A. INTRODUCTION
1. This is an Appeal filed by the Office of the Director of Public Prosecutions against the judgment of the trial Court at Bungoma.
2. The Respondent was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that the Respondent, Jacob Nasokho Wangila, on 13th day of October 2023 at Sikhendu area in Kimilili Sub-County within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of B.N.M., a child of 10 years.
3. The Respondent was charged with the alternative charge of committing an indecent act with a child contrary to Section 11(2) of the Sexual Offences Act No. 3 of 2006, the particulars being that Jacob Nasokho Wangila, on the 13th day of October 2023 at Sikhendu area within Kimilili Sub-County in Bungoma County, unlawfully and intentionally caused his penis to come into contact with the vagina of B.N.M., a child aged 10 years.
4. The witnesses for both the prosecution and the defence testified, and the learned trial magistrate, in her judgment, found that the prosecution had not been able to prove that there was penetration, and that without penetration the offence of defilement could not be sustained against the Respondent. She further found that, having accepted the defence version, the alternative charge could also not be sustained. The learned trial magistrate proceeded to find that the prosecution had not proved its case beyond reasonable doubt and found the accused not guilty of the main charge and the alternative charge.
5. Being dissatisfied with the acquittal, the Appellant lodged this appeal vide an undated Petition of Appeal, the acquittal being challenged on the following grounds:
i. The learned trial magistrate failed to appreciate the law concerning defilement and in particular the provisions of Section 8(2) of the Sexual Offences Act.
ii. The learned trial magistrate erred in law and fact in disregarding the evidence of penetration as adduced by the medical expert.
iii. The learned trial magistrate erred in law and fact by entirely disregarding the evidence of the complainant.
iv. The learned trial magistrate erred by disregarding the evidence of the eyewitness when the accused admitted she was at the scene.
v. The learned trial magistrate erred in misconstruing the import of the case P.K.W. v Republic [2012] eKLR when it was contested that there was an old ruptured hymen and there was clear evidence that the instant case and the authority had clear differences and different circumstances of the victims.
vi. The learned trial magistrate erred in law and fact in failing to pay regard to the inconsistencies in the evidence of the defence witness.
vii. The learned trial magistrate erred in law and in fact in failing to appreciate the meaning of penetration under Section 2(1) of the Sexual Offences Act.
B. THE DUTY OF THIS COURT
6. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
7. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
8. This principle was reaffirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174, where the Court held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, that the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and that in doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
9. The Court of Appeal further clarified in David Njuguna Wairimu v Republic [2010] eKLR that 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; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence on the basis of the law, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
10. I bear in mind, additionally, that this is an appeal by the State against an acquittal, brought under Section 348A of the Criminal Procedure Code. While that provision entitles this Court to substitute an acquittal with a conviction where the appeal succeeds, an appellate court remains slow to disturb a trial court's assessment of the credibility of witnesses, particularly where that assessment turns on the internal consistency of the evidence and the demeanour of those who gave it. This Court will interfere only where it is satisfied, on its own independent evaluation of the whole record, either that the trial court's findings of fact are not supported by the evidence, or that no tribunal properly directing itself could have reached the conclusion the trial court reached — see Kaingo v Republic [1982] KLR 213. A good place to start is to analyse the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
11. The court conducted voire dire on PW1, the complainant, B.W.N., a minor, who, having been sworn, stated that she is 10 years old and lived with her grandmother (a birth certificate was availed showing her date of birth as 16/06/2012). She testified that she is a student at Sikhendu Primary School and recalls that on 13/10/2023 she was returning from school at around 4:00pm and went to get vegetables for supper from the home of the Respondent, who is a neighbour and known to her well. She found the Respondent seated in his sitting room, and when she asked for vegetables, the Respondent asked her to first fetch a basin so he could give her maize. She fetched the basin, he poured maize into it, and the maize was in his bedroom; he called her to collect it from the bedroom, she refused and said she would take it in the sitting room, and told him that if he did not want to give it to her he should return her basin. He placed the basin down near his bedroom.
12. As she bent down to pick up the basin, the Respondent held her hand, covered her mouth, and closed the main door of the sitting room. Nobody else was in the two-roomed house. He pulled her to the bedroom; she asked him what he was doing, and he told her to stop. She wept, but the house is surrounded by a sugar plantation and no one could hear her cry. She could still see him, as only her mouth and left eye were covered. She begged him to stop, and he removed her inner pant and trouser. She stated that the Respondent 'did bad manners to her' using 'the thing he uses to urinate.'
13. She testified that he inserted his 'urinating thing' through the part she used to urinate. He had removed his trouser but did not have inner wear. She then dressed and he told her to leave. She left with the basin containing maize. On her way she met her aunt, Monica, and told her aunt what the Respondent had done to her after her aunt asked her what he was doing at the Respondent's house. She was then taken to Kimilili Sub-County Hospital where she was given medicine and thereafter to Kimilili Police Station, where she told the police what had happened. She testified that the Respondent had 'done bad manners' to her, that she knew him well, and she identified the Respondent in Court.
14. On cross-examination, PW1 testified that she was not with Monica when she went to the Respondent's home and had not seen her before that day. She said the Respondent is a church elder, and it was her first time to take vegetables from him, that being not a common occurrence; she went that day only because she suspected her grandmother, with whom she lives, would not bring vegetables. She reiterated that she met Monica on the way, who took her to her mother and thereafter to hospital. She did not bathe, and Monica's mother checked her genitals. She did not leave her clothes at the police station, and the doctor did not check her clothes. She confirmed the maize was in the bedroom, and testified that Monica emerged from the bush when she met her.
15. PW2 is Christine, a clinical officer based at Kimilili Sub-County Hospital, who testified that she held treatment notes for PW1 that had been filled in by a colleague who was away on transfer, and that she was familiar with that colleague's handwriting. She testified that PW1 was brought by her aunt with an allegation of being sexually assaulted by an older man, and narrated PW1's account as recorded. On examination of PW1, there was a bloody stain at the labia majora, the hymen was not intact and had an old margin, and a urinary test showed pus cells and epithelial cells. A syphilis test done on a high vaginal swab was non-reactive, with epithelial cells present; the HIV test was negative and the pregnancy test was negative.
16. The provisional diagnosis made was defilement, and PW1 was placed on antibiotics; post-exposure prophylaxis and emergency contraception were not recommended since PW1 had not started menstruating. PW2 also prepared the PRC Form, which was similar to the earlier treatment notes save that it contained a diagrammatic representation of the specific areas injured, and further recorded a history of PW1 having been defiled by another known neighbour on a prior occasion. PW2 filled the P3 Form on 16/10/2023 at Kimilili Sub-County Hospital, recording a further history of PW1 having been defiled, on 13/10/2023, by a man well known to her, with a change of clothing noted.
17. She testified that PW1 recounted what had transpired, explained herself well, and identified the intimate parts and parcel of clothing concerned. The injuries were assessed as approximately 64 hours old, with the probable instrument being blunt. The injuries were graded as harm, and the observations recorded as consistent with defilement, including a torn old margin of the hymen and tender labia minora on both sides. In her opinion, there was penetration. A blood clot was noted on the day of the incident, and PW1 was seen on 13/10/2023 with a history of defilement without a condom having been used.
18. She further testified that the incident could have occurred on 13/10/2023 and identified a hospital receipt for an HIV test dated 16/10/2023, by which point PW1 would have been within the window for that test to be reliably administered.
19. On cross-examination, the clinical officer stated that a patient can be issued more than one outpatient number where they have made more than one visit, that outpatient numbers are generated separately at different visits, and that pus cells can occur in both genders and are abnormal, being an indicator of infection, including urinary tract infection. She confirmed that not every part of the child's body was found abnormal, and that the child's external genitalia had been noted as normal before treatment was administered.
20. She confirmed that the child had, on the medical record, engaged in intercourse on a previous occasion with a neighbour, though the name of that neighbour was not disclosed. No spermatozoa were indicated as having been seen; she conceded that spermatozoa can survive up to 72 hours in the genitalia, and that had any been seen it would have been recorded, the laboratory only indicating what was in fact observed.
21. PW4, Webo Monica, testified that on 13/10/2023, while going to the shop at around 5:00pm, she asked PW1 to take a photograph of her at the sugarcane plantation, as she had told someone she was at the plantation. PW1 left ahead of her, and she followed, using the same route. PW1 had just gone round a corner and she decided not to call out, expecting they would catch up with one another; she could still see PW1 ahead of her. She then stopped to pluck and eat sugarcane, and when she resumed, she no longer saw PW1. She met a child on the road and asked whether the child had seen PW1; the child answered in the negative.
22. She further testified that, since PW1 had a basin, she thought PW1 had gone to pluck vegetables at the Respondent's house, and she decided to go behind the Respondent's house. She heard the Respondent saying, 'lift your legs, lift up your legs,' and decided to hide in the bush near the Respondent's house to see who would come out. This was at around 5:00pm to 5:30pm, and she saw PW1 leave the Respondent's house carrying maize in a basin. She ran and held PW1, who struggled with her, and she held her with a degree of force.
23. She confronted the Respondent, who said the complainant had come to take maize. She took the complainant and went home. On the way, she found Francis, the Respondent's son, and told him what had transpired; he said it was bad. She went to her mother and recounted the events, and they rushed back to the Respondent's house, but he had already left. On their way back they met the assistant nyumba kumi chairman and narrated what had happened; he called the village elder, who gave them KShs 50 to take PW1 to hospital. She brought PW1 to hospital, where PW1 was treated and given medicine, and the chairman advised her to report the matter to the police, which she did, though she was told the Respondent could not be arrested immediately as the police vehicle was engaged.
24. She further testified that the police directed the nyumba kumi elder to arrest the Respondent, who was thereafter arrested by the elders and brought to the station. She did not know where the complainant's mother lived, only that the complainant lived with her grandmother. She testified that the Respondent was well known to her, and identified him in Court.
25. On cross-examination, she testified that she recorded her statement at the police station and that the police did not read the statement back to her afterwards. She did not know the name of the child she met on the road, save that the child was familiar to her. She did not know the name of a woman she came across harvesting sweet potatoes, and that part had been left out of her statement by the police. She maintained that she was testifying truthfully. She reiterated that she saw the complainant with a basin, and that the complainant had earlier told her she was going to the posho mill, not that she had left home with maize; the complainant had not been given maize to grind or money to buy maize.
26. She testified that she spoke to the doctor at the hospital, who confirmed it was defilement, that there was discharge, and the need for a further HIV test the following Monday, and confirmed that children, including the complainant, would ordinarily pluck vegetables from the Respondent's home.
27. PW5, PC No. 97282 Prisca Auma of Kimilili Police Station, testified that she was assigned by the OCS Kimilili Police Station to investigate a case of defilement reported at the station on 13/10/2023 by the complainant, who had been escorted by PW4. She interrogated the complainant, who narrated what had transpired, and she issued the P3 Form, which was filled in by the doctor at Kimilili Sub-County Hospital. She recorded statements of witnesses, visited the scene in the company of the Respondent and the complainant, took photographs there, and, upon completing investigations, charged the Respondent with defilement.
28. On cross-examination, she testified that she did not recover anything at the scene, did not recall taking the complainant to hospital, and did not take the Respondent for medical examination. PW4 had not mentioned in her statement finding a woman harvesting sweet potatoes, nor mentioned taking photographs near the sugarcane plantation. She testified that nothing prevented her from taking the Respondent for medical examination, and that the examining doctor would have been able to tell whether the Respondent had had intercourse.
29. She further testified that she did not recover the complainant's inner pant, that it was not handed over to the police, and that nothing barred her from collecting it. She could not recall whether she had taken the Respondent to hospital.
30. The Respondent, put on his defence, testified that he knew the complainant, a neighbour, and denied the charges. Her grandmother had sent her to pluck vegetables on his farm, and he also gave her maize; he did not enter the bedroom as the complainant claimed. He saw PW4 together with the complainant; PW4 was playing music on her phone and had remained on the road. PW4 went to a canteen while the complainant came to his home. PW4 then called the complainant and they left.
31. He further testified that he did not see anyone assault the complainant, and that it was PW4 who alleged he had had intercourse with the complainant and reported it to the village elder, who told him to go home and that he would investigate. The village elder told him not to worry and to sleep. He was later arrested by nyumba kumi members and taken to Kimilili Police Station. He was not taken to any hospital for examination, and he wished the charges to be withdrawn. On cross-examination, he confirmed knowing the complainant as a neighbour, and that when she came for maize, he was alone in the house.
32. DW2, Christopher Kusima, testified on behalf of the Respondent, stating that he knew both the Respondent and PW4, and that on the day in question, while he was looking after cattle, he saw the Respondent, who was coming from church and had a painful leg, sit on a tree. He also saw PW4 coming, with a phone, playing music, and standing near the Respondent's house. PW4 went near where the complainant was; the complainant had a basin and went into the Respondent's house alone. PW4 came back with two students from Sikhendu school and called the complainant, telling her to wait. The complainant waited, and they went home together. He did not see Monica's mother screaming behind the Respondent's house, and later received a call that the Respondent had been charged with defilement, PW4 having called him to say the Respondent had been arrested.
33. He further testified that on 15/10/2023 he went to the complainant's home and found the complainant's grandmother spreading maize; she told him she had examined the complainant and had not found anything abnormal, and that her family had been pressured not to withdraw the case.
34. On cross-examination, he testified that he had been grazing animals on the said land and that the Respondent's house was approximately 50 metres away, from where he was able to see what was going on at the Respondent's home. He did not see the complainant's grandmother examining the complainant. The land is near a public road used by many people, and he stated that the complainant is a human being who can say anything.
Judgment of the Learned Trial Magistrate
35. In her judgment, the learned Magistrate determined that the age of the complainant had been established, finding her to be about 11 years old, having been born on 16/06/2012, the offence having allegedly occurred on 13/10/2023. On this aspect, the learned trial magistrate found the victim to be of tender years.
36. On the issue of penetration, the learned trial magistrate found that the medical officer did not indicate in the P3 Form whether there was penetration, nor explain to the court whether the hymen was torn due to the alleged sexual intercourse with the accused. The learned trial magistrate relied on Joseph Otieno Oyugi v Republic [2021] eKLR, and noted that the complainant did not speak of any pain, bleeding, or difficulty walking, holding that sexual intercourse involving an adult and a child of the complainant's age is ordinarily a harrowing experience that leaves telltale signs, and that the complainant's clothes were not blood-stained and no such telltale signs were present.
37. Further, the learned trial magistrate found that although the P3 Form indicated inflamed, tender labia minora on both sides, the clinical officer did not tell the Court that this was caused by the alleged sexual intercourse with the accused, and that had it been so caused, the complainant would have been expected to speak of pain during and after the alleged ordeal, but did not, which created doubt in the prosecution's case.
38. The learned trial magistrate also noted that PW4 testified to hearing the Respondent tell the complainant to lift her legs; however, when the complainant herself testified, she did not tell the court that the Respondent told her to lift her legs. PW4's version therefore lacked foundation and did not support the complainant's evidence. The learned trial magistrate further noted that the PRC Form, in its genital examination section, indicated that the complainant had a history of defilement on several prior occasions by another known neighbour, a history not indicated in the initial treatment notes or the P3 Form, and one the complainant did not disclose in her own testimony.
39. The learned trial magistrate also found that the evidence of DW1 and DW2 had not been challenged by the prosecution, which had further weakened the prosecution's case.
40. In conclusion, the learned trial magistrate found that the prosecution had not proved its case beyond reasonable doubt, that the offence of defilement had not been sustained against the Respondent, and, having so found, that the alternative charge had also not been sustained. She proceeded to acquit the Respondent under Section 215 of the Criminal Procedure Code.
The Appeal
41. The appeal was canvassed by way of written submissions.
Appellant's Submissions
42. In support of its appeal, the Appellant submitted that the element of age had been proved, as the trial magistrate herself found. On penetration, the Appellant submitted that penetration was proved, and that the complainant's evidence was corroborated by the medical evidence, which was sufficient to show that penetration occurred; further, that where medical examination is not conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child to determine whether penetration occurred. The medical officer testified that the perpetrator had had unprotected sex with the complainant, that there was a bloody stain at the labia majora, that the hymen was not intact and had an old margin, and that pus cells were found.
43. The Appellant further submitted that the medical examination showed epithelial cells present, and a diagnosis of defilement, for which antibiotics were given; that the PRC Form tallied with the earlier medical examination, the only difference being the diagrammatic representation of the areas injured and a further history of defilement by another known neighbour. The Appellant relied on Edwin Kipkurui Rono v R [2022] KEHC 1472 (KLR) and Otieno v Republic (Criminal Appeal E031 of 2024) [2024] KEHC 13131 (KLR), submitting that the clinical officer's evidence corroborated the victim's account of penetration, further proved by the presence of epithelial cells, the blood stain at the labia majora, and the presence of pus cells.
44. The Appellant further submitted that the complainant's account — that the Respondent removed her trouser and inner pant and 'did bad manners' to her — ought to be believed, and urged the Court to consider that the absence of medical evidence to support a finding of rape is not decisive, since the fact of rape can be proved by the oral evidence of a victim or by circumstantial evidence. The Appellant relied on Kassim Ali v Republic, Criminal Appeal No. 84 of 2005, consistent with Section 124 of the Evidence Act, under which a court may convict on the evidence of a victim of a sexual offence, provided the trial court believes, or is satisfied, that the victim is telling the truth, and records reasons for that belief. The Appellant submitted there was nothing to suggest the victim's testimony could not be believed, and that her evidence was sufficient to sustain a conviction.
45. The Appellant further submitted that the trial magistrate's finding that the victim did not speak of pain, bleeding, or difficulty walking was erroneous, since the victim confirmed the Respondent inserted his penis into her vagina, this being supported by medical documentation, and that there is no requirement that a victim state she felt pain or walked in a particular manner afterwards as an ingredient of the offence. It was further submitted that the trial magistrate's reliance on P.K.W. v Republic [2012] eKLR was erroneous, the circumstances of the instant case being different.
46. On identification, the Appellant submitted that the Respondent was well identified, being known to the victim as a neighbour. The Appellant urged this Court to allow the appeal, set aside and quash the acquittal, and substitute it with a conviction, or, in the alternative, to order a retrial if the Court considers it appropriate.
Respondent's Submissions
47. In opposing the appeal, the Respondent submitted that the trial court was keen in evaluating the ingredients of defilement, as is apparent from the judgment, and that the Appellant did not specify which provisions of the law on defilement the trial magistrate failed to appreciate, Section 8(1) and 8(2) of the Sexual Offences Act simply defining the offence and prescribing its sentence.
48. The Respondent further submitted that there was no penetration at all, and that the trial court correctly analysed the evidence of the clinical officer, who did not state in the P3 Form whether there was penetration or whether the hymen was torn due to the alleged intercourse with the Respondent. The Respondent submitted that ground (iii) of the appeal was not specific as to which evidence of the complainant the court is said to have disregarded, and is accordingly an omnibus ground, the complainant's evidence in any event having been fully recorded and analysed by the trial court.
49. The Respondent submitted that PW2's evidence shows she was not forthright, but was influenced by PW4, who alleged to have witnessed the incident yet gave no explanation for failing to intervene to stop it if her account were true.
50. The Respondent further submitted that there was no penetration, that the medical evidence disclosed only an old rupture of the hymen and pus cells, that questions arose as to a person having more than one outpatient number, that the pus cells indicated infection without any evidence of treatment for it, that no spermatozoa were found notwithstanding the Respondent's same-day arrest and the absence of any explanation for the failure to have him medically examined, and that the trial court had properly and impartially examined the clinical officer's evidence. The Respondent submitted there was no inconsistency in DW2's evidence, which was truthful.
D. ANALYSIS AND DETERMINATION
51. Having summarised the record, the judgment appealed from, and the parties' respective submissions, I turn to my own independent re-evaluation of the evidence. The following issues arise for determination: (a) whether the age of the complainant was proved, an issue on which the parties are agreed and which I address only briefly; (b) whether the identity of the perpetrator was proved; (c) whether the prosecution proved, to the required standard, that there was penetration within the meaning of Section 2(1) and Section 8(2) of the Sexual Offences Act; (d) whether the trial magistrate correctly evaluated the evidence of the complainant, the clinical officer, and the witness said to have overheard the incident; (e) whether the trial magistrate correctly had regard to the evidence of the defence witnesses; and (f) whether, on the totality of the evidence, the prosecution proved its case beyond reasonable doubt on either the main or the alternative charge.
52. On age, the complainant's birth certificate placed her date of birth as 16th June 2012, making her approximately 11 years old at the time of the alleged offence in October 2023. This was not seriously disputed by the Respondent, and the trial magistrate's finding that the complainant was a child of tender years is amply supported by the record. I find no basis to disturb it, and this ground of appeal, insofar as it touches on age, does not assist the Appellant.
53. On identity, I observe that this is not, in truth, a case turning on the identification of a stranger. The Respondent, in his own defence, admitted that the complainant came to his home on the material day for vegetables and maize, and that he was alone with her in the house at the time. What is in dispute is not who was present, but what occurred between them while they were alone. Ground (iv) of the appeal, framed as one of identification, and complaining that the trial magistrate disregarded evidence that placed an eyewitness at the scene, in substance concerns the weight to be given to PW4's account of what she overheard from outside the house, an issue I address fully at paragraphs 60 to 64 below. To the extent this ground is truly about identification of the Respondent as the person present with the complainant, it
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1. This is an Appeal filed by the Office of the Director of Public Prosecutions against the judgment of the trial Court at Bungoma.
2. The Respondent was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that the Respondent, Jacob Nasokho Wangila, on 13th day of October 2023 at Sikhendu area in Kimilili Sub-County within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of B.N.M., a child of 10 years.
3. The Respondent was charged with the alternative charge of committing an indecent act with a child contrary to Section 11(2) of the Sexual Offences Act No. 3 of 2006, the particulars being that Jacob Nasokho Wangila, on the 13th day of October 2023 at Sikhendu area within Kimilili Sub-County in Bungoma County, unlawfully and intentionally caused his penis to come into contact with the vagina of B.N.M., a child aged 10 years.
4. The witnesses for both the prosecution and the defence testified, and the learned trial magistrate, in her judgment, found that the prosecution had not been able to prove that there was penetration, and that without penetration the offence of defilement could not be sustained against the Respondent. She further found that, having accepted the defence version, the alternative charge could also not be sustained. The learned trial magistrate proceeded to find that the prosecution had not proved its case beyond reasonable doubt and found the accused not guilty of the main charge and the alternative charge.
5. Being dissatisfied with the acquittal, the Appellant lodged this appeal vide an undated Petition of Appeal, the acquittal being challenged on the following grounds:
i. The learned trial magistrate failed to appreciate the law concerning defilement and in particular the provisions of Section 8(2) of the Sexual Offences Act.
ii. The learned trial magistrate erred in law and fact in disregarding the evidence of penetration as adduced by the medical expert.
iii. The learned trial magistrate erred in law and fact by entirely disregarding the evidence of the complainant.
iv. The learned trial magistrate erred by disregarding the evidence of the eyewitness when the accused admitted she was at the scene.
v. The learned trial magistrate erred in misconstruing the import of the case P.K.W. v Republic [2012] eKLR when it was contested that there was an old ruptured hymen and there was clear evidence that the instant case and the authority had clear differences and different circumstances of the victims.
vi. The learned trial magistrate erred in law and fact in failing to pay regard to the inconsistencies in the evidence of the defence witness.
vii. The learned trial magistrate erred in law and in fact in failing to appreciate the meaning of penetration under Section 2(1) of the Sexual Offences Act.
B. THE DUTY OF THIS COURT
6. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
7. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
8. This principle was reaffirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174, where the Court held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, that the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and that in doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses.
9. The Court of Appeal further clarified in David Njuguna Wairimu v Republic [2010] eKLR that 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; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence on the basis of the law, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
10. I bear in mind, additionally, that this is an appeal by the State against an acquittal, brought under Section 348A of the Criminal Procedure Code. While that provision entitles this Court to substitute an acquittal with a conviction where the appeal succeeds, an appellate court remains slow to disturb a trial court's assessment of the credibility of witnesses, particularly where that assessment turns on the internal consistency of the evidence and the demeanour of those who gave it. This Court will interfere only where it is satisfied, on its own independent evaluation of the whole record, either that the trial court's findings of fact are not supported by the evidence, or that no tribunal properly directing itself could have reached the conclusion the trial court reached — see Kaingo v Republic [1982] KLR 213. A good place to start is to analyse the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
11. The court conducted voire dire on PW1, the complainant, B.W.N., a minor, who, having been sworn, stated that she is 10 years old and lived with her grandmother (a birth certificate was availed showing her date of birth as 16/06/2012). She testified that she is a student at Sikhendu Primary School and recalls that on 13/10/2023 she was returning from school at around 4:00pm and went to get vegetables for supper from the home of the Respondent, who is a neighbour and known to her well. She found the Respondent seated in his sitting room, and when she asked for vegetables, the Respondent asked her to first fetch a basin so he could give her maize. She fetched the basin, he poured maize into it, and the maize was in his bedroom; he called her to collect it from the bedroom, she refused and said she would take it in the sitting room, and told him that if he did not want to give it to her he should return her basin. He placed the basin down near his bedroom.
12. As she bent down to pick up the basin, the Respondent held her hand, covered her mouth, and closed the main door of the sitting room. Nobody else was in the two-roomed house. He pulled her to the bedroom; she asked him what he was doing, and he told her to stop. She wept, but the house is surrounded by a sugar plantation and no one could hear her cry. She could still see him, as only her mouth and left eye were covered. She begged him to stop, and he removed her inner pant and trouser. She stated that the Respondent 'did bad manners to her' using 'the thing he uses to urinate.'
13. She testified that he inserted his 'urinating thing' through the part she used to urinate. He had removed his trouser but did not have inner wear. She then dressed and he told her to leave. She left with the basin containing maize. On her way she met her aunt, Monica, and told her aunt what the Respondent had done to her after her aunt asked her what he was doing at the Respondent's house. She was then taken to Kimilili Sub-County Hospital where she was given medicine and thereafter to Kimilili Police Station, where she told the police what had happened. She testified that the Respondent had 'done bad manners' to her, that she knew him well, and she identified the Respondent in Court.
14. On cross-examination, PW1 testified that she was not with Monica when she went to the Respondent's home and had not seen her before that day. She said the Respondent is a church elder, and it was her first time to take vegetables from him, that being not a common occurrence; she went that day only because she suspected her grandmother, with whom she lives, would not bring vegetables. She reiterated that she met Monica on the way, who took her to her mother and thereafter to hospital. She did not bathe, and Monica's mother checked her genitals. She did not leave her clothes at the police station, and the doctor did not check her clothes. She confirmed the maize was in the bedroom, and testified that Monica emerged from the bush when she met her.
15. PW2 is Christine, a clinical officer based at Kimilili Sub-County Hospital, who testified that she held treatment notes for PW1 that had been filled in by a colleague who was away on transfer, and that she was familiar with that colleague's handwriting. She testified that PW1 was brought by her aunt with an allegation of being sexually assaulted by an older man, and narrated PW1's account as recorded. On examination of PW1, there was a bloody stain at the labia majora, the hymen was not intact and had an old margin, and a urinary test showed pus cells and epithelial cells. A syphilis test done on a high vaginal swab was non-reactive, with epithelial cells present; the HIV test was negative and the pregnancy test was negative.
16. The provisional diagnosis made was defilement, and PW1 was placed on antibiotics; post-exposure prophylaxis and emergency contraception were not recommended since PW1 had not started menstruating. PW2 also prepared the PRC Form, which was similar to the earlier treatment notes save that it contained a diagrammatic representation of the specific areas injured, and further recorded a history of PW1 having been defiled by another known neighbour on a prior occasion. PW2 filled the P3 Form on 16/10/2023 at Kimilili Sub-County Hospital, recording a further history of PW1 having been defiled, on 13/10/2023, by a man well known to her, with a change of clothing noted.
17. She testified that PW1 recounted what had transpired, explained herself well, and identified the intimate parts and parcel of clothing concerned. The injuries were assessed as approximately 64 hours old, with the probable instrument being blunt. The injuries were graded as harm, and the observations recorded as consistent with defilement, including a torn old margin of the hymen and tender labia minora on both sides. In her opinion, there was penetration. A blood clot was noted on the day of the incident, and PW1 was seen on 13/10/2023 with a history of defilement without a condom having been used.
18. She further testified that the incident could have occurred on 13/10/2023 and identified a hospital receipt for an HIV test dated 16/10/2023, by which point PW1 would have been within the window for that test to be reliably administered.
19. On cross-examination, the clinical officer stated that a patient can be issued more than one outpatient number where they have made more than one visit, that outpatient numbers are generated separately at different visits, and that pus cells can occur in both genders and are abnormal, being an indicator of infection, including urinary tract infection. She confirmed that not every part of the child's body was found abnormal, and that the child's external genitalia had been noted as normal before treatment was administered.
20. She confirmed that the child had, on the medical record, engaged in intercourse on a previous occasion with a neighbour, though the name of that neighbour was not disclosed. No spermatozoa were indicated as having been seen; she conceded that spermatozoa can survive up to 72 hours in the genitalia, and that had any been seen it would have been recorded, the laboratory only indicating what was in fact observed.
21. PW4, Webo Monica, testified that on 13/10/2023, while going to the shop at around 5:00pm, she asked PW1 to take a photograph of her at the sugarcane plantation, as she had told someone she was at the plantation. PW1 left ahead of her, and she followed, using the same route. PW1 had just gone round a corner and she decided not to call out, expecting they would catch up with one another; she could still see PW1 ahead of her. She then stopped to pluck and eat sugarcane, and when she resumed, she no longer saw PW1. She met a child on the road and asked whether the child had seen PW1; the child answered in the negative.
22. She further testified that, since PW1 had a basin, she thought PW1 had gone to pluck vegetables at the Respondent's house, and she decided to go behind the Respondent's house. She heard the Respondent saying, 'lift your legs, lift up your legs,' and decided to hide in the bush near the Respondent's house to see who would come out. This was at around 5:00pm to 5:30pm, and she saw PW1 leave the Respondent's house carrying maize in a basin. She ran and held PW1, who struggled with her, and she held her with a degree of force.
23. She confronted the Respondent, who said the complainant had come to take maize. She took the complainant and went home. On the way, she found Francis, the Respondent's son, and told him what had transpired; he said it was bad. She went to her mother and recounted the events, and they rushed back to the Respondent's house, but he had already left. On their way back they met the assistant nyumba kumi chairman and narrated what had happened; he called the village elder, who gave them KShs 50 to take PW1 to hospital. She brought PW1 to hospital, where PW1 was treated and given medicine, and the chairman advised her to report the matter to the police, which she did, though she was told the Respondent could not be arrested immediately as the police vehicle was engaged.
24. She further testified that the police directed the nyumba kumi elder to arrest the Respondent, who was thereafter arrested by the elders and brought to the station. She did not know where the complainant's mother lived, only that the complainant lived with her grandmother. She testified that the Respondent was well known to her, and identified him in Court.
25. On cross-examination, she testified that she recorded her statement at the police station and that the police did not read the statement back to her afterwards. She did not know the name of the child she met on the road, save that the child was familiar to her. She did not know the name of a woman she came across harvesting sweet potatoes, and that part had been left out of her statement by the police. She maintained that she was testifying truthfully. She reiterated that she saw the complainant with a basin, and that the complainant had earlier told her she was going to the posho mill, not that she had left home with maize; the complainant had not been given maize to grind or money to buy maize.
26. She testified that she spoke to the doctor at the hospital, who confirmed it was defilement, that there was discharge, and the need for a further HIV test the following Monday, and confirmed that children, including the complainant, would ordinarily pluck vegetables from the Respondent's home.
27. PW5, PC No. 97282 Prisca Auma of Kimilili Police Station, testified that she was assigned by the OCS Kimilili Police Station to investigate a case of defilement reported at the station on 13/10/2023 by the complainant, who had been escorted by PW4. She interrogated the complainant, who narrated what had transpired, and she issued the P3 Form, which was filled in by the doctor at Kimilili Sub-County Hospital. She recorded statements of witnesses, visited the scene in the company of the Respondent and the complainant, took photographs there, and, upon completing investigations, charged the Respondent with defilement.
28. On cross-examination, she testified that she did not recover anything at the scene, did not recall taking the complainant to hospital, and did not take the Respondent for medical examination. PW4 had not mentioned in her statement finding a woman harvesting sweet potatoes, nor mentioned taking photographs near the sugarcane plantation. She testified that nothing prevented her from taking the Respondent for medical examination, and that the examining doctor would have been able to tell whether the Respondent had had intercourse.
29. She further testified that she did not recover the complainant's inner pant, that it was not handed over to the police, and that nothing barred her from collecting it. She could not recall whether she had taken the Respondent to hospital.
30. The Respondent, put on his defence, testified that he knew the complainant, a neighbour, and denied the charges. Her grandmother had sent her to pluck vegetables on his farm, and he also gave her maize; he did not enter the bedroom as the complainant claimed. He saw PW4 together with the complainant; PW4 was playing music on her phone and had remained on the road. PW4 went to a canteen while the complainant came to his home. PW4 then called the complainant and they left.
31. He further testified that he did not see anyone assault the complainant, and that it was PW4 who alleged he had had intercourse with the complainant and reported it to the village elder, who told him to go home and that he would investigate. The village elder told him not to worry and to sleep. He was later arrested by nyumba kumi members and taken to Kimilili Police Station. He was not taken to any hospital for examination, and he wished the charges to be withdrawn. On cross-examination, he confirmed knowing the complainant as a neighbour, and that when she came for maize, he was alone in the house.
32. DW2, Christopher Kusima, testified on behalf of the Respondent, stating that he knew both the Respondent and PW4, and that on the day in question, while he was looking after cattle, he saw the Respondent, who was coming from church and had a painful leg, sit on a tree. He also saw PW4 coming, with a phone, playing music, and standing near the Respondent's house. PW4 went near where the complainant was; the complainant had a basin and went into the Respondent's house alone. PW4 came back with two students from Sikhendu school and called the complainant, telling her to wait. The complainant waited, and they went home together. He did not see Monica's mother screaming behind the Respondent's house, and later received a call that the Respondent had been charged with defilement, PW4 having called him to say the Respondent had been arrested.
33. He further testified that on 15/10/2023 he went to the complainant's home and found the complainant's grandmother spreading maize; she told him she had examined the complainant and had not found anything abnormal, and that her family had been pressured not to withdraw the case.
34. On cross-examination, he testified that he had been grazing animals on the said land and that the Respondent's house was approximately 50 metres away, from where he was able to see what was going on at the Respondent's home. He did not see the complainant's grandmother examining the complainant. The land is near a public road used by many people, and he stated that the complainant is a human being who can say anything.
Judgment of the Learned Trial Magistrate
35. In her judgment, the learned Magistrate determined that the age of the complainant had been established, finding her to be about 11 years old, having been born on 16/06/2012, the offence having allegedly occurred on 13/10/2023. On this aspect, the learned trial magistrate found the victim to be of tender years.
36. On the issue of penetration, the learned trial magistrate found that the medical officer did not indicate in the P3 Form whether there was penetration, nor explain to the court whether the hymen was torn due to the alleged sexual intercourse with the accused. The learned trial magistrate relied on Joseph Otieno Oyugi v Republic [2021] eKLR, and noted that the complainant did not speak of any pain, bleeding, or difficulty walking, holding that sexual intercourse involving an adult and a child of the complainant's age is ordinarily a harrowing experience that leaves telltale signs, and that the complainant's clothes were not blood-stained and no such telltale signs were present.
37. Further, the learned trial magistrate found that although the P3 Form indicated inflamed, tender labia minora on both sides, the clinical officer did not tell the Court that this was caused by the alleged sexual intercourse with the accused, and that had it been so caused, the complainant would have been expected to speak of pain during and after the alleged ordeal, but did not, which created doubt in the prosecution's case.
38. The learned trial magistrate also noted that PW4 testified to hearing the Respondent tell the complainant to lift her legs; however, when the complainant herself testified, she did not tell the court that the Respondent told her to lift her legs. PW4's version therefore lacked foundation and did not support the complainant's evidence. The learned trial magistrate further noted that the PRC Form, in its genital examination section, indicated that the complainant had a history of defilement on several prior occasions by another known neighbour, a history not indicated in the initial treatment notes or the P3 Form, and one the complainant did not disclose in her own testimony.
39. The learned trial magistrate also found that the evidence of DW1 and DW2 had not been challenged by the prosecution, which had further weakened the prosecution's case.
40. In conclusion, the learned trial magistrate found that the prosecution had not proved its case beyond reasonable doubt, that the offence of defilement had not been sustained against the Respondent, and, having so found, that the alternative charge had also not been sustained. She proceeded to acquit the Respondent under Section 215 of the Criminal Procedure Code.
The Appeal
41. The appeal was canvassed by way of written submissions.
Appellant's Submissions
42. In support of its appeal, the Appellant submitted that the element of age had been proved, as the trial magistrate herself found. On penetration, the Appellant submitted that penetration was proved, and that the complainant's evidence was corroborated by the medical evidence, which was sufficient to show that penetration occurred; further, that where medical examination is not conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child to determine whether penetration occurred. The medical officer testified that the perpetrator had had unprotected sex with the complainant, that there was a bloody stain at the labia majora, that the hymen was not intact and had an old margin, and that pus cells were found.
43. The Appellant further submitted that the medical examination showed epithelial cells present, and a diagnosis of defilement, for which antibiotics were given; that the PRC Form tallied with the earlier medical examination, the only difference being the diagrammatic representation of the areas injured and a further history of defilement by another known neighbour. The Appellant relied on Edwin Kipkurui Rono v R [2022] KEHC 1472 (KLR) and Otieno v Republic (Criminal Appeal E031 of 2024) [2024] KEHC 13131 (KLR), submitting that the clinical officer's evidence corroborated the victim's account of penetration, further proved by the presence of epithelial cells, the blood stain at the labia majora, and the presence of pus cells.
44. The Appellant further submitted that the complainant's account — that the Respondent removed her trouser and inner pant and 'did bad manners' to her — ought to be believed, and urged the Court to consider that the absence of medical evidence to support a finding of rape is not decisive, since the fact of rape can be proved by the oral evidence of a victim or by circumstantial evidence. The Appellant relied on Kassim Ali v Republic, Criminal Appeal No. 84 of 2005, consistent with Section 124 of the Evidence Act, under which a court may convict on the evidence of a victim of a sexual offence, provided the trial court believes, or is satisfied, that the victim is telling the truth, and records reasons for that belief. The Appellant submitted there was nothing to suggest the victim's testimony could not be believed, and that her evidence was sufficient to sustain a conviction.
45. The Appellant further submitted that the trial magistrate's finding that the victim did not speak of pain, bleeding, or difficulty walking was erroneous, since the victim confirmed the Respondent inserted his penis into her vagina, this being supported by medical documentation, and that there is no requirement that a victim state she felt pain or walked in a particular manner afterwards as an ingredient of the offence. It was further submitted that the trial magistrate's reliance on P.K.W. v Republic [2012] eKLR was erroneous, the circumstances of the instant case being different.
46. On identification, the Appellant submitted that the Respondent was well identified, being known to the victim as a neighbour. The Appellant urged this Court to allow the appeal, set aside and quash the acquittal, and substitute it with a conviction, or, in the alternative, to order a retrial if the Court considers it appropriate.
Respondent's Submissions
47. In opposing the appeal, the Respondent submitted that the trial court was keen in evaluating the ingredients of defilement, as is apparent from the judgment, and that the Appellant did not specify which provisions of the law on defilement the trial magistrate failed to appreciate, Section 8(1) and 8(2) of the Sexual Offences Act simply defining the offence and prescribing its sentence.
48. The Respondent further submitted that there was no penetration at all, and that the trial court correctly analysed the evidence of the clinical officer, who did not state in the P3 Form whether there was penetration or whether the hymen was torn due to the alleged intercourse with the Respondent. The Respondent submitted that ground (iii) of the appeal was not specific as to which evidence of the complainant the court is said to have disregarded, and is accordingly an omnibus ground, the complainant's evidence in any event having been fully recorded and analysed by the trial court.
49. The Respondent submitted that PW2's evidence shows she was not forthright, but was influenced by PW4, who alleged to have witnessed the incident yet gave no explanation for failing to intervene to stop it if her account were true.
50. The Respondent further submitted that there was no penetration, that the medical evidence disclosed only an old rupture of the hymen and pus cells, that questions arose as to a person having more than one outpatient number, that the pus cells indicated infection without any evidence of treatment for it, that no spermatozoa were found notwithstanding the Respondent's same-day arrest and the absence of any explanation for the failure to have him medically examined, and that the trial court had properly and impartially examined the clinical officer's evidence. The Respondent submitted there was no inconsistency in DW2's evidence, which was truthful.
D. ANALYSIS AND DETERMINATION
51. Having summarised the record, the judgment appealed from, and the parties' respective submissions, I turn to my own independent re-evaluation of the evidence. The following issues arise for determination: (a) whether the age of the complainant was proved, an issue on which the parties are agreed and which I address only briefly; (b) whether the identity of the perpetrator was proved; (c) whether the prosecution proved, to the required standard, that there was penetration within the meaning of Section 2(1) and Section 8(2) of the Sexual Offences Act; (d) whether the trial magistrate correctly evaluated the evidence of the complainant, the clinical officer, and the witness said to have overheard the incident; (e) whether the trial magistrate correctly had regard to the evidence of the defence witnesses; and (f) whether, on the totality of the evidence, the prosecution proved its case beyond reasonable doubt on either the main or the alternative charge.
52. On age, the complainant's birth certificate placed her date of birth as 16th June 2012, making her approximately 11 years old at the time of the alleged offence in October 2023. This was not seriously disputed by the Respondent, and the trial magistrate's finding that the complainant was a child of tender years is amply supported by the record. I find no basis to disturb it, and this ground of appeal, insofar as it touches on age, does not assist the Appellant.
53. On identity, I observe that this is not, in truth, a case turning on the identification of a stranger. The Respondent, in his own defence, admitted that the complainant came to his home on the material day for vegetables and maize, and that he was alone with her in the house at the time. What is in dispute is not who was present, but what occurred between them while they were alone. Ground (iv) of the appeal, framed as one of identification, and complaining that the trial magistrate disregarded evidence that placed an eyewitness at the scene, in substance concerns the weight to be given to PW4's account of what she overheard from outside the house, an issue I address fully at paragraphs 60 to 64 below. To the extent this ground is truly about identification of the Respondent as the person present with the complainant, it
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