JUDGEMENT
1. This is an Appeal from the judgment, conviction and sentence passed at the Chief Magistrate’s Court at Gatundu in Criminal Case Number SO E016 of 2020 by Honourable L.M. Wachira, Chief magistrate . The judgement was delivered on 12th day of August 2021
Background Facts
2. The Appellant was convicted by Honourable L.M. Wachira, Chief Magistrate , for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (2006). The particulars of the Charge were that on 19th May, 2020 at Gatundu South Sub-County at Kiambu County, Kiamwangi Village intentionally caused his penis to penetrate the vagina of A.N.N, a child, aged 16 years.
3. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (2006). The particulars of the alternative Charge were that on 19th May, 2020 at the village of Kiamwangi, Gatundu South Sub- County, intentionally touched the vagina of A.N.N, a child, aged 16 years with his hand.
4. The Appellant pleaded not guilty to the Charges before the Trial Court, and a full hearing was conducted. The prosecution called seven (7) witnesses in support of its case.
5. At the close of the prosecution case, the Trial Court ruled that a prima facie case had been established against the Accused. He was put on his defence. He gave a sworn statement and called three witnesses.
6. At the conclusion of the trial, he was convicted of the main charge and sentenced to serve fifteen (15) years imprisonment in prison.
7. Being dissatisfied with the Judgment, the Accused appealed to this court on the following grounds:
(a) THAT, the learned magistrate erred in matters of both law and fact by failing to find that the charge sheet was defective for its failure to accord with the rest of the evidence on record.
(b) THAT, the learned magistrate erred in matters of both law and fact by failing to find that the critical ingredients of the offense i.e., penetration and positive identification of the perpetrator were not established against the accused person and hence this left his conviction manifestly unsafe.
(c) THAT, the learned magistrate erred in matters of both law and fact by failing to find that that there was no corroborative evidence to support the prosecution’s allegations against the accused person.
(d) THAT, the learned trial magistrate erred in points of law and fact by failing to find that the whole of the prosecution’s case was riddled with material contradictions and inconsistencies which not only vitiated the credibility of the of various witnesses to say the truth but was also enough to displace the whole of the prosecution’s narrative.
(e) THAT, the learned trial magistrate erred in points of law and fact by erroneously coming to the conclusion that the burden of proof had been established by the prosecution’s case whereas the various gaping holes and unexplained gaps in the case vitiated against this finding.
(f) THAT, the learned trial magistrate erred in points of law and fact by relying the conviction on theories that had not been canvassed in evidence during the trial to the prejudice of the accused person.
(g) THAT, the learned trial magistrate erred in points of law and fact by failing to properly and exhaustively, comprehensively and deliberately analyze, weigh, and consider the accused person’s defense case in light of the totality of the whole evidence which reasonably exonerated him from any wrongful doing.
8. The appeal was canvassed by way of written submissions. The Court has seen and read the Appellant as well as the Respondent’s submissions.
The Respondent’s Case before the Trial Court .
9. PW1, A.N.N, giving sworn testimony stated that she was 16 years. On the material date, 19.5.2020 at noon, she had gone to fetch water at the home of the Appellant. PW1 stated that she had initially fetched water but left without paying for water. Upon realizing this, she returned and informed a person named Simon. She stated that she gave him Kshs. 10/=, and as she walked away, the Appellant approached, held her hand, covered her mouth, and forcefully took her to his house. According to PW1, the Appellant had a glass of beer on the table, and after locking the house with a padlock from the inside, he sat down, finished his beer, and then led her to his bed.
10. PW1 stated that when she asked him what he was doing, he responded that she would soon know and expressed his intention to have sexual intercourse with her. She told him that she could not, but he proceeded to undress her by removing her skirt, underwear, blouse, and bra. She stated that the Appellant then placed her on the bed and penetrated her vagina with his penis, having sex with her approximately five times. She further stated that she felt pain in her lower abdomen.
11. PW1 also stated that she remained in the Appellant’s house until around 7:00 p.m. She heard her mother outside the house asking the Appellant’s mother about her whereabouts. The Appellant’s mother came to the door, found it locked, and told PW1’s mother that no one was inside. PW1 stated that the Appellant then turned on the lights, and both mothers realized someone was inside the house. He removed a windowpane and instructed her to leave through the window, as the wire mesh prevented her from accessing the front.
12. PW1 stated that she went home and informed her father of the incident. The Appellant was arrested that same day, and she was taken to Gatundu District Hospital, where a PRC form was filled. She also stated that she did not scream during the ordeal because she believed no one would hear her.
13. Upon inquiry by the Learned Magistrate, PW1 testified that she was born on 14.12.2003 and that her mother had her birth certificate.
14. During cross-examination, PW1 testified that she had come to pay for the water. She had arrived with Mwihaki, but Mwihaki had remained at the gate. She found Simon, who informed her that the accused’s parents were not at home. She thus paid the accused. She denied the claim that she had come alone and knocked on the door. According to her, it seemed the accused had been within the compound, but she had not seen him when she returned. It was also her testimony that the Appellant had blocked her mouth as they went to his house. Even when he later unblocked her mouth, she did not scream because she believed no one would have heard her.
15. She testified that the accused had sexual intercourse with her five times. He had removed her clothes and thrown them onto the timber rafters near the ceiling. When shown a photo of the rafters, she confirmed they were part of the accused’s house, which had no ceiling. She clarified that she was referring to the top part of the house.
16. PW1 also testified that she got out of the house through the window. The Appellant removed some part of the window, to the bathroom, so that she could get out. It was her testimony that the Appellant lifted her up and she entered through the window, legs first and then went down outside. When shown two photos, she testified that she could see the window where she held the pane then got out and stepped down. It was also her testimony that she got injured on her leg as she was coming down. This injury, she stated was caused by a stone.
17. PW1 further testified that when the Appellant heard the Appellant’s mum talking, he gave PW1 the clothes and she wore. The Appellant then told the Appellant’s mum that he was asleep. It was also her testimony that PW1’s uncle had come and he found PW1 in the Appellant’s bedroom and that PW1 did not go with him.
18. PW1 further testified that PW1’s mother also entered and saw PW1 and said that PW1 should remain in the house until police came. It was then that they were locked in the house, and that is when she got out through the window. It was also her testimony that she did not use the front route, because of the fence.
19. Further, that when she paid Simon, he went away toward his house and the Appellant got hold of her while she was still in the Appellant’s compound. PW1 also testified that the Appellant helped her to get out of the house, because of the people who were outside, and that she also heard her mother (PW1’s mother) calling the police.
20. During re-examination, PW1 testified that her uncle was Samwel Mungai
and that he got inside the house of Appellant and saw her. She also stated that her mother said police should get them inside the house and that was when the Appellant helped PW1 get out.
21. On being recalled and cross-examined, PW1 stated that she was taken to hospital that same night and that she was bleeding from her private parts (vagina) and that her clothes were also blood stained and finally that the Appellant did not have any protection.
PW1 then produced the P3 form and treatment record. P3 - MFI 3 and the
treatment note MFI-2.
22. PW2, J.N.K, the mother to A.N.N testified that she had 2 children, of whom, PW1 was born on 14th December 2003 and that she was in form 2 on the material date. It was her further testimony that on the 19.5.2020 at 5.00 p.m., she had come from work, she got home and did not find PW1 at home. She asked the brother and he said, he did not know where PW1 was. She also testified that some 2 young men were passing by and they heard her asking where PW1 was. They called me and told her that A.N.N was locked up at the house of James. She testified that she knew the two young men, and that one of them lived at Mutimomo. It was then that she then proceeded to the home of Appellant and found a sister of the Appellant at home. She then got the mother to Appellant and PW2 told her to check if PW1 was in James’s house. She went and found the house locked with a padlock. It was also her testimony that she decided to leave. When she got to the road and found the 2 men, now with a 3rd one. They told her that the girl was in the house. She thus got back to the house of the Appellant. At that point, she saw the lights were now on at the Appellant’s house. She informed the mother of the Appellant of this development and the mother of the Appellant went there and directed the Appellant to open and he opened. It was then that the mother to the Appellant got in and said that PW1 was not there.
23. PW2 further testified that her brother (uncle to A.N.N) got in and saw the girl standing near the bed. PW2 also got in and saw her then went and got officers. It was her further testimony that when she came with police officers, the child was not in the house. Her husband called her and told her that the child was at home. She brought the child at Gatundu hospital on the same night. She had the treatment documents PRC-MFI-1, Treatment note – MFI-2, P3 form MFI-3.
24. PW2 also testified that she had known the Appellant from November 2006 when she got married at the area. She had no grudge with Appellant but he had wanted a relationship with PW2 that he would wait for PW2 on the road and beckon her. That on two occasions, that he had told PW2 that he had not had sex for a long time.
25. During cross-examination, PW2 testified that she was told by young men that PW1 was in the Appellant’s house. She also testified that PW1 had come with her friend to pay for water because PW1 was fearing the Appellant because she knew the Appellant had been following PW2. PW2 also testified that it was the uncle who saw her in the house. PW2 was right there, but she did not get into the bedroom. It was around 5.00 p.m. when PW2 first came to the Appellant’s house. She was all alone, but some young men gathered.
26. It was also her testimony that she is the one who went for police. She also testified that the door was only latched when police came. It was then dark. PW2 had left the Appellant and the girl inside the house, and she wanted the girl not to leave before police came. PW2 also testified that she had previously come to the Appellant’s house, after his brother called her. Further, when PW2 came with a friend of his party.
27. PW2 testified that the charge against the accused was because he had defiled her daughter. She stated that she had never asked to be paid in connection with the case. She explained that the Appellant’s father had tried to approach her, but she told him that it was a children’s case. She added that if she had wanted money, she would not have brought the accused to Court.
28. PW2 further testified that she was the one who took the child to the hospital at about 10:00 p.m. She stated that the child had gone home, and they had taken a long time searching for her before eventually learning that she was already at home. She said the doctor would testify to what he had observed, but what she knew was that her daughter had been bleeding.
29. During re-examination, PW2 sated that she saw blood on the clothes and that PW1 was walking in pain.
30. PW3, Samwel Mungai Kaluma, testified that on 19.5.2020 around 5-6 p.m., he had gone to visit her sister, PW2, when her sister asked her if he had seen PW1, but he had not. They bid each other bye, but when he was along the road, he heard some men saying that PW1 was locked up at James’s house. He went to the home of James and found his sister (PW2). The mother of James was there and he opened the house and saw PW1 inside there. James was beseeching PW3 not to say that PW1 was there. He however disclosed that the girl was inside. The mother to PW1 said she was going to get the police, and she left. They were left at the point. It was also his testimony that PW1 did not get out through the doors. It was like she got out though the ventilation in the bathroom. The police did not find her in the house. PW3 positively identified James as the accused in Court.
31. During cross-examination, he stated that he lived in Mutimomo, but about 300meters, from the Appellant’s home. He had come earlier about 4.00 p.m. to visit her sister PW2 and that 1900 hrs., was the time of the events herein. He also testified that he would not have got out PW1 because the mother said that the police should find her inside the house. It was his further testimony that the Appellant broke the window so that PW1 could get out.
Many people had gathered because of the noise, nobody had called them to come. PW3 also testified that he did not go with them to report. He was however present in hospital. PW3 also testified that he was called later and was told that PW1 had been gotten and he therefore joined them.
32. PW4, No. 247773 PC John Njoroge of Kiamwangi police post testified that on 19.5.2020 at 1910 hours he was at the station. He received a report from PW2 and PW3 who said that their daughter has disappeared whole day and she was locked in a certain house. The report was that a mob has surrounded the area and wanted to break in and lynch the Appellant. It was his testimony that they rushed to the area and the house was opened and they did not find the girl in the house. As such, they carried away the Appellant who was inside the house and took him to Kiamwangi. It was also his further testimony that the mother and girl came to the station later and they said that the girl had taken off through the bathroom window. PW3 also testified that the wall outside was stained by some mud and that to access the back of the house one had to go round the house. PW3 also testified that the Appellant person was inside the house and was the person we arrested.
33. During cross-examination, PW3 stated that the girl said that she got out through the window. The window was a small one but the girl could get through. The mother to the girl’s is the person who had called had called him. She was with one Samwel. They took the Appellant to Kiamwangi. It was also his further testimony that it was about 7.30 p.m. when they arrested the Appellant and that it is the mother who took PW1 to hospital. He further testified that the child was missing from about 4.00 p.m.
34. In re-examination, PW3, being shown photos testified that from the window in question, a child could pass through.
35. PW5, No. 255874 PC Benjamin Mbugua of Kiamwangi police post testified that on 19.5.2020 at 1910 hours a lady came with Samwel and reported that their daughter had gone missing form 4.00 p.m. The lady, PW2, knew where the girl was and she led them to the place where they found the Appellant inside a house. That the Appellant had declined to open for fear of mob justice. PW5 further testified that they identified ourselves and the Appellant opened the door. They did not find the girl and the information was that the girl had taken off through the bathroom window. PW5 testified that there were actually muddy step marks and hands on the wall. They arrested the Appellant and took him to Kiamwangi.
36. During cross-examination, he testified that the lady, PW2, and a man called Samwel came to report to the post. They did not find the girl inside the house. He testified that the man Samwel said the Appellant be taken to hospital. PW5 handed the Appellant over to the police in Gatundu. PW5 also testified that the foot and hand steps were visible on the wall from inside and that he saw the window that PW1 was said to have used. It was his further testimony that the girl (PW1) could fit on that window.
37. PW6, Dr. Wambui Kamau testified that she was a medical officer attached to Gatundu level 5 hospital. With her was a treatment card from the Gatundu Level 5 hospital MFI-2. She also had a P3 form MFI-3 and PRC Form MFI-1. It was her testimony that these were filed from Gatundu level 5 hospital, done by Dr. Gichagua. However, Dr. Gichagua has since left the institution.
38. PW6 testified that the treatment card showed that PW1 was seen on 19.5.2020 and that she gave history of defilement five times. She had a bruise on the anal orifice. Her hymen was absent. Haemogram was given and HVS was done. She went to the lab and a pregnancy test was negative and VDRL was none reactive. Treatment card Exhibit 2 on the P3 also stated that history was defilement by a known person repeatedly. Her Hymen was absent and bruise on oral orifice. It was also her testimony that the P3 - Exhibit 3 and PRC was also filled and it showed both vaginal and oral penetrations. PW1 had lacerations on both breasts and thigh. The anal orifice was reddened and the hymen was recently broken. PW6 produced the PRC forms as Exhibit 1.
39. During cross-examination, it was her testimony that according to the PRC form history, the complainant had gone to fetch water from nearby river. She also testified that on the state of clothing, they were not available. On the age of injuries days, she testified that it was filled on 21.5.2020. It was also her testimony that the physical examination treatment card stated that she was defiled repeatedly five (5) times.
40. PW6 also testified that the patient (PW1) was dull but oriented in space and person. Additionally, the remnants of blood were seen on the genital examination part of PRC due to sexual intercourse trauma to vagina which caused the breaking of the hymen. She also testified that she did not have results showing presence of spermatozoa. PW6 also testified that the
PRC was filled on 19.5.2020. She further testified that the lab request was by Dr. Warimi
PW6 also clarified that the PRC form is never stamped and that they are pulled from the booklet. She noted as such, it was not mandatory to stamp it. PW6 also testified that the PRC is filled immediately after seeing the patient. PW6 also testified that the P3 is filled on particular days and picks on positives. She further testified that the age of PW1 was given by approximate 16 years.
41. PW7, No. 106816 PC Fredinah Kabuyesi of Gatundu police station. She testified that on 20.5.2020, she was in crime office. She testified that IP Kyale assigned the case to her. The Appellant was in custody at the time and she followed up with OB. It was her testimony that the Appellant had been booked for defilement. PW7 called the minor with intention to have her treated. However, PW1 had been taken to hospital. It was also PW7’s testimony that she went to Gatundu level 5 and collected the document of treatment.
42. PW7 testified that the parents of the minor brought number of a birth certificate of the minor and in it she was able to ascertain that PW1 was born on 14.12.2003 and that she was 16 years. She directed the Court to the birth certificate Exhibit 4. She interviewed the minor. She also interviewed the Appellant. The minor said that she had gone to make payment for water to Simon. At the time the accused went, held her hand and pulled her to the house. The minor said that Appellant drunk some alcohol in the house. He then put the minor to the bedroom and asked her to undress. She declined but the Appellant undressed her. He also undressed and he defiled her. The minor attempted to free herself but could not manage.
43. PW7 also testified that the Appellant according to the testimony given her by PW1, asked for her hand in marriage but PW1 declined. PW7 also testified that the mother of the minor had been looking for PW1 and was informed that she had been at the house of the Appellant. She (mother to PW1) went to Kiamwangi patrol and reported. PW7 also testified that the officers PC Mbuu and PC Njoroge proceeded to the scene and found the Appellant. The minor was not found. The Appellant was arrested. The minor said that Appellant had asked her to escape through the bedroom window, and she did. PW7 visited the scene later but could not access the house. PW7 also testified that her colleague visited the scene.
44. During cross-examination, she stated that the complainant was A.N.N, PW1. That the Appellant was held in the police cells when PW7 took over the matter. On 20/5/2020, PW7 came to the scene with the minor but the gate was locked, as such PW7 could not access. PW7 also testified that PW1 had come to pay money to Simon, when the Appellant pulled her to the house. It was her case that only the Appellant could explain the case where he was when he pulled PW1’s hand. Further, that PW1 escaped because the Appellant had heard PW1’s mother saying that she was going to call the police. PW7 testified that she was told that it was a bathroom window. PW7 also stated that she knew that a crowd gathered at the time of arrest. She did not see the window because she did not access the premises.
45. PW7 also testified that she did not know why you the Appellant was not taken to hospital. PW7 stated that she did not know the route PW1 took after getting out of the house. PW7 also testified that the Appellant was charged later with confirmed defilement. The scene had been processed by her colleagues.
46. PW7 pointed at the window from the road, from photos shown to her by the prosecutor. It was at the rear of the house. PW7 then testified that the minor could pass through the window. It was also her testimony that PW1 had bruises on the knees and that nobody saw PW1 escaping after getting out.
The Appellant’s Case before the Trial Court.
47. DW1, James Mbwire Kagunya, giving sworn testimony stated that he lived at Kiamwangi and that he was a freelance writer. It was his testimony that on the 19.5.2020 at about 10.00 a.m. there was power interruption. He therefore left home for Kiganjo. Later he met his friends. At 2.00 p.m. he went back to my house. At around 3.00 p.m., he heard a knock on my door and found out it was A.N.N.
48. It was his testimony that he asked her what she wanted and she said she wanted to fetch water. After exchanging pleasantries, he referred PW1 to his parents' home. Since this was where they fetched water from. DW1, the Appellant testified that PW1 then left.
It was also his testimony that at about 7.00 p.m. J.N.K, PW2, mother to look for A.N.N, came with goons. It was a big crowd that kept surging. As such, DW1 locked himself in the house, as they alleged that A.N.N was with him. J.N.K, PW2, mother to A.N.N wanted to come in and check if the daughter was inside. DW1 declined. The uncle came in and checked and A.N.N was not there. Police arrived later and together with other young men; they checked and did not get A.N.N. They took DW1 to the station and he was charged.
49. It was also the Appellant’s testimony that many things didn’t add up in the Prosecution case. That PW1 said she paid the money to Juma and he dragged her from the water point to his house at around noon. The Appellant testified that he was not at home at noon as he was at Kiganjo looking for timber. The Appellant testified that if there had been any dragging or commotion, Simon—who he said was present—should have heard it. He identified Simon as Simon Juma. The Appellant stated that the house in question was also his home, where his parents lived. He said the complainant claimed he had asked her to escape through the window, but he argued that the window was too small for anyone to pass through. He questioned how she could allege that she had been dragged into the house and yet claim she left through the window.
50. The Appellant also testified that although the complainant also stated that she left through a back route, they had been at the scene and that the only exit route was through the front. She further alleged that clothes were hidden in the ceiling, but the Appellant stated that his house had no ceiling. He pointed out inconsistencies in her statement and produced photographs of the window, roof, and exit route as evidence.
51. The Appellant also gave testimony that he had been in the house at about 2:00 p.m. when PW1 came briefly and left after about one minute. He claimed the whole incident was a setup. According to him, PW1’s mother had issues with him and had previously come to his place, joined his friends, and taken a drink. He believed she came to assess his living standards so she could later use her daughter to extort him.
52. It was the Appellant’s further testimony that while he was in custody, the complainant’s mother allegedly asked him for money. He referred to Samwel (PW3), who testified that PW1 had been in the Appellant’s bedroom, but the Appellant maintained he had no grudge against Samwel. He said PW1 found him alone in his house, while Simon was outside in the compound. He insisted he had no grudges against PW1, but it seemed to him that she was targeting him.
53. DW2, testifying in Kiswahili, stated that his name was Simson Juma and that he resided at Mutimomo in Kiamwangi, where he worked as a farmhand. He testified that he had been with James in the morning, after which James left but returned at around 2:00 p.m. He recalled that the girl (PW1) came to fetch water, paid for it, and then went to James’s house before leaving shortly afterward. He further stated that the girl would frequently send him to deliver messages to James, but he never delivered them.
54. During cross-examination, DW2 stated that PW1 had come that day but did not stay. He did not know if she had left through the window. He explained that PW1 used to send him to James, but he did not deliver the messages. He emphasized that he was not making up any story and that he had no grudge against PW1. He also did not know whether James had any grudge against PW1’s family. He further testified that PW1 came and left the house after approximately ten minutes.
55. DW3 testified that he was Patrick Kiama, a timber and poles dealer. On the day in question, he met James at 1:00 p.m., and they discussed timber. James left at 2:00 p.m. During cross-examination, DW3 stated that he did not know what had happened after 2:00 p.m. and that he had no knowledge of the case before the court.
56. DW4 stated that his name was George Kariuki Muraya and that he resided in Mutimomo, where he did casual jobs. On 19.5.2020 at around 7:00 p.m., he heard noises coming from James’ home. He testified that he was James’ neighbour and that he went to the scene after hearing the commotion. The allegation was that the girl was inside the house, but after searching, they did not find her. James was subsequently arrested. During cross-examination, DW4 stated that he did not know what had happened before 7:00 p.m., and confirmed that the girl was not found in the house.
Appellant’s Submissions
57. The Appellant submitted that his conviction was manifestly unsafe owing to a defective charge. He contended that although he was charged with the offence of penetrating the genital organs of A.N.N., the evidence presented at trial was inconsistent with the particulars of the charge. That it failed to establish a clear nexus between the offence alleged and the evidence adduced.
58. He further argued that if the minor had indeed been defiled by a single perpetrator, the presence of both vaginal penetration and anal bruising raised material doubts as to the nature of the alleged assault and the identity of the perpetrator. In his view, the evidence failed to conclusively establish whether the complainant had been penetrated vaginally, analy, or both, and this inconsistency went to the root of the charge.
59. On the failure to prove the key elements of the offence, the Appellant submitted that the presence of a broken hymen alone is not sufficient to prove penetration. Additionally, he questioned the probative value of bruising around the anal orifice, arguing that it merely suggested external contact and did not prove penetration. He further questioned who, if not him, may have penetrated PW1 analy, asserting that this uncertainty undermined the prosecution’s case.
60. The Appellant also submitted that the medical evidence contradicted the complainant’s testimony (PW1), and that such inconsistencies undermined the credibility of both the medical report and the complainant's version of events. In his view, the contradictions were material and introduced the possibility that another person, not the
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1. This is an Appeal from the judgment, conviction and sentence passed at the Chief Magistrate’s Court at Gatundu in Criminal Case Number SO E016 of 2020 by Honourable L.M. Wachira, Chief magistrate . The judgement was delivered on 12th day of August 2021
Background Facts
2. The Appellant was convicted by Honourable L.M. Wachira, Chief Magistrate , for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (2006). The particulars of the Charge were that on 19th May, 2020 at Gatundu South Sub-County at Kiambu County, Kiamwangi Village intentionally caused his penis to penetrate the vagina of A.N.N, a child, aged 16 years.
3. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (2006). The particulars of the alternative Charge were that on 19th May, 2020 at the village of Kiamwangi, Gatundu South Sub- County, intentionally touched the vagina of A.N.N, a child, aged 16 years with his hand.
4. The Appellant pleaded not guilty to the Charges before the Trial Court, and a full hearing was conducted. The prosecution called seven (7) witnesses in support of its case.
5. At the close of the prosecution case, the Trial Court ruled that a prima facie case had been established against the Accused. He was put on his defence. He gave a sworn statement and called three witnesses.
6. At the conclusion of the trial, he was convicted of the main charge and sentenced to serve fifteen (15) years imprisonment in prison.
7. Being dissatisfied with the Judgment, the Accused appealed to this court on the following grounds:
(a) THAT, the learned magistrate erred in matters of both law and fact by failing to find that the charge sheet was defective for its failure to accord with the rest of the evidence on record.
(b) THAT, the learned magistrate erred in matters of both law and fact by failing to find that the critical ingredients of the offense i.e., penetration and positive identification of the perpetrator were not established against the accused person and hence this left his conviction manifestly unsafe.
(c) THAT, the learned magistrate erred in matters of both law and fact by failing to find that that there was no corroborative evidence to support the prosecution’s allegations against the accused person.
(d) THAT, the learned trial magistrate erred in points of law and fact by failing to find that the whole of the prosecution’s case was riddled with material contradictions and inconsistencies which not only vitiated the credibility of the of various witnesses to say the truth but was also enough to displace the whole of the prosecution’s narrative.
(e) THAT, the learned trial magistrate erred in points of law and fact by erroneously coming to the conclusion that the burden of proof had been established by the prosecution’s case whereas the various gaping holes and unexplained gaps in the case vitiated against this finding.
(f) THAT, the learned trial magistrate erred in points of law and fact by relying the conviction on theories that had not been canvassed in evidence during the trial to the prejudice of the accused person.
(g) THAT, the learned trial magistrate erred in points of law and fact by failing to properly and exhaustively, comprehensively and deliberately analyze, weigh, and consider the accused person’s defense case in light of the totality of the whole evidence which reasonably exonerated him from any wrongful doing.
8. The appeal was canvassed by way of written submissions. The Court has seen and read the Appellant as well as the Respondent’s submissions.
The Respondent’s Case before the Trial Court .
9. PW1, A.N.N, giving sworn testimony stated that she was 16 years. On the material date, 19.5.2020 at noon, she had gone to fetch water at the home of the Appellant. PW1 stated that she had initially fetched water but left without paying for water. Upon realizing this, she returned and informed a person named Simon. She stated that she gave him Kshs. 10/=, and as she walked away, the Appellant approached, held her hand, covered her mouth, and forcefully took her to his house. According to PW1, the Appellant had a glass of beer on the table, and after locking the house with a padlock from the inside, he sat down, finished his beer, and then led her to his bed.
10. PW1 stated that when she asked him what he was doing, he responded that she would soon know and expressed his intention to have sexual intercourse with her. She told him that she could not, but he proceeded to undress her by removing her skirt, underwear, blouse, and bra. She stated that the Appellant then placed her on the bed and penetrated her vagina with his penis, having sex with her approximately five times. She further stated that she felt pain in her lower abdomen.
11. PW1 also stated that she remained in the Appellant’s house until around 7:00 p.m. She heard her mother outside the house asking the Appellant’s mother about her whereabouts. The Appellant’s mother came to the door, found it locked, and told PW1’s mother that no one was inside. PW1 stated that the Appellant then turned on the lights, and both mothers realized someone was inside the house. He removed a windowpane and instructed her to leave through the window, as the wire mesh prevented her from accessing the front.
12. PW1 stated that she went home and informed her father of the incident. The Appellant was arrested that same day, and she was taken to Gatundu District Hospital, where a PRC form was filled. She also stated that she did not scream during the ordeal because she believed no one would hear her.
13. Upon inquiry by the Learned Magistrate, PW1 testified that she was born on 14.12.2003 and that her mother had her birth certificate.
14. During cross-examination, PW1 testified that she had come to pay for the water. She had arrived with Mwihaki, but Mwihaki had remained at the gate. She found Simon, who informed her that the accused’s parents were not at home. She thus paid the accused. She denied the claim that she had come alone and knocked on the door. According to her, it seemed the accused had been within the compound, but she had not seen him when she returned. It was also her testimony that the Appellant had blocked her mouth as they went to his house. Even when he later unblocked her mouth, she did not scream because she believed no one would have heard her.
15. She testified that the accused had sexual intercourse with her five times. He had removed her clothes and thrown them onto the timber rafters near the ceiling. When shown a photo of the rafters, she confirmed they were part of the accused’s house, which had no ceiling. She clarified that she was referring to the top part of the house.
16. PW1 also testified that she got out of the house through the window. The Appellant removed some part of the window, to the bathroom, so that she could get out. It was her testimony that the Appellant lifted her up and she entered through the window, legs first and then went down outside. When shown two photos, she testified that she could see the window where she held the pane then got out and stepped down. It was also her testimony that she got injured on her leg as she was coming down. This injury, she stated was caused by a stone.
17. PW1 further testified that when the Appellant heard the Appellant’s mum talking, he gave PW1 the clothes and she wore. The Appellant then told the Appellant’s mum that he was asleep. It was also her testimony that PW1’s uncle had come and he found PW1 in the Appellant’s bedroom and that PW1 did not go with him.
18. PW1 further testified that PW1’s mother also entered and saw PW1 and said that PW1 should remain in the house until police came. It was then that they were locked in the house, and that is when she got out through the window. It was also her testimony that she did not use the front route, because of the fence.
19. Further, that when she paid Simon, he went away toward his house and the Appellant got hold of her while she was still in the Appellant’s compound. PW1 also testified that the Appellant helped her to get out of the house, because of the people who were outside, and that she also heard her mother (PW1’s mother) calling the police.
20. During re-examination, PW1 testified that her uncle was Samwel Mungai
and that he got inside the house of Appellant and saw her. She also stated that her mother said police should get them inside the house and that was when the Appellant helped PW1 get out.
21. On being recalled and cross-examined, PW1 stated that she was taken to hospital that same night and that she was bleeding from her private parts (vagina) and that her clothes were also blood stained and finally that the Appellant did not have any protection.
PW1 then produced the P3 form and treatment record. P3 - MFI 3 and the
treatment note MFI-2.
22. PW2, J.N.K, the mother to A.N.N testified that she had 2 children, of whom, PW1 was born on 14th December 2003 and that she was in form 2 on the material date. It was her further testimony that on the 19.5.2020 at 5.00 p.m., she had come from work, she got home and did not find PW1 at home. She asked the brother and he said, he did not know where PW1 was. She also testified that some 2 young men were passing by and they heard her asking where PW1 was. They called me and told her that A.N.N was locked up at the house of James. She testified that she knew the two young men, and that one of them lived at Mutimomo. It was then that she then proceeded to the home of Appellant and found a sister of the Appellant at home. She then got the mother to Appellant and PW2 told her to check if PW1 was in James’s house. She went and found the house locked with a padlock. It was also her testimony that she decided to leave. When she got to the road and found the 2 men, now with a 3rd one. They told her that the girl was in the house. She thus got back to the house of the Appellant. At that point, she saw the lights were now on at the Appellant’s house. She informed the mother of the Appellant of this development and the mother of the Appellant went there and directed the Appellant to open and he opened. It was then that the mother to the Appellant got in and said that PW1 was not there.
23. PW2 further testified that her brother (uncle to A.N.N) got in and saw the girl standing near the bed. PW2 also got in and saw her then went and got officers. It was her further testimony that when she came with police officers, the child was not in the house. Her husband called her and told her that the child was at home. She brought the child at Gatundu hospital on the same night. She had the treatment documents PRC-MFI-1, Treatment note – MFI-2, P3 form MFI-3.
24. PW2 also testified that she had known the Appellant from November 2006 when she got married at the area. She had no grudge with Appellant but he had wanted a relationship with PW2 that he would wait for PW2 on the road and beckon her. That on two occasions, that he had told PW2 that he had not had sex for a long time.
25. During cross-examination, PW2 testified that she was told by young men that PW1 was in the Appellant’s house. She also testified that PW1 had come with her friend to pay for water because PW1 was fearing the Appellant because she knew the Appellant had been following PW2. PW2 also testified that it was the uncle who saw her in the house. PW2 was right there, but she did not get into the bedroom. It was around 5.00 p.m. when PW2 first came to the Appellant’s house. She was all alone, but some young men gathered.
26. It was also her testimony that she is the one who went for police. She also testified that the door was only latched when police came. It was then dark. PW2 had left the Appellant and the girl inside the house, and she wanted the girl not to leave before police came. PW2 also testified that she had previously come to the Appellant’s house, after his brother called her. Further, when PW2 came with a friend of his party.
27. PW2 testified that the charge against the accused was because he had defiled her daughter. She stated that she had never asked to be paid in connection with the case. She explained that the Appellant’s father had tried to approach her, but she told him that it was a children’s case. She added that if she had wanted money, she would not have brought the accused to Court.
28. PW2 further testified that she was the one who took the child to the hospital at about 10:00 p.m. She stated that the child had gone home, and they had taken a long time searching for her before eventually learning that she was already at home. She said the doctor would testify to what he had observed, but what she knew was that her daughter had been bleeding.
29. During re-examination, PW2 sated that she saw blood on the clothes and that PW1 was walking in pain.
30. PW3, Samwel Mungai Kaluma, testified that on 19.5.2020 around 5-6 p.m., he had gone to visit her sister, PW2, when her sister asked her if he had seen PW1, but he had not. They bid each other bye, but when he was along the road, he heard some men saying that PW1 was locked up at James’s house. He went to the home of James and found his sister (PW2). The mother of James was there and he opened the house and saw PW1 inside there. James was beseeching PW3 not to say that PW1 was there. He however disclosed that the girl was inside. The mother to PW1 said she was going to get the police, and she left. They were left at the point. It was also his testimony that PW1 did not get out through the doors. It was like she got out though the ventilation in the bathroom. The police did not find her in the house. PW3 positively identified James as the accused in Court.
31. During cross-examination, he stated that he lived in Mutimomo, but about 300meters, from the Appellant’s home. He had come earlier about 4.00 p.m. to visit her sister PW2 and that 1900 hrs., was the time of the events herein. He also testified that he would not have got out PW1 because the mother said that the police should find her inside the house. It was his further testimony that the Appellant broke the window so that PW1 could get out.
Many people had gathered because of the noise, nobody had called them to come. PW3 also testified that he did not go with them to report. He was however present in hospital. PW3 also testified that he was called later and was told that PW1 had been gotten and he therefore joined them.
32. PW4, No. 247773 PC John Njoroge of Kiamwangi police post testified that on 19.5.2020 at 1910 hours he was at the station. He received a report from PW2 and PW3 who said that their daughter has disappeared whole day and she was locked in a certain house. The report was that a mob has surrounded the area and wanted to break in and lynch the Appellant. It was his testimony that they rushed to the area and the house was opened and they did not find the girl in the house. As such, they carried away the Appellant who was inside the house and took him to Kiamwangi. It was also his further testimony that the mother and girl came to the station later and they said that the girl had taken off through the bathroom window. PW3 also testified that the wall outside was stained by some mud and that to access the back of the house one had to go round the house. PW3 also testified that the Appellant person was inside the house and was the person we arrested.
33. During cross-examination, PW3 stated that the girl said that she got out through the window. The window was a small one but the girl could get through. The mother to the girl’s is the person who had called had called him. She was with one Samwel. They took the Appellant to Kiamwangi. It was also his further testimony that it was about 7.30 p.m. when they arrested the Appellant and that it is the mother who took PW1 to hospital. He further testified that the child was missing from about 4.00 p.m.
34. In re-examination, PW3, being shown photos testified that from the window in question, a child could pass through.
35. PW5, No. 255874 PC Benjamin Mbugua of Kiamwangi police post testified that on 19.5.2020 at 1910 hours a lady came with Samwel and reported that their daughter had gone missing form 4.00 p.m. The lady, PW2, knew where the girl was and she led them to the place where they found the Appellant inside a house. That the Appellant had declined to open for fear of mob justice. PW5 further testified that they identified ourselves and the Appellant opened the door. They did not find the girl and the information was that the girl had taken off through the bathroom window. PW5 testified that there were actually muddy step marks and hands on the wall. They arrested the Appellant and took him to Kiamwangi.
36. During cross-examination, he testified that the lady, PW2, and a man called Samwel came to report to the post. They did not find the girl inside the house. He testified that the man Samwel said the Appellant be taken to hospital. PW5 handed the Appellant over to the police in Gatundu. PW5 also testified that the foot and hand steps were visible on the wall from inside and that he saw the window that PW1 was said to have used. It was his further testimony that the girl (PW1) could fit on that window.
37. PW6, Dr. Wambui Kamau testified that she was a medical officer attached to Gatundu level 5 hospital. With her was a treatment card from the Gatundu Level 5 hospital MFI-2. She also had a P3 form MFI-3 and PRC Form MFI-1. It was her testimony that these were filed from Gatundu level 5 hospital, done by Dr. Gichagua. However, Dr. Gichagua has since left the institution.
38. PW6 testified that the treatment card showed that PW1 was seen on 19.5.2020 and that she gave history of defilement five times. She had a bruise on the anal orifice. Her hymen was absent. Haemogram was given and HVS was done. She went to the lab and a pregnancy test was negative and VDRL was none reactive. Treatment card Exhibit 2 on the P3 also stated that history was defilement by a known person repeatedly. Her Hymen was absent and bruise on oral orifice. It was also her testimony that the P3 - Exhibit 3 and PRC was also filled and it showed both vaginal and oral penetrations. PW1 had lacerations on both breasts and thigh. The anal orifice was reddened and the hymen was recently broken. PW6 produced the PRC forms as Exhibit 1.
39. During cross-examination, it was her testimony that according to the PRC form history, the complainant had gone to fetch water from nearby river. She also testified that on the state of clothing, they were not available. On the age of injuries days, she testified that it was filled on 21.5.2020. It was also her testimony that the physical examination treatment card stated that she was defiled repeatedly five (5) times.
40. PW6 also testified that the patient (PW1) was dull but oriented in space and person. Additionally, the remnants of blood were seen on the genital examination part of PRC due to sexual intercourse trauma to vagina which caused the breaking of the hymen. She also testified that she did not have results showing presence of spermatozoa. PW6 also testified that the
PRC was filled on 19.5.2020. She further testified that the lab request was by Dr. Warimi
PW6 also clarified that the PRC form is never stamped and that they are pulled from the booklet. She noted as such, it was not mandatory to stamp it. PW6 also testified that the PRC is filled immediately after seeing the patient. PW6 also testified that the P3 is filled on particular days and picks on positives. She further testified that the age of PW1 was given by approximate 16 years.
41. PW7, No. 106816 PC Fredinah Kabuyesi of Gatundu police station. She testified that on 20.5.2020, she was in crime office. She testified that IP Kyale assigned the case to her. The Appellant was in custody at the time and she followed up with OB. It was her testimony that the Appellant had been booked for defilement. PW7 called the minor with intention to have her treated. However, PW1 had been taken to hospital. It was also PW7’s testimony that she went to Gatundu level 5 and collected the document of treatment.
42. PW7 testified that the parents of the minor brought number of a birth certificate of the minor and in it she was able to ascertain that PW1 was born on 14.12.2003 and that she was 16 years. She directed the Court to the birth certificate Exhibit 4. She interviewed the minor. She also interviewed the Appellant. The minor said that she had gone to make payment for water to Simon. At the time the accused went, held her hand and pulled her to the house. The minor said that Appellant drunk some alcohol in the house. He then put the minor to the bedroom and asked her to undress. She declined but the Appellant undressed her. He also undressed and he defiled her. The minor attempted to free herself but could not manage.
43. PW7 also testified that the Appellant according to the testimony given her by PW1, asked for her hand in marriage but PW1 declined. PW7 also testified that the mother of the minor had been looking for PW1 and was informed that she had been at the house of the Appellant. She (mother to PW1) went to Kiamwangi patrol and reported. PW7 also testified that the officers PC Mbuu and PC Njoroge proceeded to the scene and found the Appellant. The minor was not found. The Appellant was arrested. The minor said that Appellant had asked her to escape through the bedroom window, and she did. PW7 visited the scene later but could not access the house. PW7 also testified that her colleague visited the scene.
44. During cross-examination, she stated that the complainant was A.N.N, PW1. That the Appellant was held in the police cells when PW7 took over the matter. On 20/5/2020, PW7 came to the scene with the minor but the gate was locked, as such PW7 could not access. PW7 also testified that PW1 had come to pay money to Simon, when the Appellant pulled her to the house. It was her case that only the Appellant could explain the case where he was when he pulled PW1’s hand. Further, that PW1 escaped because the Appellant had heard PW1’s mother saying that she was going to call the police. PW7 testified that she was told that it was a bathroom window. PW7 also stated that she knew that a crowd gathered at the time of arrest. She did not see the window because she did not access the premises.
45. PW7 also testified that she did not know why you the Appellant was not taken to hospital. PW7 stated that she did not know the route PW1 took after getting out of the house. PW7 also testified that the Appellant was charged later with confirmed defilement. The scene had been processed by her colleagues.
46. PW7 pointed at the window from the road, from photos shown to her by the prosecutor. It was at the rear of the house. PW7 then testified that the minor could pass through the window. It was also her testimony that PW1 had bruises on the knees and that nobody saw PW1 escaping after getting out.
The Appellant’s Case before the Trial Court.
47. DW1, James Mbwire Kagunya, giving sworn testimony stated that he lived at Kiamwangi and that he was a freelance writer. It was his testimony that on the 19.5.2020 at about 10.00 a.m. there was power interruption. He therefore left home for Kiganjo. Later he met his friends. At 2.00 p.m. he went back to my house. At around 3.00 p.m., he heard a knock on my door and found out it was A.N.N.
48. It was his testimony that he asked her what she wanted and she said she wanted to fetch water. After exchanging pleasantries, he referred PW1 to his parents' home. Since this was where they fetched water from. DW1, the Appellant testified that PW1 then left.
It was also his testimony that at about 7.00 p.m. J.N.K, PW2, mother to look for A.N.N, came with goons. It was a big crowd that kept surging. As such, DW1 locked himself in the house, as they alleged that A.N.N was with him. J.N.K, PW2, mother to A.N.N wanted to come in and check if the daughter was inside. DW1 declined. The uncle came in and checked and A.N.N was not there. Police arrived later and together with other young men; they checked and did not get A.N.N. They took DW1 to the station and he was charged.
49. It was also the Appellant’s testimony that many things didn’t add up in the Prosecution case. That PW1 said she paid the money to Juma and he dragged her from the water point to his house at around noon. The Appellant testified that he was not at home at noon as he was at Kiganjo looking for timber. The Appellant testified that if there had been any dragging or commotion, Simon—who he said was present—should have heard it. He identified Simon as Simon Juma. The Appellant stated that the house in question was also his home, where his parents lived. He said the complainant claimed he had asked her to escape through the window, but he argued that the window was too small for anyone to pass through. He questioned how she could allege that she had been dragged into the house and yet claim she left through the window.
50. The Appellant also testified that although the complainant also stated that she left through a back route, they had been at the scene and that the only exit route was through the front. She further alleged that clothes were hidden in the ceiling, but the Appellant stated that his house had no ceiling. He pointed out inconsistencies in her statement and produced photographs of the window, roof, and exit route as evidence.
51. The Appellant also gave testimony that he had been in the house at about 2:00 p.m. when PW1 came briefly and left after about one minute. He claimed the whole incident was a setup. According to him, PW1’s mother had issues with him and had previously come to his place, joined his friends, and taken a drink. He believed she came to assess his living standards so she could later use her daughter to extort him.
52. It was the Appellant’s further testimony that while he was in custody, the complainant’s mother allegedly asked him for money. He referred to Samwel (PW3), who testified that PW1 had been in the Appellant’s bedroom, but the Appellant maintained he had no grudge against Samwel. He said PW1 found him alone in his house, while Simon was outside in the compound. He insisted he had no grudges against PW1, but it seemed to him that she was targeting him.
53. DW2, testifying in Kiswahili, stated that his name was Simson Juma and that he resided at Mutimomo in Kiamwangi, where he worked as a farmhand. He testified that he had been with James in the morning, after which James left but returned at around 2:00 p.m. He recalled that the girl (PW1) came to fetch water, paid for it, and then went to James’s house before leaving shortly afterward. He further stated that the girl would frequently send him to deliver messages to James, but he never delivered them.
54. During cross-examination, DW2 stated that PW1 had come that day but did not stay. He did not know if she had left through the window. He explained that PW1 used to send him to James, but he did not deliver the messages. He emphasized that he was not making up any story and that he had no grudge against PW1. He also did not know whether James had any grudge against PW1’s family. He further testified that PW1 came and left the house after approximately ten minutes.
55. DW3 testified that he was Patrick Kiama, a timber and poles dealer. On the day in question, he met James at 1:00 p.m., and they discussed timber. James left at 2:00 p.m. During cross-examination, DW3 stated that he did not know what had happened after 2:00 p.m. and that he had no knowledge of the case before the court.
56. DW4 stated that his name was George Kariuki Muraya and that he resided in Mutimomo, where he did casual jobs. On 19.5.2020 at around 7:00 p.m., he heard noises coming from James’ home. He testified that he was James’ neighbour and that he went to the scene after hearing the commotion. The allegation was that the girl was inside the house, but after searching, they did not find her. James was subsequently arrested. During cross-examination, DW4 stated that he did not know what had happened before 7:00 p.m., and confirmed that the girl was not found in the house.
Appellant’s Submissions
57. The Appellant submitted that his conviction was manifestly unsafe owing to a defective charge. He contended that although he was charged with the offence of penetrating the genital organs of A.N.N., the evidence presented at trial was inconsistent with the particulars of the charge. That it failed to establish a clear nexus between the offence alleged and the evidence adduced.
58. He further argued that if the minor had indeed been defiled by a single perpetrator, the presence of both vaginal penetration and anal bruising raised material doubts as to the nature of the alleged assault and the identity of the perpetrator. In his view, the evidence failed to conclusively establish whether the complainant had been penetrated vaginally, analy, or both, and this inconsistency went to the root of the charge.
59. On the failure to prove the key elements of the offence, the Appellant submitted that the presence of a broken hymen alone is not sufficient to prove penetration. Additionally, he questioned the probative value of bruising around the anal orifice, arguing that it merely suggested external contact and did not prove penetration. He further questioned who, if not him, may have penetrated PW1 analy, asserting that this uncertainty undermined the prosecution’s case.
60. The Appellant also submitted that the medical evidence contradicted the complainant’s testimony (PW1), and that such inconsistencies undermined the credibility of both the medical report and the complainant's version of events. In his view, the contradictions were material and introduced the possibility that another person, not the
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