(Being an Appeal against the Judgment and Conviction of the Chief Magistrate’s Court at Malindi Hon. E.K Usui CM in S.O E073 of 2021 delivered on 13 th April, 2023)
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between August, 2021 and 20 th September, 2021 at Baolala area Makobeni Sub-location Langombaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into vagina of C.T.K a girl aged 13 years.
The appellant faced an alternative charge of committing indecent act contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between August, 2021 and 20 th September, 2021 at Baolala area Makobeni Sub-location Langombaya Division in Malindi Sub County within Kilifi County intentionally committed an indecent act by touching the vagina of C.T.K a girl aged 13 years by using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial court. The prosecution called four witnesses to prove the charges against the appellant. The appellant when placed on his defence gave a sworn statement and he did not call any witness. In a judgment delivered on 13 th April, 2023, the trial court found the appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve twenty years imprisonment.
The appellant was aggrieved by the conviction and sentence and preferred this appeal. He raised several grounds of appeal to wit:
1. The learned trial magistrate erred in law and facts by failing to consider contradictions in the prosecution case;
2. The learned trial magistrate erred in law and facts by shifting the burden onto the appellant;
3. That the learned trial magistrate erred in law and facts by convicting the appellant on a poorly investigated case;
4. That the learned trial magistrate erred in law and facts cy convicting the appellant on unreliable exhibits;
5. That the trial magistrate erred both in law and facts by convicting the appellant by failing to consider that there were people mentioned in the case who were crucial witnesses;
6. That the trial magistrate erred in law and facts by convicting the appellant by failing to consider that the medical evidence availed by the prosecution was fictious;
7. That the trial magistrate erred in ale and facts by convicting the appellant in failing to consider the appellant’s defence.
The prosecution case was that the complainant who testified as PW1 told the court that she was aged 13 years having been born on 21 st December, 2007 as per her birth certificate which she identified in court. She said she knew the appellant as he is a distant relative. She said that it was in August and September, 2021 when she was sent home for school fees. She was with her friend Fatuma. On the way they met with the appellant who had a motorbike. He picked her and her friend and took them to a certain house where he put her and took Fatuma with the motorbike to the stage. He went back to the house and defiled her. She later went home at around 7pm. Her mother asked her why she was late to which she lied that she had been released from school late. She called the school and it was confirmed that she was lying as she had been released early. She had to disclose that she was with the appellant whom she had sex with. She was taken to Malindi Sub County hospital for treatment. In cross-examination she said she had sex with the appellant on several occasion but she never reported the incident.
PW2 the complainant’s father testified that in September, 2021 the appellant who is a relative met the complainant who had been sent home for school fees. The complainant arrived home late and when questioned she said she was with the appellant who had taken her to his house and defiled her. He reported the matter to the area chief and to the police station. Later the complainant was treated at Malindi Sub County hospital.
PW3 a clinician at Malindi Sub County hospital testified that the complainant was treated at the facility. On vaginal examination it was found that the hymen was broken but no injuries noted. He concluded that there was vaginal penetration. He produced treatment notes and P3 Form as exhibits.
PW4 investigated the matter which was reported on 24 th September, 2021. He interrogated the complainant who narrated to him that she had romantic relationship with the appellant from August, 2021 to September, 2021. The complainant was examined and P3 Form was filled. He charged the appellant with the offence pf defilement.
The appellant in his sworn defence stated that the charges were fabrication because of grudge he had with the complainant’s father. He said the grudge was because his wife was his agemate and the complainant’s father felt insecure about it. He said on the date of the alleged defilement he was at home with his wife as they had a sick child. He said he had left home to Bolala to get a motorbike when he met with some people who stopped him and to accompany them to the office of the sub chief. It is while at the office of the sub chief that he was arrested and told that he had defiled the complainant.
The appeal was heard by way of written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the lower court to make my own independent decision. I have done so cautiously as I did not have the opportunity to hear and see the witnesses testify before the lower court. In the case of Kiilu & Another vs Republic (2005) e KLR the Court of Appeal stated this mandate where it rendered itself thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
In the instant case the appellant was convicted on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. These provisions provide as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which the prosecution must establish are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the victim in this case, the trial court correctly found that the complainant was aged 13 years as supported by the copy of birth certificate which was produced in court as exhibit.
Similarly, on identification, the trial court correctly found that the appellant was well known to the complainant and her family as he was from the locality and at the same time, he was a distant relative. This was confirmed by the evidence of PW1, PW2 and the appellant himself.
The main issue for consideration is whether the prosecution proved penetration. In the instant case the appellant attacked the evidence of the complainant terming it as unreliable. He also questioned failure by the prosecution to call some witnesses who he termed to be crucial. In particular the appellant wondered why the prosecution did not find it fit to call one Fatuma and the area Assistant Chief who were mentioned in the evidence adduced before the trial court. He relied on the case of Bukenya & Another vs Uganda (1972) E.A 549 and asserted that the evidence of such witnesses would have been adverse to the prosecution case.
It is not in doubt that the complainant was aged 13 years. She was a child of tender years. I have looked at the proceedings and I note that the trial court did not conduct voire dire examination to ascertain whether the she was intelligent enough to give evidence in court. It is also evident that the trial court largely relied on the evidence of the complainant to find that there was penetration. The trial court cited Section 124 of the Evidence Act but she never recorded reasons why she believed the evidence of the complainant. Much as the medical evidence showed that the hymen was broken, it is in evidence that the complainant had indicated that she has had sex before.
As I have indicated, no voire dire examination was conducted. Section 19(1) of the Oaths and Statutory Declaration Act provides:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap 75), shall be deemed to be a deposition within the meaning of that section.
From the foregoing, the essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath and whether the child is possessed of intelligence to testify under oath. As I have indicated the trial court did not conduct voire dire examination to determine whether the complainant understood the meaning of oath or whether she was intelligent enough to testify in court. The complainant was aged 13 years. That is a child of tender age and it was prudent that the trial court conduct preliminary test. In my view it was unsafe to rely on the evidence of the complainant to find conviction.
Further to the foregoing, I agree with the appellant that it was crucial for the prosecution to call Fatuma whom the complainant said they were together when the appellant picked the complainant. In view of the defence raised by the appellant that there was grudge between him and the complainant’s father and that on the date the offence was committed he was at home, ideally raising the defence of alibi, it was prudent for the prosecution to call particularly Fatuma who the complainant said they were together when the appellant picked the complainant. As stated in the case of Bukenya & Another vs Uganda (supra) it can only be assumed that the evidence of Fatuma would have been adverse to the prosecution case.
From the foregoing I am not persuaded the charged were proved as required. There is doubt in the prosecution case and the same must be to the benefit of the appellant.
The upshot is that the appeal is allowed. The conviction and sentence meted by the trial court is hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 30 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for Respondent appearing virtually
Ms. Otwo Court Assistant
2
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between August, 2021 and 20 th September, 2021 at Baolala area Makobeni Sub-location Langombaya Division in Malindi Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate into vagina of C.T.K a girl aged 13 years.
The appellant faced an alternative charge of committing indecent act contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between August, 2021 and 20 th September, 2021 at Baolala area Makobeni Sub-location Langombaya Division in Malindi Sub County within Kilifi County intentionally committed an indecent act by touching the vagina of C.T.K a girl aged 13 years by using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial court. The prosecution called four witnesses to prove the charges against the appellant. The appellant when placed on his defence gave a sworn statement and he did not call any witness. In a judgment delivered on 13 th April, 2023, the trial court found the appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve twenty years imprisonment.
The appellant was aggrieved by the conviction and sentence and preferred this appeal. He raised several grounds of appeal to wit:
1. The learned trial magistrate erred in law and facts by failing to consider contradictions in the prosecution case;
2. The learned trial magistrate erred in law and facts by shifting the burden onto the appellant;
3. That the learned trial magistrate erred in law and facts by convicting the appellant on a poorly investigated case;
4. That the learned trial magistrate erred in law and facts cy convicting the appellant on unreliable exhibits;
5. That the trial magistrate erred both in law and facts by convicting the appellant by failing to consider that there were people mentioned in the case who were crucial witnesses;
6. That the trial magistrate erred in law and facts by convicting the appellant by failing to consider that the medical evidence availed by the prosecution was fictious;
7. That the trial magistrate erred in ale and facts by convicting the appellant in failing to consider the appellant’s defence.
The prosecution case was that the complainant who testified as PW1 told the court that she was aged 13 years having been born on 21 st December, 2007 as per her birth certificate which she identified in court. She said she knew the appellant as he is a distant relative. She said that it was in August and September, 2021 when she was sent home for school fees. She was with her friend Fatuma. On the way they met with the appellant who had a motorbike. He picked her and her friend and took them to a certain house where he put her and took Fatuma with the motorbike to the stage. He went back to the house and defiled her. She later went home at around 7pm. Her mother asked her why she was late to which she lied that she had been released from school late. She called the school and it was confirmed that she was lying as she had been released early. She had to disclose that she was with the appellant whom she had sex with. She was taken to Malindi Sub County hospital for treatment. In cross-examination she said she had sex with the appellant on several occasion but she never reported the incident.
PW2 the complainant’s father testified that in September, 2021 the appellant who is a relative met the complainant who had been sent home for school fees. The complainant arrived home late and when questioned she said she was with the appellant who had taken her to his house and defiled her. He reported the matter to the area chief and to the police station. Later the complainant was treated at Malindi Sub County hospital.
PW3 a clinician at Malindi Sub County hospital testified that the complainant was treated at the facility. On vaginal examination it was found that the hymen was broken but no injuries noted. He concluded that there was vaginal penetration. He produced treatment notes and P3 Form as exhibits.
PW4 investigated the matter which was reported on 24 th September, 2021. He interrogated the complainant who narrated to him that she had romantic relationship with the appellant from August, 2021 to September, 2021. The complainant was examined and P3 Form was filled. He charged the appellant with the offence pf defilement.
The appellant in his sworn defence stated that the charges were fabrication because of grudge he had with the complainant’s father. He said the grudge was because his wife was his agemate and the complainant’s father felt insecure about it. He said on the date of the alleged defilement he was at home with his wife as they had a sick child. He said he had left home to Bolala to get a motorbike when he met with some people who stopped him and to accompany them to the office of the sub chief. It is while at the office of the sub chief that he was arrested and told that he had defiled the complainant.
The appeal was heard by way of written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the lower court to make my own independent decision. I have done so cautiously as I did not have the opportunity to hear and see the witnesses testify before the lower court. In the case of Kiilu & Another vs Republic (2005) e KLR the Court of Appeal stated this mandate where it rendered itself thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
In the instant case the appellant was convicted on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. These provisions provide as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which the prosecution must establish are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the victim in this case, the trial court correctly found that the complainant was aged 13 years as supported by the copy of birth certificate which was produced in court as exhibit.
Similarly, on identification, the trial court correctly found that the appellant was well known to the complainant and her family as he was from the locality and at the same time, he was a distant relative. This was confirmed by the evidence of PW1, PW2 and the appellant himself.
The main issue for consideration is whether the prosecution proved penetration. In the instant case the appellant attacked the evidence of the complainant terming it as unreliable. He also questioned failure by the prosecution to call some witnesses who he termed to be crucial. In particular the appellant wondered why the prosecution did not find it fit to call one Fatuma and the area Assistant Chief who were mentioned in the evidence adduced before the trial court. He relied on the case of Bukenya & Another vs Uganda (1972) E.A 549 and asserted that the evidence of such witnesses would have been adverse to the prosecution case.
It is not in doubt that the complainant was aged 13 years. She was a child of tender years. I have looked at the proceedings and I note that the trial court did not conduct voire dire examination to ascertain whether the she was intelligent enough to give evidence in court. It is also evident that the trial court largely relied on the evidence of the complainant to find that there was penetration. The trial court cited Section 124 of the Evidence Act but she never recorded reasons why she believed the evidence of the complainant. Much as the medical evidence showed that the hymen was broken, it is in evidence that the complainant had indicated that she has had sex before.
As I have indicated, no voire dire examination was conducted. Section 19(1) of the Oaths and Statutory Declaration Act provides:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap 75), shall be deemed to be a deposition within the meaning of that section.
From the foregoing, the essence of voire dire examination is for the trial court to make an opinion whether a child of tender years understood the proceedings, the meaning of oath and whether the child is possessed of intelligence to testify under oath. As I have indicated the trial court did not conduct voire dire examination to determine whether the complainant understood the meaning of oath or whether she was intelligent enough to testify in court. The complainant was aged 13 years. That is a child of tender age and it was prudent that the trial court conduct preliminary test. In my view it was unsafe to rely on the evidence of the complainant to find conviction.
Further to the foregoing, I agree with the appellant that it was crucial for the prosecution to call Fatuma whom the complainant said they were together when the appellant picked the complainant. In view of the defence raised by the appellant that there was grudge between him and the complainant’s father and that on the date the offence was committed he was at home, ideally raising the defence of alibi, it was prudent for the prosecution to call particularly Fatuma who the complainant said they were together when the appellant picked the complainant. As stated in the case of Bukenya & Another vs Uganda (supra) it can only be assumed that the evidence of Fatuma would have been adverse to the prosecution case.
From the foregoing I am not persuaded the charged were proved as required. There is doubt in the prosecution case and the same must be to the benefit of the appellant.
The upshot is that the appeal is allowed. The conviction and sentence meted by the trial court is hereby set aside and the appellant is acquitted.
Dated, signed and delivered virtually this 30 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for Respondent appearing virtually
Ms. Otwo Court Assistant
2