(Being an appeal against conviction and sentence from Hon. S. Kandie (RM) at Mavoko Chief Magistrate’s Court in S.O. E015 of 2024 delivered 12th February 2025)
1. The appellant is serving a sentence of ten years imprisonment for the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act.
2. The evidence, in the trial court, was that on 3rd April 2024 at a place called Githunguri within Athi River, the victim, a child aged 4 years, had been left home alone with other children when the Appellant who was their neighbour called her to his house where he put her on a chair and upon removing her inner wear and his trousers he lay on her and did something bad to her. He then wiped her with a leso. When her mother (PW2) returned home she noticed that her genitalia was reddish and promised her (the victim) some yoghourt if she told the truth. It was then that she, (the victim), disclosed what the Appellant had done to her. Her mother took her to Utawala police station and then to Mama Lucy hospital where a medical examination was conducted. According to the Doctor (PW4), the results of the examination were:-
• No sematic injuries noted on the body.
• There was reddening of labia minora but the hymen and anal opening were intact.
3. The examination was conducted on 8th April 2024. The doctor explained that redness was as a result of inflammation a condition which could have been caused by other factors. It was following the examination that the Appellant was charged with this offence.
4. In his defence the Appellant vehemently denied that he committed the offence and stated that the complainant’s mother framed him because he stopped supporting her. He stated that the leso he allegedly wiped the complainant with was taken from his sister’s bed. He impugned the evidence of the complainant by pointing out that the child stated that she never went to his house. He also wondered how such an act of defilement did not destroy the child in light of her age. He contended that she lied because she was enticed; that no DNA was conducted to prove the offence; that on the material day he was not at home until 9 pm and that before he was charged the arresting officer demanded Kshs. 200,000/= which he could not afford hence the reason he was charged. He contended that he was not guilty.
5. This appeal was canvassed through written submissions. Those of the Appellant, who acted in person, are dated 13th March 2026 while those of the Prosecution/Respondent represented by Mr. Masila, are dated 30th March 2026. I need not reproduce them here.
Analysis and determination
6. Being the first appellate court I have reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusion albeit keeping in mind that I did not see or hear the witnesses as the learned magistrate did. I have also considered the grounds of appeal, the submissions, the cases cited and the law. The elements which the prosecution was required to prove were that the victim in this case was a child, that there was an attempt at defiling her and that the Appellant was the perpetrator.
7. That the complainant in this case was at all material times a child and her exact age was proved beyond reasonable doubt. What remains is whether the Appellant attempted to defile her.
8. It must be borne in mind that Section 124 of the Evidence Act has a provisio to the effect that the evidence of victims of sexual offences does not require corroboration and that the court may convict on the evidence of the victim solely provided it believes her and records in writing the reasons for so doing.
9. In this case the learned magistrate relied on the evidence of the child but also the medical evidence tendered to find that the offence had been committed. According to the learned magistrate, the child’s evidence was coherent and believable. She also relied on the fact of the leso found in the Appellant’s house having been identified by the child as the one the Appellant wiped her with.
10. On my part I am not satisfied that the child told the truth. It is my finding that she was so inconsistent as to leave one in doubt as to when she was speaking the truth and when she was being less than candid. I say so because while initially her evidence was that she was taken under the stair case, she soon changed to say it was to a seat in the Appellant’s house. Later she even denied that she had ever been to the Appellant’s house. As a matter of fact it cannot be ruled out that she said what she said merely because she was induced with a promise of yoghourt. As for her mother, her evidence was also very inconsistent. At first, she stated that she found her child at home and noticed that her private parts were reddish. Later she changed that and said that when she returned home she called out to the child and she emerged from the Appellant’s house. Her evidence was therefore not reliable either. I am tempted to believe that she was suspicious because the child had gone previously to the Appellant’s house and she had warned her against going there again. It is evident from her testimony that on the material day, she found the child in their house but not in the Appellant’s house. The child herself told the court that she did not go to the Appellant’s house. I have paid full attention to the tone of the child’s statement and I have not detected anything that would indicate that she was either afraid, scared or intimidated. As observed by the learned magistrate, she was very coherent. She did not exhibit any signs of fear. The inconsistency in her evidence can only be explained on her not being truthful. Her evidence was, in my considered view, not trustworthy and reliable. Contrary to the finding of the learned magistrate there was no convergence between the child’s evidence and that of the doctor as would cure the deficiency in the child’s evidence. This is because the doctor was clear that the redness in the child’s genitalia was a sign of inflammation which condition could be attributed to causes other than the act of attempted defilement.
11. Whereas, the allegation that the child’s mother framed him because he refused to support her is not credible, it is probable that the child may have been coached hence the inconsistency in her evidence. The law dictates that where doubt arises in the prosecution’s evidence the benefit of that doubt must go to the accused, not the prosecution. In the premises I find merit in the appeal and it is allowed. The conviction is quashed and the sentence of imprisonment for 10 years is set aside and it is ordered that the Appellant shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
Judgment dated, signed and delivered virtually through Microsoft Teams on this 30th Day of June, 2026.
In the presence of:
Madam Otieno for the State
The Appellant at Kitengela Prison
Court Assistant/Interpreter – Benson
1. The appellant is serving a sentence of ten years imprisonment for the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act.
2. The evidence, in the trial court, was that on 3rd April 2024 at a place called Githunguri within Athi River, the victim, a child aged 4 years, had been left home alone with other children when the Appellant who was their neighbour called her to his house where he put her on a chair and upon removing her inner wear and his trousers he lay on her and did something bad to her. He then wiped her with a leso. When her mother (PW2) returned home she noticed that her genitalia was reddish and promised her (the victim) some yoghourt if she told the truth. It was then that she, (the victim), disclosed what the Appellant had done to her. Her mother took her to Utawala police station and then to Mama Lucy hospital where a medical examination was conducted. According to the Doctor (PW4), the results of the examination were:-
• No sematic injuries noted on the body.
• There was reddening of labia minora but the hymen and anal opening were intact.
3. The examination was conducted on 8th April 2024. The doctor explained that redness was as a result of inflammation a condition which could have been caused by other factors. It was following the examination that the Appellant was charged with this offence.
4. In his defence the Appellant vehemently denied that he committed the offence and stated that the complainant’s mother framed him because he stopped supporting her. He stated that the leso he allegedly wiped the complainant with was taken from his sister’s bed. He impugned the evidence of the complainant by pointing out that the child stated that she never went to his house. He also wondered how such an act of defilement did not destroy the child in light of her age. He contended that she lied because she was enticed; that no DNA was conducted to prove the offence; that on the material day he was not at home until 9 pm and that before he was charged the arresting officer demanded Kshs. 200,000/= which he could not afford hence the reason he was charged. He contended that he was not guilty.
5. This appeal was canvassed through written submissions. Those of the Appellant, who acted in person, are dated 13th March 2026 while those of the Prosecution/Respondent represented by Mr. Masila, are dated 30th March 2026. I need not reproduce them here.
Analysis and determination
6. Being the first appellate court I have reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusion albeit keeping in mind that I did not see or hear the witnesses as the learned magistrate did. I have also considered the grounds of appeal, the submissions, the cases cited and the law. The elements which the prosecution was required to prove were that the victim in this case was a child, that there was an attempt at defiling her and that the Appellant was the perpetrator.
7. That the complainant in this case was at all material times a child and her exact age was proved beyond reasonable doubt. What remains is whether the Appellant attempted to defile her.
8. It must be borne in mind that Section 124 of the Evidence Act has a provisio to the effect that the evidence of victims of sexual offences does not require corroboration and that the court may convict on the evidence of the victim solely provided it believes her and records in writing the reasons for so doing.
9. In this case the learned magistrate relied on the evidence of the child but also the medical evidence tendered to find that the offence had been committed. According to the learned magistrate, the child’s evidence was coherent and believable. She also relied on the fact of the leso found in the Appellant’s house having been identified by the child as the one the Appellant wiped her with.
10. On my part I am not satisfied that the child told the truth. It is my finding that she was so inconsistent as to leave one in doubt as to when she was speaking the truth and when she was being less than candid. I say so because while initially her evidence was that she was taken under the stair case, she soon changed to say it was to a seat in the Appellant’s house. Later she even denied that she had ever been to the Appellant’s house. As a matter of fact it cannot be ruled out that she said what she said merely because she was induced with a promise of yoghourt. As for her mother, her evidence was also very inconsistent. At first, she stated that she found her child at home and noticed that her private parts were reddish. Later she changed that and said that when she returned home she called out to the child and she emerged from the Appellant’s house. Her evidence was therefore not reliable either. I am tempted to believe that she was suspicious because the child had gone previously to the Appellant’s house and she had warned her against going there again. It is evident from her testimony that on the material day, she found the child in their house but not in the Appellant’s house. The child herself told the court that she did not go to the Appellant’s house. I have paid full attention to the tone of the child’s statement and I have not detected anything that would indicate that she was either afraid, scared or intimidated. As observed by the learned magistrate, she was very coherent. She did not exhibit any signs of fear. The inconsistency in her evidence can only be explained on her not being truthful. Her evidence was, in my considered view, not trustworthy and reliable. Contrary to the finding of the learned magistrate there was no convergence between the child’s evidence and that of the doctor as would cure the deficiency in the child’s evidence. This is because the doctor was clear that the redness in the child’s genitalia was a sign of inflammation which condition could be attributed to causes other than the act of attempted defilement.
11. Whereas, the allegation that the child’s mother framed him because he refused to support her is not credible, it is probable that the child may have been coached hence the inconsistency in her evidence. The law dictates that where doubt arises in the prosecution’s evidence the benefit of that doubt must go to the accused, not the prosecution. In the premises I find merit in the appeal and it is allowed. The conviction is quashed and the sentence of imprisonment for 10 years is set aside and it is ordered that the Appellant shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
Judgment dated, signed and delivered virtually through Microsoft Teams on this 30th Day of June, 2026.
In the presence of:
Madam Otieno for the State
The Appellant at Kitengela Prison
Court Assistant/Interpreter – Benson