(Being an appeal from the conviction and sentence of Hon. Joy Mutimba, RM in Msambweni Magistrates Court Sexual Offence (SO) Case No. E023 of 2022 delivered on 11/10/2023)
J U D G M E N T
1. The appellant, Juma Mwanyundo Alfan was convicted and sentenced to serve life imprisonment on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). The particulars were that on 8/4/2022 at Mwamsefu village, Mwereni location in Lunga Lunga Sub-County within Kwale County, unlawfully and intentionally caused his penis to penetrate the anus of N.N. a child aged 10 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, same place and same time as in the principal charge the appellant unlawfully and intentionally caused his penis to touch the anus of N.N a boy aged 10 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 6 witnesses to support its case. PW 1, B.N. (not N.N. as indicated in the particulars of the charge) was the complainant. PW 2, N.T.C., is the complainants’ grandfather and guardian. PW 3, A.R.N. is a clinical officer at Lunga Lunga health dispensary. He produced a P3 form completed by his colleague, Jeremiah Bakari, who had since proceeded for further studies. PW 4, Santa Hare is the village chairman of the area in which the incident occurred and it was reported to him by the complainant’s grandfather. PW 5, J.M. is a child aged 6 years and the complainant’s brother with whom they had taken cows to the river to water when the incident happened. PW 6, P.C. Joseph Rotich of Lunga Lunga police station conducted investigations in the case.
4. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement. He was convicted and sentenced to serve life imprisonment.
6. The appellant was aggrieved by the decision of the trial court and has filed this appeal based on the following amended grounds:
a. that the learned trial magistrate erred in matters of law and fact as the prosecution did not establish a prima facie case but relied on circumstantial evidence contrary to articles 25(c), 27(1), 47(1), 50(1), 157(11) and 159(2)(e), of the constitution of Kenya, section 362 CPC and section 107 of the Evidence Act. making the conviction unsafe.
b. that the learned trial magistrate erred in matters of law and fact as there was conflicting witness testimony contrary to the evidence Act.
c. that the learned trial magistrate erred in matters of law and fact as death and life sentences are set for reform and are no longer tenable.
d. that the learned trial magistrate erred in matters of law and fact as the appellant’s defense and mitigation were not assigned any weight while cogent.
e. that the appellant spent one year and six months in remand custody.
7. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
8. The respondent filed two sets of submissions to the appeal. The first submissions were filed on 30/9/2024 in which the learned counsel for the respondent opposed the appeal and supported the decision by the trial court. The second submissions were filed on 30/1/2025 where the learned counsel for the respondent conceded to the appeal. This confusion arose because the appellant had initially on 4/11/2024 informed the court that he had filed his submissions through the e-filing system. The court fixed a date for judgment on 3/12/2024. However, when the court checked at the time of writing the judgment, the same were not in the system. The parties were notified of the same on the date when the matter was to come up for judgment. The appellant subsequently filed the submissions on 30/1/2025 through the court’s e-mail address at which time he included amended grounds of appeal. At this point, the previous prosecution counsel had proceeded on transfer and the one who took over responded to the amended grounds of appeal. The grounds in the initial petition of appeal appeared to address the issue of sentence only. The amended grounds of appeal address both conviction and sentence. This court will rely on the later submissions by the respondent since they address the amended grounds of appeal.
9. The appellant submits that the case of defilement for the prosecution was not proved against him beyond a reasonable doubt. He has challenged the corpus of the prosecution evidence from inadequacy of evidence to convict, lack of identification, reliance on circumstantial and hearsay evidence, doubtful witness credibility and being arrested for house-breaking and yet charged and convicted of defilement. He has cited several authorities to support his submissions.
10. The respondent concedes to the appeal on grounds that there was no proper identification of the appellant as the culprit. Learned counsel has cited three authorities to support her submissions namely Maitanyi v. Republic (1986) KLR, 196, Anjononi and others v. Republic (1980) KLR and Wamunga v. Republic (1989) KLR, 426 all which address the issue of proper identification of an accused person by a sole identifying witness under difficult circumstances.
11. The submissions are considered in detail in the analysis following.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. The prosecution’s case was that on 8/4/2022 the complainant together with his younger brother PW 5 were at the river where they had taken their grandfather, PW 2’s cows for watering. While PW 5 was taking a bath in the river, the appellant approached the complainant and asked him whether they had seen his cow and the complainant said, no. The appellant asked that they come help him to lift the cow and the complainant told him he could not lift. The appellant held the complainant by force with a knife on his throat and pulled him away saying they go lift the cow. The complainant followed him to some bushes a long distance away. Along the way, the appellant told the complainant that he had beaten his sibling and the complainant denied saying he did not know them. While still threatening him with cutting his ear, he removed the complainant’s pair of shorts and boxers. The appellant unzipped his trousers then he tripped the complainant who fell to the ground facing downwards, whereupon the appellant took his penis and inserted in the complainant’s anus. The complainant felt pain. The appellant warned him that if he screamed, he would slaughter him. After the incident, the complainant went back to his younger brother and they went home. When the complainant returned home, he informed his grandmother who was with his grandfather, PW 2.
15. The complainant’s grandfather, PW 2 took him to the village chairman, PW.3, and reported there. He then took him to Perani dispensary, where he was given medical attention. He later reported the matter at Lunga Lunga police station.
16. Later the appellant was arrested for the offense of house breaking and attempted stealing and taken to Lunga Lunga police station. The complainant and his grandfather were called there. The complainant identified the appellant as his assailant. However, no identification parade was conducted.
17. PW 3 said that he completed the P3 form at Lunga Lunga health dispensary on 19th April, 2022, relying on the clinical notes from Perani dispensary. The findings were that on examination, the complainant’s anal region had mild abrasion around the anal orifice, loose anal sphincter muscle, there was no discharge, no blood noted around the anal region. The clinical officer was satisfied that penetration into the anal orifice of the complainant had taken place.
18. In his defence, the appellant denied that he committed the offence. He said he was arrested from the home of a lady known as Magdalene Mutua at Boyani with whom he had an illicit love relationship as the woman was married. The woman had asked him for KShs 200/= and she had just gone out when two men stomped into the home and upon interrogating him of the whereabouts of Magdalene and threatening to kill him with some armed with pangas he was arrested on allegations that he had broken into the house and intended to steal from there. When Magdalene showed up, she acted like she did not know him.
19. He said he was taken to the police station. Afterwards, he was asked to sit on a bench and a child was asked whether he knew the appellant and he said yes. The appellant said he did not know the child.
20. I have carefully examined and re-evaluated the evidence tendered before the trial court, the grounds of appeal as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial, the concession of the respondent to the appeal notwithstanding.
21. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
22. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
23. Evidence of the age of the complainant was given by the complainant himself who said he was 10 years old and the clinical officer who completed his P3 form and the age assessment report (Exh. 8). The learned magistrate was also satisfied that the complainant, who was a witness before her was a child of tender years and that is why she subjected him to voir dire examination. I am satisfied that there was evidence upon which the learned trial magistrate could find and did find that the complainant was a child as provided for under section 8(1) of the SoA.
24. The complainant gave evidence that his assailant penetrated his anus with his sexual organ after tripping him and falling down. When he reached home, he immediately told his grandmother in the presence of his grandfather PW 2 of what had happened to him. That conduct by the complainant of reporting immediately shows that he was distraught about what had happened to him a short while before. I am satisfied that there was corroboration that indeed someone had penetrated his anal region and that was what was causing him distress.
25. Further, there is evidence that medical examination done on 19/4/2022 showed that the complainant had a mild abrasion around the anal orifice and loose sphincter muscle, an indication that there was penetration in his anal region. The appellant submits that the same could be caused by any other object such as falling on a stick as was answered by the clinical officer in cross-examination. However, in this case the evidence was that the penetration was by a male genital organ and not any other object. What the appellant is submitting on is speculation yet in this case, there is direct evidence of what happened. His defence both in cross-examination and testimony at the trial court never alluded to the complainant being pricked by a stick.
26. The appellant also submits that since the complainant testified that he had taken a bath immediately after the act of defilement, then vital evidence was lost. However, I note that the medical evidence adduced did not allude to evidence that was collection of an anal swab. It was only on the physical examination thereof of the anal orifice. It was also not based on any DNA sampling and so the submission that lack of such evidence made the case weak is not material.
27. I am satisfied that the medical evidence corroborates the complainant’s evidence that indeed his anal orifice was penetrated by a male genital organ. I find that the element of penetration was proved beyond a reasonable doubt. I am satisfied that the trial court reached a correct decision on that issue.
28. The final issue remaining is whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue.
29. It is the appellant’s contention that he was not properly identified as the perpetrator of the offence. He is supported in his assertion by the respondent.
30. The manner in which the court should proceed to assess the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
31. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainant gave unsworn evidence.
32. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
33. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
34. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none the court can still rely on the uncorroborated evidence of the victim if it believed that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the victim.
35. The appellant’s defence that he was arrested for a totally different offence is correct. However, the circumstances under which he was linked to the present offence were also explained. His being found with a knife in his bag is what raised suspicion that he could be the one who threatened the complainant herein with a knife. The learned counsel for the respondent in supporting the appellant’s appeal submits that the complainant never identified the knife as the same one that the appellant threatened him with.
36. I agree with that submission and I disagree with the learned magistrate that finding the appellant with a knife was corroboration of the complainant’s evidence that he was the one who threatened him with a knife. The issue of the knife only led to suspicion that the appellant could be the one who sexually assaulted the complainant.
37. What was material was the identification of the appellant by the complainant as his assailant. The learned trial magistrate correctly rejected PW 5, the complainant’s brother’s evidence that he had also identified the complainant as the assailant because as found by the trial magistrate, the complainant had said that PW 5 was bathing when the assailant went for the complainant.
38. That left the complainant’s evidence as the only evidence of identification of the appellant. In the absence of corroboration, it means that the only issue for determination is the veracity of the complainant’s (as the victim) evidence.
39. The appellant has cited the case of Hamisi Bakari & another v Republic [1987] KECA 66 (KLR) which was on the issue of sufficiency of evidence in a case of burglary and not identification of the culprit. That case was largely based on the possession of items recently stolen. It was not a case of a sexual offence based on the unsworn and uncorroborated evidence of the victim.
40. The case of Kimani Ndung’u v. R. [1979) 1 KLR also cited by the appellant was on the issue of the credibility of the witnesses, which this court is considering herein.
41. The cases relied on by the learned counsel for the respondent in supporting the appeal all relate to circumstances of identification were not conducive. In this case, I do not find any such difficult circumstances.
42. The appellant pointed out several issues as inconsistencies and contradictions in the prosecution’s case. He said, and it is true that, whereas the complainant said that after the incident, he went back to his brother, PW 5 and they went home, PW 2, their grandfather said that PW 5 had told him that he left the complainant behind and he arrived home alone with the cows and the complainant came afterwards. The appellant also pointed out that whereas PW 5 purported to identify him in court, the evidence of the complainant was that PW 5 never saw him as he was bathing in the river when the perpetrator took the complainant away.
43. Those inconsistencies arise from the testimony of PW 2. Indeed, I am satisfied that the evidence of identification of PW 5 was not reliable considering the evidence of the complainant that PW 5 was bathing at the time when the appellant appeared. There was no much evidence tendered to show that he had a good opportunity to see him.
44. There is not much that turns on the issue of the complainant saying that they went home together and PW 2 saying the complainant arrived after PW 5 because, PW 5 said that after the assailant left with the complainant, the complainant did not stay long before he came back himself and said “amenibaka.” That means they were back together before they set to go home. That they arrived home together or separately is not a material issue.
45. The appellant thus submits that due to the said inconsistencies the complainant cannot be considered a witness of truth.
46. In the case of Richard Munene v R [2018] eKLR, the court while considering the effect of inconsistencies and contradictions in a case said:
‘… it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
47. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
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 phenomena exactly the same way. Indeed, as has been recognised 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.”
48. I find that the inconsistency in the evidence of PW 1 and PW 2 on how the two boys arrived home was not material.
49. Learned counsel for the respondent also submitted on the issue of an identification parade not being conducted. She cited the case of and R. v Turnbull & Others (1976) 3 ALL ER 549. However, to the extent that an identification parade was not conducted in this case, that case is not relevant on the issue of failing to follow the correct procedures in conducting an identification parade.
50. I note that the investigating officer alluded to an identification parade having been conducted but it is clear that none was conducted in this case. What transpired was that the complainant was confronted with the appellant and he immediately identified him as his assailant. The investigating officer said that upon being confronted with the appellant, the complainant started crying.
51. The complainant gave evidence of how the assailant approached him, spoke to him requesting him to go and assist him to lift his cow. They were obviously at close quarters. It was in broad daylight and the assailant was not masked or covered in anything that would obstruct the complainant from seeing and identifying him very well. He walked with the appellant for a long distance and he had a good opportunity to see him. The appellant spoke to him severally. I am satisfied that the complainant was an honest and truthful witness and his evidence was reliable.
52. I find that the conduct of the complainant, that is, his emotional outburst in breaking down crying on setting sight upon his assailant was a reaction borne out of once again coming into contact with a person who had recently done something abhorrent to him. I find that it corroborates his evidence that he was able to identify him at once.
53. An identification parade is not the only means for a witness to identify his or her assailant. It is desirable where the circumstances are doubtful for a proper identification as an identification thereat will confirm and reinforce the witness’ consistence that he is able to identify the culprit. However, when circumstances show as in this case, that the witness had a good opportunity to interact with the assailant, even a direct meeting afterwards with the assailant with immediate identification is sufficient. The incident had happened barely a week before and it cannot be that the complainant could have forgotten the person who took him through such a traumatizing experience. I am satisfied that the identification of the appellant as the complainant’s assailant in this case was proper and the learned trial magistrate was correct in so finding.
54. I find that all the elements of the offence of defilement were established in this case. Consequently, the charge of defilement was proved against the appellant beyond a reasonable doubt and the learned trial magistrate was not in error in so finding.
55. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
56. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
57. Section 8(2) of the SoA provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The learned trial magistrate therefore imposed the correct sentence for defilement under sections 8(2) of the Sexual Offences Act.
58. The appellant submitted that his mitigation had no bearing on his sentence but even then, I note that the learned trial magistrate took the same into account while sentencing.
59. The learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. However, recent Court of Appeal decisions have determined that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). Considering this emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with the cases of Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) where the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
60. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant is reviewed to provide that the same shall translate to a period of 30 years imprisonment. The sentence will run from the date of arrest on 14/4/2022 in line with section 333(2) CPC.
61. Otherwise the decision of the learned trial magistrate is affirmed and the appeal is dismissed.
62. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 25th day of March 2025 in the presence of:
The appellant in person from Naivasha Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.
J U D G M E N T
1. The appellant, Juma Mwanyundo Alfan was convicted and sentenced to serve life imprisonment on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). The particulars were that on 8/4/2022 at Mwamsefu village, Mwereni location in Lunga Lunga Sub-County within Kwale County, unlawfully and intentionally caused his penis to penetrate the anus of N.N. a child aged 10 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same day, same place and same time as in the principal charge the appellant unlawfully and intentionally caused his penis to touch the anus of N.N a boy aged 10 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 6 witnesses to support its case. PW 1, B.N. (not N.N. as indicated in the particulars of the charge) was the complainant. PW 2, N.T.C., is the complainants’ grandfather and guardian. PW 3, A.R.N. is a clinical officer at Lunga Lunga health dispensary. He produced a P3 form completed by his colleague, Jeremiah Bakari, who had since proceeded for further studies. PW 4, Santa Hare is the village chairman of the area in which the incident occurred and it was reported to him by the complainant’s grandfather. PW 5, J.M. is a child aged 6 years and the complainant’s brother with whom they had taken cows to the river to water when the incident happened. PW 6, P.C. Joseph Rotich of Lunga Lunga police station conducted investigations in the case.
4. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offence.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement. He was convicted and sentenced to serve life imprisonment.
6. The appellant was aggrieved by the decision of the trial court and has filed this appeal based on the following amended grounds:
a. that the learned trial magistrate erred in matters of law and fact as the prosecution did not establish a prima facie case but relied on circumstantial evidence contrary to articles 25(c), 27(1), 47(1), 50(1), 157(11) and 159(2)(e), of the constitution of Kenya, section 362 CPC and section 107 of the Evidence Act. making the conviction unsafe.
b. that the learned trial magistrate erred in matters of law and fact as there was conflicting witness testimony contrary to the evidence Act.
c. that the learned trial magistrate erred in matters of law and fact as death and life sentences are set for reform and are no longer tenable.
d. that the learned trial magistrate erred in matters of law and fact as the appellant’s defense and mitigation were not assigned any weight while cogent.
e. that the appellant spent one year and six months in remand custody.
7. The appeal was disposed of by way of written submissions filed by both the appellant and the respondent.
8. The respondent filed two sets of submissions to the appeal. The first submissions were filed on 30/9/2024 in which the learned counsel for the respondent opposed the appeal and supported the decision by the trial court. The second submissions were filed on 30/1/2025 where the learned counsel for the respondent conceded to the appeal. This confusion arose because the appellant had initially on 4/11/2024 informed the court that he had filed his submissions through the e-filing system. The court fixed a date for judgment on 3/12/2024. However, when the court checked at the time of writing the judgment, the same were not in the system. The parties were notified of the same on the date when the matter was to come up for judgment. The appellant subsequently filed the submissions on 30/1/2025 through the court’s e-mail address at which time he included amended grounds of appeal. At this point, the previous prosecution counsel had proceeded on transfer and the one who took over responded to the amended grounds of appeal. The grounds in the initial petition of appeal appeared to address the issue of sentence only. The amended grounds of appeal address both conviction and sentence. This court will rely on the later submissions by the respondent since they address the amended grounds of appeal.
9. The appellant submits that the case of defilement for the prosecution was not proved against him beyond a reasonable doubt. He has challenged the corpus of the prosecution evidence from inadequacy of evidence to convict, lack of identification, reliance on circumstantial and hearsay evidence, doubtful witness credibility and being arrested for house-breaking and yet charged and convicted of defilement. He has cited several authorities to support his submissions.
10. The respondent concedes to the appeal on grounds that there was no proper identification of the appellant as the culprit. Learned counsel has cited three authorities to support her submissions namely Maitanyi v. Republic (1986) KLR, 196, Anjononi and others v. Republic (1980) KLR and Wamunga v. Republic (1989) KLR, 426 all which address the issue of proper identification of an accused person by a sole identifying witness under difficult circumstances.
11. The submissions are considered in detail in the analysis following.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. The prosecution’s case was that on 8/4/2022 the complainant together with his younger brother PW 5 were at the river where they had taken their grandfather, PW 2’s cows for watering. While PW 5 was taking a bath in the river, the appellant approached the complainant and asked him whether they had seen his cow and the complainant said, no. The appellant asked that they come help him to lift the cow and the complainant told him he could not lift. The appellant held the complainant by force with a knife on his throat and pulled him away saying they go lift the cow. The complainant followed him to some bushes a long distance away. Along the way, the appellant told the complainant that he had beaten his sibling and the complainant denied saying he did not know them. While still threatening him with cutting his ear, he removed the complainant’s pair of shorts and boxers. The appellant unzipped his trousers then he tripped the complainant who fell to the ground facing downwards, whereupon the appellant took his penis and inserted in the complainant’s anus. The complainant felt pain. The appellant warned him that if he screamed, he would slaughter him. After the incident, the complainant went back to his younger brother and they went home. When the complainant returned home, he informed his grandmother who was with his grandfather, PW 2.
15. The complainant’s grandfather, PW 2 took him to the village chairman, PW.3, and reported there. He then took him to Perani dispensary, where he was given medical attention. He later reported the matter at Lunga Lunga police station.
16. Later the appellant was arrested for the offense of house breaking and attempted stealing and taken to Lunga Lunga police station. The complainant and his grandfather were called there. The complainant identified the appellant as his assailant. However, no identification parade was conducted.
17. PW 3 said that he completed the P3 form at Lunga Lunga health dispensary on 19th April, 2022, relying on the clinical notes from Perani dispensary. The findings were that on examination, the complainant’s anal region had mild abrasion around the anal orifice, loose anal sphincter muscle, there was no discharge, no blood noted around the anal region. The clinical officer was satisfied that penetration into the anal orifice of the complainant had taken place.
18. In his defence, the appellant denied that he committed the offence. He said he was arrested from the home of a lady known as Magdalene Mutua at Boyani with whom he had an illicit love relationship as the woman was married. The woman had asked him for KShs 200/= and she had just gone out when two men stomped into the home and upon interrogating him of the whereabouts of Magdalene and threatening to kill him with some armed with pangas he was arrested on allegations that he had broken into the house and intended to steal from there. When Magdalene showed up, she acted like she did not know him.
19. He said he was taken to the police station. Afterwards, he was asked to sit on a bench and a child was asked whether he knew the appellant and he said yes. The appellant said he did not know the child.
20. I have carefully examined and re-evaluated the evidence tendered before the trial court, the grounds of appeal as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial, the concession of the respondent to the appeal notwithstanding.
21. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
S. 8:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
22. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
23. Evidence of the age of the complainant was given by the complainant himself who said he was 10 years old and the clinical officer who completed his P3 form and the age assessment report (Exh. 8). The learned magistrate was also satisfied that the complainant, who was a witness before her was a child of tender years and that is why she subjected him to voir dire examination. I am satisfied that there was evidence upon which the learned trial magistrate could find and did find that the complainant was a child as provided for under section 8(1) of the SoA.
24. The complainant gave evidence that his assailant penetrated his anus with his sexual organ after tripping him and falling down. When he reached home, he immediately told his grandmother in the presence of his grandfather PW 2 of what had happened to him. That conduct by the complainant of reporting immediately shows that he was distraught about what had happened to him a short while before. I am satisfied that there was corroboration that indeed someone had penetrated his anal region and that was what was causing him distress.
25. Further, there is evidence that medical examination done on 19/4/2022 showed that the complainant had a mild abrasion around the anal orifice and loose sphincter muscle, an indication that there was penetration in his anal region. The appellant submits that the same could be caused by any other object such as falling on a stick as was answered by the clinical officer in cross-examination. However, in this case the evidence was that the penetration was by a male genital organ and not any other object. What the appellant is submitting on is speculation yet in this case, there is direct evidence of what happened. His defence both in cross-examination and testimony at the trial court never alluded to the complainant being pricked by a stick.
26. The appellant also submits that since the complainant testified that he had taken a bath immediately after the act of defilement, then vital evidence was lost. However, I note that the medical evidence adduced did not allude to evidence that was collection of an anal swab. It was only on the physical examination thereof of the anal orifice. It was also not based on any DNA sampling and so the submission that lack of such evidence made the case weak is not material.
27. I am satisfied that the medical evidence corroborates the complainant’s evidence that indeed his anal orifice was penetrated by a male genital organ. I find that the element of penetration was proved beyond a reasonable doubt. I am satisfied that the trial court reached a correct decision on that issue.
28. The final issue remaining is whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue.
29. It is the appellant’s contention that he was not properly identified as the perpetrator of the offence. He is supported in his assertion by the respondent.
30. The manner in which the court should proceed to assess the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 19(1). Oaths and Statutory Declarations Act:
“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
31. I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainant gave unsworn evidence.
32. In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:
“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.”
33. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
34. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none the court can still rely on the uncorroborated evidence of the victim if it believed that the victim was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the victim.
35. The appellant’s defence that he was arrested for a totally different offence is correct. However, the circumstances under which he was linked to the present offence were also explained. His being found with a knife in his bag is what raised suspicion that he could be the one who threatened the complainant herein with a knife. The learned counsel for the respondent in supporting the appellant’s appeal submits that the complainant never identified the knife as the same one that the appellant threatened him with.
36. I agree with that submission and I disagree with the learned magistrate that finding the appellant with a knife was corroboration of the complainant’s evidence that he was the one who threatened him with a knife. The issue of the knife only led to suspicion that the appellant could be the one who sexually assaulted the complainant.
37. What was material was the identification of the appellant by the complainant as his assailant. The learned trial magistrate correctly rejected PW 5, the complainant’s brother’s evidence that he had also identified the complainant as the assailant because as found by the trial magistrate, the complainant had said that PW 5 was bathing when the assailant went for the complainant.
38. That left the complainant’s evidence as the only evidence of identification of the appellant. In the absence of corroboration, it means that the only issue for determination is the veracity of the complainant’s (as the victim) evidence.
39. The appellant has cited the case of Hamisi Bakari & another v Republic [1987] KECA 66 (KLR) which was on the issue of sufficiency of evidence in a case of burglary and not identification of the culprit. That case was largely based on the possession of items recently stolen. It was not a case of a sexual offence based on the unsworn and uncorroborated evidence of the victim.
40. The case of Kimani Ndung’u v. R. [1979) 1 KLR also cited by the appellant was on the issue of the credibility of the witnesses, which this court is considering herein.
41. The cases relied on by the learned counsel for the respondent in supporting the appeal all relate to circumstances of identification were not conducive. In this case, I do not find any such difficult circumstances.
42. The appellant pointed out several issues as inconsistencies and contradictions in the prosecution’s case. He said, and it is true that, whereas the complainant said that after the incident, he went back to his brother, PW 5 and they went home, PW 2, their grandfather said that PW 5 had told him that he left the complainant behind and he arrived home alone with the cows and the complainant came afterwards. The appellant also pointed out that whereas PW 5 purported to identify him in court, the evidence of the complainant was that PW 5 never saw him as he was bathing in the river when the perpetrator took the complainant away.
43. Those inconsistencies arise from the testimony of PW 2. Indeed, I am satisfied that the evidence of identification of PW 5 was not reliable considering the evidence of the complainant that PW 5 was bathing at the time when the appellant appeared. There was no much evidence tendered to show that he had a good opportunity to see him.
44. There is not much that turns on the issue of the complainant saying that they went home together and PW 2 saying the complainant arrived after PW 5 because, PW 5 said that after the assailant left with the complainant, the complainant did not stay long before he came back himself and said “amenibaka.” That means they were back together before they set to go home. That they arrived home together or separately is not a material issue.
45. The appellant thus submits that due to the said inconsistencies the complainant cannot be considered a witness of truth.
46. In the case of Richard Munene v R [2018] eKLR, the court while considering the effect of inconsistencies and contradictions in a case said:
‘… it is a settled principle of law however that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessary creates doubts in the mind of the trial court that an accused person will be entitled to benefit from it.’
47. In Philip Nzaka Watu v Republic (supra) the Court of Appeal considering the issue of inconsistencies and discrepancies in evidence said thus:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
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 phenomena exactly the same way. Indeed, as has been recognised 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.”
48. I find that the inconsistency in the evidence of PW 1 and PW 2 on how the two boys arrived home was not material.
49. Learned counsel for the respondent also submitted on the issue of an identification parade not being conducted. She cited the case of and R. v Turnbull & Others (1976) 3 ALL ER 549. However, to the extent that an identification parade was not conducted in this case, that case is not relevant on the issue of failing to follow the correct procedures in conducting an identification parade.
50. I note that the investigating officer alluded to an identification parade having been conducted but it is clear that none was conducted in this case. What transpired was that the complainant was confronted with the appellant and he immediately identified him as his assailant. The investigating officer said that upon being confronted with the appellant, the complainant started crying.
51. The complainant gave evidence of how the assailant approached him, spoke to him requesting him to go and assist him to lift his cow. They were obviously at close quarters. It was in broad daylight and the assailant was not masked or covered in anything that would obstruct the complainant from seeing and identifying him very well. He walked with the appellant for a long distance and he had a good opportunity to see him. The appellant spoke to him severally. I am satisfied that the complainant was an honest and truthful witness and his evidence was reliable.
52. I find that the conduct of the complainant, that is, his emotional outburst in breaking down crying on setting sight upon his assailant was a reaction borne out of once again coming into contact with a person who had recently done something abhorrent to him. I find that it corroborates his evidence that he was able to identify him at once.
53. An identification parade is not the only means for a witness to identify his or her assailant. It is desirable where the circumstances are doubtful for a proper identification as an identification thereat will confirm and reinforce the witness’ consistence that he is able to identify the culprit. However, when circumstances show as in this case, that the witness had a good opportunity to interact with the assailant, even a direct meeting afterwards with the assailant with immediate identification is sufficient. The incident had happened barely a week before and it cannot be that the complainant could have forgotten the person who took him through such a traumatizing experience. I am satisfied that the identification of the appellant as the complainant’s assailant in this case was proper and the learned trial magistrate was correct in so finding.
54. I find that all the elements of the offence of defilement were established in this case. Consequently, the charge of defilement was proved against the appellant beyond a reasonable doubt and the learned trial magistrate was not in error in so finding.
55. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
56. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
57. Section 8(2) of the SoA provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The learned trial magistrate therefore imposed the correct sentence for defilement under sections 8(2) of the Sexual Offences Act.
58. The appellant submitted that his mitigation had no bearing on his sentence but even then, I note that the learned trial magistrate took the same into account while sentencing.
59. The learned trial magistrate imposed an indefinite term of life imprisonment upon the appellant. However, recent Court of Appeal decisions have determined that an indeterminate term of life imprisonment is unconstitutional (see the cases of and Manyeso v Republic [2023] KECA 827 (KLR), Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR). Considering this emerging jurisprudence from the Court of Appeal on indeterminate life sentence, I find it appropriate for this court to review the sentence to be in line thereof. I would therefore impose a determinate term of life imprisonment in line with the cases of Evans Nyamari Ayako v Republic (supra), and MB v Republic (supra) where the Court of Appeal substituted indeterminate life imprisonment terms with a term sentence of 30 years’ imprisonment.
60. Consequently, the indeterminate sentence of life imprisonment meted upon the appellant is reviewed to provide that the same shall translate to a period of 30 years imprisonment. The sentence will run from the date of arrest on 14/4/2022 in line with section 333(2) CPC.
61. Otherwise the decision of the learned trial magistrate is affirmed and the appeal is dismissed.
62. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 25th day of March 2025 in the presence of:
The appellant in person from Naivasha Maximum prison.
Ms Vallerie for the respondent
Johnson: Court assistant.