(Being an Appeal against the Judgment and Conviction in Chief Magistrate’s Court at Malindi in S.O E091 of 2023 delivered on 22 nd March, 2024 by Hon. Onalo J.K Olga Senior Resident Magistrate)
The appellant was charged with the offence of defilement of an imbecile contrary to Section 146 of the Penal Code. The particulars are that on diverse dates between January, 2023 and 28 th day of May, 2023 at Malimo area in Malindi Sub County within Kilifi County, unlawfully caused his penis to penetrate into the vagina of L.S.C a girl aged 15 years, knowing her to be an imbecile.
The appellant faces an alternative charge of committing indecent act contrary to Section 11(1) of the Sexual Offences Act. The particulars are that on diverse dates between January, 2023 and 28 th May, 2023 at Malimo area in Malindi Sub County within Kilifi County, intentionally and unlawfully committed an indecent act by touching the vagina of L.S.C a child aged 15 years.
The appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four (4) witnesses. The appellant when placed on his defence he opted to give unsworn statement. In a judgement delivered on 22 nd March, 2024, the trial magistrate found the appellant guilty of the main charge of the offence of defilement of an imbecile contrary to Section 146 of the Penal Code and convicted him. The trial magistrate subsequently sentenced the appellant to serve fourteen (14) years imprisonment.
The appellant aggrieved by the conviction and sentence of the trial court preferred this appeal. He raised various grounds of appeal in his petition of appeal and the amended grounds of appeal which can be compressed to following grounds:
1. The trial magistrate erred in law and facts in failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in breach of Section 109 and 110 of the Evidence Act;
2. The trial magistrate erred in law and facts by failing to consider that there were crucial omissions, inconsistencies, discrepancies and contradictions in the prosecution case;
3. The trial magistrate erred in law and facts by failing to consider both the conviction and sentence were against the weight of the evidence adduced by the prosecution; and
4. The trial magistrate erred in law and facts by failing to adequately consider his defence.
As indicated hereinabove, the prosecution case was supported by evidence of four (4) witnesses. Briefly, the prosecution is as follows:
PW1 the mother of the complainant testified that on 28 th May, 2023 she noticed changes in the complainant’s body. She suspected that she was pregnant. On inquiry she hesitantly told her that ‘buda’ the name the appellant was known with had had defiled her. She reported the matter to the police station and took the complainant to Malindi General Hospital for examination. She said the complainant was person living with disability as she had problem in answering questions though she could hear when one is talking. She identified the laboratory results, psychiatric report, age assessment report, referral letter from children department, P3 Form, ultra sound and X-Rya reports and treatment notes. When cross-examined by the appellant she said the complainant mentioned the appellant as the one who got her pregnant.
PW2 Celina Baya a social worker with Watamu Mungana Connect a community-based organization acted as intermediary of the complainant. She was examined by the court and she said that she knew the complainant through her family who had informed her that the complainant had been defiled and they had sought help from the organization. The complainant testimony is that her uncle whom she identified in the dock had done bad manners to her. To be precise the complainant stated, “Bude aliniingiza mimba alinifanyia tabia mbaya”. She added that he removed her clothes ‘na alinotmba’. She said the incident happened during the day at home. At the time there was no one else at home and the incident happened in his house. In cross-examination the complainant through the intermediary said the incident happened in the afternoon at 2pm. She said at the time she was going at Kwa Baya when the appellant called her and gave her money and told her to sleep on the bed and did bad manners to her.
PW3 the investigating officer told the court that on 4 th June, 2023 she received PW1 at the station who came with the complainant who is intellectually challenged. She reported that the complainant had been defiled and got pregnant. He referred her to hospital for medical examination. When the treatment notes were availed, she issued her with a P3 Form which was later filled by the doctor. She recorded statements from the complainant and her mother and later arrested the appellant and charged him with the offence.
PW4 testified that on 7 th June, 2023 he filled a P3 Form and examined the complainant who was aged 15 years. It was alleged that the complainant had been defiled and got pregnant. He said the complainant was mentally retarded. He testified that scan obstetric scan showed that she was twenty-four (24) weeks and one (1) day pregnant. The hymen was broken. He made a conclusion that there was vaginal penetration into the complainant who was aged 15 years. He identified the psychiatric report indicating that the complainant was intellectually disabled. He produced in court laboratory results, psychiatric report, age assessment report, referral letter, radiology reports, ultra sound report and treatment notes as exhibits.
The appellant in his unsworn statement stated that he was beaten and forced to say that he had defiled the complainant. He denied doing the act.
The trial court after considering the evidence adduced by the prosecution and accused defence, she found that all the ingredients of defilement were proved. The trial court relied on the case of George Oluga Opondo vs Republic (2016) e KLR and Francis Omuroni vs Uganda Court of Criminal Appeal No. 2 of 2000 to find that penetration and age of the complainant was proved. The trial court also found that the prosecution proved positive identification of the appellant as the perpetrator as she believed on the evidence of the complainant pursuant to Section 124 of the Evidence Act and in addition that the appellant was a relative of the complainant. The trial court also found that based on the psychiatric report that the complainant was an imbecile.
Both the appellant and the respondent filed written submissions. The appellant’s submissions consist of excerpts from the evidence adduced and judicial pronouncements, but basically the appellant’s grievance is that the prosecution did not prove the case beyond reasonable doubt. He has faulted the trial magistrate for not considering the inconsistencies and contradictions in the prosecution case and particularly on the dates when the report was made to the police. He argued that there were contradictions in the evidence of PW1 who said she reported the incident on 28 th May, 2023 whereas PW3 stated that she received the report on 29 th September, 2023 and PW4 said he examined the complainant on 4 th June, 2023. The appellant argues that because of these contradictions the essential elements of the offence of defilement to wit, age of the victim, proof of penetration and positive identification of the appellant as the perpetrator were not proved. The appellant also faulted the trial court for not considering his defence.
On the other hand, the respondent submitted that the case was proved as required. It was submitted that the prosecution proved that the victim was an idiot relying on the case of Nzioka Kilonzo vs Republic (2017)e KLR and Onyango alias ODM vs Republic Criminal Appeal No. E056 of 2024 (2025) KEHC 16077 (KLR) where the court emphasized that for the offence to be proved it must be established that the victim had a mental incapacity and that the accused had knowledge of the fact that the victim was an idiot or imbecile. It was submitted that the evidence adduced established that the complainant was penetrated and the appellant’s defence did not rebut the same. Further the respondent submitted that there were no contradictions in the prosecution evidence so as to disapprove the prosecution case. Reliance was placed on the case of Richard Munene vs Republic (2018) e KLR. On the trial court failing to consider the appellant’s defence, the respondent argued that the court duly considered the same and found it to be untenable. Reliance was placed in the case of May vs Republic C.A Cr. Appeal No. 24 of 1979 (1981) KLR 129 where the court observed that unsworn statement is not, strictly speaking, evidence and has no probative value, but nevertheless it should be considered in relation to the whole evidence adduced. The court noted that such statement can only be persuasive rather than evidential. The same court observed it must be supported by all the evidence recorded.
I have considered the appeal herein. It is a first appeal and the duty of the court is to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusions noting that it did not have an opportunity to hear or see the witnesses testify before the trial court as laid down in the case of Okeno v e Republic (1972) E.A 32. It must also be remembered that the cardinal principle of criminal law is that the burden of proof or the prove of guilty of an accused person lies on the prosecution. This burden does not shift to an accused person and any defence raised by an accused person is only considered on a balance of probability (See Republic vs Gachanja (2001) e KLR).
The appellant was charged under Section 146 of the Penal Code in respect of the main charge to which he was convicted and sentenced. Section 146 of the Penal Code provides:
“Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
From the foregoing provision, for the prosecution to secure a conviction it must establish the four essential ingredients to wit; mental incapacity of the victim to wit, it must be established medically and legally the victim suffers from a severe or profound mental disability; that the accused person must have known at the time of the offence that the victim was an idiot or imbecile; unlawful carnal connection, that is proof of sexual intercourse or an attempt to have sexual intercourse; and finally, the act must be committed under circumstances not amounting to rape. The ingredients were considered in the case of Nzioka Kilonzo vs Republic (supra) cited by the respondent where the court held:
“The ingredients of the offence therefore are firstly that the victim is an idiot or imbecile, secondly, that the accused had knowledge of this fact at the time of the commission of the offence, and thirdly that the accused had or attempted to have carnal knowledge with the victim while so knowing.”
In the instant case I have considered the evidence adduced by the prosecution and also considered the submissions by both sides. The prosecution produced in court a psychiatric report showing that the complainant suffered from intellectual disability. As stated in the case of Onyango alias ODM vs Republic (supra) the rationale of person inflicted with severe mental retardation is whether such person has mental capacity to reasonably appreciate the nature of the acts and/or consent to them. In this case the psychiatrist in his report concluded that the complainant’s concentration, orientation, judgment and memory were poor hence she suffered from intellectual disability. The trial court correctly relied on the evidence adduced and particularly PW4 who produced in court the psychiatric report.
Regarding the aspect on whether the appellant knew at the time of the commission of the offence that the complainant was an idiot or imbecile, the trial court relied on the evidence of PW1 the mother of the complainant who stated in her testimony that the appellant was known to her as her grandfather. The complainant who testified through intermediary stated that she knew the appellant as ‘buda’ meaning the appellant was known to her. Indeed, what the foregoing evidence of PW1 and the complainant portend is that the appellant was a relative and as such he must have known that the complainant was a person with mental retardation. To say the least, the appellant took advantage of the mental condition of the complainant in the commission of the offence.
There is also no dispute that the complainant was defiled. The defilement resulted to pregnancy. PW4 who examined her found that the complainant was pregnant. This clearly indicates that the complainant was involved in sexual intercourse. The complainant in her evidence which the trial court believed under Section 124 of the Evidence Act stated that it is ‘Buda’ who did bad manners to her. According to the record the complainant vividly stated what was done to her. She importantly stated and I quote, “Buda aliniingiza mimba, alinifanya tabia mbaya. He removed my clothes ‘na alinitomba’. This evidence was corroborated by the medical evidence adduced in court by PW4 that the complainant was pregnant at the time he examined her.
Regarding whether it is the appellant who defiled the complainant, there is ample evidence that the appellant was a relative of the complainant. The trial court in it’s finding noted that fact and stated that the appellant was grandfather to the complainant’s mother and they were living together. It is therefore unlikely that the appellant was unknown to the complainant and her mother. The trial magistrate cannot be faulted for making a finding that the complainant was identified by recognition.
The appellant alluded to contradiction and inconsistencies in the prosecution evidence. Much as he was not clear on what was contradictory and inconsistency, from his submissions, he argued that there were discrepancies as to the dates when the offence was reported to the police by PW1 and the records held by the police in respect of the date of the report. He largely relied on the charge sheet which showed that the offence was reported vide OB 9/29/7/2023 which he argued contradicted the evidence of PW1 that she reported the offence on 28 th June, 2023. He also submitted that PW3 contradicted herself in his evidence that the he received the report on 4 th June, 2023. The Court of Appeal in the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR in discussing contradictions in the prosecution case cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 where it was held:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
I have considered the contradictions and the inconsistencies argued by the appellant. The same are in respect of the date when the offence was reported to the police station. The dates of the report of the offence may appear contradictory from the charge sheet, the evidence of PW1 and PW3, but in my view those contradictions viewed against the evidence adduced by the prosecution, I find the same minor not affecting the prosecution case in any material form so as to reject the prosecution case.
The appellant argued that the trial court did not consider his defence. I have looked at the trial court’s judgment and it is clear that the trial court considered and rejected the appellant’s defence and found that the same was not tenable. The trial court found that the appellant’s defence looked at against the prosecution evidence was not of any probative value to absolve the appellant of the crime. I have considered the appellant’s defence and looked against the prosecution case, the same was untenable and a red-herring. I have no reason to fault the trial court for not considering the appellant’s defence.
As regards to the sentence, the appellant was charged under Section 146 of the Penal Code. The sentence provided for under the said Section is imprisonment for up to fourteen (14) years. The trial court upon conviction sentenced the appellant to serve fourteen (14) years imprisonment. The trial court considered the appellant’s mitigations, the pre-sentence and victim impact assessment report. Guided by the guidelines on sentencing policy imposed a sentence of fourteen (14) years. This was based on the trial court’s discretion and I have no reason to interfere with the same as it is the lawful sentence provided for under Section 146 of the Penal Code.
The upshot of the foregoing is that the appellant’s appeal both on conviction and sentence is unmerited and the same is dismissed. The findings of the trial court are hereby upheld.
Dated, signed and delivered virtually this 10 th day of June, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo Court Assistant appearing virtually.
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The appellant was charged with the offence of defilement of an imbecile contrary to Section 146 of the Penal Code. The particulars are that on diverse dates between January, 2023 and 28 th day of May, 2023 at Malimo area in Malindi Sub County within Kilifi County, unlawfully caused his penis to penetrate into the vagina of L.S.C a girl aged 15 years, knowing her to be an imbecile.
The appellant faces an alternative charge of committing indecent act contrary to Section 11(1) of the Sexual Offences Act. The particulars are that on diverse dates between January, 2023 and 28 th May, 2023 at Malimo area in Malindi Sub County within Kilifi County, intentionally and unlawfully committed an indecent act by touching the vagina of L.S.C a child aged 15 years.
The appellant pleaded not guilty to the charges and the matter proceeded for hearing with the prosecution calling four (4) witnesses. The appellant when placed on his defence he opted to give unsworn statement. In a judgement delivered on 22 nd March, 2024, the trial magistrate found the appellant guilty of the main charge of the offence of defilement of an imbecile contrary to Section 146 of the Penal Code and convicted him. The trial magistrate subsequently sentenced the appellant to serve fourteen (14) years imprisonment.
The appellant aggrieved by the conviction and sentence of the trial court preferred this appeal. He raised various grounds of appeal in his petition of appeal and the amended grounds of appeal which can be compressed to following grounds:
1. The trial magistrate erred in law and facts in failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in breach of Section 109 and 110 of the Evidence Act;
2. The trial magistrate erred in law and facts by failing to consider that there were crucial omissions, inconsistencies, discrepancies and contradictions in the prosecution case;
3. The trial magistrate erred in law and facts by failing to consider both the conviction and sentence were against the weight of the evidence adduced by the prosecution; and
4. The trial magistrate erred in law and facts by failing to adequately consider his defence.
As indicated hereinabove, the prosecution case was supported by evidence of four (4) witnesses. Briefly, the prosecution is as follows:
PW1 the mother of the complainant testified that on 28 th May, 2023 she noticed changes in the complainant’s body. She suspected that she was pregnant. On inquiry she hesitantly told her that ‘buda’ the name the appellant was known with had had defiled her. She reported the matter to the police station and took the complainant to Malindi General Hospital for examination. She said the complainant was person living with disability as she had problem in answering questions though she could hear when one is talking. She identified the laboratory results, psychiatric report, age assessment report, referral letter from children department, P3 Form, ultra sound and X-Rya reports and treatment notes. When cross-examined by the appellant she said the complainant mentioned the appellant as the one who got her pregnant.
PW2 Celina Baya a social worker with Watamu Mungana Connect a community-based organization acted as intermediary of the complainant. She was examined by the court and she said that she knew the complainant through her family who had informed her that the complainant had been defiled and they had sought help from the organization. The complainant testimony is that her uncle whom she identified in the dock had done bad manners to her. To be precise the complainant stated, “Bude aliniingiza mimba alinifanyia tabia mbaya”. She added that he removed her clothes ‘na alinotmba’. She said the incident happened during the day at home. At the time there was no one else at home and the incident happened in his house. In cross-examination the complainant through the intermediary said the incident happened in the afternoon at 2pm. She said at the time she was going at Kwa Baya when the appellant called her and gave her money and told her to sleep on the bed and did bad manners to her.
PW3 the investigating officer told the court that on 4 th June, 2023 she received PW1 at the station who came with the complainant who is intellectually challenged. She reported that the complainant had been defiled and got pregnant. He referred her to hospital for medical examination. When the treatment notes were availed, she issued her with a P3 Form which was later filled by the doctor. She recorded statements from the complainant and her mother and later arrested the appellant and charged him with the offence.
PW4 testified that on 7 th June, 2023 he filled a P3 Form and examined the complainant who was aged 15 years. It was alleged that the complainant had been defiled and got pregnant. He said the complainant was mentally retarded. He testified that scan obstetric scan showed that she was twenty-four (24) weeks and one (1) day pregnant. The hymen was broken. He made a conclusion that there was vaginal penetration into the complainant who was aged 15 years. He identified the psychiatric report indicating that the complainant was intellectually disabled. He produced in court laboratory results, psychiatric report, age assessment report, referral letter, radiology reports, ultra sound report and treatment notes as exhibits.
The appellant in his unsworn statement stated that he was beaten and forced to say that he had defiled the complainant. He denied doing the act.
The trial court after considering the evidence adduced by the prosecution and accused defence, she found that all the ingredients of defilement were proved. The trial court relied on the case of George Oluga Opondo vs Republic (2016) e KLR and Francis Omuroni vs Uganda Court of Criminal Appeal No. 2 of 2000 to find that penetration and age of the complainant was proved. The trial court also found that the prosecution proved positive identification of the appellant as the perpetrator as she believed on the evidence of the complainant pursuant to Section 124 of the Evidence Act and in addition that the appellant was a relative of the complainant. The trial court also found that based on the psychiatric report that the complainant was an imbecile.
Both the appellant and the respondent filed written submissions. The appellant’s submissions consist of excerpts from the evidence adduced and judicial pronouncements, but basically the appellant’s grievance is that the prosecution did not prove the case beyond reasonable doubt. He has faulted the trial magistrate for not considering the inconsistencies and contradictions in the prosecution case and particularly on the dates when the report was made to the police. He argued that there were contradictions in the evidence of PW1 who said she reported the incident on 28 th May, 2023 whereas PW3 stated that she received the report on 29 th September, 2023 and PW4 said he examined the complainant on 4 th June, 2023. The appellant argues that because of these contradictions the essential elements of the offence of defilement to wit, age of the victim, proof of penetration and positive identification of the appellant as the perpetrator were not proved. The appellant also faulted the trial court for not considering his defence.
On the other hand, the respondent submitted that the case was proved as required. It was submitted that the prosecution proved that the victim was an idiot relying on the case of Nzioka Kilonzo vs Republic (2017)e KLR and Onyango alias ODM vs Republic Criminal Appeal No. E056 of 2024 (2025) KEHC 16077 (KLR) where the court emphasized that for the offence to be proved it must be established that the victim had a mental incapacity and that the accused had knowledge of the fact that the victim was an idiot or imbecile. It was submitted that the evidence adduced established that the complainant was penetrated and the appellant’s defence did not rebut the same. Further the respondent submitted that there were no contradictions in the prosecution evidence so as to disapprove the prosecution case. Reliance was placed on the case of Richard Munene vs Republic (2018) e KLR. On the trial court failing to consider the appellant’s defence, the respondent argued that the court duly considered the same and found it to be untenable. Reliance was placed in the case of May vs Republic C.A Cr. Appeal No. 24 of 1979 (1981) KLR 129 where the court observed that unsworn statement is not, strictly speaking, evidence and has no probative value, but nevertheless it should be considered in relation to the whole evidence adduced. The court noted that such statement can only be persuasive rather than evidential. The same court observed it must be supported by all the evidence recorded.
I have considered the appeal herein. It is a first appeal and the duty of the court is to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent conclusions noting that it did not have an opportunity to hear or see the witnesses testify before the trial court as laid down in the case of Okeno v e Republic (1972) E.A 32. It must also be remembered that the cardinal principle of criminal law is that the burden of proof or the prove of guilty of an accused person lies on the prosecution. This burden does not shift to an accused person and any defence raised by an accused person is only considered on a balance of probability (See Republic vs Gachanja (2001) e KLR).
The appellant was charged under Section 146 of the Penal Code in respect of the main charge to which he was convicted and sentenced. Section 146 of the Penal Code provides:
“Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
From the foregoing provision, for the prosecution to secure a conviction it must establish the four essential ingredients to wit; mental incapacity of the victim to wit, it must be established medically and legally the victim suffers from a severe or profound mental disability; that the accused person must have known at the time of the offence that the victim was an idiot or imbecile; unlawful carnal connection, that is proof of sexual intercourse or an attempt to have sexual intercourse; and finally, the act must be committed under circumstances not amounting to rape. The ingredients were considered in the case of Nzioka Kilonzo vs Republic (supra) cited by the respondent where the court held:
“The ingredients of the offence therefore are firstly that the victim is an idiot or imbecile, secondly, that the accused had knowledge of this fact at the time of the commission of the offence, and thirdly that the accused had or attempted to have carnal knowledge with the victim while so knowing.”
In the instant case I have considered the evidence adduced by the prosecution and also considered the submissions by both sides. The prosecution produced in court a psychiatric report showing that the complainant suffered from intellectual disability. As stated in the case of Onyango alias ODM vs Republic (supra) the rationale of person inflicted with severe mental retardation is whether such person has mental capacity to reasonably appreciate the nature of the acts and/or consent to them. In this case the psychiatrist in his report concluded that the complainant’s concentration, orientation, judgment and memory were poor hence she suffered from intellectual disability. The trial court correctly relied on the evidence adduced and particularly PW4 who produced in court the psychiatric report.
Regarding the aspect on whether the appellant knew at the time of the commission of the offence that the complainant was an idiot or imbecile, the trial court relied on the evidence of PW1 the mother of the complainant who stated in her testimony that the appellant was known to her as her grandfather. The complainant who testified through intermediary stated that she knew the appellant as ‘buda’ meaning the appellant was known to her. Indeed, what the foregoing evidence of PW1 and the complainant portend is that the appellant was a relative and as such he must have known that the complainant was a person with mental retardation. To say the least, the appellant took advantage of the mental condition of the complainant in the commission of the offence.
There is also no dispute that the complainant was defiled. The defilement resulted to pregnancy. PW4 who examined her found that the complainant was pregnant. This clearly indicates that the complainant was involved in sexual intercourse. The complainant in her evidence which the trial court believed under Section 124 of the Evidence Act stated that it is ‘Buda’ who did bad manners to her. According to the record the complainant vividly stated what was done to her. She importantly stated and I quote, “Buda aliniingiza mimba, alinifanya tabia mbaya. He removed my clothes ‘na alinitomba’. This evidence was corroborated by the medical evidence adduced in court by PW4 that the complainant was pregnant at the time he examined her.
Regarding whether it is the appellant who defiled the complainant, there is ample evidence that the appellant was a relative of the complainant. The trial court in it’s finding noted that fact and stated that the appellant was grandfather to the complainant’s mother and they were living together. It is therefore unlikely that the appellant was unknown to the complainant and her mother. The trial magistrate cannot be faulted for making a finding that the complainant was identified by recognition.
The appellant alluded to contradiction and inconsistencies in the prosecution evidence. Much as he was not clear on what was contradictory and inconsistency, from his submissions, he argued that there were discrepancies as to the dates when the offence was reported to the police by PW1 and the records held by the police in respect of the date of the report. He largely relied on the charge sheet which showed that the offence was reported vide OB 9/29/7/2023 which he argued contradicted the evidence of PW1 that she reported the offence on 28 th June, 2023. He also submitted that PW3 contradicted herself in his evidence that the he received the report on 4 th June, 2023. The Court of Appeal in the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR in discussing contradictions in the prosecution case cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 where it was held:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
I have considered the contradictions and the inconsistencies argued by the appellant. The same are in respect of the date when the offence was reported to the police station. The dates of the report of the offence may appear contradictory from the charge sheet, the evidence of PW1 and PW3, but in my view those contradictions viewed against the evidence adduced by the prosecution, I find the same minor not affecting the prosecution case in any material form so as to reject the prosecution case.
The appellant argued that the trial court did not consider his defence. I have looked at the trial court’s judgment and it is clear that the trial court considered and rejected the appellant’s defence and found that the same was not tenable. The trial court found that the appellant’s defence looked at against the prosecution evidence was not of any probative value to absolve the appellant of the crime. I have considered the appellant’s defence and looked against the prosecution case, the same was untenable and a red-herring. I have no reason to fault the trial court for not considering the appellant’s defence.
As regards to the sentence, the appellant was charged under Section 146 of the Penal Code. The sentence provided for under the said Section is imprisonment for up to fourteen (14) years. The trial court upon conviction sentenced the appellant to serve fourteen (14) years imprisonment. The trial court considered the appellant’s mitigations, the pre-sentence and victim impact assessment report. Guided by the guidelines on sentencing policy imposed a sentence of fourteen (14) years. This was based on the trial court’s discretion and I have no reason to interfere with the same as it is the lawful sentence provided for under Section 146 of the Penal Code.
The upshot of the foregoing is that the appellant’s appeal both on conviction and sentence is unmerited and the same is dismissed. The findings of the trial court are hereby upheld.
Dated, signed and delivered virtually this 10 th day of June, 2026.
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo Court Assistant appearing virtually.
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