(Appeal against the Judgment of Hon. V. Karanja-PM, delivered on 26/09/2024 in Iten Senior Principal Magistrate’s Court Criminal - Sexual Offences – Case No. E010 of 2024)
JUDGMENT
1. The Appellant was charged in the said criminal case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on 4/02/2024 at around 1630 hours at Maan village, Kapkoi sub-location, Mutei Location, in Keiyo North sub-County, within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of GJ, a child aged 9 years old. The Appellant was also charged with the alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were on the same date, time and place, he intentionally and unlawfully touched the vagina of the same child aged 9 years with his penis.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which he was represented by Mrs. Orina Advocate, and in which the Prosecution called 6 witnesses. At the close of the Prosecution case, the Court found the Appellant as having a case to answer and placed him on his defence. The Appellant then gave a sworn statement, was cross-examined, and called 3 witnesses. By the Judgment delivered on 26/09/2024, he was convicted on the main charge, and sentenced to 50 years’ imprisonment.
3. Dissatisfied with the Judgment, the Appellant through the firm of Messrs Manyoni Orina & Co. Advocates, filed this Appeal by way of the Petition of Appeal dated 08/10/2024, which I must say, is actually more of final written Submissions that what the law recognizes as a Petition of Appeal. Be that as it may, the grounds preferred are as follows:
i) That the learned Honourable Magistrate erred in law and fact by failing to subject the entire evidence tendered in the course of the hearing to an exhaustive scrutiny and therefore arriving at a verdict that was manifestly unsafe.
ii) That the learned Magistrate erred in law and in fact by failing to find that the identification of the Appellant was not proper as the complainant was grabbed from behind by an unknown person who defiled her from her anus while she facing down and he warned her not to look at her which she obeyed, that there was therefore little or no chance of the complainant seeing her perpetrator as per her statement and testimony. The Prosecution failed to place the Appellant at the scene of crime even by means of phone technology. Identification was therefore not subjected to scrutiny and validation on the accepted standards to warrant a conviction on the part of the Appellant
iii) That the learned trial Magistrate erred both in law and fact in finding that the identification parade was properly conducted and relying on the same when in fact it was flawed, irregular and did not adhere to the rules of the parade for a witness to make any significant identification. That the complainant PW1 was coached and shown clothes and photographs of the Appellant before the parade to enable her pick on him.
iv) That the Honourable Magistrate faulted in law and fact by convicting the Appellant on evidence that was very incredible as the charges against the Appellant were not adequately proved to point to his guilt thus rendering prejudice. The Honourable Court relied on extraneous opinion as to the manner the sexual offence occurred despite the clear explanation by the complainant PW1 that she was actually sodomised.
v) That the Honourable Magistrate erred in law and in fact by finding that the complainant had earlier on met the Appellant before the alleged act, when the same was an afterthought and false, not being in any of the Prosecution witness statements, an indication that the Appellant was framed and implicated for a crime he did not commit.
vi) That the Learned Honorable Magistrate erred in Law and fact by failing to have regard to the act of material contradictions of evidence during the entire Court proceeding, especially the act that the complainant testified having been defiled from her anus and the evidence that was led by the prosecution was that of vaginal penetration, which pointed to the fact that the case was not proved to the required evidence.
vii) THAT the learned Magistrate erred in law and fact by failing to take judicial notice that the appellant was a very tall man above 6 inches feet and the perpetrator was a man of short stature as explained by the complainant, being her only recollection if any of her perpetrator - as documented in the medical records produced by the prosecution.
viii) THAT the Learned Magistrate erred both in law and fact by convicting the Appellant on the basis of the evidence of a single minor complainant which was materially inconsistent, made up and was basically afterthoughts which did not constitute her statement and was not corroborated even by medical evidence such as DNA sample matches to link the appellant to the said crime and therefore fatally insufficient to constitute a safe conviction,
ix) THAT the Learned Honorable Magistrate erred in Law and fact by failing to properly evaluate the evidence by the defence, including his alibi evidence whereby he called two witnesses who were with him at the alleged time of crime. The defence witnesses together with the appellants written submission were disregarded and not taken into account at all.
4. At this point, I am obligated to comment that the Court of Appeal has on several occasions reminded litigants that this practice of filing unnecessarily verbose and argumentative Memoranda or Petitions of Appeal is wrong and unnecessary. Lengthy and verbose pleadings, are not only irritating but also many a time end up containing duplication and repetition and rarely adds any value to the content thereof There are for instance, the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR, the case of William Koross v. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, the case of Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR, and also the case of case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR.
5. The 9 verbose grounds cited above can, in fact, be simply all summarized into one brief ground, namely, “whether the Prosecution proved its case beyond reasonable doubt”
6. Be that as it may, Counsel for the Appellant further filed the Supplementary Petition of Appeal dated 12/11/2024, although I cannot find evidence that she sought and/or obtained leave to do so. The two additional grounds cited are the following;
i) That the learned Honourable Magistrate erred in law by recording some parts of the proceedings narrative that are different from the actual testimony given in Court.
ii) That the learned Magistrate failed to have regard to the witness testimonies as narrated during the hearing of the trial before her and drew conclusions and formed opinions without properly analysing the evidence given.
Prosecution evidence at the trial Court
7. PW1 was the minor. The Court conducted a voire dire examination and concluded that the minor understood the meaning of an oath, and thus allowed her to give sworn evidence.
8. The minor then testified that she was 9 years old Grade 4 pupil and referred to her Certificate of Birth, which indicated that she was born on 02/07/2014. She stated that on 04/04/2024 at around 4.30 pm – 5.00 pm, she had gone to the forest to fetch firewood and on her way back, she met “Tony” (the Appellant) who told her that he had lost his house keys, but who then sneaked through the “back door” and dragged her to the forest while threatening to kill her and covered her mouth. She stated that the Appellant asked her whether “she had ever done it” and then took away her phone. She testified further that the Appellant then put his ‘dudu’ in her anus and made her lie down on her back, that she was wearing a pink skirt and a biker which he removed and he threatened her when she tried to pull them up. She testified that the act lasted between 4.29 pm and 4.30 pm as she checked in the phone, that she felt a lot of pain and asked him to stop but he refused, that when she went home, she told her mother what had happened and she was taken to the hospital and treated at Kapteren.
9. She testified that the Appellant was a customer at their shop and that it was her second time seeing him. She also identified in Court, the clothes that she was wearing on the said date, namely, a skirt, biker and pants. Under cross-examination by Mrs. Orina, the defence Counsel, the minor stated that their shop sells “KDF”, kangumu, sweets, sugar and biscuits. She also stated that she had not met the Appellant before the incident and she did not know him before then. She described the assailant as brown, tall and not fat, and that he was wearing a black trouser. She stated further that the assailant (Appellant) threated to kill her if she turned to face him and thus, she did not do so but she saw his face when he was leaving. She stated further that she was taken to the police station where she narrated the incident, and that she identified the Appellant in a line of many people. She also stated that she did not know his name before the incident and only learnt of the same at the police station.
10. She stated further that the Chief brought the old black jacket and trousers that the Appellant was wearing on the said date, which she identified at the police station. She stated that there were 6 people at the parade at the police station and none of them was wearing the old black jacket. She then agreed that her statement indicates that “an unknown person” grabbed her from the back.
11. PW2 was AJ, who stated that she is the minor’s grandmother. She testified that the minor was born on 04/02/2024 and she, too, referred to the Certificate of Birth. She stated that on 4/02/2024, at 4.30 pm, she sent the minor to go and fetch firewood but shortly afterwards, the minor came back crying, and that she was with her in-law and the minor told them that she had been grabbed by someone, pointing at her vagina. She stated that upon checking the minor’s private parts, she noted the presence of bloodstains on her clothes and they concluded that she had been defiled, that they rushed her to the hospital and later, she described the person who had defiled her as he was unknown to her. She testified further that the clothes were taken by police officers and they were issued with treatment notes, P3 Form, PRC Form and Laboratory Report which she then identified. She testified that the Appellant was arrested during an identification parade, that she did not know his name but that he was a customer at her shop. In cross-examination, she stated that they did not know the Appellant but stated that “he normally walks around the village” and that the Chief identified the Appellant and the villagers were also involved. According to her, the minor was penetrated in the vagina as she opened the minor’s legs and saw it. She stated that the Appellant comes from Kapkoi area and that it is the Chief who brought him to the station
12. PW3 was Teresia Cherop who stated that on 4/02/2024 around 4.30 pm – 5.00 pm, she had gone to visit PW2, her in-law, who then sent the minor to fetch sheep from the forest but who came back shortly, crying that she had been beaten by an unknown person. She stated that the minor lay down and they checked her private parts and noted that her clothes had stains, that they rushed her to the hospital and the doctor confirmed that she had been defiled, upon which they went to the station and reported the matter. She testified that after 4 days, PW2 informed her that the perpetrator had been arrested and they went to the police station where the minor identified the assailant (Appellant) during an identification parade. She then identified the Appellant in the dock and stated that she did not know him before the parade. In cross-examination, she insisted that the defilement was in the minor’s vagina and that she did not know how the Appellant was arrested.
13. PW4 was Philemon Kittony, a clinical officer. He stated that the minor, aged 9 years old, went to the facility on 5/02/2024 with a history of defilement. She testified that the minor’s inner clothes were soaked in blood, that on examination, she established that the minor’s labia majora and minora were bruised, the hymen membrane was torn, the vagina wall had a tear at 8.00, 9.00 o’clock description, and that she had a bruise on the vestibular. She testified further that the bleeding had stopped, and that the injures had occurred less than 72 hours before. She stated further that the date of the incident was reported as 4/02/2024 at 4.30 pm, and that the laboratory results revealed the presence of a few epithelial cells. She then testified that she made the conclusion that there had been recent vaginal penetration, and she then produced the laboratory results, and the PRC and P3 Forms. In cross-examination, she stated that no DNA test was conducted, that it is the tear within the vaginal wall that caused the bleeding, and that the anus was intact as noted in her Report that “NAD (nothing abnormal detected). She thus reiterated that there was only recent vaginal penetration. She also stated that the Appellant was not produced at the facility for examination.
14. PW5 was Police Officer Elias Kiptoo who testified that he conducted an identification parade on 07/02/2024, that the victim was 9 years old and the accused (Appellant) was one “Tony”. He stated that he was the OCS Iten at that time, that he arranged 8 men similar to the Appellant whom he notified of the purpose of the parade, and that he brought the minor who then pointed out the Appellant. He testified that the Appellant stated that he was comfortable in the position that he was standing. He stated that he conducted the parade a second time and told the Appellant to change clothes and position, and the minor again identified the Appellant. He stated further that he conducted the parade a third time, this time the Appellant wore his initial clothes and position and yet again, the minor pointed him out. PW5 then identified the Appellant in Court and also produced the identification parade Report (Form 156). In cross-examination, he stated that he is a Chief Inspector, and that the Appellant was brought to the station by members of the public. He stated that he instructed the Investigating Officer to look for 7 people of similar age, height and skin colour, that the Appellant is brown and 5’8 in height, that it was a closed room and there were only the 8 people, together with him. He however agreed that the Appellant did not have a friend or Counsel at the parade and stated that the Investigating Officer was present. He testified that it is the members of the public who arrested two people (including the Appellant) and that the minor was outside the parade room and was not shown the Appellant’s clothes. In re-examination, he stated that the signature at the back of the Form is the Appellant’s, and that he listed the people who participated in the parade and he did not expose the Appellant to members of the public or to the minor. He stated that the participants in the parade were about 5’8 and 5’7 in height, of medium built, and none had a pot-belly.
15. PW6 was Corporal Joylene Chebet, the Investigating Officer. She testified that on 04/02/2024 she was at her place of work at Kapteren Police Post when 2 women accompanied by a victim reported an allegation of defilement. She testified that she booked the Report and they then went to Kapteren Health Centre where the doctor confirmed that the minor had been defiled, and that on 5/02/2024, she took the minor for further check-up at Iten Hospital where it was again confirmed that she had been defiled. She stated that the minor told her that her mother had sent her around 4.00 pm to get sheep, when on her way back, she met a person familiar in face but she did not know his name, who was tall and was smoking and who pulled her to the bush and defiled her. She stated further that the minor told her that the assailant instructed her not to tell anyone and not to turn back, and that she informed her mother when she reached home. PW6 stated that she visited the scene on 06/02/2024 but did not recover any exhibits, that on 7/07/2024 members of the public brought one suspect and were looking for another, that she decided to conduct an identification parade which was then conducted by the OCS and in which the 2 suspects were part of. She stated further that the minor identified out the Appellant as the assailant, upon which PW6 charged the Appellant for the offence.
16. She then produced the minor’s Certificate of Birth and the stained clothes. In cross-examination, she stated that the minor knew the Respondent by face but she did not know his name, and told PW6 that the assailant was tall, light-skinned and smoked, although PW6 agreed that she did not record this description in her Statement. She stated further that the whole village teamed up in arresting the Appellant who was brought to the station together with his cousin. She also agreed that the Occurrence Book described the assailant as “unknown person” and that no description was made therein. She also reiterated that the penetration was in the vagina, and that the Appellant was arrested about 3 kilometres away from the scene. She further stated that the minor did not describe the clothing worn by the assailant. In conclusion, she stated that she was present during the identification parade.
Defence evidence at the trial Court
17. As aforesaid, upon close of the trial, the Magistrate found the Appellant as having a case to answer and placed him on his defence. The Appellant, in his defence, then gave sworn testimony and called 3 other witnesses of his own.
18. Led by his Counsel, Mrs Orina, the Appellant testified as DW1. He stated that he lives in Kapkoi and repairs motor-cycles at Kapkoi Centre and that he is a family man, married and with a child whom he lives with, although he had separated with his wife. He denied knowing the minor and stated that he saw her for the first time during the identification parade.
19. He pointed out that the Chief referred to by the Prosecution witnesses did not record a Statement and he stated that on the date of the alleged offence, a Sunday, he was at home watching movies with his brother when was he told that his photograph was circulating on social media. He stated that one Philip, a village elder, came and told him to accompany him and that he was then taken to the police station. He stated that the OCS told him that a child had been defiled and they were then paraded and the child identified him. He stated that he changed his position on the parade and the child identified him the second time, and the third time. He stated his suspicion that the child may have only pointed him out in the parade because of the circulated photograph although he conceded that he never himself saw it. He denied any knowledge of the scene of crime which he stated, costs Kshs 50/- in transport to reach from his home, and wondered how would opt to go to a shop that far. He stated that the OCS did not ask him any questions before the Identification parade was conducted, that some of the participants in the parade were taller than him, some were shorter and that they were of all ages, young and old, and also some were fat. He stated that his own height is 6’5 and he does not take any drugs. He denied any knowledge of the minor’s family and stated that he had no grudge against her. He then pointed out that no DNA test was conducted and stated that he was framed.
20. DW2 was Barnaba Kipkoech, who testified that he is the Appellant’s father. He stated that he lives with the Appellant and the Appellant’s child and that the child’s mother left. He stated that on 4/02/2024, he was at home with the Appellant and the Appellant’s said child and he is therefore not aware that the Appellant went to defile the minor. He stated that he left home at 6.00 pm and left the Appellant at home with the child.
21. DW3 was Nickson Kipchumba, who stated that he is a cousin/brother to the Appellant. He stated that on 04/02/2024 between 4.30-6.30 pm, a Sunday, he was at home all day, that the Appellant watched movies until 1.00 pm, that he (DW3) stayed with the Appellant and the Appellant’s child until 5.30 pm when DW3 left went out. In cross-examination, he conceded that they live separately and he could not therefore account for the Appellant’s movements.
22. DW4 was Sandra Cherono Kemboi, who stated that she works at a hardware and that the Appellant is a mechanic at the same place. She testified that on 07/02/2024 she was at work with the Appellant when she heard people conversing that the Appellant’s photograph was circulating at Kapkoi Trading Center, that the Appellant was then arrested at his workplace, and that it is the village elder who picked him up. She stated that she never saw the photograph, and that the Appellant never goes near the village as he works from 8.00-5.00 pm from Monday to Saturday. In cross-examination, she, too, agreed that she does not live with the Appellant and thus could not account for his movements.
23. As aforesaid, after close of the trial, the trial Court convicted the Appellant on the main charge and sentenced him to serve 50 years imprisonment.
Hearing of the Appeal
24. The Appeal was canvassed by way of written Submissions. The Appellant’s Counsel filed the Submissions dated 16/12/2024 while the Respondent, through Prosecution Counsel Racheal Mwangi, filed the Submissions dated 22/05/2025.
Appellants’ Submissions
25. As was the case with the Petition of Appeal, the Appellant’s Counsel, again, filed a lengthy 27-page Submissions! I will try my best to recount an abridged narrative thereof.
26. Counsel submitted that the first 4 grounds of Appeal mostly touch on identification of the Appellant which is the main issue for determination. She urged that the minor gave testimony that varied significantly to what was stated in the statements that were supplied to the Appellant. She stated that she had attached copies of the Statements to the Submissions. At this point, I must state that I will not look at the said Statements since ordinarily, written Statements made to the police in criminal matters by witnesses, do not form part of the Court record as they are not shared with the Court. Perusing the Statements at this Appellate stage may therefore amount to an irregularity in procedure.
27. Counsel pointed out that the minor wrote her Statement on 07/02/2024, three days after the alleged date of the incident, in which she stated that the time of the incident was around 4:30 pm, that the incident occurred in a forested area, and that, most importantly, the perpetrator was unknown. She referred to the minor’s narration of the harrowing ordeal and severe trauma that she was subjected to, and also the minor’s narration that the assailant ordered her not to look back, which she admittedly obeyed. Counsel urged that under such traumatic environment which lasted a short while (one minute as alleged by the minor), although it was during day time, it is hard to imagine that a positive identification of a stranger could be made. She cited the case of Frederick Gitonga Mungania & Others v R, Voi High Court Criminal Appeal No. 21 of 2020 & E003 & E068 of 2021 (Consolidated). She also urged that the minor’s testimony was a departure from her initial report. She referred to the minor’ testimony of familiarity with the Applicant that the Appellant was a customer at their shop, and that the Appellant had a conversation with her about some house keys before defiling her. She submitted that these allegations were not included in the minor’s original statement and were thus calculated to prejudice the Appellant. She cited the case of Ndung’u Kimani Versus Republic (1979) KLR 282.
28. Counsel also referred to the minor’s testimony that she even timed the duration of the defilement ordeal with her phone, and wondered whether this is the same phone which the minor admitted, was forcefully taken from her by the assailant before the act. Counsel submitted that these discrepancies are critical as it is what the trial Court relied on in believing the single witness. She cited the case of R vs Turnbull and others (1976) all ER 549. She also referred to the minor’s testimony that she was wearing a pink skirt, pink biker and a blue trouser and submitted that there was no mention of a sweater in her Statement, and which was not produced as an exhibit with the rest of the clothes. According to Counsel, the issue of the sweater was a part of the made-up story. She also pointed out that the minor stated that the assailant sneaked through a “back door” and grabbed her sweater yet the scene of a crime was allegedly a forest, that the trial Magistrate in her Judgment referred to it as “sneaked through the barbed wire” yet no evidence was led by the Prosecution on the existence of “doors” or “barbed wire” in the forest. She also pointed out the confusion in the testimonies on whether the minor was in the forest to tend to sheep or to fetch firewood. According to Counsel, these contradictions ought to be resolved in favour of the Appellant. She cited High Court of Kenya at Kajiado, Criminal Appeal No. 15 of 2020 – Abel Maina Mburu versus Republic.
29. Counsel then referred to Section 124 of the Evidence Act and submitted that the minor’s evidence is clearly erratic, and confused and cannot be singly relied upon in such a grave matter as this one, that this is one of those cases that are exceptions in sexual offences’ testimony by a single eye-witness where corroboration is needed and that Section 124 was not properly invoked by the trial Magistrate in this case. She cited Criminal Appeal at Kabarnet - No. 16 of 2019 - Nicholas Kipng’etich Mutai vs Republic, the case of Abdalla Bin Wendo Versus Republic (1953) 20 EACA 166 and also the case of the case of Wamunga vs Republic (1989) KLR 424. She then submitted that from the Judgment, the reasoning of the trial Court for convicting the Appellant was the positive identification at the identification parade, which parade, according to Counsel, was a sham and the trial Court should not have relied on it. She cited the Appellant’s testimony that the OCS (PW5) admitted to having singled out the Appellant 3 times before each pick before the minor got to pick him out, and submitted that this was contrary to Rules 6(iv) of the Force Standing Orders, that the parade was made up of persons of irregular heights and sizes, a fact that the minor admitted to, and is contrary to Rule No.6 (d) of the Standing Orders, and that although PW5 affirmed that she picked people of similar height and age, the same could not be affirmed by the Parade Forms produced as exhibits. She submitted that the Forms have no notes or comments from the Appellant as required under Rule No.6 (j), (k) and (m), apart from the names of those who participated.
30. She submitted further that Rule No. 6 (iv) (a) (c) of the Standing Orders were also flouted as the Appellant was not informed of the reason for the parade and that he was never advised on his right to have a Solicitor or friend present. Counsel added that, on the Investigating Officer’s own admission, the suspect’s description was not given to the Investigating Officer at the time of reporting hence there is no record of the suspect’s description at the time of crime for similar looking persons to be produced or referred to during the trial. She cited High Court Criminal Appeal No. 47 of 2019 at Naivasha – Robert Muniu Gichoge vs The Republic. She submitted further that the description that the minor later gave in Court was after having already been introduced to him in the identification parade. According to Counsel, the Appellant was a victim of suspicion and vendetta. She also cited Criminal Appeal at Kabarnet - No. 16 of 2019 - Nicholas Kipng’etich Mutai vs Republic. She then submitted that the rest of the Prosecution witnesses’ evidence, especially PW2 and PW3, was based on hearsay, that these two witnesses also recanted and deviated from their original written statements and supported and adopted the minor’s testimony. Counsel observed that the issue of the Appellant being a previous customer in PW2’s shop also was never recorded in her initial Statement, and she failed to answer, during cross examination, why someone should come all the way from Kapkoi area about 5 kilometres away, use Kshs 50/- to come and buy items like mandazi, kangumu for almost a similar amount and yet these items are common and easily available at the Appellant’s place of work.
31. She also submitted that the Investigating Officer’s (PW6) testimony in Court was at variance with her Statements as she echoed the testimonies of the other witnesses, though she added another aspect to it, that the perpetrator was a smoker, a fact that was denied by the Appellant and no proof was led by the Prosecution to establish it. On the medical examination, Counsel pointed out that the medical Report indicates that there was vaginal traumatic penile penetration, but the laboratory results presented showed negative results, including the absence of spermatozoa, and she observed that no sample from the Appellant was taken. She observed that the minor however categorically stated, and even illustrated to Court, that she was penetrated from the anus. According to Counsel therefore, this is a contradiction between the
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JUDGMENT
1. The Appellant was charged in the said criminal case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on 4/02/2024 at around 1630 hours at Maan village, Kapkoi sub-location, Mutei Location, in Keiyo North sub-County, within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of GJ, a child aged 9 years old. The Appellant was also charged with the alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were on the same date, time and place, he intentionally and unlawfully touched the vagina of the same child aged 9 years with his penis.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which he was represented by Mrs. Orina Advocate, and in which the Prosecution called 6 witnesses. At the close of the Prosecution case, the Court found the Appellant as having a case to answer and placed him on his defence. The Appellant then gave a sworn statement, was cross-examined, and called 3 witnesses. By the Judgment delivered on 26/09/2024, he was convicted on the main charge, and sentenced to 50 years’ imprisonment.
3. Dissatisfied with the Judgment, the Appellant through the firm of Messrs Manyoni Orina & Co. Advocates, filed this Appeal by way of the Petition of Appeal dated 08/10/2024, which I must say, is actually more of final written Submissions that what the law recognizes as a Petition of Appeal. Be that as it may, the grounds preferred are as follows:
i) That the learned Honourable Magistrate erred in law and fact by failing to subject the entire evidence tendered in the course of the hearing to an exhaustive scrutiny and therefore arriving at a verdict that was manifestly unsafe.
ii) That the learned Magistrate erred in law and in fact by failing to find that the identification of the Appellant was not proper as the complainant was grabbed from behind by an unknown person who defiled her from her anus while she facing down and he warned her not to look at her which she obeyed, that there was therefore little or no chance of the complainant seeing her perpetrator as per her statement and testimony. The Prosecution failed to place the Appellant at the scene of crime even by means of phone technology. Identification was therefore not subjected to scrutiny and validation on the accepted standards to warrant a conviction on the part of the Appellant
iii) That the learned trial Magistrate erred both in law and fact in finding that the identification parade was properly conducted and relying on the same when in fact it was flawed, irregular and did not adhere to the rules of the parade for a witness to make any significant identification. That the complainant PW1 was coached and shown clothes and photographs of the Appellant before the parade to enable her pick on him.
iv) That the Honourable Magistrate faulted in law and fact by convicting the Appellant on evidence that was very incredible as the charges against the Appellant were not adequately proved to point to his guilt thus rendering prejudice. The Honourable Court relied on extraneous opinion as to the manner the sexual offence occurred despite the clear explanation by the complainant PW1 that she was actually sodomised.
v) That the Honourable Magistrate erred in law and in fact by finding that the complainant had earlier on met the Appellant before the alleged act, when the same was an afterthought and false, not being in any of the Prosecution witness statements, an indication that the Appellant was framed and implicated for a crime he did not commit.
vi) That the Learned Honorable Magistrate erred in Law and fact by failing to have regard to the act of material contradictions of evidence during the entire Court proceeding, especially the act that the complainant testified having been defiled from her anus and the evidence that was led by the prosecution was that of vaginal penetration, which pointed to the fact that the case was not proved to the required evidence.
vii) THAT the learned Magistrate erred in law and fact by failing to take judicial notice that the appellant was a very tall man above 6 inches feet and the perpetrator was a man of short stature as explained by the complainant, being her only recollection if any of her perpetrator - as documented in the medical records produced by the prosecution.
viii) THAT the Learned Magistrate erred both in law and fact by convicting the Appellant on the basis of the evidence of a single minor complainant which was materially inconsistent, made up and was basically afterthoughts which did not constitute her statement and was not corroborated even by medical evidence such as DNA sample matches to link the appellant to the said crime and therefore fatally insufficient to constitute a safe conviction,
ix) THAT the Learned Honorable Magistrate erred in Law and fact by failing to properly evaluate the evidence by the defence, including his alibi evidence whereby he called two witnesses who were with him at the alleged time of crime. The defence witnesses together with the appellants written submission were disregarded and not taken into account at all.
4. At this point, I am obligated to comment that the Court of Appeal has on several occasions reminded litigants that this practice of filing unnecessarily verbose and argumentative Memoranda or Petitions of Appeal is wrong and unnecessary. Lengthy and verbose pleadings, are not only irritating but also many a time end up containing duplication and repetition and rarely adds any value to the content thereof There are for instance, the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR, the case of William Koross v. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, the case of Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR, and also the case of case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR.
5. The 9 verbose grounds cited above can, in fact, be simply all summarized into one brief ground, namely, “whether the Prosecution proved its case beyond reasonable doubt”
6. Be that as it may, Counsel for the Appellant further filed the Supplementary Petition of Appeal dated 12/11/2024, although I cannot find evidence that she sought and/or obtained leave to do so. The two additional grounds cited are the following;
i) That the learned Honourable Magistrate erred in law by recording some parts of the proceedings narrative that are different from the actual testimony given in Court.
ii) That the learned Magistrate failed to have regard to the witness testimonies as narrated during the hearing of the trial before her and drew conclusions and formed opinions without properly analysing the evidence given.
Prosecution evidence at the trial Court
7. PW1 was the minor. The Court conducted a voire dire examination and concluded that the minor understood the meaning of an oath, and thus allowed her to give sworn evidence.
8. The minor then testified that she was 9 years old Grade 4 pupil and referred to her Certificate of Birth, which indicated that she was born on 02/07/2014. She stated that on 04/04/2024 at around 4.30 pm – 5.00 pm, she had gone to the forest to fetch firewood and on her way back, she met “Tony” (the Appellant) who told her that he had lost his house keys, but who then sneaked through the “back door” and dragged her to the forest while threatening to kill her and covered her mouth. She stated that the Appellant asked her whether “she had ever done it” and then took away her phone. She testified further that the Appellant then put his ‘dudu’ in her anus and made her lie down on her back, that she was wearing a pink skirt and a biker which he removed and he threatened her when she tried to pull them up. She testified that the act lasted between 4.29 pm and 4.30 pm as she checked in the phone, that she felt a lot of pain and asked him to stop but he refused, that when she went home, she told her mother what had happened and she was taken to the hospital and treated at Kapteren.
9. She testified that the Appellant was a customer at their shop and that it was her second time seeing him. She also identified in Court, the clothes that she was wearing on the said date, namely, a skirt, biker and pants. Under cross-examination by Mrs. Orina, the defence Counsel, the minor stated that their shop sells “KDF”, kangumu, sweets, sugar and biscuits. She also stated that she had not met the Appellant before the incident and she did not know him before then. She described the assailant as brown, tall and not fat, and that he was wearing a black trouser. She stated further that the assailant (Appellant) threated to kill her if she turned to face him and thus, she did not do so but she saw his face when he was leaving. She stated further that she was taken to the police station where she narrated the incident, and that she identified the Appellant in a line of many people. She also stated that she did not know his name before the incident and only learnt of the same at the police station.
10. She stated further that the Chief brought the old black jacket and trousers that the Appellant was wearing on the said date, which she identified at the police station. She stated that there were 6 people at the parade at the police station and none of them was wearing the old black jacket. She then agreed that her statement indicates that “an unknown person” grabbed her from the back.
11. PW2 was AJ, who stated that she is the minor’s grandmother. She testified that the minor was born on 04/02/2024 and she, too, referred to the Certificate of Birth. She stated that on 4/02/2024, at 4.30 pm, she sent the minor to go and fetch firewood but shortly afterwards, the minor came back crying, and that she was with her in-law and the minor told them that she had been grabbed by someone, pointing at her vagina. She stated that upon checking the minor’s private parts, she noted the presence of bloodstains on her clothes and they concluded that she had been defiled, that they rushed her to the hospital and later, she described the person who had defiled her as he was unknown to her. She testified further that the clothes were taken by police officers and they were issued with treatment notes, P3 Form, PRC Form and Laboratory Report which she then identified. She testified that the Appellant was arrested during an identification parade, that she did not know his name but that he was a customer at her shop. In cross-examination, she stated that they did not know the Appellant but stated that “he normally walks around the village” and that the Chief identified the Appellant and the villagers were also involved. According to her, the minor was penetrated in the vagina as she opened the minor’s legs and saw it. She stated that the Appellant comes from Kapkoi area and that it is the Chief who brought him to the station
12. PW3 was Teresia Cherop who stated that on 4/02/2024 around 4.30 pm – 5.00 pm, she had gone to visit PW2, her in-law, who then sent the minor to fetch sheep from the forest but who came back shortly, crying that she had been beaten by an unknown person. She stated that the minor lay down and they checked her private parts and noted that her clothes had stains, that they rushed her to the hospital and the doctor confirmed that she had been defiled, upon which they went to the station and reported the matter. She testified that after 4 days, PW2 informed her that the perpetrator had been arrested and they went to the police station where the minor identified the assailant (Appellant) during an identification parade. She then identified the Appellant in the dock and stated that she did not know him before the parade. In cross-examination, she insisted that the defilement was in the minor’s vagina and that she did not know how the Appellant was arrested.
13. PW4 was Philemon Kittony, a clinical officer. He stated that the minor, aged 9 years old, went to the facility on 5/02/2024 with a history of defilement. She testified that the minor’s inner clothes were soaked in blood, that on examination, she established that the minor’s labia majora and minora were bruised, the hymen membrane was torn, the vagina wall had a tear at 8.00, 9.00 o’clock description, and that she had a bruise on the vestibular. She testified further that the bleeding had stopped, and that the injures had occurred less than 72 hours before. She stated further that the date of the incident was reported as 4/02/2024 at 4.30 pm, and that the laboratory results revealed the presence of a few epithelial cells. She then testified that she made the conclusion that there had been recent vaginal penetration, and she then produced the laboratory results, and the PRC and P3 Forms. In cross-examination, she stated that no DNA test was conducted, that it is the tear within the vaginal wall that caused the bleeding, and that the anus was intact as noted in her Report that “NAD (nothing abnormal detected). She thus reiterated that there was only recent vaginal penetration. She also stated that the Appellant was not produced at the facility for examination.
14. PW5 was Police Officer Elias Kiptoo who testified that he conducted an identification parade on 07/02/2024, that the victim was 9 years old and the accused (Appellant) was one “Tony”. He stated that he was the OCS Iten at that time, that he arranged 8 men similar to the Appellant whom he notified of the purpose of the parade, and that he brought the minor who then pointed out the Appellant. He testified that the Appellant stated that he was comfortable in the position that he was standing. He stated that he conducted the parade a second time and told the Appellant to change clothes and position, and the minor again identified the Appellant. He stated further that he conducted the parade a third time, this time the Appellant wore his initial clothes and position and yet again, the minor pointed him out. PW5 then identified the Appellant in Court and also produced the identification parade Report (Form 156). In cross-examination, he stated that he is a Chief Inspector, and that the Appellant was brought to the station by members of the public. He stated that he instructed the Investigating Officer to look for 7 people of similar age, height and skin colour, that the Appellant is brown and 5’8 in height, that it was a closed room and there were only the 8 people, together with him. He however agreed that the Appellant did not have a friend or Counsel at the parade and stated that the Investigating Officer was present. He testified that it is the members of the public who arrested two people (including the Appellant) and that the minor was outside the parade room and was not shown the Appellant’s clothes. In re-examination, he stated that the signature at the back of the Form is the Appellant’s, and that he listed the people who participated in the parade and he did not expose the Appellant to members of the public or to the minor. He stated that the participants in the parade were about 5’8 and 5’7 in height, of medium built, and none had a pot-belly.
15. PW6 was Corporal Joylene Chebet, the Investigating Officer. She testified that on 04/02/2024 she was at her place of work at Kapteren Police Post when 2 women accompanied by a victim reported an allegation of defilement. She testified that she booked the Report and they then went to Kapteren Health Centre where the doctor confirmed that the minor had been defiled, and that on 5/02/2024, she took the minor for further check-up at Iten Hospital where it was again confirmed that she had been defiled. She stated that the minor told her that her mother had sent her around 4.00 pm to get sheep, when on her way back, she met a person familiar in face but she did not know his name, who was tall and was smoking and who pulled her to the bush and defiled her. She stated further that the minor told her that the assailant instructed her not to tell anyone and not to turn back, and that she informed her mother when she reached home. PW6 stated that she visited the scene on 06/02/2024 but did not recover any exhibits, that on 7/07/2024 members of the public brought one suspect and were looking for another, that she decided to conduct an identification parade which was then conducted by the OCS and in which the 2 suspects were part of. She stated further that the minor identified out the Appellant as the assailant, upon which PW6 charged the Appellant for the offence.
16. She then produced the minor’s Certificate of Birth and the stained clothes. In cross-examination, she stated that the minor knew the Respondent by face but she did not know his name, and told PW6 that the assailant was tall, light-skinned and smoked, although PW6 agreed that she did not record this description in her Statement. She stated further that the whole village teamed up in arresting the Appellant who was brought to the station together with his cousin. She also agreed that the Occurrence Book described the assailant as “unknown person” and that no description was made therein. She also reiterated that the penetration was in the vagina, and that the Appellant was arrested about 3 kilometres away from the scene. She further stated that the minor did not describe the clothing worn by the assailant. In conclusion, she stated that she was present during the identification parade.
Defence evidence at the trial Court
17. As aforesaid, upon close of the trial, the Magistrate found the Appellant as having a case to answer and placed him on his defence. The Appellant, in his defence, then gave sworn testimony and called 3 other witnesses of his own.
18. Led by his Counsel, Mrs Orina, the Appellant testified as DW1. He stated that he lives in Kapkoi and repairs motor-cycles at Kapkoi Centre and that he is a family man, married and with a child whom he lives with, although he had separated with his wife. He denied knowing the minor and stated that he saw her for the first time during the identification parade.
19. He pointed out that the Chief referred to by the Prosecution witnesses did not record a Statement and he stated that on the date of the alleged offence, a Sunday, he was at home watching movies with his brother when was he told that his photograph was circulating on social media. He stated that one Philip, a village elder, came and told him to accompany him and that he was then taken to the police station. He stated that the OCS told him that a child had been defiled and they were then paraded and the child identified him. He stated that he changed his position on the parade and the child identified him the second time, and the third time. He stated his suspicion that the child may have only pointed him out in the parade because of the circulated photograph although he conceded that he never himself saw it. He denied any knowledge of the scene of crime which he stated, costs Kshs 50/- in transport to reach from his home, and wondered how would opt to go to a shop that far. He stated that the OCS did not ask him any questions before the Identification parade was conducted, that some of the participants in the parade were taller than him, some were shorter and that they were of all ages, young and old, and also some were fat. He stated that his own height is 6’5 and he does not take any drugs. He denied any knowledge of the minor’s family and stated that he had no grudge against her. He then pointed out that no DNA test was conducted and stated that he was framed.
20. DW2 was Barnaba Kipkoech, who testified that he is the Appellant’s father. He stated that he lives with the Appellant and the Appellant’s child and that the child’s mother left. He stated that on 4/02/2024, he was at home with the Appellant and the Appellant’s said child and he is therefore not aware that the Appellant went to defile the minor. He stated that he left home at 6.00 pm and left the Appellant at home with the child.
21. DW3 was Nickson Kipchumba, who stated that he is a cousin/brother to the Appellant. He stated that on 04/02/2024 between 4.30-6.30 pm, a Sunday, he was at home all day, that the Appellant watched movies until 1.00 pm, that he (DW3) stayed with the Appellant and the Appellant’s child until 5.30 pm when DW3 left went out. In cross-examination, he conceded that they live separately and he could not therefore account for the Appellant’s movements.
22. DW4 was Sandra Cherono Kemboi, who stated that she works at a hardware and that the Appellant is a mechanic at the same place. She testified that on 07/02/2024 she was at work with the Appellant when she heard people conversing that the Appellant’s photograph was circulating at Kapkoi Trading Center, that the Appellant was then arrested at his workplace, and that it is the village elder who picked him up. She stated that she never saw the photograph, and that the Appellant never goes near the village as he works from 8.00-5.00 pm from Monday to Saturday. In cross-examination, she, too, agreed that she does not live with the Appellant and thus could not account for his movements.
23. As aforesaid, after close of the trial, the trial Court convicted the Appellant on the main charge and sentenced him to serve 50 years imprisonment.
Hearing of the Appeal
24. The Appeal was canvassed by way of written Submissions. The Appellant’s Counsel filed the Submissions dated 16/12/2024 while the Respondent, through Prosecution Counsel Racheal Mwangi, filed the Submissions dated 22/05/2025.
Appellants’ Submissions
25. As was the case with the Petition of Appeal, the Appellant’s Counsel, again, filed a lengthy 27-page Submissions! I will try my best to recount an abridged narrative thereof.
26. Counsel submitted that the first 4 grounds of Appeal mostly touch on identification of the Appellant which is the main issue for determination. She urged that the minor gave testimony that varied significantly to what was stated in the statements that were supplied to the Appellant. She stated that she had attached copies of the Statements to the Submissions. At this point, I must state that I will not look at the said Statements since ordinarily, written Statements made to the police in criminal matters by witnesses, do not form part of the Court record as they are not shared with the Court. Perusing the Statements at this Appellate stage may therefore amount to an irregularity in procedure.
27. Counsel pointed out that the minor wrote her Statement on 07/02/2024, three days after the alleged date of the incident, in which she stated that the time of the incident was around 4:30 pm, that the incident occurred in a forested area, and that, most importantly, the perpetrator was unknown. She referred to the minor’s narration of the harrowing ordeal and severe trauma that she was subjected to, and also the minor’s narration that the assailant ordered her not to look back, which she admittedly obeyed. Counsel urged that under such traumatic environment which lasted a short while (one minute as alleged by the minor), although it was during day time, it is hard to imagine that a positive identification of a stranger could be made. She cited the case of Frederick Gitonga Mungania & Others v R, Voi High Court Criminal Appeal No. 21 of 2020 & E003 & E068 of 2021 (Consolidated). She also urged that the minor’s testimony was a departure from her initial report. She referred to the minor’ testimony of familiarity with the Applicant that the Appellant was a customer at their shop, and that the Appellant had a conversation with her about some house keys before defiling her. She submitted that these allegations were not included in the minor’s original statement and were thus calculated to prejudice the Appellant. She cited the case of Ndung’u Kimani Versus Republic (1979) KLR 282.
28. Counsel also referred to the minor’s testimony that she even timed the duration of the defilement ordeal with her phone, and wondered whether this is the same phone which the minor admitted, was forcefully taken from her by the assailant before the act. Counsel submitted that these discrepancies are critical as it is what the trial Court relied on in believing the single witness. She cited the case of R vs Turnbull and others (1976) all ER 549. She also referred to the minor’s testimony that she was wearing a pink skirt, pink biker and a blue trouser and submitted that there was no mention of a sweater in her Statement, and which was not produced as an exhibit with the rest of the clothes. According to Counsel, the issue of the sweater was a part of the made-up story. She also pointed out that the minor stated that the assailant sneaked through a “back door” and grabbed her sweater yet the scene of a crime was allegedly a forest, that the trial Magistrate in her Judgment referred to it as “sneaked through the barbed wire” yet no evidence was led by the Prosecution on the existence of “doors” or “barbed wire” in the forest. She also pointed out the confusion in the testimonies on whether the minor was in the forest to tend to sheep or to fetch firewood. According to Counsel, these contradictions ought to be resolved in favour of the Appellant. She cited High Court of Kenya at Kajiado, Criminal Appeal No. 15 of 2020 – Abel Maina Mburu versus Republic.
29. Counsel then referred to Section 124 of the Evidence Act and submitted that the minor’s evidence is clearly erratic, and confused and cannot be singly relied upon in such a grave matter as this one, that this is one of those cases that are exceptions in sexual offences’ testimony by a single eye-witness where corroboration is needed and that Section 124 was not properly invoked by the trial Magistrate in this case. She cited Criminal Appeal at Kabarnet - No. 16 of 2019 - Nicholas Kipng’etich Mutai vs Republic, the case of Abdalla Bin Wendo Versus Republic (1953) 20 EACA 166 and also the case of the case of Wamunga vs Republic (1989) KLR 424. She then submitted that from the Judgment, the reasoning of the trial Court for convicting the Appellant was the positive identification at the identification parade, which parade, according to Counsel, was a sham and the trial Court should not have relied on it. She cited the Appellant’s testimony that the OCS (PW5) admitted to having singled out the Appellant 3 times before each pick before the minor got to pick him out, and submitted that this was contrary to Rules 6(iv) of the Force Standing Orders, that the parade was made up of persons of irregular heights and sizes, a fact that the minor admitted to, and is contrary to Rule No.6 (d) of the Standing Orders, and that although PW5 affirmed that she picked people of similar height and age, the same could not be affirmed by the Parade Forms produced as exhibits. She submitted that the Forms have no notes or comments from the Appellant as required under Rule No.6 (j), (k) and (m), apart from the names of those who participated.
30. She submitted further that Rule No. 6 (iv) (a) (c) of the Standing Orders were also flouted as the Appellant was not informed of the reason for the parade and that he was never advised on his right to have a Solicitor or friend present. Counsel added that, on the Investigating Officer’s own admission, the suspect’s description was not given to the Investigating Officer at the time of reporting hence there is no record of the suspect’s description at the time of crime for similar looking persons to be produced or referred to during the trial. She cited High Court Criminal Appeal No. 47 of 2019 at Naivasha – Robert Muniu Gichoge vs The Republic. She submitted further that the description that the minor later gave in Court was after having already been introduced to him in the identification parade. According to Counsel, the Appellant was a victim of suspicion and vendetta. She also cited Criminal Appeal at Kabarnet - No. 16 of 2019 - Nicholas Kipng’etich Mutai vs Republic. She then submitted that the rest of the Prosecution witnesses’ evidence, especially PW2 and PW3, was based on hearsay, that these two witnesses also recanted and deviated from their original written statements and supported and adopted the minor’s testimony. Counsel observed that the issue of the Appellant being a previous customer in PW2’s shop also was never recorded in her initial Statement, and she failed to answer, during cross examination, why someone should come all the way from Kapkoi area about 5 kilometres away, use Kshs 50/- to come and buy items like mandazi, kangumu for almost a similar amount and yet these items are common and easily available at the Appellant’s place of work.
31. She also submitted that the Investigating Officer’s (PW6) testimony in Court was at variance with her Statements as she echoed the testimonies of the other witnesses, though she added another aspect to it, that the perpetrator was a smoker, a fact that was denied by the Appellant and no proof was led by the Prosecution to establish it. On the medical examination, Counsel pointed out that the medical Report indicates that there was vaginal traumatic penile penetration, but the laboratory results presented showed negative results, including the absence of spermatozoa, and she observed that no sample from the Appellant was taken. She observed that the minor however categorically stated, and even illustrated to Court, that she was penetrated from the anus. According to Counsel therefore, this is a contradiction between the
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