(An appeal from the conviction and sentence in Chief Magistrates Court Makueni Sexual Offence Case No. E024 of 2023, Judgment delivered on 19 th September, 2024 by Hon. M.W Mutua, SPM.)
1. The Appellant was charged with the offence of Incest Contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between February 2023 and 30 th September, 2023 at Muambani Village, Ndauni location, in Mbooni-East within Makueni intentionally and unlawfully caused his penis to penetrate the vagina of J.K.M a child of 14 years, who was to his knowledge his daughter.
2. He also faced an alternative count of Committing an Indecent Act with a child contrary to Section 11 (1) of the Sexual offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between February 2023 and 30 th September, 2023 at Muambani Village, Ndauni location, in Mbooni-East within Makueni County Intentionally and unlawfully touched with his penis the vagina of J.K.M a child of 14 years.
3. The lower court delivered the judgment on 19 th September, 2024 in which it found the Appellant guilty of the offence of Incest and convicted him of the same. The Court sentenced him to serve 30 years in prison.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both conviction and sentence. He listed the following grounds of appeal;
1) That the learned trial Magistrate erred in both fact and law by convicting me on evidence that did not meet the minimum threshold to uphold a conviction.
2) That the learned trial Magistrate erred in both fact and law by not considering my sworn defense.
3) That the Court relied only on the evidence produced by the prosecution which was fabricated to implicate him in the offence.
4) That the trial Magistrate erred in law and facts in concluding that the evidence of Incest was proved without considering the evidence of Clinical officer and the case was reported in a bad manner as the Complainant did not know exactly the date, time, even month which the offence (act occurred) “Diverse Dates.”
5) The learned trial Magistrate erred in law and fact by rejecting Appellant’s alibi defence without a cogent reason.
6) That Learned trial Magistrate failed to know that the case was not proved beyond reasonable doubt seemed to be premeditated plan of a cartel of people been organized to victimized the Appellant, tailored and coached evidence of PW1 (Complainant) to defeat justice.
7) That the prosecution witnesses were marred with contradictions and inconsistencies.
8) That the Appellant’s mitigation grounds were not considered during the sentence of this matter.
5. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
6. The Appellant submitted that the lower Court was wrong to convict him. He submitted that the court should not have relied on the evidence of PW1, arguing that he had a boundary dispute with the witness, which had created a grudge between him and the witness. He argued that, as a result of the grudge, PW1 couched the Complainant so that she could implicate him for the alleged offence. He also submitted that the evidence produced by the prosecution was based on mere suspicion, arguing that the Complainant did not know the time, date, and the month when the alleged sexual assault.
7. The Appellant also submitted that there was no evidence to identify him as the perpetrator, arguing that the Complainant stated that the defilement incidents used to happen in the dark. He argued that it is not possible to identify somebody in the darkness and thus the Complainant was not telling the truth. Lastly, he submitted the medical reports did not link him to the alleged sexual assault, arguing that a broken hymen is not a proof of penetration. Lastly, he argued that the offence was not proved, arguing that the prosecution case was riddled with many contradictions, malice, and inconsistencies.
Respondent’s written Submissions
8. The Respondent submitted that the court was right in convicting the Appellant and in imposing the 30 years sentence. They argued that the prosecution witnesses were honest and their testimonies were neither inconsistent nor contradictory. They also argued that the medical evidence produced in court supported the Complainant’s testimony that the Appellant had defiled her. They also submitted that the Appellant did not prove evidence that he was being framed by PW1, arguing that he did not provide proof that the land dispute was ever brought to court or reported to the land registrar for adjudication.
Issues for Determination
9. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Incest was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
10. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Incest was proven to the required standard thereby warranting a conviction
11. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
12. The court in JKM v Republic (Criminal Appeal 54 of 2018) [2020] KEHC 3953 eKLR interpreted the above section as follows;
To establish a case under the above Section, the prosecution must prove the elements of the offence which are: There must be:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
13. Thus, in order to secure a conviction for the offence of Incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
14. The first issue for this Court to interrogate is whether the element of penetration was established. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.”
The evidence tendered to prove the element of penetration
15. PW2 was the Complainant. Before she gave her testimony, the court was informed that she had a mental challenge and required an intermediary to testify. The prosecution sought an order for mental assessment under Section 31 of the Sexual Offences Act. A mental assessment was done, which concluded that her testimony capacity is reduced and needs assistance.
16. The prosecution requested that a guardian be present to help the complainant and the court during the complainant’s testimony. The prosecution proposed the appointment of PW1 for that purpose and the Appellant was asked whether he was agreeable to the same. The Appellant stated that he had no objections. Subsequently, the court allowed the application, under section 33 of Sexual Offences Act, to have a guardian appointed to assist the Complainant testify.
17. PW2 stated that when her mother was sick, the Appellant would come from the bed while she was sleeping on the floor and defile her. She described how the defilement used to happen. She told the Court that the Appellant would remove all his clothes, it was dark, and that she would see him . She told the court that her mother was in the house, bedridden, and that her siblings would be asleep at the time the Appellant was defiling her. She stated that the defilement happened many times.
18. She also stated that on 30 th August, 2023 the Appellant came and asked her whether ‘[she] still [had] his thing.’ She stated that the Appellant took her to their house and to her mother’s bed and defiled her. She told the court that the Appellant also defiled her on Saturday - 30 th September, 2023. On this latter date, she stated that the Appellant chased her while she was fetching firewood, placed her on the bed and defiled her. She stated that she told three people about it; Officer Jane, PW1, and her aunt from Nairobi. She did not tell anyone else.
19. In cross-examination, she told the Court that the Appellant did not tell her to take firewood to PW1’s place and get away from the field. She also told the court that the Appellant was working on 30 th September, 2023. She stated that the Appellant would give her money for a haircut and food, and would tell her to go to PW1’s place. She maintained that she had told the truth, had not lied, and had not been told what to say.
20. The lower Court noted that the Complainant cried during cross-examination.
21. PW3 was a medical officer based at Kalawa Health Centre. He was the one who examined the Complainant on 4 th October, 2023. He produced the P3 form, the PRC form, and the Lab request and report form. According to the medical officer, the results of the medical examination were as follows; Normal labia majora & minora, perforated hymen- no fresh scanning. The cervix was not examined due to its small size and foul-smelling white vaginal discharge suggestive of infection.
22. I have seen the said medical reports. They corroborate the medical doctor’s testimony.
23. The question, at this juncture, is whether these testimonies and evidence proved the element of penetration or indecent act.
24. The Courts have established useful guidelines on how a trial court should proceed where the Complainant has some mental and intellectual challenges in giving evidence. In Mwaniki v Republic (Criminal Appeal E039 of 2021) [2022] eKLR , the Court made the following observations;
“Turning to the appeal herein, it is evident that the complainant did not herself testify due to her mental incapacity. In cases like this where the victim is mentally challenged, section 33 of the Sexual Offences Act allows the trial court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both ……
The appellant in his petition of appeal has heavily relied on the medical condition of the complainant in that she is mentally challenged and therefore could not report what happened to her and who the perpetrator was. As earlier stated, section 33 of the Sexual Offences Act allows the evidence of surrounding circumstances to be adduced in sexual offences to prove whether a sexual offence is likely to have been committed and towards or in connection with the person concerned .”
25. Similarly, the Court of Appeal in M.M v Republic [2014] KECA 441 (KLR) , gave a similar interpretation about section 33 of the Sexual Offences Act. It held as follows;
“Turning to the appeal before us, we reiterate that the victim did not herself testify due to her tender years. In cases like this where the victim is too young to give evidence, section 33 of the Sexual Offences Act allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both .”
26. The Courts have also given guidance on how to take the evidence of an intermediary. The Court of Appeal in M.M v Republic [2014] KECA 441 (KLR) outlined the procedure to be followed before taking evidence through an intermediary. It observed as follows;
“It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voir dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed.
It is clear from what we have said so far that the procedure of appointing an intermediary preceeds the testimony of the intended vulnerable witness even where the court does so suo moto. It is also clear that an intermediary can be an expert in a specified field or a person, who through experience, possesses special knowledge in an area or a social worker, or a relative, a parent or a guardian of the witness.
The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings.”
27. In this particular case, an intermediary was appointed to assist the Complainant in testifying. That appointment was made on 7 th December, 2023. There is no doubt that the Intermediary had a special relationship with the Complainant because she used to live with her (the Intermediary). The Appellant, who was unrepresented, did not object to the appointment of the Intermediary.
28. However, according to the record, the trial Court missed key procedural aspects before allowing the Intermediary to participate. One, the Intermediary did not subscribe to the appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. She ought to have taken the prescribed oath. In addition, the trial court did not give directions to delineate the extent of the Intermediary’s participation in the proceedings.
29. In my view, the trial court ought to have delineated the extent of the Intermediary’s participation in the proceedings. This is more so because the Intermediary was also the PW1. In fact, she was appointed as the Intermediary immediately after she gave her testimony as PW1. Clearly, such delineation was necessary in the circumstances. It was the only way for the court to assure itself that the Intermediary could distinguish her role as PW1 vis a vis her role as an intermediary for PW2.
30. For these reasons, and based on the rule established by the Court of Appeal in M.M v Republic (Supra) , I find that the Complainant’s testimony was improperly taken and hence cannot be relied upon in the proof of penetration or indecent act.
31. As earlier stated, Section 33 of the Sexual Offences Act allows the evidence of surrounding circumstances to be adduced in sexual offences to prove whether a sexual offence is likely to have been committed and towards or in connection with the person concerned.
32. I shall consider whether there was circumstantial evidence that linked the Appellant to the alleged defilement.
33. PW1 told the court the circumstances in which the alleged defilement incidents came to be discovered. She said that it all began in August 2023 when the Complainant allegedly told her that the Appellant had been defiling her. She stated that she was the one who probed the minor about it. However, this Court takes her testimony with considerable caution because there was evidence suggesting a grudge between her and the Appellant. In her cross-examination, she told the Court that “ we have had a boundary dispute because [the Appellant] had moved the boundary .”
34. It is also noteworthy that PW1’s testimony was largely hearsay as she was reporting what the Complainant had told her. She did not provide any other direct or circumstantial evidence to show that the Complainant might have been defiled on 30 th August, 2023 and 30 th September, 2023. Given that she was living with the minor in the same house as her guardian, she ought to have given circumstantial evidence to suggest that defilement could have happened on these two days.
35. I also noted that PW1 stated that she was not the one who reported the matter to the authorities. In her testimony, she told the Court that the Complainant intimated the alleged defilement incidents to her in August 2023, but she did not report (despite the fact that she was the guardian of the minor). I also note that the aunt who reported the matter to the police was not a witness in this case. In my view, the testimony of the aunt who reported the matter would have been key in illuminating the circumstances around the alleged commission of the offences herein.
36. The medical reports were not conclusive. It showed; Normal labia majora & minora, perforated hymen- no fresh scanning. The cervix was not examined due to its small size.
37. Having made the above observations, I find that the evidence of the surrounding circumstances does not suggest that the Complainant could have been defiled on diverse dates alleged in the charge sheet.
38. Having found as I have above, I am satisfied that the appeal is merited and it is hereby allowed. The Appellant’s conviction is consequently quashed and sentence set aside.
Whether to acquit the Appellant or order a retrial
39. The Court notes that the outcome of this matter was significantly informed by the lower court’s failure to follow the lawful procedure in taking the evidence of PW2, though an intermediary. I appreciate that PW2 was the complainant and that her testimony would have been useful in determining the case.
40. Thus, the next issue for interrogation is whether the Court should order a retrial or acquit the Appellant. Courts have given useful guidelines on the factors to consider when deciding on whether or not to order retrial. In Samuel Wahini Ngugi vs. R [2012] eKLR , the Court of Appeal held as follows;
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘….In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’
41. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed by the Court of Appeal was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
42. In the case of Issa Abdi Mohammed vs. Republic [2006] eKLR , Makhandia J. (as he then was) opined that:
“An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment . In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.”
43. I associate with the principles established in the above cited authorities. In my view, the common denominator is that an order for the retrial should only be made where the interests of justice require it and should not be ordered when it is likely to cause an injustice to an accused person.
44. I note that the Appellant was arrested on 3 rd October, 2023, and that he did not manage to secure bond. I also note that, in the course of disposing of this appeal, this Court has commented on the credibility of the evidence adduced by the prosecution at the lower Court. Thus, there is a real likelihood that, in case of a retrial, the prosecution would wish to plug the loopholes already alluded to in this judgment. In my view, a retrial in this case is likely to cause an injustice to the accused.
45. Having considered all these factors and the unique circumstances of this case, I find that it would not serve the ends of justice to order a retrial in this case. In the premises, I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held.
46. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
12 | Page
1. The Appellant was charged with the offence of Incest Contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between February 2023 and 30 th September, 2023 at Muambani Village, Ndauni location, in Mbooni-East within Makueni intentionally and unlawfully caused his penis to penetrate the vagina of J.K.M a child of 14 years, who was to his knowledge his daughter.
2. He also faced an alternative count of Committing an Indecent Act with a child contrary to Section 11 (1) of the Sexual offences Act No. 3 of 2006. The particulars are that, the Appellant, on the diverse dates between February 2023 and 30 th September, 2023 at Muambani Village, Ndauni location, in Mbooni-East within Makueni County Intentionally and unlawfully touched with his penis the vagina of J.K.M a child of 14 years.
3. The lower court delivered the judgment on 19 th September, 2024 in which it found the Appellant guilty of the offence of Incest and convicted him of the same. The Court sentenced him to serve 30 years in prison.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both conviction and sentence. He listed the following grounds of appeal;
1) That the learned trial Magistrate erred in both fact and law by convicting me on evidence that did not meet the minimum threshold to uphold a conviction.
2) That the learned trial Magistrate erred in both fact and law by not considering my sworn defense.
3) That the Court relied only on the evidence produced by the prosecution which was fabricated to implicate him in the offence.
4) That the trial Magistrate erred in law and facts in concluding that the evidence of Incest was proved without considering the evidence of Clinical officer and the case was reported in a bad manner as the Complainant did not know exactly the date, time, even month which the offence (act occurred) “Diverse Dates.”
5) The learned trial Magistrate erred in law and fact by rejecting Appellant’s alibi defence without a cogent reason.
6) That Learned trial Magistrate failed to know that the case was not proved beyond reasonable doubt seemed to be premeditated plan of a cartel of people been organized to victimized the Appellant, tailored and coached evidence of PW1 (Complainant) to defeat justice.
7) That the prosecution witnesses were marred with contradictions and inconsistencies.
8) That the Appellant’s mitigation grounds were not considered during the sentence of this matter.
5. The Appeal was canvassed by way of written submissions.
Appellant’s written Submissions
6. The Appellant submitted that the lower Court was wrong to convict him. He submitted that the court should not have relied on the evidence of PW1, arguing that he had a boundary dispute with the witness, which had created a grudge between him and the witness. He argued that, as a result of the grudge, PW1 couched the Complainant so that she could implicate him for the alleged offence. He also submitted that the evidence produced by the prosecution was based on mere suspicion, arguing that the Complainant did not know the time, date, and the month when the alleged sexual assault.
7. The Appellant also submitted that there was no evidence to identify him as the perpetrator, arguing that the Complainant stated that the defilement incidents used to happen in the dark. He argued that it is not possible to identify somebody in the darkness and thus the Complainant was not telling the truth. Lastly, he submitted the medical reports did not link him to the alleged sexual assault, arguing that a broken hymen is not a proof of penetration. Lastly, he argued that the offence was not proved, arguing that the prosecution case was riddled with many contradictions, malice, and inconsistencies.
Respondent’s written Submissions
8. The Respondent submitted that the court was right in convicting the Appellant and in imposing the 30 years sentence. They argued that the prosecution witnesses were honest and their testimonies were neither inconsistent nor contradictory. They also argued that the medical evidence produced in court supported the Complainant’s testimony that the Appellant had defiled her. They also submitted that the Appellant did not prove evidence that he was being framed by PW1, arguing that he did not provide proof that the land dispute was ever brought to court or reported to the land registrar for adjudication.
Issues for Determination
9. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Incest was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
10. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Incest was proven to the required standard thereby warranting a conviction
11. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
12. The court in JKM v Republic (Criminal Appeal 54 of 2018) [2020] KEHC 3953 eKLR interpreted the above section as follows;
To establish a case under the above Section, the prosecution must prove the elements of the offence which are: There must be:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
13. Thus, in order to secure a conviction for the offence of Incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
14. The first issue for this Court to interrogate is whether the element of penetration was established. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.”
The evidence tendered to prove the element of penetration
15. PW2 was the Complainant. Before she gave her testimony, the court was informed that she had a mental challenge and required an intermediary to testify. The prosecution sought an order for mental assessment under Section 31 of the Sexual Offences Act. A mental assessment was done, which concluded that her testimony capacity is reduced and needs assistance.
16. The prosecution requested that a guardian be present to help the complainant and the court during the complainant’s testimony. The prosecution proposed the appointment of PW1 for that purpose and the Appellant was asked whether he was agreeable to the same. The Appellant stated that he had no objections. Subsequently, the court allowed the application, under section 33 of Sexual Offences Act, to have a guardian appointed to assist the Complainant testify.
17. PW2 stated that when her mother was sick, the Appellant would come from the bed while she was sleeping on the floor and defile her. She described how the defilement used to happen. She told the Court that the Appellant would remove all his clothes, it was dark, and that she would see him . She told the court that her mother was in the house, bedridden, and that her siblings would be asleep at the time the Appellant was defiling her. She stated that the defilement happened many times.
18. She also stated that on 30 th August, 2023 the Appellant came and asked her whether ‘[she] still [had] his thing.’ She stated that the Appellant took her to their house and to her mother’s bed and defiled her. She told the court that the Appellant also defiled her on Saturday - 30 th September, 2023. On this latter date, she stated that the Appellant chased her while she was fetching firewood, placed her on the bed and defiled her. She stated that she told three people about it; Officer Jane, PW1, and her aunt from Nairobi. She did not tell anyone else.
19. In cross-examination, she told the Court that the Appellant did not tell her to take firewood to PW1’s place and get away from the field. She also told the court that the Appellant was working on 30 th September, 2023. She stated that the Appellant would give her money for a haircut and food, and would tell her to go to PW1’s place. She maintained that she had told the truth, had not lied, and had not been told what to say.
20. The lower Court noted that the Complainant cried during cross-examination.
21. PW3 was a medical officer based at Kalawa Health Centre. He was the one who examined the Complainant on 4 th October, 2023. He produced the P3 form, the PRC form, and the Lab request and report form. According to the medical officer, the results of the medical examination were as follows; Normal labia majora & minora, perforated hymen- no fresh scanning. The cervix was not examined due to its small size and foul-smelling white vaginal discharge suggestive of infection.
22. I have seen the said medical reports. They corroborate the medical doctor’s testimony.
23. The question, at this juncture, is whether these testimonies and evidence proved the element of penetration or indecent act.
24. The Courts have established useful guidelines on how a trial court should proceed where the Complainant has some mental and intellectual challenges in giving evidence. In Mwaniki v Republic (Criminal Appeal E039 of 2021) [2022] eKLR , the Court made the following observations;
“Turning to the appeal herein, it is evident that the complainant did not herself testify due to her mental incapacity. In cases like this where the victim is mentally challenged, section 33 of the Sexual Offences Act allows the trial court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both ……
The appellant in his petition of appeal has heavily relied on the medical condition of the complainant in that she is mentally challenged and therefore could not report what happened to her and who the perpetrator was. As earlier stated, section 33 of the Sexual Offences Act allows the evidence of surrounding circumstances to be adduced in sexual offences to prove whether a sexual offence is likely to have been committed and towards or in connection with the person concerned .”
25. Similarly, the Court of Appeal in M.M v Republic [2014] KECA 441 (KLR) , gave a similar interpretation about section 33 of the Sexual Offences Act. It held as follows;
“Turning to the appeal before us, we reiterate that the victim did not herself testify due to her tender years. In cases like this where the victim is too young to give evidence, section 33 of the Sexual Offences Act allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both .”
26. The Courts have also given guidance on how to take the evidence of an intermediary. The Court of Appeal in M.M v Republic [2014] KECA 441 (KLR) outlined the procedure to be followed before taking evidence through an intermediary. It observed as follows;
“It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voir dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed.
It is clear from what we have said so far that the procedure of appointing an intermediary preceeds the testimony of the intended vulnerable witness even where the court does so suo moto. It is also clear that an intermediary can be an expert in a specified field or a person, who through experience, possesses special knowledge in an area or a social worker, or a relative, a parent or a guardian of the witness.
The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings.”
27. In this particular case, an intermediary was appointed to assist the Complainant in testifying. That appointment was made on 7 th December, 2023. There is no doubt that the Intermediary had a special relationship with the Complainant because she used to live with her (the Intermediary). The Appellant, who was unrepresented, did not object to the appointment of the Intermediary.
28. However, according to the record, the trial Court missed key procedural aspects before allowing the Intermediary to participate. One, the Intermediary did not subscribe to the appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. She ought to have taken the prescribed oath. In addition, the trial court did not give directions to delineate the extent of the Intermediary’s participation in the proceedings.
29. In my view, the trial court ought to have delineated the extent of the Intermediary’s participation in the proceedings. This is more so because the Intermediary was also the PW1. In fact, she was appointed as the Intermediary immediately after she gave her testimony as PW1. Clearly, such delineation was necessary in the circumstances. It was the only way for the court to assure itself that the Intermediary could distinguish her role as PW1 vis a vis her role as an intermediary for PW2.
30. For these reasons, and based on the rule established by the Court of Appeal in M.M v Republic (Supra) , I find that the Complainant’s testimony was improperly taken and hence cannot be relied upon in the proof of penetration or indecent act.
31. As earlier stated, Section 33 of the Sexual Offences Act allows the evidence of surrounding circumstances to be adduced in sexual offences to prove whether a sexual offence is likely to have been committed and towards or in connection with the person concerned.
32. I shall consider whether there was circumstantial evidence that linked the Appellant to the alleged defilement.
33. PW1 told the court the circumstances in which the alleged defilement incidents came to be discovered. She said that it all began in August 2023 when the Complainant allegedly told her that the Appellant had been defiling her. She stated that she was the one who probed the minor about it. However, this Court takes her testimony with considerable caution because there was evidence suggesting a grudge between her and the Appellant. In her cross-examination, she told the Court that “ we have had a boundary dispute because [the Appellant] had moved the boundary .”
34. It is also noteworthy that PW1’s testimony was largely hearsay as she was reporting what the Complainant had told her. She did not provide any other direct or circumstantial evidence to show that the Complainant might have been defiled on 30 th August, 2023 and 30 th September, 2023. Given that she was living with the minor in the same house as her guardian, she ought to have given circumstantial evidence to suggest that defilement could have happened on these two days.
35. I also noted that PW1 stated that she was not the one who reported the matter to the authorities. In her testimony, she told the Court that the Complainant intimated the alleged defilement incidents to her in August 2023, but she did not report (despite the fact that she was the guardian of the minor). I also note that the aunt who reported the matter to the police was not a witness in this case. In my view, the testimony of the aunt who reported the matter would have been key in illuminating the circumstances around the alleged commission of the offences herein.
36. The medical reports were not conclusive. It showed; Normal labia majora & minora, perforated hymen- no fresh scanning. The cervix was not examined due to its small size.
37. Having made the above observations, I find that the evidence of the surrounding circumstances does not suggest that the Complainant could have been defiled on diverse dates alleged in the charge sheet.
38. Having found as I have above, I am satisfied that the appeal is merited and it is hereby allowed. The Appellant’s conviction is consequently quashed and sentence set aside.
Whether to acquit the Appellant or order a retrial
39. The Court notes that the outcome of this matter was significantly informed by the lower court’s failure to follow the lawful procedure in taking the evidence of PW2, though an intermediary. I appreciate that PW2 was the complainant and that her testimony would have been useful in determining the case.
40. Thus, the next issue for interrogation is whether the Court should order a retrial or acquit the Appellant. Courts have given useful guidelines on the factors to consider when deciding on whether or not to order retrial. In Samuel Wahini Ngugi vs. R [2012] eKLR , the Court of Appeal held as follows;
“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:
‘….In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’
41. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed by the Court of Appeal was that: -
“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”
42. In the case of Issa Abdi Mohammed vs. Republic [2006] eKLR , Makhandia J. (as he then was) opined that:
“An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment . In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.”
43. I associate with the principles established in the above cited authorities. In my view, the common denominator is that an order for the retrial should only be made where the interests of justice require it and should not be ordered when it is likely to cause an injustice to an accused person.
44. I note that the Appellant was arrested on 3 rd October, 2023, and that he did not manage to secure bond. I also note that, in the course of disposing of this appeal, this Court has commented on the credibility of the evidence adduced by the prosecution at the lower Court. Thus, there is a real likelihood that, in case of a retrial, the prosecution would wish to plug the loopholes already alluded to in this judgment. In my view, a retrial in this case is likely to cause an injustice to the accused.
45. Having considered all these factors and the unique circumstances of this case, I find that it would not serve the ends of justice to order a retrial in this case. In the premises, I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held.
46. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
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