(Appeal from original conviction and sentence by Hon. Nkurrunah Namunyak, RM in Malindi Chief Magistrate`s Court Sexual Offence Case No. E040 of 2024 delivered on 21/11/2024)
JUDGMENT
1. The Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 6 th November 2023 at (name withheld) village in Magarini sub county in Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.K. (herein referred to as the complainant), a child aged 15 years.
2. The Appellant was sentenced to serve twenty years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1. That the learned trial magistrate erred in law and in fact by failing to consider that the prosecution failed to discharge the burden of proof to the required threshold.
2. The learned trial magistrate erred in law and fact by shifting the burden of proof to the Appellant.
3. That the learned trial magistrate erred both in law and in fact by failing to consider the inconsistencies in the evidence tendered by the prosecution.
4. That the learned trial magistrate erred in law and in fact by relying on evidence by the prosecution witnesses that did not link him to the commission of the alleged offence.
5. That the learned trial magistrate erred in law and in fact by failing to consider the evidence tendered in his defence.
3. The prosecution called 4 witnesses in the case while the Appellant defended himself and did not call any witness.
Case for prosecution
4. The case for the prosecution was that the complainant is mentally challenged. She was living with her brother PW2 and her father PW3. A person called Jackson PW4 hails from the same village with them.
5. It was the evidence of Jackson PW4 that on the material day he was on the way home from the beach at around 8am when he saw the Appellant and the complainant in the bush. The complainant was standing in front of the Appellant. The complainant was bent down and the Appellant was lifting up her dress. The Appellant had dropped his pants down. That the Appellant saw him and quickly wore up his pants. He asked him what he was doing but he did not answer him. He went and called a person called Carlos who is a relative to both the Appellant and the complainant and informed him. He later recorded a statement to the police.
6. The complainant (PW1 in the case) on her part stated that she knew the Appellant as he was living with them. That he made her feel a lot of pain in her vagina. That he did so in the bushes. She denied in cross-examination that she was couched on what to say in court.
7. The brother to the complainant PW2 testified that he was informed by a person called Musa that he had a report Jackson had seen the Appellant having sex with the complainant in the bush. In the evening, PW2,he went and asked the Appellant about it and he admitted it was true. He then informed his father who reported to the police.
8. The father to the complainant PW3 told the court that on the 6 th November 2024 he returned home in the evening and he was informed by his son called Carlos that he had been told by his friend called Jackson that he had found the Appellant having sex with the complainant. On the following day he went and reported to the police. His daughter was taken to hospital. It was his evidence that she was at the time aged 14 years. He said that the Appellant is his nephew.
9. A clinical officer at (name withheld) dispensary PW5 told the court that the complainant was taken to hospital by her mother on 6/11/2023. She was examined and found with a broken hymen and bruises on the lower side of the vagina. A conclusion of defilement was made.
10. The case was investigated by PC James Mulei PW6 of (name withheld) police station. He recorded statements of witnesses. He took the complainant for mental assessment and she was found to be mentally challenged.
11. During the hearing of the case in court, the father to the complainant PW3 produced the complainant`s birth certificate as exhibit, P.Exh.1. The clinical officer produced the mental assessment report, treatment notes, P3 form and Post Rape Care form as exhibit, P.Exh.2 - 5 respectively.
Defence case
12. The Appellant when put to his defence stated that he was arrested by policemen on 11/4/2023 and taken to the police station. He was put in the cells. On the following day he was interrogated about the complainant. He told the police that she was his sister. They forced him to admit that he had a sexual relationship with her. Since it was hurting, he admitted that he slept with her. He was taken to court.
13. The appeal was canvassed by way of written submissions of the Appellant and the prosecution counsel.
Submissions
14. The Appellant submitted that there was no evidence linking him to any defilement on the complainant. He submitted that the trial court failed to consider the inconsistencies in the case and also failed to consider his defence.
15. The Respondent on the other hand submitted that Jackson PW4 saw the Appellant defiling the complainant in the bush. That that evidence was corroborated y the medical evidence of the clinical officer, PW4, who found the complainant with a broken hymen and bruises in her genitalia.
16. It was submitted that the complainant identified the Appellant as the person who defiled her which evidence was corroborated by Jackson, PW4. That the identification was by way of recognition.
17. On the submission that the Appellant`s rights were violated, it was submitted that the Appellant was accorded a fair hearing as he cross-examined the prosecution witnesses and was given an opportunity to present his case. That no prejudice was demonstrated in the case.
18. On sentence it was submitted that the trial court imposed the statutory minimum sentence as stipulated by section 8(3) of the Sexual Offences Act. That there was no error in sentencing as to warrant interference by this court.
Analysis and determination
19. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding of the Court of Appeal in the case of Kiilu & a nother v Republic [2005]1 KLR 174 that:
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 findings 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.”
20. It is the duty of the prosecution to prove the charge against an accused person beyond reasonable doubt.
21. The ingredients of the offence of defilement are proof of the age of the Complainant; proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
22. In the present case, the age of the victim was proved by the birth certificate, P.Exh. 1 that showed that she was born on 13 th October 2009, thereby placing her age in November 2023 at 14 years. The age of the victim was therefore proved at 14 years.
23. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
24. The prosecution had a duty to establish that the victim was partially or fully sexually penetrated by the Appellant.
25. The victim in this case was mentally challenged and gave scanty details of the incident. She in fact never stated anything more other than that the appellant caused her pain into what she pointed out as her vagina. She did not say how the pain was inflicted. It cannot be assumed that it was inflicted by way of a penis as the victim never stated so.
26. Besides that, the complainant was a child of tender years, 14 at that. A child of tender age was defined in the case of Kibageny Arap Kolil v Republic [1959] EA 92 to mean a child under the age of fourteen years . That being so, the trial court was required under the provisions of s ection 19 of the Oaths and Statutory Declarations Act to conduct a voir dire examination on her before admitting her evidence in court with the purpose of determining whether she was possessed of sufficient intelligence to justify the reception of her evidence and understood the nature of oath.
27. The purpose of voir dire examination was explained by the Court of Appeal in Johnson Muiruri vs Republic [1983] KLR 445 as follows :
“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him…..
A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth….
The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”
28. However, failure to conduct a voir dire examination on a witness does not vitiate the trial. The Court of Appeal in Maripett Loonkomok v Republic [2015] eKLR, stated the following on the issue :
…..voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;
“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”.
29. It is clear from the foregoing authorities that the evidence of a child of tender years that is taken without the court conducting a voir dire examination cannot be used to convict an accused person unless there is sufficient independent evidence to support the charge. This is the position taken by Mrima J. in Sammy Ngetich v Republic [2018] eKLR where the trial court took the evidence of a complainant aged 13 years without conducting a voir dire examination. The court set aside the conviction.
30. The person who was said to have seen the Appellant defiling the complainant who is Jackson PW4 however did not come out clearly as to what he saw happening between the victim and the Appellant. He only said that he saw them in the bush. That the complainant was standing in front of the Appellant while bending. That the Appellant had lifted up her dress and he had dropped down his panties. There is nothing from this evidence showing that the witness saw the Appellant penetrating the victim into her vagina with his penis. There was thus no independent evidence to support the charge. Consequently, the prosecution did not prove that the Appellant defiled the complainant.
31. The upshot is that the charge against the Appellant was not proved to the required standard of beyond reasonable doubt. The appellant was wrongly convicted of the offence and the appeal is thus merited. I consequently quash the conviction and set aside the sentence. I order that the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 20 th day of May, 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant -present virtually at GK Prison Malindi
Court Assistant - Rahma
JUDGMENT
1. The Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 6 th November 2023 at (name withheld) village in Magarini sub county in Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.K. (herein referred to as the complainant), a child aged 15 years.
2. The Appellant was sentenced to serve twenty years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1. That the learned trial magistrate erred in law and in fact by failing to consider that the prosecution failed to discharge the burden of proof to the required threshold.
2. The learned trial magistrate erred in law and fact by shifting the burden of proof to the Appellant.
3. That the learned trial magistrate erred both in law and in fact by failing to consider the inconsistencies in the evidence tendered by the prosecution.
4. That the learned trial magistrate erred in law and in fact by relying on evidence by the prosecution witnesses that did not link him to the commission of the alleged offence.
5. That the learned trial magistrate erred in law and in fact by failing to consider the evidence tendered in his defence.
3. The prosecution called 4 witnesses in the case while the Appellant defended himself and did not call any witness.
Case for prosecution
4. The case for the prosecution was that the complainant is mentally challenged. She was living with her brother PW2 and her father PW3. A person called Jackson PW4 hails from the same village with them.
5. It was the evidence of Jackson PW4 that on the material day he was on the way home from the beach at around 8am when he saw the Appellant and the complainant in the bush. The complainant was standing in front of the Appellant. The complainant was bent down and the Appellant was lifting up her dress. The Appellant had dropped his pants down. That the Appellant saw him and quickly wore up his pants. He asked him what he was doing but he did not answer him. He went and called a person called Carlos who is a relative to both the Appellant and the complainant and informed him. He later recorded a statement to the police.
6. The complainant (PW1 in the case) on her part stated that she knew the Appellant as he was living with them. That he made her feel a lot of pain in her vagina. That he did so in the bushes. She denied in cross-examination that she was couched on what to say in court.
7. The brother to the complainant PW2 testified that he was informed by a person called Musa that he had a report Jackson had seen the Appellant having sex with the complainant in the bush. In the evening, PW2,he went and asked the Appellant about it and he admitted it was true. He then informed his father who reported to the police.
8. The father to the complainant PW3 told the court that on the 6 th November 2024 he returned home in the evening and he was informed by his son called Carlos that he had been told by his friend called Jackson that he had found the Appellant having sex with the complainant. On the following day he went and reported to the police. His daughter was taken to hospital. It was his evidence that she was at the time aged 14 years. He said that the Appellant is his nephew.
9. A clinical officer at (name withheld) dispensary PW5 told the court that the complainant was taken to hospital by her mother on 6/11/2023. She was examined and found with a broken hymen and bruises on the lower side of the vagina. A conclusion of defilement was made.
10. The case was investigated by PC James Mulei PW6 of (name withheld) police station. He recorded statements of witnesses. He took the complainant for mental assessment and she was found to be mentally challenged.
11. During the hearing of the case in court, the father to the complainant PW3 produced the complainant`s birth certificate as exhibit, P.Exh.1. The clinical officer produced the mental assessment report, treatment notes, P3 form and Post Rape Care form as exhibit, P.Exh.2 - 5 respectively.
Defence case
12. The Appellant when put to his defence stated that he was arrested by policemen on 11/4/2023 and taken to the police station. He was put in the cells. On the following day he was interrogated about the complainant. He told the police that she was his sister. They forced him to admit that he had a sexual relationship with her. Since it was hurting, he admitted that he slept with her. He was taken to court.
13. The appeal was canvassed by way of written submissions of the Appellant and the prosecution counsel.
Submissions
14. The Appellant submitted that there was no evidence linking him to any defilement on the complainant. He submitted that the trial court failed to consider the inconsistencies in the case and also failed to consider his defence.
15. The Respondent on the other hand submitted that Jackson PW4 saw the Appellant defiling the complainant in the bush. That that evidence was corroborated y the medical evidence of the clinical officer, PW4, who found the complainant with a broken hymen and bruises in her genitalia.
16. It was submitted that the complainant identified the Appellant as the person who defiled her which evidence was corroborated by Jackson, PW4. That the identification was by way of recognition.
17. On the submission that the Appellant`s rights were violated, it was submitted that the Appellant was accorded a fair hearing as he cross-examined the prosecution witnesses and was given an opportunity to present his case. That no prejudice was demonstrated in the case.
18. On sentence it was submitted that the trial court imposed the statutory minimum sentence as stipulated by section 8(3) of the Sexual Offences Act. That there was no error in sentencing as to warrant interference by this court.
Analysis and determination
19. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding of the Court of Appeal in the case of Kiilu & a nother v Republic [2005]1 KLR 174 that:
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 findings 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.”
20. It is the duty of the prosecution to prove the charge against an accused person beyond reasonable doubt.
21. The ingredients of the offence of defilement are proof of the age of the Complainant; proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
22. In the present case, the age of the victim was proved by the birth certificate, P.Exh. 1 that showed that she was born on 13 th October 2009, thereby placing her age in November 2023 at 14 years. The age of the victim was therefore proved at 14 years.
23. On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
24. The prosecution had a duty to establish that the victim was partially or fully sexually penetrated by the Appellant.
25. The victim in this case was mentally challenged and gave scanty details of the incident. She in fact never stated anything more other than that the appellant caused her pain into what she pointed out as her vagina. She did not say how the pain was inflicted. It cannot be assumed that it was inflicted by way of a penis as the victim never stated so.
26. Besides that, the complainant was a child of tender years, 14 at that. A child of tender age was defined in the case of Kibageny Arap Kolil v Republic [1959] EA 92 to mean a child under the age of fourteen years . That being so, the trial court was required under the provisions of s ection 19 of the Oaths and Statutory Declarations Act to conduct a voir dire examination on her before admitting her evidence in court with the purpose of determining whether she was possessed of sufficient intelligence to justify the reception of her evidence and understood the nature of oath.
27. The purpose of voir dire examination was explained by the Court of Appeal in Johnson Muiruri vs Republic [1983] KLR 445 as follows :
“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him…..
A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth….
The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”
28. However, failure to conduct a voir dire examination on a witness does not vitiate the trial. The Court of Appeal in Maripett Loonkomok v Republic [2015] eKLR, stated the following on the issue :
…..voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;
“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”.
29. It is clear from the foregoing authorities that the evidence of a child of tender years that is taken without the court conducting a voir dire examination cannot be used to convict an accused person unless there is sufficient independent evidence to support the charge. This is the position taken by Mrima J. in Sammy Ngetich v Republic [2018] eKLR where the trial court took the evidence of a complainant aged 13 years without conducting a voir dire examination. The court set aside the conviction.
30. The person who was said to have seen the Appellant defiling the complainant who is Jackson PW4 however did not come out clearly as to what he saw happening between the victim and the Appellant. He only said that he saw them in the bush. That the complainant was standing in front of the Appellant while bending. That the Appellant had lifted up her dress and he had dropped down his panties. There is nothing from this evidence showing that the witness saw the Appellant penetrating the victim into her vagina with his penis. There was thus no independent evidence to support the charge. Consequently, the prosecution did not prove that the Appellant defiled the complainant.
31. The upshot is that the charge against the Appellant was not proved to the required standard of beyond reasonable doubt. The appellant was wrongly convicted of the offence and the appeal is thus merited. I consequently quash the conviction and set aside the sentence. I order that the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 20 th day of May, 2026.
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant -present virtually at GK Prison Malindi
Court Assistant - Rahma