1. The appellant, Sindi Ndegwa was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA) that on diverse dates between 1/8/2020 and 24/8/2020 at Shonda area in Likoni Sub-County within Mombasa County unlawfully and intentionally caused his penis to penetrate the vagina of S.M.A. a child aged 12 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that within the said period and place as in the principal charge the appellant unlawfully and intentionally touched the vagina of S. M.A. a child aged 10 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 4 witnesses in support of its case. PW 1, S.M.A was the complainant. PW 2, M.S. was the complainant’s mother. PW 3, Stephen Kalai is a reproductive clinical officer at Likoni District hospital who completed the complainant’s P3 form. PW 4, PC Habiba Huka of Inuka police station was the investigating officer in the case.
5. It was the prosecution’s case that the appellant, a neighbor and well known to the complainant and her mother, followed the complainant aged 12 years into a bathroom constructed outside the complainant’s family residential house while she was there taking a bath and forcefully engaged in sexual intercourse with her. The complainant’s mother while looking for the complainant encountered the appellant running away from the direction of the bathroom. She called him back but the appellant did not stop. According to her mother, the complainant was at the bathroom door trembling. She informed her mother that the appellant had forceful sexual intercourse with her and had threatened to stab her if she screamed. The mother took the complainant to hospital where she was attended to and then reported the matter to the police. The appellant was afterwards apprehended and charged with the offences.
6. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence and said the case was a frame up. That it was instigated by the complainant’s mother who operated a hotel near the appellant’s residence on allegations by another neighbour that he had dumped garbage.
7. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment from the time of his arrest.
8. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on the following amended grounds dated 13/8/2024. It is the appellant’s contention that the learned trial magistrate erred in law and in fact in convicting the appellant and yet:
a. penetration was not proved.
b. the prosecution case was marred with contradictions.
c. his defence was cogent and truthful but the learned trial magistrate failed to consider the same.
9. The appeal was disposed of by way of written submissions filed by the appellant. The respondent never filed submissions in spite of time being granted for them to do so.
10. The appellant submitted that the learned trial magistrate was wrong to convict him when an essential ingredient of the offence of defilement, that is, penetration and by extension identification were not proved. He relied on the case of C.W.K v Republic [2015] eKLR) on the ingredients of the offence of defilement.
11. On contradictions and inconsistencies in the prosecution evidence, the appellant relies on the Nigerian case of Ojeabuo v. FRN (2014) LPELR-22555(CA).
12. On his arrest, he submits that he was arrested after two weeks after the alleged commission of the offence yet there was no evidence that he was on the run or had gone into hiding yet his parents and residence were well known.
13. The submissions are considered more extensively in the evaluation and analysis of the evidence tendered at the trial and the decision of the learned trial magistrate.
14. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
15. Sections 8(1) and 8(3) of the SoA under which the appellant was convicted provide as follows:
S. 8.
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
16. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
17. I have reviewed the evidence tendered before the trial court. It is instructive to note that the appellant did not appeal against the trial court’s findings that the complainant was a child. In that case, I find that the appeal as regards proof of the elements of the offence remains on the issue of penetration and identification.
18. It is the appellant’s case that the prosecution evidence on penetration was marred with contradictions and inconsistencies that were not explained to the satisfaction of the court. That they were grave and point to deliberate untruthfulness and affect the substance of the charge. He cited the Nigerian case of David Ojeabuo v Federal Republic of Nigeria (2014) LPELR-22555(CA), which explains contradiction in the following terms:
"Now, contradiction means a lack of agreement between two related facts. The evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated, and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts, while a discrepancy occurs where a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains."
19. He submits that the first contradiction was with regard to the complainant’s evidence that this was the first time for her to engage in sexual intercourse and that the whole incident took 30 minutes. According to the appellant, this should have resulted in some injuries from freshly broken hymen. However, the medical evidence tendered by the clinical officer, PW 4 was that the complainant’s hymen was broken with an old scar indicative of repeated penetration. The appellant submits that the second contradiction was with regard to the manner in which the alleged defilement was committed with the complainant testifying that she was standing while the investigating officer, PW 4 said the complainant informed her that she was made to lie down on the bathroom floor. He further cited the Court of Appeal case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) in which the Ugandan case of Twehangane Alfred v. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 in which the Uganda Court of Appeal stated that it is not every contradiction that warrants rejection of evidence thus:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
20. The appellant submits that the contradictions herein were grave and prejudicial to him.
21. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
22. The victim in this case was a child of tender years aged 12. The trial court put her through voir dire examination and took her evidence on oath. She was the only witness to the alleged defilement.
23. The manner in a court should evaluate the evidence of a victim of a sexual offence as provided for under section 124 of the Evidence Act was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
24. On the same issue, the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR upon considering various decisions on the matter said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
25. From these decisions it emerges that, in a sexual offence where the victim is the only witness to the offence, where there is corroboration, that is welcome but if there is none then the court can proceed to convict while relying on the evidence of the complainant alone if it is satisfied that the complainant was telling the truth. When relying upon truthfulness alone the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
26. In the present case, the learned trial magistrate did not indicate whether he had found corroboration in the evidence of the complainant on whether he relied on her truthfulness alone and if so, an express warning by the court on the dangers of relying on the uncorroborated evidence of the victim alone. I find that was an error.
27. In the case of PMG v Republic [2022] KEHC 2440 (KLR) the learned judge Onyiego, considering the import of section 124 of the Evidence Act said:
“Although a court has the power to convict under Section 124 of the Evidence Act, the same section should be tested with the greatest care and only be applied against the clearest of the victim’s evidence without an iota of doubt. That provision is not a panacea to rescue otherwise a weak prosecution case. It is also not a sympathy nor a tears’ wiping provision. I do agree with the prosecution counsel that reliance on Section 124 of the Evidence Act was not appropriate in the circumstances of this case.”
28. I agree with the learned judge on his observations and find that the learned magistrate did not apply that position and caution himself appropriately in his determination of the case at hand.
29. The complainant said in her evidence that the sexual intercourse took place while she was standing. However, the report she gave to the investigating officer, PW 4 was that the appellant instructed her to lift up her “dhera” and asked her to lie on the floor of the bathroom. If indeed this was what she immediately said after the incident, why did she have to change it when testifying in court to say that the sexual intercourse took place while she was standing? Had she so quickly forgotten how the incident took place or had she discovered that it would be difficult to show that it would have been difficult to convince the court that sexual intercourse had taken place on the floor of a bathroom with no obvious signs of dirt or even wetness left on the complainant or appellant’s clothes? Even then, I would be prepared to find that inconsistence as minor and therefore immaterial if there were no other issues of concern in the evidence that required clarification but which was never had.
30. It is apparent from the evidence of PW 3 that she was not the one who attended to the complainant the first time when she went to the hospital for medical attention on 24/8/2020. PW 3 said in his evidence that “…the complainant told the doctor that she went to the bathroom to take a bath when the known went to the said bathroom and defiled her.” He also said that, “the PRC form was prepared.” His evidence was that the complaint went to the hospital on 25/8/2020 and PW 3 filled the P3 form (Exh. 3). The whole of this testimony shows that his role was only filling the P3 form.
31. He could only have completed the P3 form from what was indicated in the treatment notes and the PRC form by whoever prepared them. I have looked at the treatment notes (Exh. 2) and the PRC form (Exh. 4) and indeed, both of them bear the name of Salma for the treatment notes and Salma Mbaruk, for the PRC form together with a signature. That must be the person who prepared those two documents. There was no explanation given by the prosecution why Salma was not made available to testify for the prosecution or why she was not the one who completed the P3 form.
32. The reason why her attendance to testify was crucial is because both in the treatment notes and the PRC form, she wrote that, “the perpetrator followed her into the bathroom and attempted to defile her and fleed (sic) after penetration.” (emphasis mine). There are issues arising here which cast great doubt on the medical evidence of penetration that would only have been clarified by the writer. First, is the indication of “attempted to defile her and fleed.” Secondly and curiously, the words “after penetration,” appear to have been added after the words “attempted to defile her.” More curiously, this addition appears in both documents. One would have expected that if the writer had made a mistake in the first document, the treatment notes, this would not have been repeated in the PRC form. But when the addition appears in both documents, there is no other logical conclusion other than that it was made afterwards. The question is, who added the words “after penetration” in those two documents? In the absence of the evidence from Salma, it cannot be ascertained.
33. All the same it is clear that the first writing in both documents was “attempted to defile her.” That means that the complainant told the first person to attend to her that the appellant attempted to defile her and not that he defiled her as asserted in the evidence by PW 1, PW 2 and PW 3 in court. The question then is, at what point did the issue of defiling the complainant arise and was it after that, that the words “after penetration” were added? Could that be the explanation why the complainant was not consistent on how the alleged defilement took place, because after all it never took place.
34. The indication that the complainant had said that it was an attempt to defile her means that there was no penetration of the complainant’s genital organ with that of the appellant at the time as alleged.
35. That evidence is then quite consistent with the medical evidence that the broken hymen was not recent but old as clearly indicated in the treatment notes, PRC form and P3 form. It follows then that it was not broken as alleged by the complainant on 23/8/2020 but earlier, as per the medical evidence.
36. As pointed out by the appellant, the complainant said in evidence that this was her first time to engage in sexual intercourse. However, the medical evidence showed that her hymen was broken with an old scar which indicated repeated penetration. Moreover, her mother who appeared at the scene immediately after the alleged defilement, that had taken some 30 minutes, and a girl who had never engaged in sexual intercourse before, never testified that her daughter was in obvious pain of fresh penetration of her genitalia for such a long time.
37. I find that the medical evidence that the penetration would have happened earlier is consistent with the particulars of the charge that the alleged defilement took place on diverse dates between 1/8/2020 and 24/8/2020 and not only on 23/8/2020 as alleged by the prosecution witnesses. Otherwise, why would the investigating officer, who had a clear story from the complainant that the appellant allegedly defiled her on 23/8/2020 and that she had never engaged in sexual intercourse before, turn it around to indicate that it was on diverse dates, spanning a period of 3 weeks? If that was the case, and it appears to be so from the medical evidence, then it is at variance with the clear evidence of the complainant and the other prosecution witnesses that the incident happened to her only once on 23/8/2020. That creates a definite doubt in the mind of the court as to the credibility of the witnesses for the prosecution.
38. In whole, there was no evidence to corroborate the complainant’s allegation of defilement on the material day and also it is difficult to believe that the complainant was a witness of truth upon whose evidence alone the trial court would have relied to convict the appellant. Whether it was her mother’s influence for her to say untruths about the alleged incident or her own concoction is hard to tell. However, her story does not add up either way. The trial court was therefore in error to believe and rely on that evidence.
39. Whereas the appellant’s testimony was of little, if any probative value, and also incredible and therefore not believable, equally, the prosecution evidence fell short of belief beyond a reasonable doubt so as to find the appellant guilty of the offence of defilement. I would not even find sufficient evidence that the appellant attempted to commit the offence. That would have been possible if at least, since the complainant’s evidence of what transpired was unbelievable, her mother’s evidence was that she found the appellant inside the bathroom or at least while exiting therefrom. But while running away and far from the bathroom without more is not sufficient to establish an act proximate to defilement so as to constitute an attempt (see the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR)).
40. The learned trial magistrate does not seem to have analyzed the evidence of penetration at all. He simply laid out what the witnesses said in evidence, an authority on proof of penetration and stated that “with the testimony tendered, I find that the element of penetration was proved.” There was no analysis at all that led to that finding as required under section 169 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. If he had done so, he would have come to a different conclusion about proof of penetration. I find that the trial court was in error to find that the element of penetration had been proved beyond a reasonable doubt.
41. For the foregoing reasons, I find that the evidence of penetration as testified by the complainant was not corroborated and neither was she believable on her own given the contradiction between her evidence and that of PW 4 and the medical evidence that was tendered which was also unreliable for being self-contradictory and with unexplained additional writings that seems to have been added in order to be incriminating. I agree with the appellant that this was clearly prejudicial to him.
42. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate.
43. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
44. The offence the appellant was charged with carries a very severe sentence of mandatory sentence of 20 years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
45. Guided by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the element of penetration. In the event that the complainant was defiled earlier as appears to have been revealed by the medical evidence and going by the particulars of the charge, that it happened between 1/8/2020 and 24/8/2020, then the identification of the appellant as the perpetrator of the offence was not proved.
46. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
47. Orders accordingly.
48. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 17th day of March 2025 in the presence of:
The appellant in person in Naivasha Maximum Security prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia: court assistant.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the SoA that within the said period and place as in the principal charge the appellant unlawfully and intentionally touched the vagina of S. M.A. a child aged 10 years with his penis.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing.
4. The prosecution called 4 witnesses in support of its case. PW 1, S.M.A was the complainant. PW 2, M.S. was the complainant’s mother. PW 3, Stephen Kalai is a reproductive clinical officer at Likoni District hospital who completed the complainant’s P3 form. PW 4, PC Habiba Huka of Inuka police station was the investigating officer in the case.
5. It was the prosecution’s case that the appellant, a neighbor and well known to the complainant and her mother, followed the complainant aged 12 years into a bathroom constructed outside the complainant’s family residential house while she was there taking a bath and forcefully engaged in sexual intercourse with her. The complainant’s mother while looking for the complainant encountered the appellant running away from the direction of the bathroom. She called him back but the appellant did not stop. According to her mother, the complainant was at the bathroom door trembling. She informed her mother that the appellant had forceful sexual intercourse with her and had threatened to stab her if she screamed. The mother took the complainant to hospital where she was attended to and then reported the matter to the police. The appellant was afterwards apprehended and charged with the offences.
6. The appellant DW 1, made an unsworn statement in defence and did not call a witness. He denied that he committed the offence and said the case was a frame up. That it was instigated by the complainant’s mother who operated a hotel near the appellant’s residence on allegations by another neighbour that he had dumped garbage.
7. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve 20 years imprisonment from the time of his arrest.
8. The appellant was aggrieved by the decision of the trial court and has filed the present appeal based on the following amended grounds dated 13/8/2024. It is the appellant’s contention that the learned trial magistrate erred in law and in fact in convicting the appellant and yet:
a. penetration was not proved.
b. the prosecution case was marred with contradictions.
c. his defence was cogent and truthful but the learned trial magistrate failed to consider the same.
9. The appeal was disposed of by way of written submissions filed by the appellant. The respondent never filed submissions in spite of time being granted for them to do so.
10. The appellant submitted that the learned trial magistrate was wrong to convict him when an essential ingredient of the offence of defilement, that is, penetration and by extension identification were not proved. He relied on the case of C.W.K v Republic [2015] eKLR) on the ingredients of the offence of defilement.
11. On contradictions and inconsistencies in the prosecution evidence, the appellant relies on the Nigerian case of Ojeabuo v. FRN (2014) LPELR-22555(CA).
12. On his arrest, he submits that he was arrested after two weeks after the alleged commission of the offence yet there was no evidence that he was on the run or had gone into hiding yet his parents and residence were well known.
13. The submissions are considered more extensively in the evaluation and analysis of the evidence tendered at the trial and the decision of the learned trial magistrate.
14. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“… it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
15. Sections 8(1) and 8(3) of the SoA under which the appellant was convicted provide as follows:
S. 8.
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
16. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
17. I have reviewed the evidence tendered before the trial court. It is instructive to note that the appellant did not appeal against the trial court’s findings that the complainant was a child. In that case, I find that the appeal as regards proof of the elements of the offence remains on the issue of penetration and identification.
18. It is the appellant’s case that the prosecution evidence on penetration was marred with contradictions and inconsistencies that were not explained to the satisfaction of the court. That they were grave and point to deliberate untruthfulness and affect the substance of the charge. He cited the Nigerian case of David Ojeabuo v Federal Republic of Nigeria (2014) LPELR-22555(CA), which explains contradiction in the following terms:
"Now, contradiction means a lack of agreement between two related facts. The evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated, and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts, while a discrepancy occurs where a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains."
19. He submits that the first contradiction was with regard to the complainant’s evidence that this was the first time for her to engage in sexual intercourse and that the whole incident took 30 minutes. According to the appellant, this should have resulted in some injuries from freshly broken hymen. However, the medical evidence tendered by the clinical officer, PW 4 was that the complainant’s hymen was broken with an old scar indicative of repeated penetration. The appellant submits that the second contradiction was with regard to the manner in which the alleged defilement was committed with the complainant testifying that she was standing while the investigating officer, PW 4 said the complainant informed her that she was made to lie down on the bathroom floor. He further cited the Court of Appeal case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) in which the Ugandan case of Twehangane Alfred v. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 in which the Uganda Court of Appeal stated that it is not every contradiction that warrants rejection of evidence thus:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
20. The appellant submits that the contradictions herein were grave and prejudicial to him.
21. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
22. The victim in this case was a child of tender years aged 12. The trial court put her through voir dire examination and took her evidence on oath. She was the only witness to the alleged defilement.
23. The manner in a court should evaluate the evidence of a victim of a sexual offence as provided for under section 124 of the Evidence Act was explained by the Court of Appeal in the case of Sahali Omar vs. Republic [2017] eKLR held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
24. On the same issue, the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR upon considering various decisions on the matter said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
25. From these decisions it emerges that, in a sexual offence where the victim is the only witness to the offence, where there is corroboration, that is welcome but if there is none then the court can proceed to convict while relying on the evidence of the complainant alone if it is satisfied that the complainant was telling the truth. When relying upon truthfulness alone the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
26. In the present case, the learned trial magistrate did not indicate whether he had found corroboration in the evidence of the complainant on whether he relied on her truthfulness alone and if so, an express warning by the court on the dangers of relying on the uncorroborated evidence of the victim alone. I find that was an error.
27. In the case of PMG v Republic [2022] KEHC 2440 (KLR) the learned judge Onyiego, considering the import of section 124 of the Evidence Act said:
“Although a court has the power to convict under Section 124 of the Evidence Act, the same section should be tested with the greatest care and only be applied against the clearest of the victim’s evidence without an iota of doubt. That provision is not a panacea to rescue otherwise a weak prosecution case. It is also not a sympathy nor a tears’ wiping provision. I do agree with the prosecution counsel that reliance on Section 124 of the Evidence Act was not appropriate in the circumstances of this case.”
28. I agree with the learned judge on his observations and find that the learned magistrate did not apply that position and caution himself appropriately in his determination of the case at hand.
29. The complainant said in her evidence that the sexual intercourse took place while she was standing. However, the report she gave to the investigating officer, PW 4 was that the appellant instructed her to lift up her “dhera” and asked her to lie on the floor of the bathroom. If indeed this was what she immediately said after the incident, why did she have to change it when testifying in court to say that the sexual intercourse took place while she was standing? Had she so quickly forgotten how the incident took place or had she discovered that it would be difficult to show that it would have been difficult to convince the court that sexual intercourse had taken place on the floor of a bathroom with no obvious signs of dirt or even wetness left on the complainant or appellant’s clothes? Even then, I would be prepared to find that inconsistence as minor and therefore immaterial if there were no other issues of concern in the evidence that required clarification but which was never had.
30. It is apparent from the evidence of PW 3 that she was not the one who attended to the complainant the first time when she went to the hospital for medical attention on 24/8/2020. PW 3 said in his evidence that “…the complainant told the doctor that she went to the bathroom to take a bath when the known went to the said bathroom and defiled her.” He also said that, “the PRC form was prepared.” His evidence was that the complaint went to the hospital on 25/8/2020 and PW 3 filled the P3 form (Exh. 3). The whole of this testimony shows that his role was only filling the P3 form.
31. He could only have completed the P3 form from what was indicated in the treatment notes and the PRC form by whoever prepared them. I have looked at the treatment notes (Exh. 2) and the PRC form (Exh. 4) and indeed, both of them bear the name of Salma for the treatment notes and Salma Mbaruk, for the PRC form together with a signature. That must be the person who prepared those two documents. There was no explanation given by the prosecution why Salma was not made available to testify for the prosecution or why she was not the one who completed the P3 form.
32. The reason why her attendance to testify was crucial is because both in the treatment notes and the PRC form, she wrote that, “the perpetrator followed her into the bathroom and attempted to defile her and fleed (sic) after penetration.” (emphasis mine). There are issues arising here which cast great doubt on the medical evidence of penetration that would only have been clarified by the writer. First, is the indication of “attempted to defile her and fleed.” Secondly and curiously, the words “after penetration,” appear to have been added after the words “attempted to defile her.” More curiously, this addition appears in both documents. One would have expected that if the writer had made a mistake in the first document, the treatment notes, this would not have been repeated in the PRC form. But when the addition appears in both documents, there is no other logical conclusion other than that it was made afterwards. The question is, who added the words “after penetration” in those two documents? In the absence of the evidence from Salma, it cannot be ascertained.
33. All the same it is clear that the first writing in both documents was “attempted to defile her.” That means that the complainant told the first person to attend to her that the appellant attempted to defile her and not that he defiled her as asserted in the evidence by PW 1, PW 2 and PW 3 in court. The question then is, at what point did the issue of defiling the complainant arise and was it after that, that the words “after penetration” were added? Could that be the explanation why the complainant was not consistent on how the alleged defilement took place, because after all it never took place.
34. The indication that the complainant had said that it was an attempt to defile her means that there was no penetration of the complainant’s genital organ with that of the appellant at the time as alleged.
35. That evidence is then quite consistent with the medical evidence that the broken hymen was not recent but old as clearly indicated in the treatment notes, PRC form and P3 form. It follows then that it was not broken as alleged by the complainant on 23/8/2020 but earlier, as per the medical evidence.
36. As pointed out by the appellant, the complainant said in evidence that this was her first time to engage in sexual intercourse. However, the medical evidence showed that her hymen was broken with an old scar which indicated repeated penetration. Moreover, her mother who appeared at the scene immediately after the alleged defilement, that had taken some 30 minutes, and a girl who had never engaged in sexual intercourse before, never testified that her daughter was in obvious pain of fresh penetration of her genitalia for such a long time.
37. I find that the medical evidence that the penetration would have happened earlier is consistent with the particulars of the charge that the alleged defilement took place on diverse dates between 1/8/2020 and 24/8/2020 and not only on 23/8/2020 as alleged by the prosecution witnesses. Otherwise, why would the investigating officer, who had a clear story from the complainant that the appellant allegedly defiled her on 23/8/2020 and that she had never engaged in sexual intercourse before, turn it around to indicate that it was on diverse dates, spanning a period of 3 weeks? If that was the case, and it appears to be so from the medical evidence, then it is at variance with the clear evidence of the complainant and the other prosecution witnesses that the incident happened to her only once on 23/8/2020. That creates a definite doubt in the mind of the court as to the credibility of the witnesses for the prosecution.
38. In whole, there was no evidence to corroborate the complainant’s allegation of defilement on the material day and also it is difficult to believe that the complainant was a witness of truth upon whose evidence alone the trial court would have relied to convict the appellant. Whether it was her mother’s influence for her to say untruths about the alleged incident or her own concoction is hard to tell. However, her story does not add up either way. The trial court was therefore in error to believe and rely on that evidence.
39. Whereas the appellant’s testimony was of little, if any probative value, and also incredible and therefore not believable, equally, the prosecution evidence fell short of belief beyond a reasonable doubt so as to find the appellant guilty of the offence of defilement. I would not even find sufficient evidence that the appellant attempted to commit the offence. That would have been possible if at least, since the complainant’s evidence of what transpired was unbelievable, her mother’s evidence was that she found the appellant inside the bathroom or at least while exiting therefrom. But while running away and far from the bathroom without more is not sufficient to establish an act proximate to defilement so as to constitute an attempt (see the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR)).
40. The learned trial magistrate does not seem to have analyzed the evidence of penetration at all. He simply laid out what the witnesses said in evidence, an authority on proof of penetration and stated that “with the testimony tendered, I find that the element of penetration was proved.” There was no analysis at all that led to that finding as required under section 169 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. If he had done so, he would have come to a different conclusion about proof of penetration. I find that the trial court was in error to find that the element of penetration had been proved beyond a reasonable doubt.
41. For the foregoing reasons, I find that the evidence of penetration as testified by the complainant was not corroborated and neither was she believable on her own given the contradiction between her evidence and that of PW 4 and the medical evidence that was tendered which was also unreliable for being self-contradictory and with unexplained additional writings that seems to have been added in order to be incriminating. I agree with the appellant that this was clearly prejudicial to him.
42. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of defilement as was arrived at by the learned trial magistrate.
43. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
44. The offence the appellant was charged with carries a very severe sentence of mandatory sentence of 20 years imprisonment. Indeed, that was the sentence meted out to him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
45. Guided by this decision, I find that the learned trial magistrate failed to consider the gravity of the charges facing the appellant and to ensure that the evidence tendered by the prosecution was beyond a reasonable doubt on the element of penetration. In the event that the complainant was defiled earlier as appears to have been revealed by the medical evidence and going by the particulars of the charge, that it happened between 1/8/2020 and 24/8/2020, then the identification of the appellant as the perpetrator of the offence was not proved.
46. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
47. Orders accordingly.
48. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 17th day of March 2025 in the presence of:
The appellant in person in Naivasha Maximum Security prison.
Ms Valerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia: court assistant.