REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO E097 OF 2024
RODGERS SIMIYU SITATI……………………………..….APPELLANT
VERSUS
REPUBLIC………………………………………………..…RESPONDENT
(An appeal against conviction only from the judgment of the Resident Magistrate Court at Bungoma by Hon. T.K Ngetich, delivered on the 5 TH August 2024 in Criminal Appeal No E018 of 2023.)
JUDGMENT
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act. According to the charge sheet, on diverse dates between 24 th December 2022 and 26 th January 2023 at [particulars withheld], within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of R.P.J, a child aged 15 years.
2. The appellant in his petition of appeal challenged the trial court’s decision on the sentence. However, in his amended appeal, he is contesting both conviction and sentence. They were as follows:
1. That the learned magistrate erred in law and in fact to establish that the prosecution did not prove the case beyond a reasonable doubt despite glaring contradicting evidence by the prosecution witnesses .
2. That the learned magistrate erred in law and in fact by failing to make a finding that the prosecution deliberately avoided availing some key witnesses and evidence, and instead considered a large number of prosecution witnesses.
3. That the learned magistrate erred in law and in fact by finding penetration and identification proved to the required standard, even in the wake of flimsy and deliberately inadequate evidence by the prosecution, without considering circumstantial evidence.
4. That the trial magistrate was against the weight of the available defence evidence on record and depended on hollow investigation by the prosecution witnesses’ evidence.
5. That the learned magistrate had a fixed mind in convicting the appellant as framed .
3. An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. (Pandya v R., [1957] E. A. 336).
4. At the subordinate court, the evidence presented by the prosecution was as follows:
5. RPJ (Pw1) testified that she was 15 years old. On 24/12/2022, she was at Bukembe market when she met the appellant. The appellant asked her to accompany him to his house at the market, and they walked there together. At his home, they had sexual intercourse. She explained that the appellant inserted his penis into her vagina. The next morning, the appellant locked her in his house and returned at 7:00 p.m. They cooked, ate and had sex. Between 25/12/2022 and 1/1/2023, they had no sexual intercourse. On 04/01/2023, she opened the window, called a boy and gave him her father’s phone number. The appellant was arrested, and she was taken to the hospital.
6. The complainant’s mother, S.N. (Pw3), testified that on 24/12/2022, her daughter escaped from school. She received reports that her daughter was spotted at Bukembe Market and reported the matter to the police. The complainant disappeared for 2 weeks.
7. At the hospital, Pw1 was examined by a clinical officer, Godfrey Wanjala Khaemba (Pw2). According to his findings, the genitalia were normal. There were no bruises on the majora or minora. There was no hymen. However, he noted that the examination took place 1 month after the incident.
8. The investigating officer, No. 57067 Daniel Chacha of Nalondo Police Station, testified that on 27/1/2023 at 2:30 a.m., he brought the appellant and the complainant. He interrogated the complainant, who stated that she had been missing until January 26, 2023.
9. The appellant testified that he had a dispute with Job Wanjala on 26/1/2023 over a motorcycle, and that Job told him he would be arrested. Officers arrested him in plain clothes and took him to several police stations. At the police station, he was asked whether he knew Job Wanjala. The appellant testified that he did not know the complainant.
10. The appellant, in support of the appeal, argues that the prosecution witnesses’ evidence was marred by contradictions. He questioned the legitimacy of the medical report. The absence of bruises on the labia majora and minora was conclusive evidence of no penetration. He further submitted that the oral and medical evidence on penetration were contradictory. Pw1’s evidence on penetration cannot stand in the face of a cogent defence of the appellant. The appellant argued that the trial court’s argument under section 124 of the Evidence Act on the truthfulness of Pw1 was speculative and did not meet the threshold for an adverse inference to be drawn in dismissing the conviction.
11. The appellant also faulted the prosecution for failing to call crucial witnesses. The boy, Jose, who saw the complainant through the window, was a crucial witness. Additionally, the complainant’s father, as Pw1, gave Jose her father’s phone number. The said good Samaritan, who called the complainant’s mother, ought to have been called as a witness. The appellant maintains that he was framed over the dispute he had with Job Wanjala.
12. The respondent, in their submissions, addressed only the issue of sentencing.
ANALYSIS AND DETERMINATION
13. The main question before the court is whether the prosecution proved its case to the required standard and whether the sentence imposed was sound.
14. The prosecution produced the complainant’s birth certificate, which indicates that she was born on 30/5/2007, meaning that she was 15 years old at the time the offence was committed.
15. Regarding penetration, Pw3 concluded that defilement had occurred. However, the P3 form did not show any medical evidence that the complainant had been defiled. There were no tears or bruises on the labia majora or minora. The only evidence of penetration came from Pw1, who testified that the appellant inserted his penis into her vagina and had sexual intercourse with her. The trial court was of the view that the minor was telling the truth, as she had been rescued at the appellant’s home by members of the public.
16. According to the charge sheet, medical evidence, and the testimony of Pw4, the offence took place between 24th December 2022 and 26th January 2023. According to the P3 filled in by Pw2, the offence took place between 24/12/2022 and 26/01/2023. However, in his examination in chief, he wished to rectify the dates to read 14/12/2022 to 16/1/2023.
17. Interestingly, both Pw1 and Pw3 testified that she was with the appellant for weeks and that she was rescued by the police on 5th January 2023. Therefore, according to Pw1 and Pw3, the offence occurred between 24/12/2022 and 5/1/2023, when the arrest was made.
18. It is clear from the prosecution evidence that the dates on which the offence occurred were not established by the evidence of Pw1, Pw2, Pw3 and Pw4. The witnesses identified 3 different periods when the accident occurred. Pw1 and Pw3 were categorical that the complainant spent 2 weeks with the appellant and was arrested on 5/1/2023.
19. On the other hand, the investigating officer testified that the arrest took place on 26/1/2023.
20. According to the prosecution's evidence, the medical evidence did not reveal any injury to the genitalia, and therefore the only evidence of penetration was that of the complainant. However, as shown above, her evidence is marred by contradictions regarding when the offence occurred and when the alleged rescue took place.
21. Consequently, I find that the prosecution failed to prove its case. The prosecution's evidence contained contradictions and inconsistencies that went to the heart of the case. The witnesses' credibility is questionable. Therefore, I cannot conclude that Pw1 was truthful. Accordingly, I find merit in this appeal and uphold it. The conviction and sentence are set aside, and the appellant is released unless lawfully detained.
Dated, Signed and Delivered at BUNGOMA this 19 th day of February 2026.
R.E. OUGO
JUDGE
In the presence of:
Rodgers Simiyu Sitati / Appellant
Miss Matere -For the Respondent
Wilkister -C/A
HCCRA NO E097 OF 2024 - JUDGMENTHCCRA NO E097 OF 2024 - JUDGMENT HCCRA NO E097 OF 2024 - JUDGMENTHCCRA NO E097 OF 2024 - JUDGMENT 2222
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO E097 OF 2024
RODGERS SIMIYU SITATI……………………………..….APPELLANT
VERSUS
REPUBLIC………………………………………………..…RESPONDENT
(An appeal against conviction only from the judgment of the Resident Magistrate Court at Bungoma by Hon. T.K Ngetich, delivered on the 5 TH August 2024 in Criminal Appeal No E018 of 2023.)
JUDGMENT
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act. According to the charge sheet, on diverse dates between 24 th December 2022 and 26 th January 2023 at [particulars withheld], within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of R.P.J, a child aged 15 years.
2. The appellant in his petition of appeal challenged the trial court’s decision on the sentence. However, in his amended appeal, he is contesting both conviction and sentence. They were as follows:
1. That the learned magistrate erred in law and in fact to establish that the prosecution did not prove the case beyond a reasonable doubt despite glaring contradicting evidence by the prosecution witnesses .
2. That the learned magistrate erred in law and in fact by failing to make a finding that the prosecution deliberately avoided availing some key witnesses and evidence, and instead considered a large number of prosecution witnesses.
3. That the learned magistrate erred in law and in fact by finding penetration and identification proved to the required standard, even in the wake of flimsy and deliberately inadequate evidence by the prosecution, without considering circumstantial evidence.
4. That the trial magistrate was against the weight of the available defence evidence on record and depended on hollow investigation by the prosecution witnesses’ evidence.
5. That the learned magistrate had a fixed mind in convicting the appellant as framed .
3. An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. (Pandya v R., [1957] E. A. 336).
4. At the subordinate court, the evidence presented by the prosecution was as follows:
5. RPJ (Pw1) testified that she was 15 years old. On 24/12/2022, she was at Bukembe market when she met the appellant. The appellant asked her to accompany him to his house at the market, and they walked there together. At his home, they had sexual intercourse. She explained that the appellant inserted his penis into her vagina. The next morning, the appellant locked her in his house and returned at 7:00 p.m. They cooked, ate and had sex. Between 25/12/2022 and 1/1/2023, they had no sexual intercourse. On 04/01/2023, she opened the window, called a boy and gave him her father’s phone number. The appellant was arrested, and she was taken to the hospital.
6. The complainant’s mother, S.N. (Pw3), testified that on 24/12/2022, her daughter escaped from school. She received reports that her daughter was spotted at Bukembe Market and reported the matter to the police. The complainant disappeared for 2 weeks.
7. At the hospital, Pw1 was examined by a clinical officer, Godfrey Wanjala Khaemba (Pw2). According to his findings, the genitalia were normal. There were no bruises on the majora or minora. There was no hymen. However, he noted that the examination took place 1 month after the incident.
8. The investigating officer, No. 57067 Daniel Chacha of Nalondo Police Station, testified that on 27/1/2023 at 2:30 a.m., he brought the appellant and the complainant. He interrogated the complainant, who stated that she had been missing until January 26, 2023.
9. The appellant testified that he had a dispute with Job Wanjala on 26/1/2023 over a motorcycle, and that Job told him he would be arrested. Officers arrested him in plain clothes and took him to several police stations. At the police station, he was asked whether he knew Job Wanjala. The appellant testified that he did not know the complainant.
10. The appellant, in support of the appeal, argues that the prosecution witnesses’ evidence was marred by contradictions. He questioned the legitimacy of the medical report. The absence of bruises on the labia majora and minora was conclusive evidence of no penetration. He further submitted that the oral and medical evidence on penetration were contradictory. Pw1’s evidence on penetration cannot stand in the face of a cogent defence of the appellant. The appellant argued that the trial court’s argument under section 124 of the Evidence Act on the truthfulness of Pw1 was speculative and did not meet the threshold for an adverse inference to be drawn in dismissing the conviction.
11. The appellant also faulted the prosecution for failing to call crucial witnesses. The boy, Jose, who saw the complainant through the window, was a crucial witness. Additionally, the complainant’s father, as Pw1, gave Jose her father’s phone number. The said good Samaritan, who called the complainant’s mother, ought to have been called as a witness. The appellant maintains that he was framed over the dispute he had with Job Wanjala.
12. The respondent, in their submissions, addressed only the issue of sentencing.
ANALYSIS AND DETERMINATION
13. The main question before the court is whether the prosecution proved its case to the required standard and whether the sentence imposed was sound.
14. The prosecution produced the complainant’s birth certificate, which indicates that she was born on 30/5/2007, meaning that she was 15 years old at the time the offence was committed.
15. Regarding penetration, Pw3 concluded that defilement had occurred. However, the P3 form did not show any medical evidence that the complainant had been defiled. There were no tears or bruises on the labia majora or minora. The only evidence of penetration came from Pw1, who testified that the appellant inserted his penis into her vagina and had sexual intercourse with her. The trial court was of the view that the minor was telling the truth, as she had been rescued at the appellant’s home by members of the public.
16. According to the charge sheet, medical evidence, and the testimony of Pw4, the offence took place between 24th December 2022 and 26th January 2023. According to the P3 filled in by Pw2, the offence took place between 24/12/2022 and 26/01/2023. However, in his examination in chief, he wished to rectify the dates to read 14/12/2022 to 16/1/2023.
17. Interestingly, both Pw1 and Pw3 testified that she was with the appellant for weeks and that she was rescued by the police on 5th January 2023. Therefore, according to Pw1 and Pw3, the offence occurred between 24/12/2022 and 5/1/2023, when the arrest was made.
18. It is clear from the prosecution evidence that the dates on which the offence occurred were not established by the evidence of Pw1, Pw2, Pw3 and Pw4. The witnesses identified 3 different periods when the accident occurred. Pw1 and Pw3 were categorical that the complainant spent 2 weeks with the appellant and was arrested on 5/1/2023.
19. On the other hand, the investigating officer testified that the arrest took place on 26/1/2023.
20. According to the prosecution's evidence, the medical evidence did not reveal any injury to the genitalia, and therefore the only evidence of penetration was that of the complainant. However, as shown above, her evidence is marred by contradictions regarding when the offence occurred and when the alleged rescue took place.
21. Consequently, I find that the prosecution failed to prove its case. The prosecution's evidence contained contradictions and inconsistencies that went to the heart of the case. The witnesses' credibility is questionable. Therefore, I cannot conclude that Pw1 was truthful. Accordingly, I find merit in this appeal and uphold it. The conviction and sentence are set aside, and the appellant is released unless lawfully detained.
Dated, Signed and Delivered at BUNGOMA this 19 th day of February 2026.
R.E. OUGO
JUDGE
In the presence of:
Rodgers Simiyu Sitati / Appellant
Miss Matere -For the Respondent
Wilkister -C/A
HCCRA NO E097 OF 2024 - JUDGMENTHCCRA NO E097 OF 2024 - JUDGMENT HCCRA NO E097 OF 2024 - JUDGMENTHCCRA NO E097 OF 2024 - JUDGMENT 2222