Being an appeal from the original conviction and sentence by Hon. E.K.Too, Senior Principal Magistrate in Hola Senior Principal Magistrate’s Court Sexual Offence Case No.E013 of 2022 delivered on 10/2/2025)
SAID DHIGHA ADE…..….……………………………………………………………………………..……APPELLANT
VERSUS
REPUBLIC……………………………….…………………………………………………………….….RESPONDENT
J U D G M E N T
1. The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(2) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were that on 8 th November 2023 at around 1300 hours at (name withheld) village in Tana River sub county within Tana River County, he intentionally and unlawfully caused his penis to penetrate the vagina of F.L.A. (herein referred to as the victim), a child aged 7 years.
2. The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal.
3. The grounds of appeal are that;
a) That the Learned Trial Magistrate erred in law and facts by failing to consider that the complainant victim PW 1 was not put on voire dire examination contrary to Section 19 (1) of the Oaths and Statutory Declaration Act.
b) That the Learned Trial Magistrate erred in law and facts by failing to consider that there was no proof of age of complainant to warrant a safe conviction and sentence to the appellant.
c) That the Learned Trial Magistrate erred in law and facts by failing to consider that the elements of penetration and identification were not proved according to the threshold required by the law.
d) That the Learned Trial Magistrate erred in law and facts by dismissing the Appellant`s alibi defence evidence.
Case for Prosecution
4. The case for the prosecution is that the victim was at the material time aged 7 years and was living with her parents. He mother was PW2 in the case. The Appellant was their neighbour.
5. It was the evidence of the victim that she was on the material day at her house with her younger sibling. That the Appellant stripped his kikoi and laid her on the bed. She was in a dress but she did not have a pants on. He lifted up her dress and did “tabia mbaya” to her whereby he inserted his “mdudu” into her private parts. She then went home and informed her parents. She was taken to hospital and examined.
6. The mother to the victim PW2 testified that the Appellant is their neighbour. That on 8/11/2023 the victim went missing from home and she started to look for her. That she came back and reported to her that she was out to play when the Appellant called her to his house and offered her food. That he then stripped her and defiled her. She, Pw2, took her inside her house and checked her private parts. She noted that there was blood in her private parts. She took her to Hola County Hospital where she was examined.
7. A clinical officer at Hola county hospital PW4 testified that she examined the victim at their hospital and found her with a broken hymen with foul smelling heavy discharge. She formed the opinion that the child had been penetrated. She completed her P3 form and Post Rape Care form.
8. A dentist at the same hospital PW3 told the court that he holds a diploma in Community Oral Health. That he on 2/12/2022 examined the dental formula of the victim herein for purposes of age assessment and assessed her age at 7years.
9. The case was investigated by PC Babusa PW5. It was her evidence that she was called by the doctor on the current matter and went to hospital. She found the victim and her mother. The mother to the child told her what had happened. Her P3 form and Post Rape Care form were completed. They later arrested the Appellant and charged him with the offence.
10. During the hearing of the case in court the clinical officer PW4 produced the P3 form and the Post Rape Care form as exhibits, P.Exh.2 and 3 respectively. The other clinical officer PW3 produced the age assessment report as exhibit, P.Exh.1.
Defence case
11. The Appellant when placed to his defence stated that he on the material day left his home at 8am and went to the farm. He returned home at 4pm.
12. The Appeal was canvassed by way of written submissions.
Submissions
13. Counsel for the Appellant submitted that the offence was said to have been committed on 8/11/2022 but the Appellant was not arrested until the 2/12/2022. That here was no explanation as to why it took that long for the Appellant to be arrested yet the victim and the Appellant were said to be neighbours.
14. It was submitted that the report was made to the police on 5/12/2022 which is almost a month later. That medical examination was done a month later after the offence occurred. It was submitted there was no explanation for the delay in arresting the appellant. Counsel wondered how a case of defilement would have taken a month to report to the police.
15. Counsel submitted that the victim gave evidence that she was defiled in her parents` house while her mother said that it took place in the house of the Appellant. That this created doubt whether the complainant and her mother were honest. That their evidence appeared concocted and their credibility was doubtful.
16. It was submitted that the age of the complainant was not proved. More so that there was no evidence to prove penetration. Counsel urged the court to acquit the Appellant.
17. Counsel for the Respondent on the other hand submitted that the elements of offence of defilement were proved. That the age of the victim was proved by the age assessment report produced in the case. That the trial court had the opportunity to see the child as she testified in court and confirmed that she was indeed a minor of 7 years.
18. It was submitted that penetration was proved by the evidence of the minor who said that the Appellant inserted his penis into her vagina which evidence was corroborated by the clinical officer PW5 who examined her and formed the opinion that she had been penetrated into her vagina.
19. It was submitted that the appellant was a person well known to the complainant. That there was no mistaken identity. That identification of the Appellant was by recognition.
Analysis and determination
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
21. The appeal herein is based on grounds that the trial court failed to conduct a voir dire on the complainant; that the elements of defilement of age and penetration were not proved and that the court did not consider the Appellant`s alibi defence.
22. I have perused the proceedings of the lower court and noted that the trial court conducted a voire dire examination on the victim at the close of which it found that the child understood her duty to tell the truth but did not understand the nature of oath. The court thereupon ruled that she would give unsworn evidence. There is then no truth in the argument that voire dire examination was not conducted.
23. On the question of age, the Appellant submitted that the age of the victim was not proved but did not elaborate on the argument. The respondent submitted the same was proved by the age assessment report.
24. The victim did not tell the court how old she was. Her mother PW2 said that the victim was at the time of commission of the offence aged 7 years. A clinical officer PW3 said that he examined her dental formula and assessed her age at 7 years.
25. It is trite that the age of a victim of defilement may be proved in various ways, including by the evidence of parents or the evidence of the child. In Edwin Nyambogo Onsongo vs. Republic (2016) eKLR the Court of Appeal held that:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
26. In my view the mother to the complainant knew the age of the victim, being the person who gave birth to her. Her evidence coupled with the opinion of the clinical officer who examined her dental formula PW4 proved the age of the victim at 7 years. The age of the victim was therefore proved.
27. On the issue of penetration, the Appellant submitted that the report to the police and the medical examination were made a month later after the commission of the offence. I have however noted that the P3 form indicates that the report was made to the police on 9/11/2023 and the victim sent to hospital on the same day. The report was signed by the clinical officer PW3 on the same day. No question was put to the prosecution witnesses during the hearing that the report was made to the police a month later after the commission of the offence. There is then no substance in that argument.
28. The victim was examined by the clinical officer PW5 and was found with a missing hymen and blood in her vagina. The clinical officer however did not indicate whether the hymen was freshly broken or not. In view of the fact that the clinical officer examined the child on the following day after the incident, she should have been in a position to give an opinion on that.
29. The victim claims to have been penetrated by the appellant but she did not come out clearly where the incident took place. She stated that it took place at her parents` house where she was with her younger sibling. That her younger sibling was on the ground while the Appellant did it on her on the bed. She brought further confusion in her evidence when she ended the evidence by stating that she later went home and told her parents, which meant that the incident did not take place in her parents` house as stated earlier in her evidence. The prosecution did not seek to clarify the confusion with her.
30. The mother to the victim on the other hand stated that the victim told her that she was out playing when the Appellant called her to his house to take food. That when she went to take the food the Appellant stripped her and defiled her.
31. The victim never mentioned in her evidence that the appellant called her to his house. She never mentioned that he offered her food. The question then is whether the defilement, if at all it took place, did so in the house of the victim`s parents or in the house of the Appellant. In view of this disparity in the evidence of the victim, it cannot be said that the case was proved beyond reasonable doubt. The trial court did not consider this aspect of the case when it found the case to have been proved beyond reasonable doubt. The appellant should have been accorded the benefit of doubt.
32. The upshot is that the case against the Appellant was not proved beyond reasonable doubt. I find merit in the appeal. The conviction entered by the trial court on the Appellant is quashed and the sentence thereof set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held.
In the Presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant - Farhan
Garsen HC Criminal Appeal No. EOO7 of 2025 – Judgment Page 4
SAID DHIGHA ADE…..….……………………………………………………………………………..……APPELLANT
VERSUS
REPUBLIC……………………………….…………………………………………………………….….RESPONDENT
J U D G M E N T
1. The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(2) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were that on 8 th November 2023 at around 1300 hours at (name withheld) village in Tana River sub county within Tana River County, he intentionally and unlawfully caused his penis to penetrate the vagina of F.L.A. (herein referred to as the victim), a child aged 7 years.
2. The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal.
3. The grounds of appeal are that;
a) That the Learned Trial Magistrate erred in law and facts by failing to consider that the complainant victim PW 1 was not put on voire dire examination contrary to Section 19 (1) of the Oaths and Statutory Declaration Act.
b) That the Learned Trial Magistrate erred in law and facts by failing to consider that there was no proof of age of complainant to warrant a safe conviction and sentence to the appellant.
c) That the Learned Trial Magistrate erred in law and facts by failing to consider that the elements of penetration and identification were not proved according to the threshold required by the law.
d) That the Learned Trial Magistrate erred in law and facts by dismissing the Appellant`s alibi defence evidence.
Case for Prosecution
4. The case for the prosecution is that the victim was at the material time aged 7 years and was living with her parents. He mother was PW2 in the case. The Appellant was their neighbour.
5. It was the evidence of the victim that she was on the material day at her house with her younger sibling. That the Appellant stripped his kikoi and laid her on the bed. She was in a dress but she did not have a pants on. He lifted up her dress and did “tabia mbaya” to her whereby he inserted his “mdudu” into her private parts. She then went home and informed her parents. She was taken to hospital and examined.
6. The mother to the victim PW2 testified that the Appellant is their neighbour. That on 8/11/2023 the victim went missing from home and she started to look for her. That she came back and reported to her that she was out to play when the Appellant called her to his house and offered her food. That he then stripped her and defiled her. She, Pw2, took her inside her house and checked her private parts. She noted that there was blood in her private parts. She took her to Hola County Hospital where she was examined.
7. A clinical officer at Hola county hospital PW4 testified that she examined the victim at their hospital and found her with a broken hymen with foul smelling heavy discharge. She formed the opinion that the child had been penetrated. She completed her P3 form and Post Rape Care form.
8. A dentist at the same hospital PW3 told the court that he holds a diploma in Community Oral Health. That he on 2/12/2022 examined the dental formula of the victim herein for purposes of age assessment and assessed her age at 7years.
9. The case was investigated by PC Babusa PW5. It was her evidence that she was called by the doctor on the current matter and went to hospital. She found the victim and her mother. The mother to the child told her what had happened. Her P3 form and Post Rape Care form were completed. They later arrested the Appellant and charged him with the offence.
10. During the hearing of the case in court the clinical officer PW4 produced the P3 form and the Post Rape Care form as exhibits, P.Exh.2 and 3 respectively. The other clinical officer PW3 produced the age assessment report as exhibit, P.Exh.1.
Defence case
11. The Appellant when placed to his defence stated that he on the material day left his home at 8am and went to the farm. He returned home at 4pm.
12. The Appeal was canvassed by way of written submissions.
Submissions
13. Counsel for the Appellant submitted that the offence was said to have been committed on 8/11/2022 but the Appellant was not arrested until the 2/12/2022. That here was no explanation as to why it took that long for the Appellant to be arrested yet the victim and the Appellant were said to be neighbours.
14. It was submitted that the report was made to the police on 5/12/2022 which is almost a month later. That medical examination was done a month later after the offence occurred. It was submitted there was no explanation for the delay in arresting the appellant. Counsel wondered how a case of defilement would have taken a month to report to the police.
15. Counsel submitted that the victim gave evidence that she was defiled in her parents` house while her mother said that it took place in the house of the Appellant. That this created doubt whether the complainant and her mother were honest. That their evidence appeared concocted and their credibility was doubtful.
16. It was submitted that the age of the complainant was not proved. More so that there was no evidence to prove penetration. Counsel urged the court to acquit the Appellant.
17. Counsel for the Respondent on the other hand submitted that the elements of offence of defilement were proved. That the age of the victim was proved by the age assessment report produced in the case. That the trial court had the opportunity to see the child as she testified in court and confirmed that she was indeed a minor of 7 years.
18. It was submitted that penetration was proved by the evidence of the minor who said that the Appellant inserted his penis into her vagina which evidence was corroborated by the clinical officer PW5 who examined her and formed the opinion that she had been penetrated into her vagina.
19. It was submitted that the appellant was a person well known to the complainant. That there was no mistaken identity. That identification of the Appellant was by recognition.
Analysis and determination
20. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
21. The appeal herein is based on grounds that the trial court failed to conduct a voir dire on the complainant; that the elements of defilement of age and penetration were not proved and that the court did not consider the Appellant`s alibi defence.
22. I have perused the proceedings of the lower court and noted that the trial court conducted a voire dire examination on the victim at the close of which it found that the child understood her duty to tell the truth but did not understand the nature of oath. The court thereupon ruled that she would give unsworn evidence. There is then no truth in the argument that voire dire examination was not conducted.
23. On the question of age, the Appellant submitted that the age of the victim was not proved but did not elaborate on the argument. The respondent submitted the same was proved by the age assessment report.
24. The victim did not tell the court how old she was. Her mother PW2 said that the victim was at the time of commission of the offence aged 7 years. A clinical officer PW3 said that he examined her dental formula and assessed her age at 7 years.
25. It is trite that the age of a victim of defilement may be proved in various ways, including by the evidence of parents or the evidence of the child. In Edwin Nyambogo Onsongo vs. Republic (2016) eKLR the Court of Appeal held that:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
26. In my view the mother to the complainant knew the age of the victim, being the person who gave birth to her. Her evidence coupled with the opinion of the clinical officer who examined her dental formula PW4 proved the age of the victim at 7 years. The age of the victim was therefore proved.
27. On the issue of penetration, the Appellant submitted that the report to the police and the medical examination were made a month later after the commission of the offence. I have however noted that the P3 form indicates that the report was made to the police on 9/11/2023 and the victim sent to hospital on the same day. The report was signed by the clinical officer PW3 on the same day. No question was put to the prosecution witnesses during the hearing that the report was made to the police a month later after the commission of the offence. There is then no substance in that argument.
28. The victim was examined by the clinical officer PW5 and was found with a missing hymen and blood in her vagina. The clinical officer however did not indicate whether the hymen was freshly broken or not. In view of the fact that the clinical officer examined the child on the following day after the incident, she should have been in a position to give an opinion on that.
29. The victim claims to have been penetrated by the appellant but she did not come out clearly where the incident took place. She stated that it took place at her parents` house where she was with her younger sibling. That her younger sibling was on the ground while the Appellant did it on her on the bed. She brought further confusion in her evidence when she ended the evidence by stating that she later went home and told her parents, which meant that the incident did not take place in her parents` house as stated earlier in her evidence. The prosecution did not seek to clarify the confusion with her.
30. The mother to the victim on the other hand stated that the victim told her that she was out playing when the Appellant called her to his house to take food. That when she went to take the food the Appellant stripped her and defiled her.
31. The victim never mentioned in her evidence that the appellant called her to his house. She never mentioned that he offered her food. The question then is whether the defilement, if at all it took place, did so in the house of the victim`s parents or in the house of the Appellant. In view of this disparity in the evidence of the victim, it cannot be said that the case was proved beyond reasonable doubt. The trial court did not consider this aspect of the case when it found the case to have been proved beyond reasonable doubt. The appellant should have been accorded the benefit of doubt.
32. The upshot is that the case against the Appellant was not proved beyond reasonable doubt. I find merit in the appeal. The conviction entered by the trial court on the Appellant is quashed and the sentence thereof set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held.
In the Presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant - Farhan
Garsen HC Criminal Appeal No. EOO7 of 2025 – Judgment Page 4