(Being an appeal against the conviction and sentence in S.O case No 070 of 2017 at Shanzu by the Hon. Macharia (SRM) delivered on the 11th day of October 2019)
The Appellant STEPHEN ZADDOCK OCHIENG was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act of 2006. Particulars of the offence are that; 'On diverse date between the year 2016 and July 2017 at Mshomoroni area within Kisauni Sub County within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of A.N. a girl child aged 12 years'
The Appellant was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006'
The appellant pleaded not guilty to both the main and the alternative charge and the matter proceeded for hearing.
The matter was substantially by Hon.E.Kagoni , SRM, until the close of the prosecution case who then made a ruling that the prosecution has established a prima facie case and put the Appellant on his defence. Shortly thereafter she proceeded on transfer at which point the matter was briefly heard by Hon.D.Mochache, SPM during which directions were given under section 200 CPC. The Appellant through his counsel on record sought to have a de novo hearing but was overruled by the Hon. Magitrate on grounds that it would amount to defiling the child all over again as the defence was represented all through.
Soon after that ruling on section 200 CPC and the fixing of a hearing date, Hon.D.Mochache proceeded on transfer and the matter was now placed before Hon.F.Macharia for hearing. At this point counsel appearing for the defence is on record as stating that she wished to take directions under section 200 CPC that the matter proceed to hearing where it had reached. The Court obliged and ruled that the matter proceed from where it had reached for defence hearing.
The final trial magistrate, Hon. F.Macharia after hearing close of the defence case found that the prosecution had proved their case against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant to 20 years imprisonment.
Dissatisfied by the said judgment, conviction and sentence, the Appellant filed his petition of appeal based on the following grounds of appeal:
That the lower court magistrate erred in both law and fact when convicting and failed to note that defilement, the major element is penetration but in this matter penetration was not adequately proved by the evidence on record.
That the lower court magistrate erred in both law and facts in failing to comply with provisions of section 200(3) of the CPC, Article 10(1)(3), Article 20(1), Article 24(1)(a) & Article 27(1) of the Constitution.
That the lower court magistrate erred in both law and facts in failing to evaluate the gravity which the Appellant’s defence AND that of his witnesses created in this matter.
The appeal was canvassed by way of written submissions.
the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the parties herein and I find that the issue for determination are as follows:
Whether the trial court adequately addressed itself to the provisions of section 200(3) of the CPC and the effect of any such inadequacy
Whether the prosecution proved its case beyond reasonable doubt
Whether the defence case was adequately considered
10. Section 200(3) of the CPC provides as follows:
Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
It is on record that the Appellant’s counsel on record moved the court to proceed with the Defence case as part of directions under section 200 CPC perhaps taking into account the earlier ruling by Hon. D.Mochache, SPM when she rejected de novo proceedings.
In Ndegwa v Republic (1985) KLR 535 where Madan Kneller and Nyarangi JJA stated that:“It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case in our opinion. .... for these reasons we have stated, in our view the trial was unsatisfactory.”
that:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where exigencies of circumstances, not only are likely but will defeat the end of justice, if a succeeding Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”
In the case of Joseph Kamau Gichuki v Republic (2013) the Court of Appeal stated that:“This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused”
Appeal stated that:“... Before a Judge proceeds with a trial in which another Judge has partly heard and recorded evidence, the accused person must be informed of his right to have the hearing proceed denovo or proceed from where the previous Judge had reached. Should the accused person choose to proceed with the trial from where it has reached, the court must inform him of his right to have any of the witness who have already testified re-summoned and re-heard.”
Looking at what transpired the record reads as follows: “Date: 13/11/2018
Before Hon. D. Mochache – SPM;
State: Kabingu
Court Assistant: Wilson.
Accused: Present.
M/S Ochola for Hayanga for the accused: we would like to start the case de novo.
Court: Not allowed. Its tantamount to defiling the child all over, the case has been defended all through. To prepare for defence hearing on 14/12/2019.
“Date: 21/5/2019
Before F.W. Macharia, SPM,
Court prosecutor – Ayekha.
Court Assistant – Wilson,
Accused present. Miss wamboi holding brief for Hayanga for the accused person:
Miss Wamboi: The matter is coming up for defence hearing. We can take directions under section 200 CPC that the matter to proceed from where it had reached.
Prosecutor: The matter was before Hon.E.Kagoni during the Children matters service week. I am ready to proceed.
Court: matter to proceed from where it had reached.
Section 200 of the CPC was Explained to the Accused and his counsel on record stated that the case could go on from where it had reached. What was missing was the answer he gave to the question whether he required witnesses to be re-summoned.
The succeeding magistrate is required to inform the accused person about this right to demand the re-summoning and re-hearing of witnesses. This ensures that the accused person is aware of their opportunity to have their case revisited by the new magistrate and to give the in coming magistrate a chance to observe the demeanor of the witnesses.
Was that omission was fatal.? The procedural provisions are a guiding tool to ensure that the match is played within the ring. In criminal cases the hallmark is to ensure that there is no breach of the right to all parties especially the accused person who is viewed as the underdog in the match against the state and all it prosecutorial machinery. These rights ate critical especially those enshrined in the bill of rights.
In this particular case we are concerned with the right to a fair trial. One must also bear the in mind the victim’s rights especially where vulnerable victims such as children are involved.
In this case I find that the first court was correct as it is not desirable to take a child over and over again through the traumatizing events. We note that the child in issue herein also had some developmental or mental challenges challenges.
As to the proceedings before the subsequent magistrate, in as much as the accused person did not respond to the query or make the choice personally, I am satisfied that the advocate who is well trained in the criminal procedure did not mislead him. There was no prejudice occasioned and hence no miscarriage of justice. That ground of appeal therefore fails.
We will however see that in as much as the courts emphasis on a speedy trial, the omission to have a first hand take of the evidence.
For instance under section 124 of the evidence act, the court can convict on the uncorroborated evidence of a victim in defilement cases. They must however record the reasons for doing so. This cannot be possible if the court did not take down the evidence themselves . we will get back to this later.
We now move on to analyse the evidence .
This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. See the case of David Njuguna Wairimu (2010) eKLR where it was held that:
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” .
Having considered the salience of the appellant’s grounds of appeal, the sole issue for determination is:
Whether the prosecution established its case against the appellant beyond reasonable doubt?
Section 8(1) of the Sexual Offences Act n act which causes penetration with a child is guilty of an offence termed defilement.
…
(2) A person who commits an offence of defilement with a child aged between twelve and fifteen years or shall upon conviction be sentenced to twenty years imprisonment .
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
27. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
The appellant primarily anchored his appeal on what he termed as a myriad of inconsistencies and discrepancies in the prosecution witnesses’ testimonies as highlighted in the summary of his submissions .
From the onset, I cede guidance to the decision in Philip Nzaka Watu v. Republic [2016] eKLR where the court of appeal stated as follows:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
Further, in DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
Closer home, the Court of Appeal in Joseph Maina Mwangi versus Republic Criminal Appeal No.73 of 1993 held inter alia that:
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”
On the first two issues of the age and penetration , the evidence was sufficient. The appellant rightly submitted that absence of a hymen does not mean penal penetration . In this case however there was evidence that the victim had some serious injuries suggestive of repeated defilement.
The main problem was the identification of the offender. In as much as the parties were known to each other , we must not forget that there was also evidence that the child had some mental challenges . There was however no report to evaluate the degree of the mental incapacity. Worse still the father denied this challenge in court and the mother did not testify.
This is why I brought up the issues of another magistrate taking over and the danger it possess. In this case , Hon. Florence Wangari, now JUDGE , who concluded the matter , was the 3 rd magistrate to handle the case. She did not see any of the prosecution witnesses.
We must however bear in mind that the child victim al had been taken to the appellant to so that he can exorcise or cleanse her to get rid her of some malady. The father had said that she would not sleep and would chew cud like cattle and make funny noises. Regular medication had failed and that is why they had turned to the alternative/ spiritual treatment which is what allegedly what led these unfortunate events.
The child gave a detailed narration as to what the accused person did to her but I found it hard to ignore the issue of her mental disability. If she was hearing sounds and communicating with other beings , was she able to distinguish between fact and fiction? The failure to get a proper mental evaluation was a glaring red flag in this case. I must repeat that the magistrate who wrote the judgement did not get to see her.
The accused person denied the offence and called evidence pointing to another perpetrator. The trial court however opined that there was no reason why the appellant would have been falsely accused.
The appellant submitted that one the reasons he was seeking a recall of the witnesses was to raise the issue he raised in his defence . He did not get that chance.
There was also a mention of some differences between the victim and the step mother who used to mistreat her and the talk of her going back to the village as well as reference to an uncle who was the actual culprit. This evidence should have been weighed against the defence . This may explain why the mother to the victim did not come to court to testify . The people whom the child allegedly confided in also did not testify. It is the 4 th person who heard the story who came to testify.
On the other hand , we had the wife to the appellant as well as the other members of the church who testified that the cleansing would be conducted in the open when they were all present.
Having considered all the evidence, I agree with the appellant that investigator should have looked into the issue of the uncle who is said to have been in a sexual relationship with the child. It is the prosecutions duty to test any alibi defence once it has been raised .
For the above reasons I find that the conviction was not safe. I therefore give the appellant the benefit of doubt and set aside the conviction and acquit him of the charge of defilement contrary to section 8 (1) as read with 8(2) of the sexual offences act.
It follows that with the acquittal the appeal on sentence automatically succeeds and he may be set at liberty if not otherwise lawfully held.
The appeal therefore succeeds.
It is so held.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 24 TH DAY OF JULY 2025
WENDY KAGENDO
JUDGE
IN THE ORESENCE OF
THE APPELLANT
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
The Appellant STEPHEN ZADDOCK OCHIENG was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act of 2006. Particulars of the offence are that; 'On diverse date between the year 2016 and July 2017 at Mshomoroni area within Kisauni Sub County within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of A.N. a girl child aged 12 years'
The Appellant was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006'
The appellant pleaded not guilty to both the main and the alternative charge and the matter proceeded for hearing.
The matter was substantially by Hon.E.Kagoni , SRM, until the close of the prosecution case who then made a ruling that the prosecution has established a prima facie case and put the Appellant on his defence. Shortly thereafter she proceeded on transfer at which point the matter was briefly heard by Hon.D.Mochache, SPM during which directions were given under section 200 CPC. The Appellant through his counsel on record sought to have a de novo hearing but was overruled by the Hon. Magitrate on grounds that it would amount to defiling the child all over again as the defence was represented all through.
Soon after that ruling on section 200 CPC and the fixing of a hearing date, Hon.D.Mochache proceeded on transfer and the matter was now placed before Hon.F.Macharia for hearing. At this point counsel appearing for the defence is on record as stating that she wished to take directions under section 200 CPC that the matter proceed to hearing where it had reached. The Court obliged and ruled that the matter proceed from where it had reached for defence hearing.
The final trial magistrate, Hon. F.Macharia after hearing close of the defence case found that the prosecution had proved their case against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant to 20 years imprisonment.
Dissatisfied by the said judgment, conviction and sentence, the Appellant filed his petition of appeal based on the following grounds of appeal:
That the lower court magistrate erred in both law and fact when convicting and failed to note that defilement, the major element is penetration but in this matter penetration was not adequately proved by the evidence on record.
That the lower court magistrate erred in both law and facts in failing to comply with provisions of section 200(3) of the CPC, Article 10(1)(3), Article 20(1), Article 24(1)(a) & Article 27(1) of the Constitution.
That the lower court magistrate erred in both law and facts in failing to evaluate the gravity which the Appellant’s defence AND that of his witnesses created in this matter.
The appeal was canvassed by way of written submissions.
the trial court by both the appellant and the prosecution, the grounds of appeal and the written submissions by the parties herein and I find that the issue for determination are as follows:
Whether the trial court adequately addressed itself to the provisions of section 200(3) of the CPC and the effect of any such inadequacy
Whether the prosecution proved its case beyond reasonable doubt
Whether the defence case was adequately considered
10. Section 200(3) of the CPC provides as follows:
Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
It is on record that the Appellant’s counsel on record moved the court to proceed with the Defence case as part of directions under section 200 CPC perhaps taking into account the earlier ruling by Hon. D.Mochache, SPM when she rejected de novo proceedings.
In Ndegwa v Republic (1985) KLR 535 where Madan Kneller and Nyarangi JJA stated that:“It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case in our opinion. .... for these reasons we have stated, in our view the trial was unsatisfactory.”
that:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where exigencies of circumstances, not only are likely but will defeat the end of justice, if a succeeding Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”
In the case of Joseph Kamau Gichuki v Republic (2013) the Court of Appeal stated that:“This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused”
Appeal stated that:“... Before a Judge proceeds with a trial in which another Judge has partly heard and recorded evidence, the accused person must be informed of his right to have the hearing proceed denovo or proceed from where the previous Judge had reached. Should the accused person choose to proceed with the trial from where it has reached, the court must inform him of his right to have any of the witness who have already testified re-summoned and re-heard.”
Looking at what transpired the record reads as follows: “Date: 13/11/2018
Before Hon. D. Mochache – SPM;
State: Kabingu
Court Assistant: Wilson.
Accused: Present.
M/S Ochola for Hayanga for the accused: we would like to start the case de novo.
Court: Not allowed. Its tantamount to defiling the child all over, the case has been defended all through. To prepare for defence hearing on 14/12/2019.
“Date: 21/5/2019
Before F.W. Macharia, SPM,
Court prosecutor – Ayekha.
Court Assistant – Wilson,
Accused present. Miss wamboi holding brief for Hayanga for the accused person:
Miss Wamboi: The matter is coming up for defence hearing. We can take directions under section 200 CPC that the matter to proceed from where it had reached.
Prosecutor: The matter was before Hon.E.Kagoni during the Children matters service week. I am ready to proceed.
Court: matter to proceed from where it had reached.
Section 200 of the CPC was Explained to the Accused and his counsel on record stated that the case could go on from where it had reached. What was missing was the answer he gave to the question whether he required witnesses to be re-summoned.
The succeeding magistrate is required to inform the accused person about this right to demand the re-summoning and re-hearing of witnesses. This ensures that the accused person is aware of their opportunity to have their case revisited by the new magistrate and to give the in coming magistrate a chance to observe the demeanor of the witnesses.
Was that omission was fatal.? The procedural provisions are a guiding tool to ensure that the match is played within the ring. In criminal cases the hallmark is to ensure that there is no breach of the right to all parties especially the accused person who is viewed as the underdog in the match against the state and all it prosecutorial machinery. These rights ate critical especially those enshrined in the bill of rights.
In this particular case we are concerned with the right to a fair trial. One must also bear the in mind the victim’s rights especially where vulnerable victims such as children are involved.
In this case I find that the first court was correct as it is not desirable to take a child over and over again through the traumatizing events. We note that the child in issue herein also had some developmental or mental challenges challenges.
As to the proceedings before the subsequent magistrate, in as much as the accused person did not respond to the query or make the choice personally, I am satisfied that the advocate who is well trained in the criminal procedure did not mislead him. There was no prejudice occasioned and hence no miscarriage of justice. That ground of appeal therefore fails.
We will however see that in as much as the courts emphasis on a speedy trial, the omission to have a first hand take of the evidence.
For instance under section 124 of the evidence act, the court can convict on the uncorroborated evidence of a victim in defilement cases. They must however record the reasons for doing so. This cannot be possible if the court did not take down the evidence themselves . we will get back to this later.
We now move on to analyse the evidence .
This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. See the case of David Njuguna Wairimu (2010) eKLR where it was held that:
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” .
Having considered the salience of the appellant’s grounds of appeal, the sole issue for determination is:
Whether the prosecution established its case against the appellant beyond reasonable doubt?
Section 8(1) of the Sexual Offences Act n act which causes penetration with a child is guilty of an offence termed defilement.
…
(2) A person who commits an offence of defilement with a child aged between twelve and fifteen years or shall upon conviction be sentenced to twenty years imprisonment .
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
27. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
The appellant primarily anchored his appeal on what he termed as a myriad of inconsistencies and discrepancies in the prosecution witnesses’ testimonies as highlighted in the summary of his submissions .
From the onset, I cede guidance to the decision in Philip Nzaka Watu v. Republic [2016] eKLR where the court of appeal stated as follows:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
Further, in DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
Closer home, the Court of Appeal in Joseph Maina Mwangi versus Republic Criminal Appeal No.73 of 1993 held inter alia that:
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”
On the first two issues of the age and penetration , the evidence was sufficient. The appellant rightly submitted that absence of a hymen does not mean penal penetration . In this case however there was evidence that the victim had some serious injuries suggestive of repeated defilement.
The main problem was the identification of the offender. In as much as the parties were known to each other , we must not forget that there was also evidence that the child had some mental challenges . There was however no report to evaluate the degree of the mental incapacity. Worse still the father denied this challenge in court and the mother did not testify.
This is why I brought up the issues of another magistrate taking over and the danger it possess. In this case , Hon. Florence Wangari, now JUDGE , who concluded the matter , was the 3 rd magistrate to handle the case. She did not see any of the prosecution witnesses.
We must however bear in mind that the child victim al had been taken to the appellant to so that he can exorcise or cleanse her to get rid her of some malady. The father had said that she would not sleep and would chew cud like cattle and make funny noises. Regular medication had failed and that is why they had turned to the alternative/ spiritual treatment which is what allegedly what led these unfortunate events.
The child gave a detailed narration as to what the accused person did to her but I found it hard to ignore the issue of her mental disability. If she was hearing sounds and communicating with other beings , was she able to distinguish between fact and fiction? The failure to get a proper mental evaluation was a glaring red flag in this case. I must repeat that the magistrate who wrote the judgement did not get to see her.
The accused person denied the offence and called evidence pointing to another perpetrator. The trial court however opined that there was no reason why the appellant would have been falsely accused.
The appellant submitted that one the reasons he was seeking a recall of the witnesses was to raise the issue he raised in his defence . He did not get that chance.
There was also a mention of some differences between the victim and the step mother who used to mistreat her and the talk of her going back to the village as well as reference to an uncle who was the actual culprit. This evidence should have been weighed against the defence . This may explain why the mother to the victim did not come to court to testify . The people whom the child allegedly confided in also did not testify. It is the 4 th person who heard the story who came to testify.
On the other hand , we had the wife to the appellant as well as the other members of the church who testified that the cleansing would be conducted in the open when they were all present.
Having considered all the evidence, I agree with the appellant that investigator should have looked into the issue of the uncle who is said to have been in a sexual relationship with the child. It is the prosecutions duty to test any alibi defence once it has been raised .
For the above reasons I find that the conviction was not safe. I therefore give the appellant the benefit of doubt and set aside the conviction and acquit him of the charge of defilement contrary to section 8 (1) as read with 8(2) of the sexual offences act.
It follows that with the acquittal the appeal on sentence automatically succeeds and he may be set at liberty if not otherwise lawfully held.
The appeal therefore succeeds.
It is so held.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 24 TH DAY OF JULY 2025
WENDY KAGENDO
JUDGE
IN THE ORESENCE OF
THE APPELLANT
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT