(Being an Appeal from the whole of the Judgment, Conviction and Sentence of Hon. L.K.Mwendwa (PM) in Tawa Sexual Offences Case No. E041 of 2021, delivered on 26 th February 2024)
A. Background
1. The Appellant was charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between August and 20 th December 2021, at Katumani Area, Mbooni West Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of SSM, a child aged 12 years.
2. In the alternative, the Appellant was charged with committing an indecent act with a child, contrary to Section 11(1)(b) of the Sexual Offences Act, it being averred that on the same dates and at the same location, the Appellant intentionally and unlawfully committed an indecent act with SSM, a child aged 12 years.
3. The Appellant entered a plea of not guilty, whereupon the matter proceeded to full hearing. The prosecution called four(4) witnesses in support of its case. Upon being placed on his defence, the Appellant gave sworn testimony and called one(1) witness. In a judgment delivered on 26 th February 2024, the learned trial Magistrate found the Appellant guilty of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and convicted and sentenced him to 20 years' imprisonment.
4. Dissatisfied with both the conviction and sentence, the Appellant has preferred the present appeal and advances the following grounds:
a) That the learned trial Magistrate erred in law and in fact in finding that the ingredient of penetration had been established, in the absence of any findings capable of supporting the prosecution's narrative to that effect.
b) That the learned trial Magistrate erred in law and in fact by failing to conduct and record a proper voir dire examination in respect of the child witness, contrary to mandatory procedural requirements.
c) That the learned trial Magistrate erred in law and in fact by relying on the uncorroborated evidence of the complainant without recording reasons for finding her testimony to be truthful.
d) That the learned trial Magistrate erred in law and in fact by denying the Appellant the opportunity to cross-examine the complainant, in violation of his right to a fair trial.
e) That the learned trial Magistrate erred in law and in fact in finding that the Appellant was positively identified as the perpetrator.
f) That the learned trial Magistrate erred in law and in fact by shifting the burden of proof to the Appellant by requiring him to account for the complainant's disappearance.
g) That the learned trial Magistrate erred in law and in fact in holding that the prosecution had proved its case beyond reasonable doubt.
h) That the learned trial Magistrate erred in law and in fact by mechanically imposing the mandatory minimum sentence of 20 years' imprisonment without due consideration of the Appellant's personal mitigating circumstances.
B. The Evidence in Brief
5. The complainant, SSM, testified as PW3. Prior to the taking of her evidence, the trial court conducted a voir dire examination to determine her competency as a witness. The court was satisfied that PW3 possessed sufficient intelligence, could distinguish truth from falsehood, and appreciated the nature and binding obligation of an oath. She accordingly gave sworn testimony. At the material time, PW3 stated that she was 15 years of age and was a Class 8 pupil.
6. PW3 testified that in August 2021, she encountered the Appellant at Katumani, whereupon he took her to his residence where they spent the night together. She stated that the Appellant gave her some medicine and thereafter committed what she described as "tabia mbaya" that is, he defiled her by inserting his penis into her vagina.
7. PW3 further testified that following the incident, the Appellant threatened her and warned her against going the market area, telling her that she would be arrested if she did so. Acting on those threats and on the Appellant's further instruction that she was not to return home, PW3 proceeded to her grandmother's residence. The Appellant gave her Kshs. 50 before she left. Upon her arrival at her grandmother's house, PW3 learnt that a search had been mounted for her. She remained at her grandmother's residence for three days, after which she proceeded to the police station and subsequently to a doctor, to whom she disclosed what had happened. She also narrated the events to her parents.
8. The Court pauses to note a matter of some significance arising from the testimony of PW3. However, the narrative of PW3 as presented in her evidence in chief principally concerns events occurring in August 2021, with no clear account of the events of December 2021.In some instances, aspects of her testimony, when considered alongside the evidence of other prosecution witnesses, seem to align more closely with events suggestive of November rather than the dates initially implied. This raises an ambiguity. Is PW3 narrating a single incident in August 2021 with her timeline conflated, or is her testimony an account of two separate incidents of defilement on different dates both falling within the period alleged in the charge sheet? The answer to that question has a direct bearing on the coherence and reliability of the prosecution's case. The Court will revert to and address these discrepancies in greater detail at the appropriate juncture in this judgment.
9. PW1, the complainant’s mother, testified that the complainant was born on 22 nd December 2006. She stated that on 17 th December 2021, she left the complainant in the care of her elder sister, Mueni, at about 5:00 p.m., after instructing PW3 to go and pick bread. PW3 left home but did not return. The following morning, while she was at Kalawa Market, she was informed that PW3 had gone missing. She immediately began calling several people to establish her daughter’s whereabouts. During her search, she was informed by one Katelo Kavita, who was not called as a witness, that she knew where the complainant was.
10. She thereafter reported the matter to the police. According to her testimony, the complainant was eventually found on 21 st December 2021. Upon being informed, she took her to hospital for medical examination. She testified that the examination was conducted in the presence of a female police officer and that it was observed that the complainant’s underpants were blood-stained.
11. In his defence, the Appellant gave sworn testimony in which he denied committing the offence. He stated that he was a boda boda operator and on the material day he carried a female customer to Nduani area, where he dropped her off before proceeding home. He testified that the following day he received phone calls inquiring about the customer he had ferried, and he informed the callers that he had dropped her at Nduani area. He further stated that he was later instructed to go to the market, where he met Juma Josiah, who also questioned him about the customer’s whereabouts. He maintained the same position and proceeded to show them the exact place where he had dropped her. He was later arrested and taken to the police station. He maintained that the said female customer was later found.
12. DW2, the Appellant’s mother, stated in simple terms: “I don’t see anything in this allegation against the accused. That is all I wish to state.”
13. The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for consideration by the Court.
C. Issues for Determination
14. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-
i. Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
ii. Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein.
iii. Whether the conviction was based on uncorroborated evidence of the complainant without the trial court recording reasons for believing her testimony.
iv. Whether the prosecution discharged its burden of proof beyond reasonable doubt without impermissibly shifting that burden to the Appellant.
v. Whether the Appellant’s right to a fair trial was violated through denial of an opportunity to cross-examine the complainant.
vi. Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
D. Legal Analysis
15. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses.
16. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
i. Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
17. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act No. 3 of 2006, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
18. Section 8(1) and (3) of the Sexual Offences Act provides that:
(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)…
(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
a. Age of the Complainant
19. The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act.
20. The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it must be credible and reliable.” (emphasis added) .
21. On the question of age, the Court is confronted with slight variations in the evidence. PW1 stated that the complainant was born on 22 nd December 2006, while the Birth Certificate on record indicates a date of birth of 12 th December 2006. The Court further notes that the said Birth Certificate was registered on 1 st February 2022, approximately three (3) months after the alleged incident. While these discrepancies are not entirely seamless, they are not of such material weight as to dislodge the probative value of the evidence as a whole
22. The Court also takes cognisance of the medical age assessment conducted by Victor M. Mutiva, a Clinical Officer at Mbooni Sub-County Hospital, which placed the complainant’s age at approximately fifteen (15) years.
23. What emerges with clarity from the totality of the record is a consistent and converging conclusion from both documentary and medical evidence pointing to the complainant being a minor at the material time. The variations, when properly contextualised, are minor and do not go to the root of the prosecution case.
24. Accordingly, this Court is satisfied that the prosecution proved the age of the complainant beyond reasonable doubt, and finds that at the time of the alleged offence, the complainant was a child aged approximately fifteen (15) years.
b. Proof of Penetration
25. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person .
26. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence . Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.
27. A careful examination of the complainant’s testimony reveals a notable difficulty regarding the chronology of the alleged events. In her sworn evidence, the complainant testified that in August 2021 she encountered the Appellant at Katumani, following which he took her to his residence where they spent the night together. According to her testimony, the Appellant administered some medicine to her and thereafter engaged in what she described as “tabia mbaya,” namely by inserting his penis into her vagina.
28. She further stated that following the incident, the Appellant threatened her and warned her against going to the market, informing her that she would be arrested if she did so. Acting upon those threats and the Appellant’s instruction that she should not return home, she proceeded to her grandmother’s residence after being given Kshs. 50 by the Appellant. She testified that upon arriving at her grandmother’s home, she learnt that a search had already been mounted for her. She remained there for three days before eventually presenting herself at a police station and later seeking medical attention, where she disclosed the alleged incident. She subsequently narrated the same events to her parents.
29. The difficulty, however, lies in reconciling the complainant’s reference to August 2021 with the broader evidentiary record. While the complainant referred to an incident occurring in August 2021, the sequence of events she narrated appears, in several respects, to correspond with the period when she disappeared from home in December 2021 as described by PW1. At first glance, this may appear to create uncertainty as to when the alleged offence occurred.
30. Upon a careful consideration of the entirety of the evidence, however, this Court is not persuaded that the discrepancy is fatal to the prosecution’s case. The charge sheet itself alleges that the offence occurred on diverse dates between August and 20 th December 2021. It is therefore plausible that the complainant, a child of tender years, was recounting events that occurred within that period without drawing a clear distinction between specific dates. What remained constant throughout her testimony was her assertion that the Appellant took her to his house, spent the night with her, and had sexual intercourse with her.
31. More importantly, the complainant's account finds support in the medical evidence. The PRC Form dated 22 nd December 2021, completed shortly after the complainant was traced, recorded that her hymen was broken, albeit not recently. The examination further revealed a darkish discharge on her undergarments. Similarly, the P3 Form prepared on the same date noted injuries to the genitalia which, in the opinion of the examining officer, appeared to be days old.
32. Our courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration.
33. Therefore, it is the Court's view that the discrepancies relating to the exact dates do not go to the substance of the allegation. The critical question is whether penetration occurred. On this issue, the complainant's testimony remained unwavering that the Appellant inserted his penis into her vagina. That evidence is materially supported by the medical findings of a broken hymen and genital injuries consistent with prior sexual activity. When viewed holistically, the evidence establishes that penetration, as defined under Section 2 of the Sexual Offences Act, did occur. Accordingly, this Court is satisfied that the prosecution proved the ingredient of penetration beyond reasonable doubt.
c. Identification of the Perpetrator
34. With the first two elements established, the Court will next address itself to the question of identification.
35. It is true that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. As was stated in Roria v R [1967] EA 583 , “a conviction resting entirely on identity invariably causes a degree of uneasiness.” Similarly, in Kiarie v Republic , the Court of Appeal emphasised that “ it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.”
36. To aid in the exercise of this “circumspection” our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 . They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:
i. How long did the witnesses have the accused under their observation?
ii. What was the distance between the witnesses and the accused person?
iii. What was the lighting situation?
iv. Was the observation impeded in any way, as for example, by passing traffic or press of the people?
v. Had the witnesses ever seen the accused person?
vi. If the witnesses knew the accused prior to the current transaction, how often?
vii. If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?
viii. How long elapsed between the original observation and the subsequent identification to the police?
ix. Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?
37. This was not a case of identification of a stranger but one of recognition. The distinction is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) , recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other .
38. More recently, in Abuku & Another v Republic (Criminal Appeal E151 of 2022) [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:
Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an
accused means a witness requires less time to make an accurate identification.
39. The complainant’s evidence establishes that she was not dealing with a stranger. She testified that she encountered the Appellant on the road, travelled with him on his motorcycle, and ultimately spent an extended period in his house. This sequence of events reflects continuous and close contact, which afforded her ample opportunity to observe and retain the Appellant’s identity.
40. The complainant further alluded in her testimony to having had sexual intercourse with the Appellant on an earlier occasion in August, thereby suggesting an existing prior familiarity between them. In addition, the Appellant, in his own defence, confirmed that on 17 th December 2021 the date the complainant went missing he carried her on his motorcycle as a passenger and dropped her at Nduani area before proceeding home. This admission places the parties in direct contact on the material day.
41. The Court therefore finds that the complainant and the Appellant were not strangers to one another, but individuals who had prior and continuing interaction. This position is further strengthened by the testimony of PW1, the complainant’s mother, who confirmed that the Appellant was her neighbour prior to the incident. This fact is of significant probative value as it situates the Appellant within the complainant’s immediate social and physical environment. In the premises, the Court finds that the prosecution proved the ingredient of identification beyond reasonable doubt.
42. Having found that the prosecution proved all the three essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the trial court was sound and safe in law. Consequently, the Appellant’s appeal against conviction is devoid of merit and therefore fails.
ii. Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein
43. The Appellant, in his submissions, contends that the trial court conducted an incomplete and legally defective voire dire examination. It is argued that the record merely reflects a few general questions posed to the complainant, without any proper inquiry demonstrating whether she understood the nature of an oath, appreciated the difference between truth and falsehood, or possessed sufficient intelligence to give sworn evidence. The Appellant further submits that the trial court failed to make or record a clear finding following the purported voire dire examination.
44. Subjecting a witness of tender age to voire dire examination is founded under Section 125(1) of the Evidence Act, which states:
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause).
45. Also, Section 19(1) of the Oaths and Statutory Declarations Act has something to do with receiving evidence of a child in the following:
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 is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
46. Both statutes are silent on the definition of who is a child of tender years. In my own understanding of the above provisions of the law voire dire is an examination that serves two purposes; one, it is a test of the competency of the witness to give evidence and two, a means of testing whether the witness understands the solemnity of taking an oath. Thus, under the Evidence Act, the test is one of competency as the court is supposed to consider whether the child witness is developmentally competent to comprehend the questions put to him or her and to offer reliable testimony in criminal proceedings. It, therefore, follows if the child is not competent to comprehend the evidence, they cannot also give sworn evidence.
47. In the leading case of Kibangeny Arap Korir v Republic, [1959] EA 92 , the Court while dealing with a determination of the issue, held that tender years means a child under the age of 14 years. In a more recent decision of the Court of Appeal in MK v Republic [2015] eKLR the court termed as “unnecessary” voire dire examination conducted on a child aged 15 years by the trial court. It was held that voire dire examination is done where a witness is a child of tender years.
48. This position on voir dire is not uniformly applied across all judicial decisions, as there exists a line of High Court authorities adopting a broader interpretation of the term “child of tender years.” For instance, in JGK v Republic [2015] eKLR , the trial court admitted the evidence of a 17-year-old witness without conducting a voir dire examination. On appeal, the High Court at Nyeri (differently constituted) disagreed with that approach and held that a witness below the age of 18 years is still a child for purposes of the law, and that a voir dire examination is required in respect of such a witness.
49. The Court of Appeal in Patrick Kathurima v Republic, [2015] eKLR held that:
We take the view that this approach resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of section 19 of cap 15. We are aware that section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.
50. Guided by the reasoning of the Court of Appeal in Patrick Kathurima v Republic [2015] eKLR , as subsequently affirmed in Karimi v Republic (Criminal Appeal No. 16 of 2014) [2016] KECA 812 (KLR), it is evident that a voir dire examination is not a mandatory requirement in respect of every child witness, particularly where the witness is not a child of tender years. In the present case, the complainant testified on 14 th August 2023 and, based on the evidence on record, she was then aged approximately 16 years, 8 months and 2 days, and therefore outside the category of a child of tender years requiring a mandatory voir dire inquiry.
51. However, the gravamen of the Appellant’s complaint. It is contended that the trial court did not adequately interrogate the complainant through appropriate questions aimed at establishing her intelligence, understanding of the nature of an oath, or her ability to distinguish between truth and falsehood, thereby rendering the exercise procedurally deficient in the Appellant’s view. The Appellant further submits that the trial court failed to make or record a clear finding following the purported voir dire examination.
52. In Kilwake v Republic [2019] KECA 5 (KLR) , the Court of Appeal observed that there is no prescribed or rigid procedure for the conduct of a voir dire examination. The essential consideration is that the process, however conducted, must be sufficient to establish whether the child witness understands the nature of an oath and appreciates the duty to tell the truth.
53. Despite the Appellant’s assertion that the trial court failed to enter a finding after conducting the voire dire examination, this Court finds no merit in that contention. The Court, however, appreciates the source of the confusion, noting that the typed proceedings supplied to the Appellant, and even those appearing on the record at page 16, appear to proceed directly to the testimony of PW3 without expressly capturing the voire dire exchange. However, the handwritten proceedings clearly demonstrate that a voire dire examination was conducted, following which the trial court made a clear finding in the following terms:
“I find that the minor possesses sufficient intelligence and understands the purpose and meaning of telling the truth under oath.”
Having so found, the trial court proceeded to receive the complainant’s sworn testimony.
54. In the circumstances, this Court is satisf
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A. Background
1. The Appellant was charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between August and 20 th December 2021, at Katumani Area, Mbooni West Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of SSM, a child aged 12 years.
2. In the alternative, the Appellant was charged with committing an indecent act with a child, contrary to Section 11(1)(b) of the Sexual Offences Act, it being averred that on the same dates and at the same location, the Appellant intentionally and unlawfully committed an indecent act with SSM, a child aged 12 years.
3. The Appellant entered a plea of not guilty, whereupon the matter proceeded to full hearing. The prosecution called four(4) witnesses in support of its case. Upon being placed on his defence, the Appellant gave sworn testimony and called one(1) witness. In a judgment delivered on 26 th February 2024, the learned trial Magistrate found the Appellant guilty of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and convicted and sentenced him to 20 years' imprisonment.
4. Dissatisfied with both the conviction and sentence, the Appellant has preferred the present appeal and advances the following grounds:
a) That the learned trial Magistrate erred in law and in fact in finding that the ingredient of penetration had been established, in the absence of any findings capable of supporting the prosecution's narrative to that effect.
b) That the learned trial Magistrate erred in law and in fact by failing to conduct and record a proper voir dire examination in respect of the child witness, contrary to mandatory procedural requirements.
c) That the learned trial Magistrate erred in law and in fact by relying on the uncorroborated evidence of the complainant without recording reasons for finding her testimony to be truthful.
d) That the learned trial Magistrate erred in law and in fact by denying the Appellant the opportunity to cross-examine the complainant, in violation of his right to a fair trial.
e) That the learned trial Magistrate erred in law and in fact in finding that the Appellant was positively identified as the perpetrator.
f) That the learned trial Magistrate erred in law and in fact by shifting the burden of proof to the Appellant by requiring him to account for the complainant's disappearance.
g) That the learned trial Magistrate erred in law and in fact in holding that the prosecution had proved its case beyond reasonable doubt.
h) That the learned trial Magistrate erred in law and in fact by mechanically imposing the mandatory minimum sentence of 20 years' imprisonment without due consideration of the Appellant's personal mitigating circumstances.
B. The Evidence in Brief
5. The complainant, SSM, testified as PW3. Prior to the taking of her evidence, the trial court conducted a voir dire examination to determine her competency as a witness. The court was satisfied that PW3 possessed sufficient intelligence, could distinguish truth from falsehood, and appreciated the nature and binding obligation of an oath. She accordingly gave sworn testimony. At the material time, PW3 stated that she was 15 years of age and was a Class 8 pupil.
6. PW3 testified that in August 2021, she encountered the Appellant at Katumani, whereupon he took her to his residence where they spent the night together. She stated that the Appellant gave her some medicine and thereafter committed what she described as "tabia mbaya" that is, he defiled her by inserting his penis into her vagina.
7. PW3 further testified that following the incident, the Appellant threatened her and warned her against going the market area, telling her that she would be arrested if she did so. Acting on those threats and on the Appellant's further instruction that she was not to return home, PW3 proceeded to her grandmother's residence. The Appellant gave her Kshs. 50 before she left. Upon her arrival at her grandmother's house, PW3 learnt that a search had been mounted for her. She remained at her grandmother's residence for three days, after which she proceeded to the police station and subsequently to a doctor, to whom she disclosed what had happened. She also narrated the events to her parents.
8. The Court pauses to note a matter of some significance arising from the testimony of PW3. However, the narrative of PW3 as presented in her evidence in chief principally concerns events occurring in August 2021, with no clear account of the events of December 2021.In some instances, aspects of her testimony, when considered alongside the evidence of other prosecution witnesses, seem to align more closely with events suggestive of November rather than the dates initially implied. This raises an ambiguity. Is PW3 narrating a single incident in August 2021 with her timeline conflated, or is her testimony an account of two separate incidents of defilement on different dates both falling within the period alleged in the charge sheet? The answer to that question has a direct bearing on the coherence and reliability of the prosecution's case. The Court will revert to and address these discrepancies in greater detail at the appropriate juncture in this judgment.
9. PW1, the complainant’s mother, testified that the complainant was born on 22 nd December 2006. She stated that on 17 th December 2021, she left the complainant in the care of her elder sister, Mueni, at about 5:00 p.m., after instructing PW3 to go and pick bread. PW3 left home but did not return. The following morning, while she was at Kalawa Market, she was informed that PW3 had gone missing. She immediately began calling several people to establish her daughter’s whereabouts. During her search, she was informed by one Katelo Kavita, who was not called as a witness, that she knew where the complainant was.
10. She thereafter reported the matter to the police. According to her testimony, the complainant was eventually found on 21 st December 2021. Upon being informed, she took her to hospital for medical examination. She testified that the examination was conducted in the presence of a female police officer and that it was observed that the complainant’s underpants were blood-stained.
11. In his defence, the Appellant gave sworn testimony in which he denied committing the offence. He stated that he was a boda boda operator and on the material day he carried a female customer to Nduani area, where he dropped her off before proceeding home. He testified that the following day he received phone calls inquiring about the customer he had ferried, and he informed the callers that he had dropped her at Nduani area. He further stated that he was later instructed to go to the market, where he met Juma Josiah, who also questioned him about the customer’s whereabouts. He maintained the same position and proceeded to show them the exact place where he had dropped her. He was later arrested and taken to the police station. He maintained that the said female customer was later found.
12. DW2, the Appellant’s mother, stated in simple terms: “I don’t see anything in this allegation against the accused. That is all I wish to state.”
13. The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for consideration by the Court.
C. Issues for Determination
14. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-
i. Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
ii. Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein.
iii. Whether the conviction was based on uncorroborated evidence of the complainant without the trial court recording reasons for believing her testimony.
iv. Whether the prosecution discharged its burden of proof beyond reasonable doubt without impermissibly shifting that burden to the Appellant.
v. Whether the Appellant’s right to a fair trial was violated through denial of an opportunity to cross-examine the complainant.
vi. Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
D. Legal Analysis
15. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses.
16. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
i. Whether the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt.
17. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act No. 3 of 2006, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
18. Section 8(1) and (3) of the Sexual Offences Act provides that:
(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)…
(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
a. Age of the Complainant
19. The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act.
20. The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it must be credible and reliable.” (emphasis added) .
21. On the question of age, the Court is confronted with slight variations in the evidence. PW1 stated that the complainant was born on 22 nd December 2006, while the Birth Certificate on record indicates a date of birth of 12 th December 2006. The Court further notes that the said Birth Certificate was registered on 1 st February 2022, approximately three (3) months after the alleged incident. While these discrepancies are not entirely seamless, they are not of such material weight as to dislodge the probative value of the evidence as a whole
22. The Court also takes cognisance of the medical age assessment conducted by Victor M. Mutiva, a Clinical Officer at Mbooni Sub-County Hospital, which placed the complainant’s age at approximately fifteen (15) years.
23. What emerges with clarity from the totality of the record is a consistent and converging conclusion from both documentary and medical evidence pointing to the complainant being a minor at the material time. The variations, when properly contextualised, are minor and do not go to the root of the prosecution case.
24. Accordingly, this Court is satisfied that the prosecution proved the age of the complainant beyond reasonable doubt, and finds that at the time of the alleged offence, the complainant was a child aged approximately fifteen (15) years.
b. Proof of Penetration
25. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person .
26. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence . Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.
27. A careful examination of the complainant’s testimony reveals a notable difficulty regarding the chronology of the alleged events. In her sworn evidence, the complainant testified that in August 2021 she encountered the Appellant at Katumani, following which he took her to his residence where they spent the night together. According to her testimony, the Appellant administered some medicine to her and thereafter engaged in what she described as “tabia mbaya,” namely by inserting his penis into her vagina.
28. She further stated that following the incident, the Appellant threatened her and warned her against going to the market, informing her that she would be arrested if she did so. Acting upon those threats and the Appellant’s instruction that she should not return home, she proceeded to her grandmother’s residence after being given Kshs. 50 by the Appellant. She testified that upon arriving at her grandmother’s home, she learnt that a search had already been mounted for her. She remained there for three days before eventually presenting herself at a police station and later seeking medical attention, where she disclosed the alleged incident. She subsequently narrated the same events to her parents.
29. The difficulty, however, lies in reconciling the complainant’s reference to August 2021 with the broader evidentiary record. While the complainant referred to an incident occurring in August 2021, the sequence of events she narrated appears, in several respects, to correspond with the period when she disappeared from home in December 2021 as described by PW1. At first glance, this may appear to create uncertainty as to when the alleged offence occurred.
30. Upon a careful consideration of the entirety of the evidence, however, this Court is not persuaded that the discrepancy is fatal to the prosecution’s case. The charge sheet itself alleges that the offence occurred on diverse dates between August and 20 th December 2021. It is therefore plausible that the complainant, a child of tender years, was recounting events that occurred within that period without drawing a clear distinction between specific dates. What remained constant throughout her testimony was her assertion that the Appellant took her to his house, spent the night with her, and had sexual intercourse with her.
31. More importantly, the complainant's account finds support in the medical evidence. The PRC Form dated 22 nd December 2021, completed shortly after the complainant was traced, recorded that her hymen was broken, albeit not recently. The examination further revealed a darkish discharge on her undergarments. Similarly, the P3 Form prepared on the same date noted injuries to the genitalia which, in the opinion of the examining officer, appeared to be days old.
32. Our courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration.
33. Therefore, it is the Court's view that the discrepancies relating to the exact dates do not go to the substance of the allegation. The critical question is whether penetration occurred. On this issue, the complainant's testimony remained unwavering that the Appellant inserted his penis into her vagina. That evidence is materially supported by the medical findings of a broken hymen and genital injuries consistent with prior sexual activity. When viewed holistically, the evidence establishes that penetration, as defined under Section 2 of the Sexual Offences Act, did occur. Accordingly, this Court is satisfied that the prosecution proved the ingredient of penetration beyond reasonable doubt.
c. Identification of the Perpetrator
34. With the first two elements established, the Court will next address itself to the question of identification.
35. It is true that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. As was stated in Roria v R [1967] EA 583 , “a conviction resting entirely on identity invariably causes a degree of uneasiness.” Similarly, in Kiarie v Republic , the Court of Appeal emphasised that “ it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.”
36. To aid in the exercise of this “circumspection” our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 . They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:
i. How long did the witnesses have the accused under their observation?
ii. What was the distance between the witnesses and the accused person?
iii. What was the lighting situation?
iv. Was the observation impeded in any way, as for example, by passing traffic or press of the people?
v. Had the witnesses ever seen the accused person?
vi. If the witnesses knew the accused prior to the current transaction, how often?
vii. If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?
viii. How long elapsed between the original observation and the subsequent identification to the police?
ix. Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?
37. This was not a case of identification of a stranger but one of recognition. The distinction is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) , recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other .
38. More recently, in Abuku & Another v Republic (Criminal Appeal E151 of 2022) [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:
Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an
accused means a witness requires less time to make an accurate identification.
39. The complainant’s evidence establishes that she was not dealing with a stranger. She testified that she encountered the Appellant on the road, travelled with him on his motorcycle, and ultimately spent an extended period in his house. This sequence of events reflects continuous and close contact, which afforded her ample opportunity to observe and retain the Appellant’s identity.
40. The complainant further alluded in her testimony to having had sexual intercourse with the Appellant on an earlier occasion in August, thereby suggesting an existing prior familiarity between them. In addition, the Appellant, in his own defence, confirmed that on 17 th December 2021 the date the complainant went missing he carried her on his motorcycle as a passenger and dropped her at Nduani area before proceeding home. This admission places the parties in direct contact on the material day.
41. The Court therefore finds that the complainant and the Appellant were not strangers to one another, but individuals who had prior and continuing interaction. This position is further strengthened by the testimony of PW1, the complainant’s mother, who confirmed that the Appellant was her neighbour prior to the incident. This fact is of significant probative value as it situates the Appellant within the complainant’s immediate social and physical environment. In the premises, the Court finds that the prosecution proved the ingredient of identification beyond reasonable doubt.
42. Having found that the prosecution proved all the three essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the trial court was sound and safe in law. Consequently, the Appellant’s appeal against conviction is devoid of merit and therefore fails.
ii. Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein
43. The Appellant, in his submissions, contends that the trial court conducted an incomplete and legally defective voire dire examination. It is argued that the record merely reflects a few general questions posed to the complainant, without any proper inquiry demonstrating whether she understood the nature of an oath, appreciated the difference between truth and falsehood, or possessed sufficient intelligence to give sworn evidence. The Appellant further submits that the trial court failed to make or record a clear finding following the purported voire dire examination.
44. Subjecting a witness of tender age to voire dire examination is founded under Section 125(1) of the Evidence Act, which states:
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause).
45. Also, Section 19(1) of the Oaths and Statutory Declarations Act has something to do with receiving evidence of a child in the following:
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 is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
46. Both statutes are silent on the definition of who is a child of tender years. In my own understanding of the above provisions of the law voire dire is an examination that serves two purposes; one, it is a test of the competency of the witness to give evidence and two, a means of testing whether the witness understands the solemnity of taking an oath. Thus, under the Evidence Act, the test is one of competency as the court is supposed to consider whether the child witness is developmentally competent to comprehend the questions put to him or her and to offer reliable testimony in criminal proceedings. It, therefore, follows if the child is not competent to comprehend the evidence, they cannot also give sworn evidence.
47. In the leading case of Kibangeny Arap Korir v Republic, [1959] EA 92 , the Court while dealing with a determination of the issue, held that tender years means a child under the age of 14 years. In a more recent decision of the Court of Appeal in MK v Republic [2015] eKLR the court termed as “unnecessary” voire dire examination conducted on a child aged 15 years by the trial court. It was held that voire dire examination is done where a witness is a child of tender years.
48. This position on voir dire is not uniformly applied across all judicial decisions, as there exists a line of High Court authorities adopting a broader interpretation of the term “child of tender years.” For instance, in JGK v Republic [2015] eKLR , the trial court admitted the evidence of a 17-year-old witness without conducting a voir dire examination. On appeal, the High Court at Nyeri (differently constituted) disagreed with that approach and held that a witness below the age of 18 years is still a child for purposes of the law, and that a voir dire examination is required in respect of such a witness.
49. The Court of Appeal in Patrick Kathurima v Republic, [2015] eKLR held that:
We take the view that this approach resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of section 19 of cap 15. We are aware that section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.
50. Guided by the reasoning of the Court of Appeal in Patrick Kathurima v Republic [2015] eKLR , as subsequently affirmed in Karimi v Republic (Criminal Appeal No. 16 of 2014) [2016] KECA 812 (KLR), it is evident that a voir dire examination is not a mandatory requirement in respect of every child witness, particularly where the witness is not a child of tender years. In the present case, the complainant testified on 14 th August 2023 and, based on the evidence on record, she was then aged approximately 16 years, 8 months and 2 days, and therefore outside the category of a child of tender years requiring a mandatory voir dire inquiry.
51. However, the gravamen of the Appellant’s complaint. It is contended that the trial court did not adequately interrogate the complainant through appropriate questions aimed at establishing her intelligence, understanding of the nature of an oath, or her ability to distinguish between truth and falsehood, thereby rendering the exercise procedurally deficient in the Appellant’s view. The Appellant further submits that the trial court failed to make or record a clear finding following the purported voir dire examination.
52. In Kilwake v Republic [2019] KECA 5 (KLR) , the Court of Appeal observed that there is no prescribed or rigid procedure for the conduct of a voir dire examination. The essential consideration is that the process, however conducted, must be sufficient to establish whether the child witness understands the nature of an oath and appreciates the duty to tell the truth.
53. Despite the Appellant’s assertion that the trial court failed to enter a finding after conducting the voire dire examination, this Court finds no merit in that contention. The Court, however, appreciates the source of the confusion, noting that the typed proceedings supplied to the Appellant, and even those appearing on the record at page 16, appear to proceed directly to the testimony of PW3 without expressly capturing the voire dire exchange. However, the handwritten proceedings clearly demonstrate that a voire dire examination was conducted, following which the trial court made a clear finding in the following terms:
“I find that the minor possesses sufficient intelligence and understands the purpose and meaning of telling the truth under oath.”
Having so found, the trial court proceeded to receive the complainant’s sworn testimony.
54. In the circumstances, this Court is satisf
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