(Being an Appeal against the judgment in the Chief Magistrate Court at Mavoko by Honourable B.A Ojoo, in Criminal Sexual Offence Case No. E053 of 2022 on 9th April 2024)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him of two alternative charges of the offences of committing indecent acts with children aged 10 and 8 years respectively, contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006, lodged this appeal against his conviction and sentence of five (5) years imprisonment on each.
2. The appeal is premised on the following summarized grounds, that the Learned Magistrate erred in law and fact: in rendering a sentence of ten years without factoring in the period spent in custody pending the disposal of the case; in failing to notice that the ingredients/elements of the offence were not proved to the required standard ; by failing to consider the defence case ; in proceeding to convict the appellant on the basis of inference and conjecture without credible evidence and despite the inconsistent and contracting evidence of the prosecution witnesses; and by delivering a judgment that does not meet the requirements of a judgment as set in law.
B. Background
3. Before the trial court, the appellant was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act in Count 1. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, being a male adult, caused his penis to penetrate the vagina and anus of JNA a female person who was to his knowledge his daughter aged 10 years. In the alternative, he was charged with the offence of committing an indecent act with a child aged 10 years contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one JNA a child aged 10 years.
4. In Count 2, he was charged with the offence of attempted incest contrary to Section 20 (2) of the Sexual Offences Act. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, being a male adult attempted to cause his penis to penetrate the vagina and anus of PKA, a female person who was to his knowledge his daughter, a child aged 8 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that, on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one PKA a child aged 8years.
5. The Appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 5 witnesses. The court found a prima facie case had been made against him and placed him on his defence where he gave sworn evidence. He was ultimately found guilty of the two alternative charges of the offences of indecent act with children, contrary to Section 11 (1) of the Sexual Offences Act and sentenced to five (5) years imprisonment on each count. Sentence was to run consecutively.
C. The Prosecution’s case
6. After a voire dire examination, the court directed that both victims give unsworn testimonies.
7. PW1, JNA, testified that on the material day she was at home with Precious and their younger sibling Sammy while their mother had gone to the market where she sells maize. She stated that their father, whom she identified as the accused was initially asleep in the bedroom while the children were in the sitting room. PW1 testified that the accused later did what she described as “tabia mbaya” to both her and Precious. She explained that the accused used his “dudu,” which she described as the organ he uses to urinate, and inserted it into her private parts. She stated that he first did this to her and thereafter to Precious. According to PW1, the act caused her pain and both Precious and herself started crying.
8. PW1 further testified that during the incident, a friend of the accused who sells water came to the house. She stated that the accused sent her to collect water and thereafter sent her to buy bread, milk and tea leaves. According to PW1, they later prepared tea and drank it. She testified that the accused then took her with him, allegedly to pick fish, but left her at her mother’s stall. She stated that the accused later returned for her and took her back home.
9. PW1 stated that upon returning home the accused took her to his bedroom, removed her pants and placed her on the bed. She testified that it was at that point that her mother returned home and found her on the bed in the bedroom with the accused. She stated that her mother asked the accused what had happened and became very angry. PW1 testified that when her mother asked them what had happened, she disclosed the incident to her.
10. According to PW1, their mother thereafter took them to their aunt’s place and the following day took them to hospital where a doctor examined them and later called the police. She testified that the police came to the hospital and collected them in a vehicle. PW1 stated that this was the first time the accused had subjected her and Precious to what she had described as “tabia mbaya,” which he did using his “dudu,” the organ he uses to urinate. She further testified that when the accused had earlier sent her to fetch water, he remained in the house with Precious while their younger sibling Sammy was asleep.
11. PW2, PKA, testified that she recalled an incident when her sister Joyness and herself were sleeping on a couch at home while their younger brother Samwel was also present in the house. She stated that their father, whom she identified in court as the accused, called them to the bedroom and instructed them not to disclose what he intended to do. He allegedly threatened them that if they reported the matter to anyone he would cane and kill them and even said he would kill all of them and himself. PW2 stated that the accused ordered them to undress and close their eyes. She testified that he removed his trousers and proceeded to engage in what she described as “tabia mbaya” with Joyness using his “dudu,” which she explained was the organ he uses to urinate. She stated that Joyness cried and complained of pain during the incident. PW2 further told the court that the accused took out a knife and threatened to kill them if they did not remain quiet. She stated that he continued with the act until Joyness passed out feaces.
12. PW2 testified that the accused thereafter turned to her and inserted his “dudu” into her buttocks, causing her pain. She stated that at some point he sent Joyness to fetch water, leaving PW2 alone with him in the bedroom where he again assaulted her. She further testified that after finishing, he ordered her to turn around and again inserted his “dudu” into her private parts, while warning them that he would kill them if they cried or reported the matter. She further testified that during the incident a friend of the accused came to the house, prompting the accused to stop and instruct the children to pretend that they were asleep as he spoke to the visitor at the door. Thereafter, he gave Joyness some money to go and buy bread, milk and tea leaves. PW2 stated that her friends later came and they went out to play.
13. She stated that when Joyness returned, they prepared tea. That the accused later told her he intended to do “tabia mbaya” again and sent her to the bedroom where he instructed her to undress. She stated that she obeyed and he again inserted his “dudu” into her buttocks while warning her that if she cried, he would kill her. PW2 further testified that the accused later left the house with Joyness ostensibly to buy fish but left her along the road and went away.
14. According to PW2, when he later returned, he asked whether they had reported the matter to anyone. She stated that their mother later came home and was very angry. Their mother questioned them about what had happened while the accused maintained that nothing had occurred. PW2 testified that their mother then took them to their aunt’s house while crying and saying that their father had spoilt them.
15. PW2 stated that neighbours assisted in taking them to hospital where they were examined and given medication after which they were taken to the police and subsequently placed in a children’s home where they have been living. She also testified that on another occasion the accused had similarly instructed them to undress but their mother arrived and found him with them. PW2 pointed out the accused in court as her father.
16. PW3, Carolyne Nzisa, testified that she was a Clinical Officer working at Athi River Level 4 Hospital. She informed the court that she was testifying on behalf of her colleague, Faith Mutua, who had since been transferred to Kinanie Health Centre. PW3 stated that she had worked with Faith Mutua for about two years and was familiar with her handwriting and signature and was therefore able to read and interpret the medical records prepared by her. PW3 testified that before the court she had several documents prepared by Faith Mutua relating to the examination of the minors in question. She referred to an age assessment report dated 23rd September 2022 which assessed PKA to be 8 years old. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022 relating to the same child. PW3 further produced a P3 Form for PKA filled on 23rd September 2022. According to the findings recorded in that form, the child’s external genitalia were reddened though the hymen was intact and there was no discharge or other abnormality noted, but the clinical officer concluded that the child had been defiled. She also produced a PRC form for the same child filled at Mama Lucy Hospital which similarly indicated that there was no abnormality noted on the hymen or vagina.
17. PW3 further testified that she had an age assessment report for JNA dated 23rd September 2022, which assessed the child to be 10 years old and which had also been prepared by Faith Mutua. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022. PW3 produced aP3 Form for JNA filled at Athi River Level 4 Hospital on 23rd September 2022. According to the observations recorded in that form, the child had fresh tears in the anal region while the vagina and hymen were intact, leading to the conclusion that the child had been defiled. PW3 also referred to the PRC form which similarly recorded injuries in the anal region. PW3 produced the documents as exhibits.
18. PW3 stated that the findings recorded by the Clinical Officer indicated that the injuries, particularly the fresh lacerations in the anal region of one of the children, were consistent with defilement and could not have been caused by a fall or any other accidental means.
19. PW3 was recalled on 3rd October 2023 for cross-examination. She clarified that she was not the one who filled the P3 forms for the minors but was referring to the records made by the Clinical Officer. Referring to the P3 form for PKA., she stated that the Clinical Officer recorded that the minor’s vaginal opening and hymen were intact but that the anal opening had a tear. She stated that the child had been physically examined and had complained that she had been defiled several times. That according to the recorded observations, the outer vulva or labia were reddened. PW3 stated that similar observations were recorded in respect of the minor JNA. She explained that although the hymen was intact, this did not necessarily mean that there had been no penetration, as there could have been partial penetration.
20. She further testified that in the case of PKA the anal opening had tears at the 12 o’clock and 6 o’clock positions. She explained that tears in the anal opening can be caused by several factors such as hardened stool, but noted that worms could not cause such tears. She also explained that the female genitalia may appear dry in the presence of infection and that infection can also cause wetness.
21. In re-examination, PW3 stated that the victims did not complain of constipation or hardened stool. She further explained that the hymen can remain intact if penetration is not complete or extensive. She added that the normal presentation of a vagina is a purplish colour, whereas the genitalia of the children in this case were observed to be reddened, which was suggestive of possible defilement.
22. PW4, Mary Kemunto Samwel, testified that she resided in Utawala and was a mother of four children namely Faith, Joyness, Precious and Samuel Auya. She recalled that on 20th September 2022 she left her home at about 4.00 p.m. to go to her workplace where she sells roasted maize. She stated that she left the three younger children, Joyness, Precious and Samuel at home under the care of their father, the accused, who at the time was drunk and asleep. PW4 testified that while at her place of work she saw the accused pass by and he informed her that he was going to see a friend. She stated that about fifteen minutes later he returned and asked what they would have for dinner. She told him to buy fish and he left, returning after about thirty minutes with the fish. According to PW4, upon his return he kicked her stall and caused a scene while shouting until members of the public intervened and pulled him away. She stated that he then walked away towards the house while still shouting and she decided to follow him home.
23. PW4 told the court that when she arrived home she found the children seated quietly on the sofa and they appeared frightened. She stated that she took them to a nearby shop to buy yoghurt so as to calm them down. While walking to the shop, Precious informed her that their father had shown them his “chuchu”. PW4 stated that this alarmed her and she suspected that the children had been defiled. She testified that the girls further told her that their father had inserted his “chuchu” into their “chuchu” while on the bed. PW4 stated that she called a neighbour to listen to what the children were saying and the children repeated the same account to the neighbour. PW4 testified that she felt disturbed and unsafe and therefore spent the night at a friend’s house together with the children.
24. The following day she took the children to a hospital at AP Utawala Camp where the doctor examined them and arranged for them to be taken to Mama Lucy Hospital for further examination. She stated that the children underwent tests and that the doctor informed her that the matter was a police case. PW4 testified that they were escorted by a policewoman to Muungano Police Station where a report was made and the case booked as defilement. She further stated that the police later traced the accused at a drinking den and arrested him. PW4 added that after statements were recorded, the two children were taken to a children’s home.
25. During cross-examination, PW4 stated that she had left the children under the accused’s care on the material day. She also stated that the doctor at Mama Lucy Hospital informed her that there was no evidence of defilement at that time. When recalled for further cross-examination on 20th November 2023, she confirmed that the accused was her estranged husband and that they had lived together since 2011 and had four children aged approximately 15, 11, 8 and 3 years, with the second and third born being the complainants in the case. She stated that the accused works as a foreman and that he is hot-tempered, particularly when drunk.
26. PW4 also confirmed that there had been a physical altercation between them the night before the incident but denied that she had provoked or fought the accused at her place of work. She maintained that it was the accused who hit the jiko at her stall and caused the disturbance. She denied coaching the children or fabricating the allegations against the accused and stated that the children themselves reported the incident to her. She also denied delaying the report in order to coach the children or making the report as an act of revenge against the accused. She stated that she took the children to hospital where a member of the hospital staff contacted the police and the matter was thereafter reported.
27. PW5, No. 100144 PC(W) Ruth Njeri, attached to the Gender Desk at Muungano Police Station, testified that on 21st September 2022 at about 6.00 p.m. she was at the station when an ambulance from G7 Council arrived carrying two minors, their mother and a medical officer from an MSF clinic. She stated that the children had been taken to hospital by their mother after they reported that their father had defiled them. The medical officer informed her that the matter had not yet been reported to the police and referred them to the station. PW5 then booked the report vide OB No. 20/21/9/2022.
28. PW5 testified that she took custody of the children and placed them at a rescue centre as the alleged perpetrator, who was their father, was still at home. She stated that the children were aged 12 years and 8 years respectively and that they informed her that on 20th September 2022 their mother had left them at their rented house while she went to sell roasted maize, leaving them in the care of their father who was drunk and asleep. According to PW5, the children reported that their father later called them to his sleeping area, told them that he wanted to do a secret thing with them, undressed them and asked them to climb onto the bed. She stated that the children alleged that the accused defiled them in turns, the older child being defiled through the anal opening while the younger child had reddened outer genitalia. PW5 testified that the children were examined by doctors who confirmed that they had sustained fresh injuries on their genitalia.
29. PW5 further stated that after compiling the case she requested the children’s mother to assist in locating the accused and he was eventually arrested at a drinking den on the night of 21st September 2022. She testified that she also received items of clothing from the MSF clinical officer, namely a purple trouser and a flowered blouse and a pink panty with yellow trim, which she produced as exhibits. She also produced the hospital documents relating to the children including their medical reports and P3 forms, which confirmed that the children had fresh genital injuries consistent with penetration. She testified that the children did not have birth certificates and were therefore taken for age assessment at Athi River Health Centre. PW5 further stated that the children were later placed in a children’s home pending the hearing of the case as she suspected that the parents were attempting to interfere with them and cover up the matter.
30. During cross-examination, PW5 stated that she arrested the accused at a drinking joint with the assistance of two other officers. PW5 further confirmed that she escorted the children to Mama Lucy Hospital for further examination and the completion of P3 forms. She stated that the children were later placed at Moyote Children’s Home and subsequently transferred to Bondeni Children’s Home. She stated that after the children were released to their mother, the mother initially refused to make them available to testify. The doctors at Mama Lucy Hospital had recovered the children’s clothing, which were produced as exhibits, although they were not subjected to forensic analysis. She stated that at some point, the mother had hidden the children, but PW5 was able to locate them and took them to Bondeni Children’s Home. She relied primarily on the children’s statements, as they were the victims and had not reported the incidents to any neighbor. She noted that the mother had spent the night at a friend’s house but refused to disclose the friend’s identity.
31. She further stated that she visited the house where the incident occurred and observed that other children were present but did not record statements from them. She testified that the mother had sent someone to the house on the day of the incident, but she did not establish the identity of that person. The mother reported the matter to police only after taking the children to the hospital.
32. PW5 added that another child in the house, aged five, could not give a statement. She reiterated that the mother reported the matter to police after being escorted by MSF Clinic personnel.
33. On 16th January 2024, upon appraisal of the prosecution’s evidence, the accused was put to his defence.
D. Defence case
34. DW1, Jared Otieno Oloo, a Clinical Officer at Nazareth Hospital, Ruiru, gave expert testimony regarding the P3 forms and medical reports for the minors. He explained that he is trained in clinical medicine and surgery and is conversant with medical examinations and reports, though he was not involved in examining the children in this case. He observed that the P3 forms in question (PExh3) were incompletely filled: Sections A and B were blank, and Section C was only partially completed. Based on the information recorded, he concluded there was no evidence of penetration, and that the minor was therefore a virgin. DW1 noted that anal tears in children can result from causes such as chronic diarrhoea, constipation with hard stools, or anal fissures, and that an intact hymen indicates no penetration. He emphasized that a proper assessment of a sexually abused child requires a full head-to-toe examination, which he found lacking in the P3 forms. He also stated that partial completion of the forms could indicate that the examining officer did not attend to the patient or did not conduct a proper examination. The redness noted on the outer genitalia, in his opinion, did not indicate defilement.
35. On cross-examination, DW1 acknowledged that under the Act, penetration includes both partial and full penetration but maintained that there was no indication from the forms that penetration occurred. He observed that the P3 forms did not record whether the victims had constipation or hard stool and that the forms did not provide evidence to support a finding of attempted defilement. He concluded that, based on the P3 forms, there was no conclusive evidence that J.N.A.’s anal opening was torn by a male organ, and that the medical documentation did not confirm defilement.
36. The appellant, DW2, gave sworn evidence and denied all charges. He recounted the events of 18th and 20th September 2022, noting that he had a physical disagreement with his wife on the 18th and described a public altercation on 20th September while his wife was roasting maize. He explained that a friend, Dan, visited briefly and that his wife took the children away shortly after returning home. He claimed he was at home, awake and sober and that he had no contact with his wife or children that evening after she left. He denied ever attempting or committing any act of defilement against his children, stating that the allegations were untrue and “wild.”
37. During cross-examination, DW2 admitted the marriage had been with prior physical confrontations but maintained that the children did not frame him. He alleged that his wife had influenced the children to fabricate the allegations as part of a vendetta against him. He consistently denied the charges, describing them as fabricated. In re-examination, he reiterated that the children were coerced by their mother to lie and that the charges were false.
38. The trial court evaluated the entire evidence on record and in a judgment delivered on 9th April 2024 found that the prosecution had failed to prove the charges in the two substantive counts of incest and attempted incest and acquitted the appellant of these charges. It however found that the prosecution had proved the alternative charges of committing indecent acts with the two minor victims. He was thus convicted and sentenced to serve five (5) years imprisonment on each count to run consecutively. It is this trial court’s decision that aggrieved the appellant and he lodged this appeal.
E. The Appeal
39. The appeal is as set out in the earlier paragraphs of this judgment. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 20th May 2025 while the respondent’s submissions are dated 29th July 2025.
a. Appellant’s Submissions
40. The appellant challenges both conviction and sentence.
41. He first contends that the trial court erred in imposing a ten years sentence without accounting for the period the appellant had already spent in remand custody. While citing Section 333(2) of the Criminal Procedure Code and the High Court decision in Misc. Application No. E009 of 2025, Boniface Mburu George v Republic, he urges that he had spent one year, seven months, and eight days in custody before sentencing and this period ought to have been credited.
42. Secondly, the appellant argues that the trial magistrate erred by convicting him despite the prosecution failing to prove the elements of the offence beyond reasonable doubt. That the prosecution case was marred with contradictions and inconsistencies, in particular, that: PW2 claimed a prior incident of defilement, whereas PW1 said the alleged acts occurred for the first time and PW4, the mother, denied knowledge of any prior defilement. The minors’ testimonies claimed repeated defilement and penetration of their private parts, yet medical reports confirmed their hymens were intact. The appellant urges that both prosecution and defence medical experts, including DW1, testified that the alleged anal injuries could be caused by other factors, such as constipation, hard stool, or diarrhea. He submits that PW5, the investigating officer, aligned the minors’ statements with the medical report after it was issued, and that inconsistencies existed regarding who witnessed the statements being taken and whether the accused physically harmed the minors. The appellant argues that these contradictions cast serious doubt on the minors’ credibility and that the trial court’s reliance on their evidence for conviction was unsafe.
43. The appellant further submits that the trial court erred by ignoring the defence case, which was uncontroverted and detailed. He testified about the tumultuous nature of his marriage, a physical scuffle with PW4 and claimed that PW4 coached the children to fabricate the allegations. PW4 corroborated aspects of this account. DW1, a defence medical expert, testified that the minors were not penetrated, and that the P3 forms did not support attempted defilement. The appellant argues that this unchallenged defence evidence was ignored without reasons, leading to prejudice. He also contends that the magistrate relied on inference and conjecture rather than credible evidence. That the trial court misinterpreted events, such as the timing of the scuffle between him and PW4, and incorrectly summarized DW1’s testimony regarding medical evidence.
44. The appellant emphasizes that crucial witnesses were neither called nor investigated, including the minors’ mother’s friend, Josephine Kamau who accompanied PW4 to the police and a boda boda who visited the house. He relies on Criminal Appeal No. 7 of 2014, Suleiman Otieno Aziz v Republic, to argue that withholding such witnesses permits the inference that their evidence would have been adverse to the prosecution. Further, he argues that the trial court failed to consider the mandatory minimum sentence requirements, as observed in Moses Mutahi Mugo v R, Criminal Appeal No. E033 of 2021 and Bakari & Another v R [1987] KLR, where each ingredient of the offence must be clearly proved. He emphasizes that there was no evidence of exposure to pornographic material, and that the magistrate did not provide reasons supporting the conviction.
45. In conclusion, the appellant submits that the trial court delivered a judgment that did not comply with the statutory requirements for a valid judgment under Section 169 of the Criminal Procedure Code and Order 21(4) and (5). The judgment lacked properly framed issues for determination and did not provide reasons for its decisions. He also points out internal inconsistencies in the judgment, including contradictions regarding the establishment of the relationship between the appellant and the minors, which is a key element for alternative counts. The appellant prays that given the inconsistencies, contradictions, lack of credible evidence, failure to call crucial witnesses, disregard of uncontroverted defence evidence, and failure to comply with statutory requirements for a proper judgment, this Court allows the appeal and set aside the trial court’s entire judgement.
b. The Respondent’s Submissions
46. Outrightly, the respondent underscores the role of the appellate court on a first appeal as being to re-evaluate the evidence and draw independent conclusions, citing Okeno v Republic [1972] EA 32. The respondent submits that the cardinal issue on appeal is whether the prosecution proved its case to the required standard, including whether the witnesses’ evidence was credible, reliable and cogent.
47. On the merits of the case, the respondent submits that the trial court acquitted the appellant on the main counts
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A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him of two alternative charges of the offences of committing indecent acts with children aged 10 and 8 years respectively, contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006, lodged this appeal against his conviction and sentence of five (5) years imprisonment on each.
2. The appeal is premised on the following summarized grounds, that the Learned Magistrate erred in law and fact: in rendering a sentence of ten years without factoring in the period spent in custody pending the disposal of the case; in failing to notice that the ingredients/elements of the offence were not proved to the required standard ; by failing to consider the defence case ; in proceeding to convict the appellant on the basis of inference and conjecture without credible evidence and despite the inconsistent and contracting evidence of the prosecution witnesses; and by delivering a judgment that does not meet the requirements of a judgment as set in law.
B. Background
3. Before the trial court, the appellant was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act in Count 1. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, being a male adult, caused his penis to penetrate the vagina and anus of JNA a female person who was to his knowledge his daughter aged 10 years. In the alternative, he was charged with the offence of committing an indecent act with a child aged 10 years contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one JNA a child aged 10 years.
4. In Count 2, he was charged with the offence of attempted incest contrary to Section 20 (2) of the Sexual Offences Act. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, being a male adult attempted to cause his penis to penetrate the vagina and anus of PKA, a female person who was to his knowledge his daughter, a child aged 8 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that, on 20th day of September 2022 at around 1600 hrs at Grace Apartment area of MC area of Muthwani ward in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one PKA a child aged 8years.
5. The Appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 5 witnesses. The court found a prima facie case had been made against him and placed him on his defence where he gave sworn evidence. He was ultimately found guilty of the two alternative charges of the offences of indecent act with children, contrary to Section 11 (1) of the Sexual Offences Act and sentenced to five (5) years imprisonment on each count. Sentence was to run consecutively.
C. The Prosecution’s case
6. After a voire dire examination, the court directed that both victims give unsworn testimonies.
7. PW1, JNA, testified that on the material day she was at home with Precious and their younger sibling Sammy while their mother had gone to the market where she sells maize. She stated that their father, whom she identified as the accused was initially asleep in the bedroom while the children were in the sitting room. PW1 testified that the accused later did what she described as “tabia mbaya” to both her and Precious. She explained that the accused used his “dudu,” which she described as the organ he uses to urinate, and inserted it into her private parts. She stated that he first did this to her and thereafter to Precious. According to PW1, the act caused her pain and both Precious and herself started crying.
8. PW1 further testified that during the incident, a friend of the accused who sells water came to the house. She stated that the accused sent her to collect water and thereafter sent her to buy bread, milk and tea leaves. According to PW1, they later prepared tea and drank it. She testified that the accused then took her with him, allegedly to pick fish, but left her at her mother’s stall. She stated that the accused later returned for her and took her back home.
9. PW1 stated that upon returning home the accused took her to his bedroom, removed her pants and placed her on the bed. She testified that it was at that point that her mother returned home and found her on the bed in the bedroom with the accused. She stated that her mother asked the accused what had happened and became very angry. PW1 testified that when her mother asked them what had happened, she disclosed the incident to her.
10. According to PW1, their mother thereafter took them to their aunt’s place and the following day took them to hospital where a doctor examined them and later called the police. She testified that the police came to the hospital and collected them in a vehicle. PW1 stated that this was the first time the accused had subjected her and Precious to what she had described as “tabia mbaya,” which he did using his “dudu,” the organ he uses to urinate. She further testified that when the accused had earlier sent her to fetch water, he remained in the house with Precious while their younger sibling Sammy was asleep.
11. PW2, PKA, testified that she recalled an incident when her sister Joyness and herself were sleeping on a couch at home while their younger brother Samwel was also present in the house. She stated that their father, whom she identified in court as the accused, called them to the bedroom and instructed them not to disclose what he intended to do. He allegedly threatened them that if they reported the matter to anyone he would cane and kill them and even said he would kill all of them and himself. PW2 stated that the accused ordered them to undress and close their eyes. She testified that he removed his trousers and proceeded to engage in what she described as “tabia mbaya” with Joyness using his “dudu,” which she explained was the organ he uses to urinate. She stated that Joyness cried and complained of pain during the incident. PW2 further told the court that the accused took out a knife and threatened to kill them if they did not remain quiet. She stated that he continued with the act until Joyness passed out feaces.
12. PW2 testified that the accused thereafter turned to her and inserted his “dudu” into her buttocks, causing her pain. She stated that at some point he sent Joyness to fetch water, leaving PW2 alone with him in the bedroom where he again assaulted her. She further testified that after finishing, he ordered her to turn around and again inserted his “dudu” into her private parts, while warning them that he would kill them if they cried or reported the matter. She further testified that during the incident a friend of the accused came to the house, prompting the accused to stop and instruct the children to pretend that they were asleep as he spoke to the visitor at the door. Thereafter, he gave Joyness some money to go and buy bread, milk and tea leaves. PW2 stated that her friends later came and they went out to play.
13. She stated that when Joyness returned, they prepared tea. That the accused later told her he intended to do “tabia mbaya” again and sent her to the bedroom where he instructed her to undress. She stated that she obeyed and he again inserted his “dudu” into her buttocks while warning her that if she cried, he would kill her. PW2 further testified that the accused later left the house with Joyness ostensibly to buy fish but left her along the road and went away.
14. According to PW2, when he later returned, he asked whether they had reported the matter to anyone. She stated that their mother later came home and was very angry. Their mother questioned them about what had happened while the accused maintained that nothing had occurred. PW2 testified that their mother then took them to their aunt’s house while crying and saying that their father had spoilt them.
15. PW2 stated that neighbours assisted in taking them to hospital where they were examined and given medication after which they were taken to the police and subsequently placed in a children’s home where they have been living. She also testified that on another occasion the accused had similarly instructed them to undress but their mother arrived and found him with them. PW2 pointed out the accused in court as her father.
16. PW3, Carolyne Nzisa, testified that she was a Clinical Officer working at Athi River Level 4 Hospital. She informed the court that she was testifying on behalf of her colleague, Faith Mutua, who had since been transferred to Kinanie Health Centre. PW3 stated that she had worked with Faith Mutua for about two years and was familiar with her handwriting and signature and was therefore able to read and interpret the medical records prepared by her. PW3 testified that before the court she had several documents prepared by Faith Mutua relating to the examination of the minors in question. She referred to an age assessment report dated 23rd September 2022 which assessed PKA to be 8 years old. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022 relating to the same child. PW3 further produced a P3 Form for PKA filled on 23rd September 2022. According to the findings recorded in that form, the child’s external genitalia were reddened though the hymen was intact and there was no discharge or other abnormality noted, but the clinical officer concluded that the child had been defiled. She also produced a PRC form for the same child filled at Mama Lucy Hospital which similarly indicated that there was no abnormality noted on the hymen or vagina.
17. PW3 further testified that she had an age assessment report for JNA dated 23rd September 2022, which assessed the child to be 10 years old and which had also been prepared by Faith Mutua. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022. PW3 produced aP3 Form for JNA filled at Athi River Level 4 Hospital on 23rd September 2022. According to the observations recorded in that form, the child had fresh tears in the anal region while the vagina and hymen were intact, leading to the conclusion that the child had been defiled. PW3 also referred to the PRC form which similarly recorded injuries in the anal region. PW3 produced the documents as exhibits.
18. PW3 stated that the findings recorded by the Clinical Officer indicated that the injuries, particularly the fresh lacerations in the anal region of one of the children, were consistent with defilement and could not have been caused by a fall or any other accidental means.
19. PW3 was recalled on 3rd October 2023 for cross-examination. She clarified that she was not the one who filled the P3 forms for the minors but was referring to the records made by the Clinical Officer. Referring to the P3 form for PKA., she stated that the Clinical Officer recorded that the minor’s vaginal opening and hymen were intact but that the anal opening had a tear. She stated that the child had been physically examined and had complained that she had been defiled several times. That according to the recorded observations, the outer vulva or labia were reddened. PW3 stated that similar observations were recorded in respect of the minor JNA. She explained that although the hymen was intact, this did not necessarily mean that there had been no penetration, as there could have been partial penetration.
20. She further testified that in the case of PKA the anal opening had tears at the 12 o’clock and 6 o’clock positions. She explained that tears in the anal opening can be caused by several factors such as hardened stool, but noted that worms could not cause such tears. She also explained that the female genitalia may appear dry in the presence of infection and that infection can also cause wetness.
21. In re-examination, PW3 stated that the victims did not complain of constipation or hardened stool. She further explained that the hymen can remain intact if penetration is not complete or extensive. She added that the normal presentation of a vagina is a purplish colour, whereas the genitalia of the children in this case were observed to be reddened, which was suggestive of possible defilement.
22. PW4, Mary Kemunto Samwel, testified that she resided in Utawala and was a mother of four children namely Faith, Joyness, Precious and Samuel Auya. She recalled that on 20th September 2022 she left her home at about 4.00 p.m. to go to her workplace where she sells roasted maize. She stated that she left the three younger children, Joyness, Precious and Samuel at home under the care of their father, the accused, who at the time was drunk and asleep. PW4 testified that while at her place of work she saw the accused pass by and he informed her that he was going to see a friend. She stated that about fifteen minutes later he returned and asked what they would have for dinner. She told him to buy fish and he left, returning after about thirty minutes with the fish. According to PW4, upon his return he kicked her stall and caused a scene while shouting until members of the public intervened and pulled him away. She stated that he then walked away towards the house while still shouting and she decided to follow him home.
23. PW4 told the court that when she arrived home she found the children seated quietly on the sofa and they appeared frightened. She stated that she took them to a nearby shop to buy yoghurt so as to calm them down. While walking to the shop, Precious informed her that their father had shown them his “chuchu”. PW4 stated that this alarmed her and she suspected that the children had been defiled. She testified that the girls further told her that their father had inserted his “chuchu” into their “chuchu” while on the bed. PW4 stated that she called a neighbour to listen to what the children were saying and the children repeated the same account to the neighbour. PW4 testified that she felt disturbed and unsafe and therefore spent the night at a friend’s house together with the children.
24. The following day she took the children to a hospital at AP Utawala Camp where the doctor examined them and arranged for them to be taken to Mama Lucy Hospital for further examination. She stated that the children underwent tests and that the doctor informed her that the matter was a police case. PW4 testified that they were escorted by a policewoman to Muungano Police Station where a report was made and the case booked as defilement. She further stated that the police later traced the accused at a drinking den and arrested him. PW4 added that after statements were recorded, the two children were taken to a children’s home.
25. During cross-examination, PW4 stated that she had left the children under the accused’s care on the material day. She also stated that the doctor at Mama Lucy Hospital informed her that there was no evidence of defilement at that time. When recalled for further cross-examination on 20th November 2023, she confirmed that the accused was her estranged husband and that they had lived together since 2011 and had four children aged approximately 15, 11, 8 and 3 years, with the second and third born being the complainants in the case. She stated that the accused works as a foreman and that he is hot-tempered, particularly when drunk.
26. PW4 also confirmed that there had been a physical altercation between them the night before the incident but denied that she had provoked or fought the accused at her place of work. She maintained that it was the accused who hit the jiko at her stall and caused the disturbance. She denied coaching the children or fabricating the allegations against the accused and stated that the children themselves reported the incident to her. She also denied delaying the report in order to coach the children or making the report as an act of revenge against the accused. She stated that she took the children to hospital where a member of the hospital staff contacted the police and the matter was thereafter reported.
27. PW5, No. 100144 PC(W) Ruth Njeri, attached to the Gender Desk at Muungano Police Station, testified that on 21st September 2022 at about 6.00 p.m. she was at the station when an ambulance from G7 Council arrived carrying two minors, their mother and a medical officer from an MSF clinic. She stated that the children had been taken to hospital by their mother after they reported that their father had defiled them. The medical officer informed her that the matter had not yet been reported to the police and referred them to the station. PW5 then booked the report vide OB No. 20/21/9/2022.
28. PW5 testified that she took custody of the children and placed them at a rescue centre as the alleged perpetrator, who was their father, was still at home. She stated that the children were aged 12 years and 8 years respectively and that they informed her that on 20th September 2022 their mother had left them at their rented house while she went to sell roasted maize, leaving them in the care of their father who was drunk and asleep. According to PW5, the children reported that their father later called them to his sleeping area, told them that he wanted to do a secret thing with them, undressed them and asked them to climb onto the bed. She stated that the children alleged that the accused defiled them in turns, the older child being defiled through the anal opening while the younger child had reddened outer genitalia. PW5 testified that the children were examined by doctors who confirmed that they had sustained fresh injuries on their genitalia.
29. PW5 further stated that after compiling the case she requested the children’s mother to assist in locating the accused and he was eventually arrested at a drinking den on the night of 21st September 2022. She testified that she also received items of clothing from the MSF clinical officer, namely a purple trouser and a flowered blouse and a pink panty with yellow trim, which she produced as exhibits. She also produced the hospital documents relating to the children including their medical reports and P3 forms, which confirmed that the children had fresh genital injuries consistent with penetration. She testified that the children did not have birth certificates and were therefore taken for age assessment at Athi River Health Centre. PW5 further stated that the children were later placed in a children’s home pending the hearing of the case as she suspected that the parents were attempting to interfere with them and cover up the matter.
30. During cross-examination, PW5 stated that she arrested the accused at a drinking joint with the assistance of two other officers. PW5 further confirmed that she escorted the children to Mama Lucy Hospital for further examination and the completion of P3 forms. She stated that the children were later placed at Moyote Children’s Home and subsequently transferred to Bondeni Children’s Home. She stated that after the children were released to their mother, the mother initially refused to make them available to testify. The doctors at Mama Lucy Hospital had recovered the children’s clothing, which were produced as exhibits, although they were not subjected to forensic analysis. She stated that at some point, the mother had hidden the children, but PW5 was able to locate them and took them to Bondeni Children’s Home. She relied primarily on the children’s statements, as they were the victims and had not reported the incidents to any neighbor. She noted that the mother had spent the night at a friend’s house but refused to disclose the friend’s identity.
31. She further stated that she visited the house where the incident occurred and observed that other children were present but did not record statements from them. She testified that the mother had sent someone to the house on the day of the incident, but she did not establish the identity of that person. The mother reported the matter to police only after taking the children to the hospital.
32. PW5 added that another child in the house, aged five, could not give a statement. She reiterated that the mother reported the matter to police after being escorted by MSF Clinic personnel.
33. On 16th January 2024, upon appraisal of the prosecution’s evidence, the accused was put to his defence.
D. Defence case
34. DW1, Jared Otieno Oloo, a Clinical Officer at Nazareth Hospital, Ruiru, gave expert testimony regarding the P3 forms and medical reports for the minors. He explained that he is trained in clinical medicine and surgery and is conversant with medical examinations and reports, though he was not involved in examining the children in this case. He observed that the P3 forms in question (PExh3) were incompletely filled: Sections A and B were blank, and Section C was only partially completed. Based on the information recorded, he concluded there was no evidence of penetration, and that the minor was therefore a virgin. DW1 noted that anal tears in children can result from causes such as chronic diarrhoea, constipation with hard stools, or anal fissures, and that an intact hymen indicates no penetration. He emphasized that a proper assessment of a sexually abused child requires a full head-to-toe examination, which he found lacking in the P3 forms. He also stated that partial completion of the forms could indicate that the examining officer did not attend to the patient or did not conduct a proper examination. The redness noted on the outer genitalia, in his opinion, did not indicate defilement.
35. On cross-examination, DW1 acknowledged that under the Act, penetration includes both partial and full penetration but maintained that there was no indication from the forms that penetration occurred. He observed that the P3 forms did not record whether the victims had constipation or hard stool and that the forms did not provide evidence to support a finding of attempted defilement. He concluded that, based on the P3 forms, there was no conclusive evidence that J.N.A.’s anal opening was torn by a male organ, and that the medical documentation did not confirm defilement.
36. The appellant, DW2, gave sworn evidence and denied all charges. He recounted the events of 18th and 20th September 2022, noting that he had a physical disagreement with his wife on the 18th and described a public altercation on 20th September while his wife was roasting maize. He explained that a friend, Dan, visited briefly and that his wife took the children away shortly after returning home. He claimed he was at home, awake and sober and that he had no contact with his wife or children that evening after she left. He denied ever attempting or committing any act of defilement against his children, stating that the allegations were untrue and “wild.”
37. During cross-examination, DW2 admitted the marriage had been with prior physical confrontations but maintained that the children did not frame him. He alleged that his wife had influenced the children to fabricate the allegations as part of a vendetta against him. He consistently denied the charges, describing them as fabricated. In re-examination, he reiterated that the children were coerced by their mother to lie and that the charges were false.
38. The trial court evaluated the entire evidence on record and in a judgment delivered on 9th April 2024 found that the prosecution had failed to prove the charges in the two substantive counts of incest and attempted incest and acquitted the appellant of these charges. It however found that the prosecution had proved the alternative charges of committing indecent acts with the two minor victims. He was thus convicted and sentenced to serve five (5) years imprisonment on each count to run consecutively. It is this trial court’s decision that aggrieved the appellant and he lodged this appeal.
E. The Appeal
39. The appeal is as set out in the earlier paragraphs of this judgment. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 20th May 2025 while the respondent’s submissions are dated 29th July 2025.
a. Appellant’s Submissions
40. The appellant challenges both conviction and sentence.
41. He first contends that the trial court erred in imposing a ten years sentence without accounting for the period the appellant had already spent in remand custody. While citing Section 333(2) of the Criminal Procedure Code and the High Court decision in Misc. Application No. E009 of 2025, Boniface Mburu George v Republic, he urges that he had spent one year, seven months, and eight days in custody before sentencing and this period ought to have been credited.
42. Secondly, the appellant argues that the trial magistrate erred by convicting him despite the prosecution failing to prove the elements of the offence beyond reasonable doubt. That the prosecution case was marred with contradictions and inconsistencies, in particular, that: PW2 claimed a prior incident of defilement, whereas PW1 said the alleged acts occurred for the first time and PW4, the mother, denied knowledge of any prior defilement. The minors’ testimonies claimed repeated defilement and penetration of their private parts, yet medical reports confirmed their hymens were intact. The appellant urges that both prosecution and defence medical experts, including DW1, testified that the alleged anal injuries could be caused by other factors, such as constipation, hard stool, or diarrhea. He submits that PW5, the investigating officer, aligned the minors’ statements with the medical report after it was issued, and that inconsistencies existed regarding who witnessed the statements being taken and whether the accused physically harmed the minors. The appellant argues that these contradictions cast serious doubt on the minors’ credibility and that the trial court’s reliance on their evidence for conviction was unsafe.
43. The appellant further submits that the trial court erred by ignoring the defence case, which was uncontroverted and detailed. He testified about the tumultuous nature of his marriage, a physical scuffle with PW4 and claimed that PW4 coached the children to fabricate the allegations. PW4 corroborated aspects of this account. DW1, a defence medical expert, testified that the minors were not penetrated, and that the P3 forms did not support attempted defilement. The appellant argues that this unchallenged defence evidence was ignored without reasons, leading to prejudice. He also contends that the magistrate relied on inference and conjecture rather than credible evidence. That the trial court misinterpreted events, such as the timing of the scuffle between him and PW4, and incorrectly summarized DW1’s testimony regarding medical evidence.
44. The appellant emphasizes that crucial witnesses were neither called nor investigated, including the minors’ mother’s friend, Josephine Kamau who accompanied PW4 to the police and a boda boda who visited the house. He relies on Criminal Appeal No. 7 of 2014, Suleiman Otieno Aziz v Republic, to argue that withholding such witnesses permits the inference that their evidence would have been adverse to the prosecution. Further, he argues that the trial court failed to consider the mandatory minimum sentence requirements, as observed in Moses Mutahi Mugo v R, Criminal Appeal No. E033 of 2021 and Bakari & Another v R [1987] KLR, where each ingredient of the offence must be clearly proved. He emphasizes that there was no evidence of exposure to pornographic material, and that the magistrate did not provide reasons supporting the conviction.
45. In conclusion, the appellant submits that the trial court delivered a judgment that did not comply with the statutory requirements for a valid judgment under Section 169 of the Criminal Procedure Code and Order 21(4) and (5). The judgment lacked properly framed issues for determination and did not provide reasons for its decisions. He also points out internal inconsistencies in the judgment, including contradictions regarding the establishment of the relationship between the appellant and the minors, which is a key element for alternative counts. The appellant prays that given the inconsistencies, contradictions, lack of credible evidence, failure to call crucial witnesses, disregard of uncontroverted defence evidence, and failure to comply with statutory requirements for a proper judgment, this Court allows the appeal and set aside the trial court’s entire judgement.
b. The Respondent’s Submissions
46. Outrightly, the respondent underscores the role of the appellate court on a first appeal as being to re-evaluate the evidence and draw independent conclusions, citing Okeno v Republic [1972] EA 32. The respondent submits that the cardinal issue on appeal is whether the prosecution proved its case to the required standard, including whether the witnesses’ evidence was credible, reliable and cogent.
47. On the merits of the case, the respondent submits that the trial court acquitted the appellant on the main counts
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