(Being an appeal from the judgment of Hon. Y.A Shlkanda SPM lssued
and delivered, on 7th September, 2023 at the Shanzu Law Court at
Shanzu SO NUMBER I338 of 2015)
The accused person was charged with the offence of defilement as well as an alternative count of committing an indecent act with a child. In the main count, the accused person was charged with the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act. The particulars of the offence were that on 16/11/2015 at Kongowea area in Kisauni Sub-county within Mombasa County, the accused person intentionally caused his penis to penetrate the vagina of T.M a child aged 6 years. The accused person was alternatively charged with the offence of committing an indecent act with a child contrary to section L1(1) of the Sexual Offences Act. The particulars of the offence are that on 16/11/2015 at Kongowea area in Kisauni sub-county within Mombasa County, the accused person intentionally touched the vagina of T.M a girl aged six (6) years.
The accused person pleaded not guilty. The matter was heard and the prosecution called a total of six (6)witnesses in a bid to prove its case against the accused person.
The accused person gave sworn testimony and also raised an alibi in his defence.
The trial court acquitted the accused person on all counts. The court held that the prosecution had failed to prove its case against the accused person beyond reasonable doubt.
Dissatisfied with the judgement, the ODPP has appealed against the whole of the said judgment on the following grounds:
That the Learned Trial Magistrate erred in law by failing to note that the charge of defilement as against the Respondent was provedbeyond reasonable doubt by the prosecution witnesses during the trial yet he concluded by awarding an acquittal to the Respondent.
The Learned Trial Magistrate erred in 1aw and in fact by failing to keenly appreciate and consider the evidence presented by the Prosecution and in turn delivered Judgment acquitting the Respondent of the charge of defilement yet the evidence adduced was weighty to sustain a conviction of the Respondent.
The Learned Trial Magistrate failed to appreciate that the critical elements of defilement being age of the minor, penial penetration and identification of the Respondent were proved to the required standard by the prosecution.
The Learned Trial Magistrate erred in law and in fact by acquitting the Respondent of the offence of defilement despite the Honourable Magistrate acknowledging and confirming that indeed penetration took place as is highlighted at paragraph 3 of page 12 of the Learned Magistrate's judgment.
The Learned Trial Magistrate erred in law and in fact by failing to appreciate that the Trial Court had been involved at the latter stage of the case after the same passed through several Magistrates who have since gone on transfer and that there was need to re-open the Prosecution’s case to have no doubt in the prosecution’s charge of defilement against the respondent.
The Learned Trial Magistrate erred in law and in fact by failing to take into account the minor’s statement which was concise and cogent as being a true account of events to affirm the charge of the offence of defilement.
The Learned Trial Magistrate erred in law and in fact by delivering judgment that acquitted the Respondent without the Respondent providing evidence whetherby way of documentation and/or in person to act as an alibi to prove his innocence against the offence of defilement as was charged.
The Learned Magistrate erred in law and in fact by delivering Judgment that acquitted the Respondent without the accused person providing any form of evidence whether by way of documentation and/or in person to act as an alibi to prove his innocence against the offence of defilement as was charged.
I have considered the appeal and submissions. I have also read the record of the trial court and the impugned judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32.
The issues that arises for determination in this appeal are as follows:-
whether the prosecution proved its case to the desired threshold on the basis of the elements of the offence of defilement.
Whether the court properly tested the defence of alibi in weighing it with all the other evidence to see if the prosecution established its case beyond reasonable doubt.
whether the trial court failed to comply with section 200 of the Criminal Procedure Code and if so, the effect thereof.
In this case, the trial court did not take down the evidence of the minor and in fact all the prosecution witnesses testified before another court:
“Ground 5 of the Appeal is that the trial court did not consider the need to re-open the prosecution case so that the prosecution case can no doubts”.sic
I have gone through the record and I note that there was no application to re-open their case. I note that Section 200 of the Criminal Procedure Code was not too tidy as it is the defense advocate who stated that the case should proceed from where the previous court had reached. This is at page 39 and 44 of the record of appeal. Procedurally, it ought to have been the appellant to make the choice.
Nevertheless I find that under section 200 of the CPC the rights were fully explained to the Appellant and the prosecution at the time who then elected to proceed with the case from where it had reached. The issue of re opening the case never came up.
The main issue for consideration is therefore whether the case against the appellant was proved to the required threshold in view of the totality of evidence on record.
Section 8(1) of the Sexual Offences Act provides as follows:-
“A person who commits an act which causes penetration
with a child is guilty of an offence termed defilement”.
Section 2 of the Sexual Offences Act defines the term “penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The same section refers to the definition of a child as provided for under the Children Ac
Section 2 of the Children Act defines a child as any human being under the age of eighteen years. From the above provisions, I gather that the key ingredients of the offence of defilement are as follows:-
The accused person must have committed an act which causes the partial or complete insertion of his or another person’s genital organ into the genital organ of another person or the accused person’s genital organ. My understanding of the law is that it does not matter who inserts, what matters is who causes the insertion. For instance, a woman who causes a male child to insert his penis into her vagina may be guilty of defilement if all the key ingredients are satisfied. In a nutshell, the prosecution must prove penetration.
The alleged victim must be below the age of eighteen years. The prosecution must prove that the alleged victim was below the age of eighteen years at the time of incident, that is, proof of age.
Positive identification of the accused person. The evidence of the prosecution must show that the accused person was positively identified as the person who committed the impugned act against the child.
My view is buttressed by the authority of Dominic Kibet Mwareng vs Republic [2013] eKLR where the High Court observed as thus:
“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant”.
Similarly, in the case of C.W.K. vs Republic [2015] eKLR, Kimaru held that for the prosecution to sustain the charge of defilement, the prosecution must establish penetration, the perpetrator of the offence and the age of victim.
Age
The trial court cited the case of Moses Nato Raphael vs Republic [2015] eKLR , the Court of Appeal pronounced itself thus:
“ On the challenge posed by the uncertainty in the complainant’s age, this Court had occasion to deal with a similar issue in Tumaini Masai Mwanya vs Republic, Mombasa CR.A. No. 364 of 2010, where we held that proof of age for purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. As long as there is evidence that the victim is below 18 years, the offence of defilement will be established. The age, which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability.
The minor’s mother testified that the minor was born in July, 2009. A copy of the minor’s health card was produced in evidence. It shows that the minor was born on 18/7/2009. This implies that at the time of the alleged incident, the minor was about six years and four months old. There is no contrary evidence. In cases of defilement, as far as age is concerned, all that the prosecution needs to prove is that the alleged victim was below the age of eighteen years at the time of offence. Contrary to the submissions by the defence. I find that there is sufficient evidence to prove that the minor herein was six years old or below the age of eighteen years at the time of alleged offence.
PENETRATION
In most cases, penetration is proved by testimony which may be corroborated by medical evidence. However, absence of medical evidence does not ipso facto mean that there was no penetration.
See the case of Fappyton Mutuku Ngui vs Republic [2014] eKLR .
In Bassita Hussein vs Uganda, Criminal Appeal No. 35 of 1995 , the
Supreme Court of Uganda held as follows:
“The Act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim’s evidence must always be adduced in every case of Defilement to prove sexual intercourse or penetration. Whatever evidence the Prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.
The only direct evidence in respect of the offence is that of the minor herself. The minor testified on 21/6/2016 at the age of seven (7) years. This was after about seven months from the date of the alleged incident. She gave an unsworn testimony after the court conducted a voire dire examination and was convinced that the minor was possessed of average intelligence for acceptance of her evidence, understood the duty to tell the truth but did not understand the meaning and sanctity of an oath.
In her evidence in-chief, the minor stated that she was at the Pastor's house watching TV with her siblings named as Tekla and Benta. That the Pastor was in the kitchen. The minor further testified that at some point the Pastor was in his bedroom who then called her , the minor. That she went to the bedroom where after the Pastor asked her to sit on his laps while the Pastor was seated in a chair. The minor sat on the Pastor's laps while they faced each other.
On penetration, this is what the record indicates:
"The Pastor then took 'hiyo mdudu yake akaingizo hapa kwongu.' I was wearing a dress and panty.'Yeye alinivua suruali,' He removed my panty.'Yeye akafungua zip yake.' He unzipped his trouser. He then inserted his 'mdudu' hapa mbele.' 'Mdudu ni ya hapo mbele,' 'Akaingiza
hapa' (pointing at her vagina). He then inserted his penis in my vagina."
There was no other eye witness to the incident.
From her testimony, the minor gave the impression that she was very familiar with the house freely able to tell the position of the kitchen, toilet, bedroom, sitting room, etc.
Yet upon cross examination she indicated that it was her first time there.
It also turns out that apparently she was in the company of more children including Benta, Tekla, Mariam, Nina as well as Lindsay and that in fact it is Tekla who knew about the TV watching and not her.
Would she then have freely heeded the accused’s summons to the bedroom and engage in the supposed conduct when well aware her siblings and many friends were present? Would the pastor be so brazen and engage in such deprobable conduct when the other children were inside and outside the house ?
The prosecution produced in evidence the PRC and P3 forms. They show that the minor was examined on 17/11/2015 and the following were noted:
Edema (swelling) of the labia majora; b) Generalized /wide spread vaginal abrasions; and c) Rough edges/perforation on the hymen.
Up to this point the case by the prosecution appeared to be on the right trajectory. The medical notes suggest forceful penetration.
Then we got into some marshy water: The evidence of PW 3 was that he went to the accused person's house at 5:00pm. to collect a music CD. That he knocked at the door thrice but there was no response. PW 3 further stated that the accused person opened the door whereupon PW 3 entered and found two girls watching TV. PW 3's testimony further indicates that after he had entered the house, the accused person emerged from the bedroom with the minor behind him.
As the trial court correctly stated in its analysis of evidence, it was not clear how the accused person could have opened the door to the house and shortly thereafter emerge from the bedroom.
Upon cross examination, PW3 stated that when he knocked at the door, nobody opened it. That he was the one who opened the door when nobody answered.
PW 3 stated that he asked the minor what she had been doing in the accused person's bedroom and in response, the minor started crying.
On the other hand, the minor never mentioned that she encountered PW 3 or any other man while at the Pastor's house. Whereas the testimony of PW 3 indicates that he found two other girls watching TV at the accused person's house before the minor emerged from the bedroom, the minor testified that after the Pastor was done with the impugned act, her Sunday school friends called her as well as one Mama Miriam. That her siblings were already in Sunday school class.
As per the minor's mother, PW4, the minor told her that she was watching TV at the Pastor's house with three other children. It was her evidence that she did not know who the other three children were. However, the minor testified that the other children included two of her own siblings.
Again , as the trial court correctly noted , it is unlikely that the minor's mother would fail to know her own children. Upon cross-examination by counsel for the accused person, the minor's mother reiterated that she did not know the other children who were with the minor at the Pastor's house. The witness stated that she had two children only and that when the minor was at the Pastor's house, the
other child was in church. The minor's mother also testified that the minor told her that it was the third time that the Pastor had done such an act to her. ln her testimony, the minor never mentioned that the Pastor had done the act to her on previous occasions.
The testimony of PW 5 was that on the material day at about 5pm she went to the Pastor’s house on two occasions but there was no response when she knocked at the door. That on her way back to the church, she met PW 3 and together, they returned to the Pastor’s house. It was the evidence of PW 5 that PW 3 called out the Pastor’s name thrice but there was no response.
Now in his testimony, PW 3 did not mention that he went to the Pastor’s house in the company of PW 5. His evidence was that after he found the minor at the accused person’s house he went to call mama Miriam. It is not clear whether Mama Miriam and PW 5 are one and the same person but be that as it may, the testimony of the minor does not indicate the presence of any other man, apart from the accused person, nor any woman at the Pastor’s house.
Furthermore, PW 5 testified that she took the minor from the accused person’s house and held her hand then went to a classroom with her. The minor’s evidence was that she was called out by the other children and went to the classroom on her ownto where Mama Miriam was. PW 3 testified that when the minor emerged from the accused person’s bedroom, he asked her what the Pastor had done to her but in response, the minor started crying. On the other hand, the evidence of PW 5 was that immediately the minor emerged from the Pastor’s bedroom, she held her hand and left the house with her. That she left PW 3 with the Pastor at the house. In cross examination by counsel for the defence, PW 5 stated that PW 3 never called her to the scene. That they met outside the Pastor’s house and that if PW 3 stated that he called her, he would be lying.
PW 5 never mentioned that she saw children watching TV at the house. She did not state that there were any other children in the house apart from the minor. Whereas PW 3 testified that he found two girls watching TV at the Pastor's house, PW 5 testified that the TV was switched off when she was at the house with PW 3.
These were glaring discrepancies that could not be ignored.
When we move to the evidence of the investigators , again we find more gaps. When the investigating officer was cross-examined by counsel for the defence, she stated that she investigated the matter alongside one Police Constable Virginia Wanjiru. That they visited the scene after the accused person had already been charged before court. The investigating officer was not even sure of when and how the accused person was arrested. Her testimony was that the accused person was arrested on 17/11/2015 by police officers.
Further, cross examination of the investigating officer revealed that a statement which was recorded by her co-investigator, who was not called to testify, indicated that the accused person was apprehended by members of public. The charge sheet indicates that the accused person was arrested on 16/11/2015. This was on the same day that the incident was said to have occurred and before the minor was examined and witness statements recorded. What was the hurry in arresting the accused person? Whoever arrested the accused person was not called to testify. The investigating officer did not visit the accused person’s house for further investigations.
The foregoing reveals several discrepancies in the prosecution evidence. I did not see nor hear the prosecution witnesses and therefore cannot comment on their demeanor. In all cases, discrepancies in witness testimonies are bound to occur. Where the discrepancies are minor and do not go to the root of the case, the same can be overlooked. My view is buttressed by the authority of Peter Ngure Mwangi vs Republic [2014] eKLR wherein the Court of Appeal held that where the evidence adduced by the prosecution consists of minor discrepancies and inconsistencies, the same are not material and cannot weaken the probative value of the evidence tendered by the prosecution in support of their case.
In the case of Philip Nzaka Watu vs Republic [2016] eKLR , the Court of Appeal had this to say:
“It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amaigam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minute’s detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
Similarly, in Dickson Elia Nsamba Shapwata & Another vs The Republic , CR. Appl. No. 92 of 2007 , the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter”.
Apart from the discrepancy on how the child was traced, we also find that her evidence and the mother’s differ. The testimony of the minor as well as PW'3 was that on the material day, the minor was wearing a dress. However, her mother testified that the minor was wearing a shirt and blouse. It was the evidence of the minor’s mother that after being informed of what the Pastor had done, she examined the minor's genitalia or what she called her private parts but did not see anything, although the child complained of pain. As already indicated, the medical evidence indicates that the minor had oedema on the labia majora and wide spread abrasions on the vagina. That her hymen had rough edges. In ordinary circumstances these are physical injuries that she could have easily see.
.
The foregoing reveals several discrepancies in the prosecution evidence. The witness testimonies with regard to the events prior to and following the defilement must be consistent and corroborative. There is contradictory evidence as to how the minor was discovered at the house and by whom. There is also contradictory evidence on the part of the prosecution with regard to who was in the accused person's house at the time of the act and discovery. The inconsistencies raise doubt as to the credibility of the prosecution witnesses'
In Ndung'u Kimanyi v Republic [1979] KLR 282,the court observed thus:
"A witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence."
Whereas the accused person's identity as the pastor at the church was not in dispute, for reasons already given, it is doubtful whether the minor was at his house on the material day. There is no evidence to show that the minor identified the accused person at the police station as the person who had defiled her.
The accused person denied having committed the offence and stated that he was not at the house when the incident is said to have occurred. In essence, the accused person raised an alibi.
In the case of Chabah & Another v Republic [1988] KLR 1, the court of Appeal held that the onus is on the prosecution to displace the alibi after the defence raises it.
In Wong'oribe v R [1980] KLR 749 Madan JA (as he then was) in delivering the judgment of thecourt at page 151 letter G & H stated:
"The defence of alibi was put forward for the first time some months after the robbery when the appellant mode his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible”
In Kiarie v Republic 1984 KLR 739, the court of Appeal held thus:
"An alibi raises a specific defence and an accused person who puts forward an alibi as an
answer to a charge preferred against him does not in law thereby assume any burden of
proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonoble".
Even assuming that the defence was raised for the first time during defence hearing, the prosecution would have invoked the provisions of section 212 of the Criminal Procedure Code which provide as follows:
"If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter,,.
In John Odero Omenda &Another v Republic [2014] eKLR, Majanja J held as follows:
"The defences raised by the appellants were plausible and although they were raised for the
first time during the defence, the duty of displacing or rebutting that defence lay on the
prosecution' Indeed, the law affords the prosecution such an opportunity in section 212 of the Criminol Procedure Code (chapter 75 of the Laws of Kenya
Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty' Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt.
In the case of Joan Chebichii Sawe v Republic[2003] eKLR, the Court of Appeal held thus:
"The suspicion may be strong but this is a game with clear and settled rules of engagement.
The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 7998 (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.
I therefore find that the trial court properly analyzed the evidence. The age was proved, and there is some evidence of some injury that suggest penetration. The issue was then the identity and whether the Appellant was culpable. The trial court again correctly noted that the evidence of a child of tender ages does not need corroboration. The court however needs to record down why they believe the child.
In this case the trial court noted that there were too many lacunas that were not filed. I totally agree.
From all this, I find no error in the Judgment and there is no need to disturb the trial court’s decision. Accordingly, the Appeal fails and it is dismissed. The acquittal upheld.
It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS ,
this 26 th day of June 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MR SIRIMA FOR THE APPELANT
THE RESPONDENT and his advocate MR .Ombati
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
and delivered, on 7th September, 2023 at the Shanzu Law Court at
Shanzu SO NUMBER I338 of 2015)
The accused person was charged with the offence of defilement as well as an alternative count of committing an indecent act with a child. In the main count, the accused person was charged with the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act. The particulars of the offence were that on 16/11/2015 at Kongowea area in Kisauni Sub-county within Mombasa County, the accused person intentionally caused his penis to penetrate the vagina of T.M a child aged 6 years. The accused person was alternatively charged with the offence of committing an indecent act with a child contrary to section L1(1) of the Sexual Offences Act. The particulars of the offence are that on 16/11/2015 at Kongowea area in Kisauni sub-county within Mombasa County, the accused person intentionally touched the vagina of T.M a girl aged six (6) years.
The accused person pleaded not guilty. The matter was heard and the prosecution called a total of six (6)witnesses in a bid to prove its case against the accused person.
The accused person gave sworn testimony and also raised an alibi in his defence.
The trial court acquitted the accused person on all counts. The court held that the prosecution had failed to prove its case against the accused person beyond reasonable doubt.
Dissatisfied with the judgement, the ODPP has appealed against the whole of the said judgment on the following grounds:
That the Learned Trial Magistrate erred in law by failing to note that the charge of defilement as against the Respondent was provedbeyond reasonable doubt by the prosecution witnesses during the trial yet he concluded by awarding an acquittal to the Respondent.
The Learned Trial Magistrate erred in 1aw and in fact by failing to keenly appreciate and consider the evidence presented by the Prosecution and in turn delivered Judgment acquitting the Respondent of the charge of defilement yet the evidence adduced was weighty to sustain a conviction of the Respondent.
The Learned Trial Magistrate failed to appreciate that the critical elements of defilement being age of the minor, penial penetration and identification of the Respondent were proved to the required standard by the prosecution.
The Learned Trial Magistrate erred in law and in fact by acquitting the Respondent of the offence of defilement despite the Honourable Magistrate acknowledging and confirming that indeed penetration took place as is highlighted at paragraph 3 of page 12 of the Learned Magistrate's judgment.
The Learned Trial Magistrate erred in law and in fact by failing to appreciate that the Trial Court had been involved at the latter stage of the case after the same passed through several Magistrates who have since gone on transfer and that there was need to re-open the Prosecution’s case to have no doubt in the prosecution’s charge of defilement against the respondent.
The Learned Trial Magistrate erred in law and in fact by failing to take into account the minor’s statement which was concise and cogent as being a true account of events to affirm the charge of the offence of defilement.
The Learned Trial Magistrate erred in law and in fact by delivering judgment that acquitted the Respondent without the Respondent providing evidence whetherby way of documentation and/or in person to act as an alibi to prove his innocence against the offence of defilement as was charged.
The Learned Magistrate erred in law and in fact by delivering Judgment that acquitted the Respondent without the accused person providing any form of evidence whether by way of documentation and/or in person to act as an alibi to prove his innocence against the offence of defilement as was charged.
I have considered the appeal and submissions. I have also read the record of the trial court and the impugned judgment. As a first appellate court, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno vs. Republic [1972] E.A 32.
The issues that arises for determination in this appeal are as follows:-
whether the prosecution proved its case to the desired threshold on the basis of the elements of the offence of defilement.
Whether the court properly tested the defence of alibi in weighing it with all the other evidence to see if the prosecution established its case beyond reasonable doubt.
whether the trial court failed to comply with section 200 of the Criminal Procedure Code and if so, the effect thereof.
In this case, the trial court did not take down the evidence of the minor and in fact all the prosecution witnesses testified before another court:
“Ground 5 of the Appeal is that the trial court did not consider the need to re-open the prosecution case so that the prosecution case can no doubts”.sic
I have gone through the record and I note that there was no application to re-open their case. I note that Section 200 of the Criminal Procedure Code was not too tidy as it is the defense advocate who stated that the case should proceed from where the previous court had reached. This is at page 39 and 44 of the record of appeal. Procedurally, it ought to have been the appellant to make the choice.
Nevertheless I find that under section 200 of the CPC the rights were fully explained to the Appellant and the prosecution at the time who then elected to proceed with the case from where it had reached. The issue of re opening the case never came up.
The main issue for consideration is therefore whether the case against the appellant was proved to the required threshold in view of the totality of evidence on record.
Section 8(1) of the Sexual Offences Act provides as follows:-
“A person who commits an act which causes penetration
with a child is guilty of an offence termed defilement”.
Section 2 of the Sexual Offences Act defines the term “penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The same section refers to the definition of a child as provided for under the Children Ac
Section 2 of the Children Act defines a child as any human being under the age of eighteen years. From the above provisions, I gather that the key ingredients of the offence of defilement are as follows:-
The accused person must have committed an act which causes the partial or complete insertion of his or another person’s genital organ into the genital organ of another person or the accused person’s genital organ. My understanding of the law is that it does not matter who inserts, what matters is who causes the insertion. For instance, a woman who causes a male child to insert his penis into her vagina may be guilty of defilement if all the key ingredients are satisfied. In a nutshell, the prosecution must prove penetration.
The alleged victim must be below the age of eighteen years. The prosecution must prove that the alleged victim was below the age of eighteen years at the time of incident, that is, proof of age.
Positive identification of the accused person. The evidence of the prosecution must show that the accused person was positively identified as the person who committed the impugned act against the child.
My view is buttressed by the authority of Dominic Kibet Mwareng vs Republic [2013] eKLR where the High Court observed as thus:
“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant”.
Similarly, in the case of C.W.K. vs Republic [2015] eKLR, Kimaru held that for the prosecution to sustain the charge of defilement, the prosecution must establish penetration, the perpetrator of the offence and the age of victim.
Age
The trial court cited the case of Moses Nato Raphael vs Republic [2015] eKLR , the Court of Appeal pronounced itself thus:
“ On the challenge posed by the uncertainty in the complainant’s age, this Court had occasion to deal with a similar issue in Tumaini Masai Mwanya vs Republic, Mombasa CR.A. No. 364 of 2010, where we held that proof of age for purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. As long as there is evidence that the victim is below 18 years, the offence of defilement will be established. The age, which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability.
The minor’s mother testified that the minor was born in July, 2009. A copy of the minor’s health card was produced in evidence. It shows that the minor was born on 18/7/2009. This implies that at the time of the alleged incident, the minor was about six years and four months old. There is no contrary evidence. In cases of defilement, as far as age is concerned, all that the prosecution needs to prove is that the alleged victim was below the age of eighteen years at the time of offence. Contrary to the submissions by the defence. I find that there is sufficient evidence to prove that the minor herein was six years old or below the age of eighteen years at the time of alleged offence.
PENETRATION
In most cases, penetration is proved by testimony which may be corroborated by medical evidence. However, absence of medical evidence does not ipso facto mean that there was no penetration.
See the case of Fappyton Mutuku Ngui vs Republic [2014] eKLR .
In Bassita Hussein vs Uganda, Criminal Appeal No. 35 of 1995 , the
Supreme Court of Uganda held as follows:
“The Act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim’s evidence must always be adduced in every case of Defilement to prove sexual intercourse or penetration. Whatever evidence the Prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.
The only direct evidence in respect of the offence is that of the minor herself. The minor testified on 21/6/2016 at the age of seven (7) years. This was after about seven months from the date of the alleged incident. She gave an unsworn testimony after the court conducted a voire dire examination and was convinced that the minor was possessed of average intelligence for acceptance of her evidence, understood the duty to tell the truth but did not understand the meaning and sanctity of an oath.
In her evidence in-chief, the minor stated that she was at the Pastor's house watching TV with her siblings named as Tekla and Benta. That the Pastor was in the kitchen. The minor further testified that at some point the Pastor was in his bedroom who then called her , the minor. That she went to the bedroom where after the Pastor asked her to sit on his laps while the Pastor was seated in a chair. The minor sat on the Pastor's laps while they faced each other.
On penetration, this is what the record indicates:
"The Pastor then took 'hiyo mdudu yake akaingizo hapa kwongu.' I was wearing a dress and panty.'Yeye alinivua suruali,' He removed my panty.'Yeye akafungua zip yake.' He unzipped his trouser. He then inserted his 'mdudu' hapa mbele.' 'Mdudu ni ya hapo mbele,' 'Akaingiza
hapa' (pointing at her vagina). He then inserted his penis in my vagina."
There was no other eye witness to the incident.
From her testimony, the minor gave the impression that she was very familiar with the house freely able to tell the position of the kitchen, toilet, bedroom, sitting room, etc.
Yet upon cross examination she indicated that it was her first time there.
It also turns out that apparently she was in the company of more children including Benta, Tekla, Mariam, Nina as well as Lindsay and that in fact it is Tekla who knew about the TV watching and not her.
Would she then have freely heeded the accused’s summons to the bedroom and engage in the supposed conduct when well aware her siblings and many friends were present? Would the pastor be so brazen and engage in such deprobable conduct when the other children were inside and outside the house ?
The prosecution produced in evidence the PRC and P3 forms. They show that the minor was examined on 17/11/2015 and the following were noted:
Edema (swelling) of the labia majora; b) Generalized /wide spread vaginal abrasions; and c) Rough edges/perforation on the hymen.
Up to this point the case by the prosecution appeared to be on the right trajectory. The medical notes suggest forceful penetration.
Then we got into some marshy water: The evidence of PW 3 was that he went to the accused person's house at 5:00pm. to collect a music CD. That he knocked at the door thrice but there was no response. PW 3 further stated that the accused person opened the door whereupon PW 3 entered and found two girls watching TV. PW 3's testimony further indicates that after he had entered the house, the accused person emerged from the bedroom with the minor behind him.
As the trial court correctly stated in its analysis of evidence, it was not clear how the accused person could have opened the door to the house and shortly thereafter emerge from the bedroom.
Upon cross examination, PW3 stated that when he knocked at the door, nobody opened it. That he was the one who opened the door when nobody answered.
PW 3 stated that he asked the minor what she had been doing in the accused person's bedroom and in response, the minor started crying.
On the other hand, the minor never mentioned that she encountered PW 3 or any other man while at the Pastor's house. Whereas the testimony of PW 3 indicates that he found two other girls watching TV at the accused person's house before the minor emerged from the bedroom, the minor testified that after the Pastor was done with the impugned act, her Sunday school friends called her as well as one Mama Miriam. That her siblings were already in Sunday school class.
As per the minor's mother, PW4, the minor told her that she was watching TV at the Pastor's house with three other children. It was her evidence that she did not know who the other three children were. However, the minor testified that the other children included two of her own siblings.
Again , as the trial court correctly noted , it is unlikely that the minor's mother would fail to know her own children. Upon cross-examination by counsel for the accused person, the minor's mother reiterated that she did not know the other children who were with the minor at the Pastor's house. The witness stated that she had two children only and that when the minor was at the Pastor's house, the
other child was in church. The minor's mother also testified that the minor told her that it was the third time that the Pastor had done such an act to her. ln her testimony, the minor never mentioned that the Pastor had done the act to her on previous occasions.
The testimony of PW 5 was that on the material day at about 5pm she went to the Pastor’s house on two occasions but there was no response when she knocked at the door. That on her way back to the church, she met PW 3 and together, they returned to the Pastor’s house. It was the evidence of PW 5 that PW 3 called out the Pastor’s name thrice but there was no response.
Now in his testimony, PW 3 did not mention that he went to the Pastor’s house in the company of PW 5. His evidence was that after he found the minor at the accused person’s house he went to call mama Miriam. It is not clear whether Mama Miriam and PW 5 are one and the same person but be that as it may, the testimony of the minor does not indicate the presence of any other man, apart from the accused person, nor any woman at the Pastor’s house.
Furthermore, PW 5 testified that she took the minor from the accused person’s house and held her hand then went to a classroom with her. The minor’s evidence was that she was called out by the other children and went to the classroom on her ownto where Mama Miriam was. PW 3 testified that when the minor emerged from the accused person’s bedroom, he asked her what the Pastor had done to her but in response, the minor started crying. On the other hand, the evidence of PW 5 was that immediately the minor emerged from the Pastor’s bedroom, she held her hand and left the house with her. That she left PW 3 with the Pastor at the house. In cross examination by counsel for the defence, PW 5 stated that PW 3 never called her to the scene. That they met outside the Pastor’s house and that if PW 3 stated that he called her, he would be lying.
PW 5 never mentioned that she saw children watching TV at the house. She did not state that there were any other children in the house apart from the minor. Whereas PW 3 testified that he found two girls watching TV at the Pastor's house, PW 5 testified that the TV was switched off when she was at the house with PW 3.
These were glaring discrepancies that could not be ignored.
When we move to the evidence of the investigators , again we find more gaps. When the investigating officer was cross-examined by counsel for the defence, she stated that she investigated the matter alongside one Police Constable Virginia Wanjiru. That they visited the scene after the accused person had already been charged before court. The investigating officer was not even sure of when and how the accused person was arrested. Her testimony was that the accused person was arrested on 17/11/2015 by police officers.
Further, cross examination of the investigating officer revealed that a statement which was recorded by her co-investigator, who was not called to testify, indicated that the accused person was apprehended by members of public. The charge sheet indicates that the accused person was arrested on 16/11/2015. This was on the same day that the incident was said to have occurred and before the minor was examined and witness statements recorded. What was the hurry in arresting the accused person? Whoever arrested the accused person was not called to testify. The investigating officer did not visit the accused person’s house for further investigations.
The foregoing reveals several discrepancies in the prosecution evidence. I did not see nor hear the prosecution witnesses and therefore cannot comment on their demeanor. In all cases, discrepancies in witness testimonies are bound to occur. Where the discrepancies are minor and do not go to the root of the case, the same can be overlooked. My view is buttressed by the authority of Peter Ngure Mwangi vs Republic [2014] eKLR wherein the Court of Appeal held that where the evidence adduced by the prosecution consists of minor discrepancies and inconsistencies, the same are not material and cannot weaken the probative value of the evidence tendered by the prosecution in support of their case.
In the case of Philip Nzaka Watu vs Republic [2016] eKLR , the Court of Appeal had this to say:
“It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amaigam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minute’s detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
Similarly, in Dickson Elia Nsamba Shapwata & Another vs The Republic , CR. Appl. No. 92 of 2007 , the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter”.
Apart from the discrepancy on how the child was traced, we also find that her evidence and the mother’s differ. The testimony of the minor as well as PW'3 was that on the material day, the minor was wearing a dress. However, her mother testified that the minor was wearing a shirt and blouse. It was the evidence of the minor’s mother that after being informed of what the Pastor had done, she examined the minor's genitalia or what she called her private parts but did not see anything, although the child complained of pain. As already indicated, the medical evidence indicates that the minor had oedema on the labia majora and wide spread abrasions on the vagina. That her hymen had rough edges. In ordinary circumstances these are physical injuries that she could have easily see.
.
The foregoing reveals several discrepancies in the prosecution evidence. The witness testimonies with regard to the events prior to and following the defilement must be consistent and corroborative. There is contradictory evidence as to how the minor was discovered at the house and by whom. There is also contradictory evidence on the part of the prosecution with regard to who was in the accused person's house at the time of the act and discovery. The inconsistencies raise doubt as to the credibility of the prosecution witnesses'
In Ndung'u Kimanyi v Republic [1979] KLR 282,the court observed thus:
"A witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence."
Whereas the accused person's identity as the pastor at the church was not in dispute, for reasons already given, it is doubtful whether the minor was at his house on the material day. There is no evidence to show that the minor identified the accused person at the police station as the person who had defiled her.
The accused person denied having committed the offence and stated that he was not at the house when the incident is said to have occurred. In essence, the accused person raised an alibi.
In the case of Chabah & Another v Republic [1988] KLR 1, the court of Appeal held that the onus is on the prosecution to displace the alibi after the defence raises it.
In Wong'oribe v R [1980] KLR 749 Madan JA (as he then was) in delivering the judgment of thecourt at page 151 letter G & H stated:
"The defence of alibi was put forward for the first time some months after the robbery when the appellant mode his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible”
In Kiarie v Republic 1984 KLR 739, the court of Appeal held thus:
"An alibi raises a specific defence and an accused person who puts forward an alibi as an
answer to a charge preferred against him does not in law thereby assume any burden of
proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonoble".
Even assuming that the defence was raised for the first time during defence hearing, the prosecution would have invoked the provisions of section 212 of the Criminal Procedure Code which provide as follows:
"If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter,,.
In John Odero Omenda &Another v Republic [2014] eKLR, Majanja J held as follows:
"The defences raised by the appellants were plausible and although they were raised for the
first time during the defence, the duty of displacing or rebutting that defence lay on the
prosecution' Indeed, the law affords the prosecution such an opportunity in section 212 of the Criminol Procedure Code (chapter 75 of the Laws of Kenya
Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty' Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt.
In the case of Joan Chebichii Sawe v Republic[2003] eKLR, the Court of Appeal held thus:
"The suspicion may be strong but this is a game with clear and settled rules of engagement.
The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 7998 (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.
I therefore find that the trial court properly analyzed the evidence. The age was proved, and there is some evidence of some injury that suggest penetration. The issue was then the identity and whether the Appellant was culpable. The trial court again correctly noted that the evidence of a child of tender ages does not need corroboration. The court however needs to record down why they believe the child.
In this case the trial court noted that there were too many lacunas that were not filed. I totally agree.
From all this, I find no error in the Judgment and there is no need to disturb the trial court’s decision. Accordingly, the Appeal fails and it is dismissed. The acquittal upheld.
It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS ,
this 26 th day of June 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MR SIRIMA FOR THE APPELANT
THE RESPONDENT and his advocate MR .Ombati
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE