normal genitalia. There was a change of colour in the anus……….”
26. The reddening of the anus was a clear indication that there had been some interference on the complainant’s anus. Therefore the medical evidence therefore corroborated the complainant’s evidence that he had been sodomized. From the evidence available I am satisfied that the complainants claim that he had been sodomized had been proved.
27. The final element which requires proof is the identity of the perpetrator.
The complainant insists that it was the appellant who defiled him. The
complainant narrated to the court the events that led him to leave the
home of his grand-mother and move to reside with the appellant
and his family in their home. The fact that the complainant lived in the
family home of the appellant certainly gave the appellant the
opportunity to defile him - however proof of opportunity is not sufficient
the prosecution needed to tender evidence to prove that the appellant
actually did defile the complainant.
28. According to the complainant the appellant defiled him several times.
The obvious question which arises would be why did the complainant
take so long to report the incidences. Why did he not report
immediately when the first defilement occurred. The complainant
stated that he reported the defilement to the appellant’s wife and
daughter. None of these was a person in authority who could take any
action over the matter. The complainant was not a young child - he
was a seventeen (17) years old and was on the cusp of adulthood. Why
report to the people closest to the appellant who obviously would either
not believe him or would ignore the report. Why did the complainant
not report to the chief, police, church elder or such other person in
authority.
29. Further if as claimed by the complainant the appellant was defiling him
against his consent why did the complainant not just leave the
appellants home and go back to his grand-mother’s home. The
complainant was under no obligation to go on living in the appellant’s
home even after he had been sexually assaulted.
30. It cannot be a mere coincidence that the complainant only identified the
appellant after the appellant had demanded that the complainant return
the motor cycle which the appellant had allowed him to use. Indeed
the complainant only identified the appellant when the appellant
demanded that he return the keys to the motorcycle. The very real
possibility that the complainant only identified the appellant out of his
anger and/or disappointment that the appellant had taken back the
motor cycle, cannot be discounted.
31. This is a case which there is only one identifying witness. Obviously
sodomy like all other sexual offences would ordinarily occur in secret
thus it is unlikely that there would be an eye witness to the incident.
32. Section 124 of the Evidence Act Cap 80 Laws of Kenya provide as
follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.
Provided that where in a criminal case involving a
sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .”
33. The question is whether the complainant can be deemed to be a
‘ credible and a truthful witness .’ The complainant mentioned two specific dates when the defilement occurred being 12 th December 2022 and 19 th December 2022 . He did not report these incidences until five (5) months later on 1 st May 2023 . Why did the complainant take so long to report such a grievous crime against his person?
34. The complainant in his evidence stated that on 1 st May 2023 the
appellant assaulted him and he reported this assault on 2 nd May
2023 at Othaya Police Station. PW1 who was the complainant’s
mother told the court that when she saw her son on 2 nd May 2023
his head was swollen.
35. The complainant told the court that he was treated for the injuries
arising from this physical assault at a private clinic in Ruruguti on 1 st
May 2023 . However the complainant did not call as a witness the
doctor who treated him at this private clinic nor did he produce as
exhibits any medical reports to show that he was treated for injuries
arising from a physical assault.
36. The complainant was attended to at Othaya Hospital the following day
on 2 nd May 2023 and in his own words “It was evident that I had
been beaten and put on medication .” However PW2 the doctor
who attended to the complainant at Othaya Hospital clearly stated
that
“Upon examination the victim face was normal and was not cut or swollen. He had no injuries on his stomach, legs or hands.”
37. The doctor therefore clearly contradicts the testimony of PW1 that her
son had a swollen face and belies the claim made by the complainant
that the appellant physically assaulted him.
38. Moreover according to the complainant this physical assault occurred in
the presence of over twenty (20) witness. Yet the complainant did not
call even one of these people as a witness.
39. I am mindful of the fact that the trial court acquitted the appellant
of the charge of Assault contrary to Section 251 of the Penal
Code. In so acquitting the trial court noted that the testimony of the
complainant was not corroborated by the medical evidence.
40. In his evidence the complainant had stated that the appellant defiled
him on the night 12 th December 2022 . In his defence the appellant
stated that on that day he was not at his home as he had gone to attend
a celebration and did not return home that night.
41. DW3 PETER NDERITU WAMBUI , told the court that on 12 th
December 2022 his son was being circumcised. The appellant came
to his home to join in the celebrations. DW3 stated that the complainant
was also present in his home the same day assisting with preparations.
DW3 stated that the appellant did not leave his home but spent the night
there with other pastors.
42. The evidence of DW3 casts a doubt on the complainant’s allegation that
the appellant defiled him on the night of 12 th December 2022 .
43. From the above I do find that the credibility of the complainant as a
witness can be doubted. If he did not tell the truth in one area, why
should he be believed when he identified the appellant.
44. In Paragraph 28 of the judgment the learned trial magistrate raised
the following pertinent questions.
“The Defence raised important questions as to whether the complainant can be considered a truthful witness. He alleged to have been defiled severally and never reported. They further submitted that from the complainant’s story, once he was defiled he told a friend and accused persons wife who were never called as a witness. Why? I pondered over these issues while
evaluating the evidence………..”
45. I am not able to fathom how the trial court could find that the
complainant was not truthful regarding the allegation of a physical
assault yet proceed to believe the complainant when he identified the
appellant.
46. My own view is that having been found to lack credibility on one
allegation, the complainant’s identification of the appellant as his
assailant cannot be relied upon. I find that given the actions (or rather
the inaction) of the complainant in the face of repeated defilements (as
he claimed) an in light of his lack of honesty on pertinent matters there
remained a sliver of doubt regarding the identification of the appellant. 47. The actions of the complainant were not consistent with those of a
person whose dignity had been assaulted by repeated sodomization.
The very real possibility that the complainant only named the appellant
due to his bitterness at “being deprived of the motorcycle by the
appellant cannot be discounted. The benefit of such doubt must be
settled in favour of the appellant. In the circumstances I find that the
conviction of the appellant on the charge of defilement was not safe. In
the premises I do quash that conviction and set aside the sentence
imposed on the appellant.
48. Finally this appeal succeeds. The appellant is to be set at liberty
forthwith unless he is otherwise lawfully held.
Dated in Nyeri this 29 th day of May 2026.
………………………
MAUREEN A. ODERO
JUDGE
HIGH COURT CRIMINAL APPEAL CASE NO. E083 OF 2024 JUDGEMENT Page 18 of 19
2. The Appellant had been arraigned in the Lower court on a charge of DEFILEMENT CONTRARY TO SECTION 8(1) (3) OF THE SEXUAL OFFENCES ACT 2006 . The particulars of the charge were that:-
“ On the 12 th day of December 2022 at around 2030 hours at Ruruguti Village in Nyeri South Sub-county within Nyeri County intentionally caused his penis to penetrate the anus of J.N.M a child aged 17 (seventeen) years.”
3. The Appellant faced an alternative charge of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 1(1) OF THE SEXUAL OFFENCES ACT 2006 .
4. Finally the Appellant was charged on a second count of ASSAULT
CAUSING ACTUAL BODILY HARM CONTRARY TO SECTION 251 OF THE PENAL CODE . The particulars of the charge were that:-
“On the 1 st day of May 2023 at around 1710 hours at Ruruguti Village in Nyeri South Sub-county within Nyeri county unlawfully assaulted J.N.M thereby occasioning him actual bodily harm.”
5. The Appellant entered a plea of ‘ Not Guilty’ to all the charges and his trial commenced on 1 st August 2023 . The prosecution called five (5) witnesses in support of their case.
6. PW1 P.M was the mother of the complainant. She told the court that her son was born on 4 th May 2005 and produces his birth certificate Pexb 1 . The witness stated that she lived in Naivasha but had left her seventeen (17) year old son living with his grandmothers in Kihuri village.
7. PW1 stated that on 1 st May 2023 at about 5.00pm she received a
phone call from the appellant who told her to tell her son to return the keys of his motor cycle. PW1 explained that sometime in the year 2022 her son had informed her that he had moved to live in the home of the appellant and his family for purpose of assistance and mentorship. PW1 stated that since the appellant was a Pastor she had no fear as she believed that her son would be safe in the home.
8. After receiving the phone call from the appellant PW1 travelled back home to Kihuri village to find out what the problem was. She met with her son who reported to her that the appellant had assaulted him and had also sodomized him. PW1 noted that her son’s head was swollen. She reported the matter to police who referred them to Othaya Hospital. PW1 went with complainant to the hospital where he was examined and treated. The appellant was later arrested and charged.
9. PW2 THOMAS MWANGI was a clinical officer based at the Othaya Sub County Hospital. He confirmed that on 2 nd May 2023 the complainant was attended to at the facility. PW2 produces the complainant’s P3 form Pexb 2 and the PRC form Pexb 3 .
10. PW3 J.N.M was the complainant. He told the court that he was aged seventeen (17) years having been born on 4 th May 2005 . The
complainant stated that in July 2022 he was living with his grandmother’s home in Othaya. That he approached the appellant who was a Pastor and asked the appellant to lend him a motorcycle to use to earn an income for himself. The appellant was agreeable and would allow the complainant to use his motorcycle from time to time.
11. After sometime in August 2022 the appellant invited the complainant to live in his family home so that the young man could be transporting the appellant to places he needed to go to. The complainant then moved from his grandmother’s home and went to live with the Appellant, his wife and children.
12. The complainant went on to testify that during the period he stayed in the appellant’s home, the appellant sodomized him on several occasions. He states that he reported the incidences to the appellant’s wife and child but they took no action. The complainant states that he made no report to a person in authority because the appellant had threatened to take away the motorcycle if he reported.
13. The complainant stated that on 1 st May 2023 when the complainant had gone to pick the appellant using a motorcycle, the appellant directed the young man to meet him at the police station and demanded that the motorcycle be returned. The complainant stated that on that day the Appellant also beat him physically. The appellant then phoned the complainant’s mother and told her that the complainant had stolen his motorcycle. When PW1 came the complainant informed her that the appellant had been sodomizing him. The matter was then reported to police.
14. PW4 JOSEPH KIMONDO WANGECHI is a boda boda rider who lived in the same village. PW4 told the court that on 1 st May 2022 , the complainant’s mother phoned him and told him to search for her son and tell him to return the keys to the appellant’s motorcycle.
15. PW5 CORPORAL DOROTHY ODHIAMBO was the investigating
officer.
16. At the close of the prosecution case the appellant was found to have a case to answer and was placed on his defence. The appellant gave a sworn defence in which he denied having defiled the complainant. The appellant called two (2) witnesses in support of his defence.
17. On 5 th November 2024 Hon. W. WANJA Resident Magistrate delivered her judgment in which she acquitted the appellant on the charge of Assault. The trial court convicted the appellant on the charge of defilement and thereafter sentenced him to serve fifteen
(15) years imprisonment.
18. Being aggrieved by his conviction and sentence the Appellant filed this appeal which is premised upon the following grounds:-
“1. THAT the Learned Trial Magistrate erred in fact and in law in passing judgment convicting the Appellant when the Prosecution had not proved its case by discharging the required burden of proof, thereby occasioning a gross miscarriage of justice.
2. THAT the Learned Trial Magistrate erred in fact and in law in failing to acknowledge that the complaints attending the charges and the criminal prosecution in the matter was as a result of the animosity that existed involving the Appellant and the Complainant, thereby occasioning a gross miscarriage of justice.
3. THAT the Learned Magistrate erred in law and in fact in convicting the Appellant on the uncorroborated and or insufficiently corroborated evidence of a minor, thereby occasioning gross miscarriage of justice.
4. THAT the Learned Magistrate erred in law and in fact in
convicting the Appellant whereas the medical evidence
was insufficient to prove penetration, thereby occasioning a gross miscarriage of justice.
5. THAT , the Learned Trial Magistrate erred in fact and in law in reaching an erroneous finding from the Defence and the evidence of the Appellant as well as his submissions, thereby occasioning a gross miscarriage of justice.
6. THAT , in any event, the Learned Magistrate erred in fact in meting out consider the mitigating circumstances as contained in the Victim Impact Assessment Report as read with the Pre-sentence Report, thereby occasioning a gross miscarriage of justice.”
ANALYSIS AND DETERMINATION
19. I have carefully considered the appeal before this court, the record
of the trial before the Lower Court as well as the written submissions
filed by both parties.
20. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and
to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the
appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
21. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs- REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse and
re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that 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 decisions.”
22. On the question of age the complainant told the court that he was born
on 4 th May 2005 and was aged seventeen (17) years old , PW1
who was the complainants mother confirmed that her son was aged
aged seventeen (17) years. Both PW1 and the complainant identify the complainants birth certificate Serial No 976470 which was produced as an exhibit by the investigating officer ( Pexb 3 ). I therefore find that it was satisfactorily proved that the complainant was aged seventeen (17) years and was therefore a minor at the time of the incident.
23. The next element of the offence of defilement requiring proof is that of
penetration. Section 2(1) of the Sexual Offences Act defines
penetration as
“the partial or complete insertion of the genital organs of a
person into the genital organs of another person.”
24. The complainant told the court that the appellant sodomized him on
several occasions. In particular the complainant refers to an incident which occurred on 12 th December 2022 . He states that on that day the appellant accosted him as he was going to take a bath. That the appellant who was naked from the waist downwards grabbed the complainant who only had a towel tied around his waist. The complainant states that the appellant pushed him onto the sofa, held him down and overpowered him and proceeded to sodomize him.
25. PW2 told the court that the complainant was examined at Othaya Sub-
County hospital on 2 nd May 2023 . PW2 produced the P3 form and
PRC form Pexb 2 and Pexb 3 . The doctor stated that upon
examination it was noted that the complainant’s anus had reddening
on it. Under cross-examination PW2 stated that
“ Examination of the Victim’s agent anus was reddish/had reddened as opposed normal genitalia. There was a change of colour in the anus……….”
26. The reddening of the anus was a clear indication that there had been some interference on the complainant’s anus. Therefore the medical evidence therefore corroborated the complainant’s evidence that he had been sodomized. From the evidence available I am satisfied that the complainants claim that he had been sodomized had been proved.
27. The final element which requires proof is the identity of the perpetrator.
The complainant insists that it was the appellant who defiled him. The
complainant narrated to the court the events that led him to leave the
home of his grand-mother and move to reside with the appellant
and his family in their home. The fact that the complainant lived in the
family home of the appellant certainly gave the appellant the
opportunity to defile him - however proof of opportunity is not sufficient
the prosecution needed to tender evidence to prove that the appellant
actually did defile the complainant.
28. According to the complainant the appellant defiled him several times.
The obvious question which arises would be why did the complainant
take so long to report the incidences. Why did he not report
immediately when the first defilement occurred. The complainant
stated that he reported the defilement to the appellant’s wife and
daughter. None of these was a person in authority who could take any
action over the matter. The complainant was not a young child - he
was a seventeen (17) years old and was on the cusp of adulthood. Why
report to the people closest to the appellant who obviously would either
not believe him or would ignore the report. Why did the complainant
not report to the chief, police, church elder or such other person in
authority.
29. Further if as claimed by the complainant the appellant was defiling him
against his consent why did the complainant not just leave the
appellants home and go back to his grand-mother’s home. The
complainant was under no obligation to go on living in the appellant’s
home even after he had been sexually assaulted.
30. It cannot be a mere coincidence that the complainant only identified the
appellant after the appellant had demanded that the complainant return
the motor cycle which the appellant had allowed him to use. Indeed
the complainant only identified the appellant when the appellant
demanded that he return the keys to the motorcycle. The very real
possibility that the complainant only identified the appellant out of his
anger and/or disappointment that the appellant had taken back the
motor cycle, cannot be discounted.
31. This is a case which there is only one identifying witness. Obviously
sodomy like all other sexual offences would ordinarily occur in secret
thus it is unlikely that there would be an eye witness to the incident.
32. Section 124 of the Evidence Act Cap 80 Laws of Kenya provide as
follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.
Provided that where in a criminal case involving a
sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .”
33. The question is whether the complainant can be deemed to be a
‘ credible and a truthful witness .’ The complainant mentioned two specific dates when the defilement occurred being 12 th December 2022 and 19 th December 2022 . He did not report these incidences until five (5) months later on 1 st May 2023 . Why did the complainant take so long to report such a grievous crime against his person?
34. The complainant in his evidence stated that on 1 st May 2023 the
appellant assaulted him and he reported this assault on 2 nd May
2023 at Othaya Police Station. PW1 who was the complainant’s
mother told the court that when she saw her son on 2 nd May 2023
his head was swollen.
35. The complainant told the court that he was treated for the injuries
arising from this physical assault at a private clinic in Ruruguti on 1 st
May 2023 . However the complainant did not call as a witness the
doctor who treated him at this private clinic nor did he produce as
exhibits any medical reports to show that he was treated for injuries
arising from a physical assault.
36. The complainant was attended to at Othaya Hospital the following day
on 2 nd May 2023 and in his own words “It was evident that I had
been beaten and put on medication .” However PW2 the doctor
who attended to the complainant at Othaya Hospital clearly stated
that
“Upon examination the victim face was normal and was not cut or swollen. He had no injuries on his stomach, legs or hands.”
37. The doctor therefore clearly contradicts the testimony of PW1 that her
son had a swollen face and belies the claim made by the complainant
that the appellant physically assaulted him.
38. Moreover according to the complainant this physical assault occurred in
the presence of over twenty (20) witness. Yet the complainant did not
call even one of these people as a witness.
39. I am mindful of the fact that the trial court acquitted the appellant
of the charge of Assault contrary to Section 251 of the Penal
Code. In so acquitting the trial court noted that the testimony of the
complainant was not corroborated by the medical evidence.
40. In his evidence the complainant had stated that the appellant defiled
him on the night 12 th December 2022 . In his defence the appellant
stated that on that day he was not at his home as he had gone to attend
a celebration and did not return home that night.
41. DW3 PETER NDERITU WAMBUI , told the court that on 12 th
December 2022 his son was being circumcised. The appellant came
to his home to join in the celebrations. DW3 stated that the complainant
was also present in his home the same day assisting with preparations.
DW3 stated that the appellant did not leave his home but spent the night
there with other pastors.
42. The evidence of DW3 casts a doubt on the complainant’s allegation that
the appellant defiled him on the night of 12 th December 2022 .
43. From the above I do find that the credibility of the complainant as a
witness can be doubted. If he did not tell the truth in one area, why
should he be believed when he identified the appellant.
44. In Paragraph 28 of the judgment the learned trial magistrate raised
the following pertinent questions.
“The Defence raised important questions as to whether the complainant can be considered a truthful witness. He alleged to have been defiled severally and never reported. They further submitted that from the complainant’s story, once he was defiled he told a friend and accused persons wife who were never called as a witness. Why? I pondered over these issues while
evaluating the evidence………..”
45. I am not able to fathom how the trial court could find that the
complainant was not truthful regarding the allegation of a physical
assault yet proceed to believe the complainant when he identified the
appellant.
46. My own view is that having been found to lack credibility on one
allegation, the complainant’s identification of the appellant as his
assailant cannot be relied upon. I find that given the actions (or rather
the inaction) of the complainant in the face of repeated defilements (as
he claimed) an in light of his lack of honesty on pertinent matters there
remained a sliver of doubt regarding the identification of the appellant. 47. The actions of the complainant were not consistent with those of a
person whose dignity had been assaulted by repeated sodomization.
The very real possibility that the complainant only named the appellant
due to his bitterness at “being deprived of the motorcycle by the
appellant cannot be discounted. The benefit of such doubt must be
settled in favour of the appellant. In the circumstances I find that the
conviction of the appellant on the charge of defilement was not safe. In
the premises I do quash that conviction and set aside the sentence
imposed on the appellant.
48. Finally this appeal succeeds. The appellant is to be set at liberty
forthwith unless he is otherwise lawfully held.
Dated in Nyeri this 29 th day of May 2026.
………………………
MAUREEN A. ODERO
JUDGE
HIGH COURT CRIMINAL APPEAL CASE NO. E083 OF 2024 JUDGEMENT Page 18 of 19