1. The Appellant was convicted for the offence of defilement contrary to section
8(1) as read with section 8(3) of the Sexual Offences Act on 31/07/2023 in
Criminal Case S.O. 785 of 2017 and was sentenced to life imprisonment. He filed
the Appeal challenging the conviction and sentence on 04/08/2023 and it is on
that basis that we wish to respond.
2. He raised the following grounds:-
i. THAT, the learned magistrate erred in law and fact by convicting him in
absence of any cogent and tangible evidence.
ii. THAT, the learned trial magistrate erred in law and fact by forming a
conviction in reliance of a single witness testimony that was not
substantiated by an independent witness.
iii. THAT, the learned trial magistrate erred in law and fact by relying on
contradictive, inconsistent and unsubstantiated witness’ account of the
allegation levelled against him.
iv. THAT, the learned trial magistrate erred in law and fact by failing to put
into consideration the period he spent in remand while on trial.
v. THAT, the learned trial magistrate erred in law and fact in finding his
conviction and sentence by failing to take into consideration his unshaken
defense.
3. The background information of this case emanates from original Criminal Case
SOA Case No. 785 of 2017 at Mombasa Law Court where upon conviction, the
appellant was sentenced to life imprisonment. That prompted this appeal before
this Honorable Court with regard to the decision passed by the trial Court.
Ingredients of the Offence:
4. For the offence of defilement, according to the case of Charles Wamukoya
Karani v Republic, criminal appeal no. 72 of 2013, the following ingredients
need to be proved;
i. Age of the complainant
ii. Proof of Penetration
iii. Positive identification of the perpetrator
5. The role of this court being the first appellant court is now settled as was stated in
the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri
Mose Versus Republic ( 2013) e KLR among other decisions that this court is
duty bound to revisit the evidence tendered before the trail court afresh, evaluate
it analyses it and come to its own conclusion on the matter but laws bearing in
mind that the trial court had the advantage of observing the demeanor of the
witnesses and hearing them giving evidence and give allowance for that.
6. In the above matter, the court held that “an Appellant on first appeal is entitled to
expect he evidence as a whole to be subject to a fresh and exhaustive examination
(Panda versus Republic 1975) E.A 336 and to the Appellant court’s own
decision on the evidence. The first appellant court must its weigh conflicting
evidence and draw its own conclusions (Shantilal M Ruwala Versus Republic
(1957)) E.A 570.
7. It is not the function of the Appellate court to merely scrutinize the evidence to
see if there was some evidence to support the lower court findings and
conclusions. It must make its own findings and draw its own conclusion. 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 witnesses (Peter vs Sunday Post 1978) E.A. 424”
Appellant’s Case:
8. The Appellant does not dispute the first and second elements of defilement
however bases their appeal on the fact that the prosecution failed to meet the
third element of the offence of defilement, that being identification of the
perpetrator. The appellant claims that there are inconsistencies as to the
guardianship of the victim, with the paternal grandmother and uncle of the victim
having guardianship and not the appellant. This claim is buttressed by DW2 page
28 when he states, “the child was not living with the accused”. Based on this
evidence, the appellant claims that they were convicted based on circumstantial
evidence that did not prove beyond a reasonable doubt that they were the
perpetrator of the crime.
Respondent’s Case:
9. The Respondent concedes the appeal based on the third element of defilement.
With regards to the positive identification of the perpetrator, the respondent
submits that the complainant’s mother testified as to the custody of the child
during the time that the defilement took place. The complainant’s mother
(PW1)stated that she gave the victim to her paternal grandmother in good health
in February of 2017. That without the victim’s mother’s (PW1) knowledge, the
paternal grandmother gave the child to the appellant. In May of 2017, the uncle of
the victim gave the child back to the mother with suspicions as to the health and
welfare of the child.
10. The respondent correctly conceeded that the complainant's paternal grandmother
was a crucial witness who unfortunately, was not called to testify. On this basis,
the respondent concedes the appeal on the 3 rd element of defilement.
Issues for Determination:
11. Seeing as both parties do not contest that the elements of the victim’s age and the
proof of penetration have been proven by the trial court beyond reasonable
doubt, the court finds that the age of the victim has been established by medical
evidence, the victim’s parents or guardians through their testimony before the trial
court.
12. The court also finds that the medical examination report and the PRC form
indicate that there was proof of vaginal and anal penetration of the victim and that
this evidence is further corroborated by testimony before the trial court.
Therefore, the prosecution sufficiently discharged the burden to prove the age of
the victim and proof of penetration of the victim.
13. This Honourable court notes that the issue for determination is:
1. Whether there was a positive identification of the perpetrator.
Analysis and Determination
14. The appellant’s first and second grounds of appeal are that the learned trial
magistrate erred in law and fact by convicting him in absence of any cogent and
tangible evidence and erred in law and fact by relying on contradictory,
inconsistent and unsubstantiated witness accounts. It is on this basis that the
appellant believes that the circumstantial evidence used to convict him is
intangible unsubstantiated evidence.
15. It is noted by the case of Ahamad Abolfathi Mohammed and Another v
Republic [2018] e KLR, the Court of Appeal stated as follows on reliance on
circumstantial evidence:
“However, it is a truism that the guilt of an accused person can be proved
by either direct or circumstantial evidence. Circumstantial evidence is
evidence which enables a court to deduce a particular fact from
circumstances or facts that have been proved. Such evidence can form a
strong basis for proving the guilt of an accused person just as direct
evidence
16. In 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v
Taylor, Weaver and Donovan [1928] Cr. App. R 21:
“It has been said that the evidence against the Applicant is
circumstantial. So it is, but circumstantial evidence is very often the
best evidence.”
17. The testimony of the a witness is a form of oral evidence, and from this evidence,
the court can identify surrounding circumstances that can be used as evidence. In
the present case however, the evidence presented by PW1 is hearsay evidence,
which under evidence law is generally inadmissible.
18. PW1, according to their own testimony, states that they “never witnessed you[the
appellant] committing the act”. Under Section 63 (1) of the Evidence Act 46 of
1963 CAP 80 Laws of Kenya,
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, "direct
evidence" means— (a) with reference to a fact which could be seen,
the evidence of a witness who says he saw it;
(b) with reference to a fact which could be heard,
the evidence of a witness who says he heard it;
(c) with reference to a fact which could be perceived
by any other sense or in any other manner, the
evidence of a witness who says he perceived it by
that sense or in that manner.
19. The fact that PW1 based their testimony on facts that they did not perceive would
mean that the evidence they provided was hearsay evidence and is therefore
inadmissible. Additionally, PW1 claimed that the paternal grandmother informed
her that the victim was in custody of the appellant and that the grandmother could
confirm this fact as well as the fact that the child was sleeping with the appellant.
This evidence was unfortunately not corroborated by the grandmother, as she was
never called to testify.
20. The lack of direct evidence from the paternal grandmother, therefore, renders the
testimonies of PW1 to be hearsay and inadmissible. This would therefore mean
that there is no direct evidence from which circumstantial evidence can be
inferred. Therefore the circumstantial evidence is not cogent and tangible enough
to be considered evidence to show identification of the perpetrator.
21. I have looked at the evidence afresh and I find that the first and second elements
of defilement have been satisfied. The court is satisfied that the child was of the
tender age of 2 years and that the child suffered through vaginal and anal
penetration. This is evidenced by the PRC form and that the testimonies of the
witnesses.
22. However, with regards to the positive identification of the perpetrator, I do not
find that this element was not proved. This is based on the fact that there is no
direct evidence or circumstantial evidence that puts the child in the custody of the
appellant. The paternal grandmother, not being a witness in this case causes me to
find that there is not enough evidence presented that positively identifies the
appellant as the perpetrator.
23. Furthermore, I also note that there were issues between the parents of the victim,
with threats from both sides and a case in FIDA showing that there is hostility
between the parties which could cause the assumptions as to the identity of the
perpetrator being the appellant.
24. I note that the child sustained some serious injuries and it would have been great
if smeone was putn to task for endangering the life of a vulnerable child.
She was an innocent two year child and the court is duty bound to protect
vulnerabe members of society. In so doing, we however cannot throw all the rules
of procedure and evidence out or ignore fatal procedural breached=s. here
reliance on hearsay evidence was wrong
25. There was no one who testified to having seen the child in the custody of the
father and eve the investigating officer who visited the home did not even get into
his house. There was no oral or forensic evidence to point at the appellant as the
perpetrator of this heinous act. The state was therefore right in conceding g the
appeal
Orders:
26. I therefore find that not all of the ingredients of a defilement were proved.
27. The conviction and sentence are quashed.
28. The upshot is that the appeal against both the conviction and the sentence is
allowed.
29. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………15TH………day of ……………MAY……………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPELLANT….. IN PERSON
NGIRI……FOR THE STATE
BEBORA…….COURT ASSISTANT
8(1) as read with section 8(3) of the Sexual Offences Act on 31/07/2023 in
Criminal Case S.O. 785 of 2017 and was sentenced to life imprisonment. He filed
the Appeal challenging the conviction and sentence on 04/08/2023 and it is on
that basis that we wish to respond.
2. He raised the following grounds:-
i. THAT, the learned magistrate erred in law and fact by convicting him in
absence of any cogent and tangible evidence.
ii. THAT, the learned trial magistrate erred in law and fact by forming a
conviction in reliance of a single witness testimony that was not
substantiated by an independent witness.
iii. THAT, the learned trial magistrate erred in law and fact by relying on
contradictive, inconsistent and unsubstantiated witness’ account of the
allegation levelled against him.
iv. THAT, the learned trial magistrate erred in law and fact by failing to put
into consideration the period he spent in remand while on trial.
v. THAT, the learned trial magistrate erred in law and fact in finding his
conviction and sentence by failing to take into consideration his unshaken
defense.
3. The background information of this case emanates from original Criminal Case
SOA Case No. 785 of 2017 at Mombasa Law Court where upon conviction, the
appellant was sentenced to life imprisonment. That prompted this appeal before
this Honorable Court with regard to the decision passed by the trial Court.
Ingredients of the Offence:
4. For the offence of defilement, according to the case of Charles Wamukoya
Karani v Republic, criminal appeal no. 72 of 2013, the following ingredients
need to be proved;
i. Age of the complainant
ii. Proof of Penetration
iii. Positive identification of the perpetrator
5. The role of this court being the first appellant court is now settled as was stated in
the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri
Mose Versus Republic ( 2013) e KLR among other decisions that this court is
duty bound to revisit the evidence tendered before the trail court afresh, evaluate
it analyses it and come to its own conclusion on the matter but laws bearing in
mind that the trial court had the advantage of observing the demeanor of the
witnesses and hearing them giving evidence and give allowance for that.
6. In the above matter, the court held that “an Appellant on first appeal is entitled to
expect he evidence as a whole to be subject to a fresh and exhaustive examination
(Panda versus Republic 1975) E.A 336 and to the Appellant court’s own
decision on the evidence. The first appellant court must its weigh conflicting
evidence and draw its own conclusions (Shantilal M Ruwala Versus Republic
(1957)) E.A 570.
7. It is not the function of the Appellate court to merely scrutinize the evidence to
see if there was some evidence to support the lower court findings and
conclusions. It must make its own findings and draw its own conclusion. 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 witnesses (Peter vs Sunday Post 1978) E.A. 424”
Appellant’s Case:
8. The Appellant does not dispute the first and second elements of defilement
however bases their appeal on the fact that the prosecution failed to meet the
third element of the offence of defilement, that being identification of the
perpetrator. The appellant claims that there are inconsistencies as to the
guardianship of the victim, with the paternal grandmother and uncle of the victim
having guardianship and not the appellant. This claim is buttressed by DW2 page
28 when he states, “the child was not living with the accused”. Based on this
evidence, the appellant claims that they were convicted based on circumstantial
evidence that did not prove beyond a reasonable doubt that they were the
perpetrator of the crime.
Respondent’s Case:
9. The Respondent concedes the appeal based on the third element of defilement.
With regards to the positive identification of the perpetrator, the respondent
submits that the complainant’s mother testified as to the custody of the child
during the time that the defilement took place. The complainant’s mother
(PW1)stated that she gave the victim to her paternal grandmother in good health
in February of 2017. That without the victim’s mother’s (PW1) knowledge, the
paternal grandmother gave the child to the appellant. In May of 2017, the uncle of
the victim gave the child back to the mother with suspicions as to the health and
welfare of the child.
10. The respondent correctly conceeded that the complainant's paternal grandmother
was a crucial witness who unfortunately, was not called to testify. On this basis,
the respondent concedes the appeal on the 3 rd element of defilement.
Issues for Determination:
11. Seeing as both parties do not contest that the elements of the victim’s age and the
proof of penetration have been proven by the trial court beyond reasonable
doubt, the court finds that the age of the victim has been established by medical
evidence, the victim’s parents or guardians through their testimony before the trial
court.
12. The court also finds that the medical examination report and the PRC form
indicate that there was proof of vaginal and anal penetration of the victim and that
this evidence is further corroborated by testimony before the trial court.
Therefore, the prosecution sufficiently discharged the burden to prove the age of
the victim and proof of penetration of the victim.
13. This Honourable court notes that the issue for determination is:
1. Whether there was a positive identification of the perpetrator.
Analysis and Determination
14. The appellant’s first and second grounds of appeal are that the learned trial
magistrate erred in law and fact by convicting him in absence of any cogent and
tangible evidence and erred in law and fact by relying on contradictory,
inconsistent and unsubstantiated witness accounts. It is on this basis that the
appellant believes that the circumstantial evidence used to convict him is
intangible unsubstantiated evidence.
15. It is noted by the case of Ahamad Abolfathi Mohammed and Another v
Republic [2018] e KLR, the Court of Appeal stated as follows on reliance on
circumstantial evidence:
“However, it is a truism that the guilt of an accused person can be proved
by either direct or circumstantial evidence. Circumstantial evidence is
evidence which enables a court to deduce a particular fact from
circumstances or facts that have been proved. Such evidence can form a
strong basis for proving the guilt of an accused person just as direct
evidence
16. In 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v
Taylor, Weaver and Donovan [1928] Cr. App. R 21:
“It has been said that the evidence against the Applicant is
circumstantial. So it is, but circumstantial evidence is very often the
best evidence.”
17. The testimony of the a witness is a form of oral evidence, and from this evidence,
the court can identify surrounding circumstances that can be used as evidence. In
the present case however, the evidence presented by PW1 is hearsay evidence,
which under evidence law is generally inadmissible.
18. PW1, according to their own testimony, states that they “never witnessed you[the
appellant] committing the act”. Under Section 63 (1) of the Evidence Act 46 of
1963 CAP 80 Laws of Kenya,
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, "direct
evidence" means— (a) with reference to a fact which could be seen,
the evidence of a witness who says he saw it;
(b) with reference to a fact which could be heard,
the evidence of a witness who says he heard it;
(c) with reference to a fact which could be perceived
by any other sense or in any other manner, the
evidence of a witness who says he perceived it by
that sense or in that manner.
19. The fact that PW1 based their testimony on facts that they did not perceive would
mean that the evidence they provided was hearsay evidence and is therefore
inadmissible. Additionally, PW1 claimed that the paternal grandmother informed
her that the victim was in custody of the appellant and that the grandmother could
confirm this fact as well as the fact that the child was sleeping with the appellant.
This evidence was unfortunately not corroborated by the grandmother, as she was
never called to testify.
20. The lack of direct evidence from the paternal grandmother, therefore, renders the
testimonies of PW1 to be hearsay and inadmissible. This would therefore mean
that there is no direct evidence from which circumstantial evidence can be
inferred. Therefore the circumstantial evidence is not cogent and tangible enough
to be considered evidence to show identification of the perpetrator.
21. I have looked at the evidence afresh and I find that the first and second elements
of defilement have been satisfied. The court is satisfied that the child was of the
tender age of 2 years and that the child suffered through vaginal and anal
penetration. This is evidenced by the PRC form and that the testimonies of the
witnesses.
22. However, with regards to the positive identification of the perpetrator, I do not
find that this element was not proved. This is based on the fact that there is no
direct evidence or circumstantial evidence that puts the child in the custody of the
appellant. The paternal grandmother, not being a witness in this case causes me to
find that there is not enough evidence presented that positively identifies the
appellant as the perpetrator.
23. Furthermore, I also note that there were issues between the parents of the victim,
with threats from both sides and a case in FIDA showing that there is hostility
between the parties which could cause the assumptions as to the identity of the
perpetrator being the appellant.
24. I note that the child sustained some serious injuries and it would have been great
if smeone was putn to task for endangering the life of a vulnerable child.
She was an innocent two year child and the court is duty bound to protect
vulnerabe members of society. In so doing, we however cannot throw all the rules
of procedure and evidence out or ignore fatal procedural breached=s. here
reliance on hearsay evidence was wrong
25. There was no one who testified to having seen the child in the custody of the
father and eve the investigating officer who visited the home did not even get into
his house. There was no oral or forensic evidence to point at the appellant as the
perpetrator of this heinous act. The state was therefore right in conceding g the
appeal
Orders:
26. I therefore find that not all of the ingredients of a defilement were proved.
27. The conviction and sentence are quashed.
28. The upshot is that the appeal against both the conviction and the sentence is
allowed.
29. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………15TH………day of ……………MAY……………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE APPELLANT….. IN PERSON
NGIRI……FOR THE STATE
BEBORA…….COURT ASSISTANT