(An appeal from the conviction and sentence in Tawa Magistrates Court Sexual Offence Case No. E013 of 2021, Judgment delivered on 05 th January, 2023 by Hon. L.K Mwendwa, PM)
1. The Appellant was charged with the offense of Defilement of a child contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on 20 th February 2021 at Kathamba village, Sakai sub-location, Waia location in Mbooni East Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of C.W.K a child aged 11 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. The particulars are that, the Appellant, on 20 th February 2021 at Kathamba village, Sakai sub-location, Waia location in Mbooni East Sub-County within Makueni county, intentionally and unlawfully did an indecent act to C.W.K a child aged 11 years by touching her private parts namely vagina with his penis.
3. The lower Court delivered the Judgment on 8 th December, 2022, wherein it found him guilty and convicted him for the main charge. It did not make a finding on the alternative charge. It sentenced him to serve imprisonment for 25 years.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both the conviction and the sentence. He filed a Memorandum of Appeal on 11 th January, 2023 in which he raised 2 grounds;
1) That the learned trial magistrate erred in both fact and law be convicting him on evidence that did not meet the minimum threshold to uphold a conviction.
2) That the learned trial magistrate erred in both fact and law by not considering his sworn defence.
5. It appears that the Appellant had not received the typed proceedings by the time he filed his Memorandum of Appeal. Through his submissions, he stated that he had since received the trial records and that he wished to amend his grounds in accordance with Section 350 (2) (V) of the Criminal Procedure Code Cap 75 Laws of Kenya. He asked for leave of this Court to amend the grounds as follows;
1) That the charge sheet is defective.
2) That conviction and sentence are illegal.
3) That the learned magistrate erred in law and fact by convicting and sentencing the Appellant yet there were contradictions and inconsistencies in this case.
4) That the learned magistrate erred in law and fact by failing to appreciate that the witnesses were incredible.
5) That the ingredients of the offence were not proved.
6) That the medical documents relied upon in the case are unprocedurally before the court hence inadmissible.
7) That the learned magistrate erred in law and facts by failing to appreciate that crucial witness were not brought to court.
6. He asked the Court to allow the appeal, quash the conviction, and the sentence and set him free.
7. The appeal was canvassed by way of written submissions. The parties filed their respective submissions and this Court has considered the same.
Issues for Determination
8. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
9. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Defilement was proven to the required standard thereby warranting a conviction
10. Courts have established that the ingredients of the offence of defilement are: penetration of the Complainant’s genitalia, the complainant is a child, and proper identification of the perpetrator. See the case of Lukas Muli Nzioka v Republic [2019] KEHC 11794 (KLR) , where it was stated that;
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant .
Penetration
11. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
12. The prosecution relied on 2 witnesses (PW3 & PW1) to prove the element of penetration. Their testimonies were as follows;
13. PW3 was the Complainant. She told the Court that the Appellant sexually assaulted her on 12 th February, 2021 at around 8 pm. She claimed that she was at home alone revising when the Appellant came and entered the house. She said that the Appellant closed her mouth with his hands, undressed her, and then defiled her. She told the Court that no one else was in the house. She claimed that, later, her grandmother came and asked her why she was walking with difficulty. However, she did not explain to her what transpired on the grounds that she was frightened.
14. She told the Court that she went to school the following day, which was on a Monday, and her teacher, one Mr. Malela, noticed that she was walking in an unusual gait. When the teacher inquired what had happened to her, she explained to the teacher what the Appellant had done to her.
15. PW1 was a clinical officer attached to Kisau Sub-County Hospital. She is not the one who examined the Complainant, but she stated that her colleague was unwell and unable to attend court. She, however, confirmed that she knew the colleague’s handwriting and signature.
16. She produced the P3 form, the PRC form, and treatment notes. She stated that the Complainant was examined at their facility on 24 th February, 2021. According to the P3 Form, the results were as follows: the hymen was broken but not fresh, no tears or lacerations, yellowish foul discharge from the vaginal opening, blood stains on the vaginal swabs collected, and HIV was positive. According to the PRC Form, the results were as follows: broken hymen but not fresh, Urine had RBC and pus cells, HIV was negative, and there was a yellow vaginal discharge.
17. I have seen the said forms. They corroborate the clinical officer’s testimony, except for the issue of the HIV test . According to PW1’s testimony, as I have outlined above, the P3 form showed that the HIV test was positive, while the PRC form showed that the HIV test was negative. The Appellant pointed out this inconsistency, arguing that such a discrepancy is not possible and that the medical forms must be erroneous in their entirety.
18. The Appellant’s claims are reasonable considering that the forms were filled out the same day, by the same clinical officer, and in respect of one person, the Complainant. I shall address this first.
19. I have looked at the P3 form filed in Court. It does not show the results for the HIV test. In fact, it does not mention the word HIV. It is clear that the clinical officer said things that the P3 form did not say- especially on the HIV test. One may wonder why the clinical officer told the Court that the P3 form showed that the HIV test was positive. Anyway, now that it is clear to this Court that the P3 form does not talk about the HIV test, I find that there is no contradiction between the P3 form and the PRC form (on the HIV test), as alleged by the Appellant.
20. Next, I shall first review the Complainant’s testimony on the aspect of penetration, before discussing whether her testimony was corroborated by the medical reports.
21. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
22. From the onset, there appears to be controversy around the time of the day when the Complainant alleges to have been defiled. The Complainant told the Court that she was sexually assaulted at around 8 pm in the evening. However, this contradicts what she told the medical officer when she was taken for medical examination. In the PRC form, she told the clinical officer who filled the medical reports that she was defiled at around 9.30 am in the morning.
23. In addition, there appears to be contradictions on whether the Complainant knew the person who defiled her. At the police station, she told the police that she had been defiled by a person known to her. In the P3 form, she told the clinical officer that she had been seeing the person but did not know him by name. Yet, in the PRC form, she told the clinical officer that she did not know the person who defiled her.
24. There was also controversy on the exact date of the alleged incident. The Complainant told the police officer and the clinical officer that she was sexually assaulted on 20 th February, 2021. However, during the trial, she told the Court that it happened on 12 th February, 2021. All other adult witnesses, including her mother, told the court that it happened on 20 th February, 2021. The Appellant seized on this seemingly contradictory statement and counted it among the reasons he thinks the conviction must fail.
25. The Court appreciates that, given the Complainant’s age, she may not have the ability to remember the exact calendar date of the incident. I do not expect children of her age to remember the exact date, provided they can remember what transpired. Thus, this court downplays this controversy and proceeds with the evidence of the adult witnesses who said that the Complainant was defiled on 20 th February, 2021, as indicated in the charge sheet.
26. However, even with that, it is doubtful whether the Complainant was defiled on that particular date; 20 th February, 2021 , as she alleges. This is because, in her testimony, she told the Court that the following day was on a Monday. She said this: “ I went to school the following day i.e Monday. I was called by Mr. Malela into the office .” However, this may not be factual because, according to the Calendar, 20 th February 2021 fell on a Saturday.
27. This means that, if indeed she was defiled on 20 th February, 2021 then the following day was a Sunday- and it’s usually not a School day. One wonders whether the Complainant went to school on a Sunday, or whether her memory was failing her. She was 11 years old at the time of the alleged incident. I presume that, at that age, even though she may not be able to remember the date, she should be able to recall what happened the following day after the incident.
28. Courts have held that a single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient ground to acquit the accused person. The Court in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR held this view;
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea .”
29. In the present case and after carefully considering the Complainant’s testimony, I find that, from the onset, there is a reasonable basis for creating reasonable doubts as to the guilt of the Appellant. The Complainant’s testimony is questionable and raises significant doubts on whether it can, from the word go, sustain the particulars of the charges as stated in the charge sheet. It is doubtful whether the alleged sexual assault happened on 20 th February, 2021 and it is doubtful whether she knew the person who she alleges assaulted her. It is also doubtful whether it happened in the morning (9.30 am) or at night (8 pm).
30. For these reasons, I find that the Complainant’s testimony itself did not lay a basis for the alleged penetration on which the court could seek corroboration from the medical reports. In other words, the prosecution did not advance a credible account of the alleged penetration, and thus, there is essentially nothing to be corroborated by the medical reports. The Complainant’s testimony was so self-contradictory that it could not create a credible narrative, on which the charge could stand.
31. In addition, the charge was drafted in a format that does not comply with the standard way of drafting the charge of defilement. The Charge in this case read as follows; “ Defilement of a Child contrary to Section 8 (1)(2) of the Sexual Offences Act, No. 3 of 2006 .” The charge sheet omitted the phrase ‘as read with.’
32. Similar charges should read as follows: “ Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006 .” The latter format is clearer about the offence one is accused of.
33. The Court of Appeal in Frank Ochieng Otieno v Republic (Kisumu) Criminal Appeal No. 363 of 2011 (ur) held that a charge sheet was defective because it stated that the offence charged was contrary to Section “8 (1) (3)” instead of Section 8 (1) as read with Section 8 (4). The Court held as follows;
“On the issue of alleged defective charge, there cannot be any gainsaying that there was indeed a defect: instead of the charge stating that the appellant was charged with defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006, it read that the offence was contrary to Section 8 (1) (3) of the said Act.”
34. In addition, the wording of the charge sheet did not code the name of the Complainant. It is now usual practice in our courts that, in sexual offences involving a child (whether the child is participating as a complainant or as the accused), the name of the child should be coded or abbreviated to conceal their identity. Yet, the particulars of this charge mentioned the complaint by her three names.
35. Additionally, the Complainant told the Court that she used to live with her grandmother in the same house and that it was the grandmother who first noticed that she was not fine (because she found her crying). Yet, the prosecution did not call the grandmother as a witness. In my view, the grandmother’s testimony would have been crucial in resolving the controversy over the time of day when the alleged defilement occurred.
36. Similarly, I also opine that the prosecution should have called the teacher as a witness. The Complainant told the Court that, when she went to school the following day, her teacher noticed she was not fine. It is this teacher who blew up the alleged defilement incident because he probed the minor about it. Yet, the prosecution did not call this teacher as a witness. In my view, the teacher’s testimony would have been crucial in resolving the controversy over the date he interrogated the minor, and particularly whether that day was on a Monday.
37. The Appellant also raised concerns that the medical reports were filled out before the case was reported to the police. The P3 form and the PRC form indicate they were completed on 24 th February, 2021. PW4, PC Everlyne Nyaga, told the court that she received the case on 24 th February, 2021 booked it in the OB, and then escorted the Complainant to the hospital. Interestingly, the Charge Sheet shows that the O.B for this case as O.B. No.7/26/02/2021, which in police language means the 7 th report of 26 th February, 2021.
38. Based on this, the Court cannot help but agree with the Appellant that, in the absence of any explanation from the DPP, there is a real possibility that the medical reports were filled before the case was reported to the police. I am inclined to find so because, in addition to the above reasons, the P3 form does not indicate the full OB number. It just states: OB 07 . This is unusual because the P3 Form has a place for indicating the OB, and the police officer issuing the P3 form should, ordinarily, indicate the entire OB number as a reference.
39. Therefore, the documentation of this case also led to the case failing.
Disposition
40. The Appeal succeeds.
41. The Conviction for the offence of Defilement in the Sexual Offences Case No. E013 of 2021 is hereby quashed, and the sentence is set aside.
42. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
43. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
10 | Page
1. The Appellant was charged with the offense of Defilement of a child contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on 20 th February 2021 at Kathamba village, Sakai sub-location, Waia location in Mbooni East Sub-County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of C.W.K a child aged 11 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. The particulars are that, the Appellant, on 20 th February 2021 at Kathamba village, Sakai sub-location, Waia location in Mbooni East Sub-County within Makueni county, intentionally and unlawfully did an indecent act to C.W.K a child aged 11 years by touching her private parts namely vagina with his penis.
3. The lower Court delivered the Judgment on 8 th December, 2022, wherein it found him guilty and convicted him for the main charge. It did not make a finding on the alternative charge. It sentenced him to serve imprisonment for 25 years.
4. The Appellant was dissatisfied with the Judgment and brought this appeal against both the conviction and the sentence. He filed a Memorandum of Appeal on 11 th January, 2023 in which he raised 2 grounds;
1) That the learned trial magistrate erred in both fact and law be convicting him on evidence that did not meet the minimum threshold to uphold a conviction.
2) That the learned trial magistrate erred in both fact and law by not considering his sworn defence.
5. It appears that the Appellant had not received the typed proceedings by the time he filed his Memorandum of Appeal. Through his submissions, he stated that he had since received the trial records and that he wished to amend his grounds in accordance with Section 350 (2) (V) of the Criminal Procedure Code Cap 75 Laws of Kenya. He asked for leave of this Court to amend the grounds as follows;
1) That the charge sheet is defective.
2) That conviction and sentence are illegal.
3) That the learned magistrate erred in law and fact by convicting and sentencing the Appellant yet there were contradictions and inconsistencies in this case.
4) That the learned magistrate erred in law and fact by failing to appreciate that the witnesses were incredible.
5) That the ingredients of the offence were not proved.
6) That the medical documents relied upon in the case are unprocedurally before the court hence inadmissible.
7) That the learned magistrate erred in law and facts by failing to appreciate that crucial witness were not brought to court.
6. He asked the Court to allow the appeal, quash the conviction, and the sentence and set him free.
7. The appeal was canvassed by way of written submissions. The parties filed their respective submissions and this Court has considered the same.
Issues for Determination
8. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of Defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
9. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of Defilement was proven to the required standard thereby warranting a conviction
10. Courts have established that the ingredients of the offence of defilement are: penetration of the Complainant’s genitalia, the complainant is a child, and proper identification of the perpetrator. See the case of Lukas Muli Nzioka v Republic [2019] KEHC 11794 (KLR) , where it was stated that;
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant .
Penetration
11. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
12. The prosecution relied on 2 witnesses (PW3 & PW1) to prove the element of penetration. Their testimonies were as follows;
13. PW3 was the Complainant. She told the Court that the Appellant sexually assaulted her on 12 th February, 2021 at around 8 pm. She claimed that she was at home alone revising when the Appellant came and entered the house. She said that the Appellant closed her mouth with his hands, undressed her, and then defiled her. She told the Court that no one else was in the house. She claimed that, later, her grandmother came and asked her why she was walking with difficulty. However, she did not explain to her what transpired on the grounds that she was frightened.
14. She told the Court that she went to school the following day, which was on a Monday, and her teacher, one Mr. Malela, noticed that she was walking in an unusual gait. When the teacher inquired what had happened to her, she explained to the teacher what the Appellant had done to her.
15. PW1 was a clinical officer attached to Kisau Sub-County Hospital. She is not the one who examined the Complainant, but she stated that her colleague was unwell and unable to attend court. She, however, confirmed that she knew the colleague’s handwriting and signature.
16. She produced the P3 form, the PRC form, and treatment notes. She stated that the Complainant was examined at their facility on 24 th February, 2021. According to the P3 Form, the results were as follows: the hymen was broken but not fresh, no tears or lacerations, yellowish foul discharge from the vaginal opening, blood stains on the vaginal swabs collected, and HIV was positive. According to the PRC Form, the results were as follows: broken hymen but not fresh, Urine had RBC and pus cells, HIV was negative, and there was a yellow vaginal discharge.
17. I have seen the said forms. They corroborate the clinical officer’s testimony, except for the issue of the HIV test . According to PW1’s testimony, as I have outlined above, the P3 form showed that the HIV test was positive, while the PRC form showed that the HIV test was negative. The Appellant pointed out this inconsistency, arguing that such a discrepancy is not possible and that the medical forms must be erroneous in their entirety.
18. The Appellant’s claims are reasonable considering that the forms were filled out the same day, by the same clinical officer, and in respect of one person, the Complainant. I shall address this first.
19. I have looked at the P3 form filed in Court. It does not show the results for the HIV test. In fact, it does not mention the word HIV. It is clear that the clinical officer said things that the P3 form did not say- especially on the HIV test. One may wonder why the clinical officer told the Court that the P3 form showed that the HIV test was positive. Anyway, now that it is clear to this Court that the P3 form does not talk about the HIV test, I find that there is no contradiction between the P3 form and the PRC form (on the HIV test), as alleged by the Appellant.
20. Next, I shall first review the Complainant’s testimony on the aspect of penetration, before discussing whether her testimony was corroborated by the medical reports.
21. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
22. From the onset, there appears to be controversy around the time of the day when the Complainant alleges to have been defiled. The Complainant told the Court that she was sexually assaulted at around 8 pm in the evening. However, this contradicts what she told the medical officer when she was taken for medical examination. In the PRC form, she told the clinical officer who filled the medical reports that she was defiled at around 9.30 am in the morning.
23. In addition, there appears to be contradictions on whether the Complainant knew the person who defiled her. At the police station, she told the police that she had been defiled by a person known to her. In the P3 form, she told the clinical officer that she had been seeing the person but did not know him by name. Yet, in the PRC form, she told the clinical officer that she did not know the person who defiled her.
24. There was also controversy on the exact date of the alleged incident. The Complainant told the police officer and the clinical officer that she was sexually assaulted on 20 th February, 2021. However, during the trial, she told the Court that it happened on 12 th February, 2021. All other adult witnesses, including her mother, told the court that it happened on 20 th February, 2021. The Appellant seized on this seemingly contradictory statement and counted it among the reasons he thinks the conviction must fail.
25. The Court appreciates that, given the Complainant’s age, she may not have the ability to remember the exact calendar date of the incident. I do not expect children of her age to remember the exact date, provided they can remember what transpired. Thus, this court downplays this controversy and proceeds with the evidence of the adult witnesses who said that the Complainant was defiled on 20 th February, 2021, as indicated in the charge sheet.
26. However, even with that, it is doubtful whether the Complainant was defiled on that particular date; 20 th February, 2021 , as she alleges. This is because, in her testimony, she told the Court that the following day was on a Monday. She said this: “ I went to school the following day i.e Monday. I was called by Mr. Malela into the office .” However, this may not be factual because, according to the Calendar, 20 th February 2021 fell on a Saturday.
27. This means that, if indeed she was defiled on 20 th February, 2021 then the following day was a Sunday- and it’s usually not a School day. One wonders whether the Complainant went to school on a Sunday, or whether her memory was failing her. She was 11 years old at the time of the alleged incident. I presume that, at that age, even though she may not be able to remember the date, she should be able to recall what happened the following day after the incident.
28. Courts have held that a single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient ground to acquit the accused person. The Court in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR held this view;
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea .”
29. In the present case and after carefully considering the Complainant’s testimony, I find that, from the onset, there is a reasonable basis for creating reasonable doubts as to the guilt of the Appellant. The Complainant’s testimony is questionable and raises significant doubts on whether it can, from the word go, sustain the particulars of the charges as stated in the charge sheet. It is doubtful whether the alleged sexual assault happened on 20 th February, 2021 and it is doubtful whether she knew the person who she alleges assaulted her. It is also doubtful whether it happened in the morning (9.30 am) or at night (8 pm).
30. For these reasons, I find that the Complainant’s testimony itself did not lay a basis for the alleged penetration on which the court could seek corroboration from the medical reports. In other words, the prosecution did not advance a credible account of the alleged penetration, and thus, there is essentially nothing to be corroborated by the medical reports. The Complainant’s testimony was so self-contradictory that it could not create a credible narrative, on which the charge could stand.
31. In addition, the charge was drafted in a format that does not comply with the standard way of drafting the charge of defilement. The Charge in this case read as follows; “ Defilement of a Child contrary to Section 8 (1)(2) of the Sexual Offences Act, No. 3 of 2006 .” The charge sheet omitted the phrase ‘as read with.’
32. Similar charges should read as follows: “ Defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006 .” The latter format is clearer about the offence one is accused of.
33. The Court of Appeal in Frank Ochieng Otieno v Republic (Kisumu) Criminal Appeal No. 363 of 2011 (ur) held that a charge sheet was defective because it stated that the offence charged was contrary to Section “8 (1) (3)” instead of Section 8 (1) as read with Section 8 (4). The Court held as follows;
“On the issue of alleged defective charge, there cannot be any gainsaying that there was indeed a defect: instead of the charge stating that the appellant was charged with defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act No. 3 of 2006, it read that the offence was contrary to Section 8 (1) (3) of the said Act.”
34. In addition, the wording of the charge sheet did not code the name of the Complainant. It is now usual practice in our courts that, in sexual offences involving a child (whether the child is participating as a complainant or as the accused), the name of the child should be coded or abbreviated to conceal their identity. Yet, the particulars of this charge mentioned the complaint by her three names.
35. Additionally, the Complainant told the Court that she used to live with her grandmother in the same house and that it was the grandmother who first noticed that she was not fine (because she found her crying). Yet, the prosecution did not call the grandmother as a witness. In my view, the grandmother’s testimony would have been crucial in resolving the controversy over the time of day when the alleged defilement occurred.
36. Similarly, I also opine that the prosecution should have called the teacher as a witness. The Complainant told the Court that, when she went to school the following day, her teacher noticed she was not fine. It is this teacher who blew up the alleged defilement incident because he probed the minor about it. Yet, the prosecution did not call this teacher as a witness. In my view, the teacher’s testimony would have been crucial in resolving the controversy over the date he interrogated the minor, and particularly whether that day was on a Monday.
37. The Appellant also raised concerns that the medical reports were filled out before the case was reported to the police. The P3 form and the PRC form indicate they were completed on 24 th February, 2021. PW4, PC Everlyne Nyaga, told the court that she received the case on 24 th February, 2021 booked it in the OB, and then escorted the Complainant to the hospital. Interestingly, the Charge Sheet shows that the O.B for this case as O.B. No.7/26/02/2021, which in police language means the 7 th report of 26 th February, 2021.
38. Based on this, the Court cannot help but agree with the Appellant that, in the absence of any explanation from the DPP, there is a real possibility that the medical reports were filled before the case was reported to the police. I am inclined to find so because, in addition to the above reasons, the P3 form does not indicate the full OB number. It just states: OB 07 . This is unusual because the P3 Form has a place for indicating the OB, and the police officer issuing the P3 form should, ordinarily, indicate the entire OB number as a reference.
39. Therefore, the documentation of this case also led to the case failing.
Disposition
40. The Appeal succeeds.
41. The Conviction for the offence of Defilement in the Sexual Offences Case No. E013 of 2021 is hereby quashed, and the sentence is set aside.
42. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
43. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
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