' (Being an Appeal against conviction and sentence in Mombasa Magistrates Courts S.O No. E080 of 2023 delivered on 11/9/2024 by Hon. G.A. OLIMO (SRM.
1. The appellant was charged with the offence of Sexual Assault contrary to Section 5(1)(a)(ii) as read with Section 5(2) of the Sexual Offences Act No. 3 of 2006, and faced an alternative count of Committing an Indecent Act with a Child contrary to Section 11(1) of the same Act.
2. The particulars of the main charge were that, on an unknown date during the month of August 2023 at Ashian Quarters Estate in Mvita Sub-County within Mombasa County, the appellant unlawfully penetrated the vagina of T.A.O a child aged five (5) years, using a stone manipulated by him. In the alternative count, he was charged with unlawfully and intentionally touching the vagina of the said child.
3. After a full trial, the appellant was found guilty on the main count and sentenced to twenty (20) years imprisonment. Aggrieved by the conviction and sentence, he lodged the present appeal.
4. In his amended grounds of appeal, the appellant contended that the learned trial magistrate erred in law and fact by failing to find that the prosecution had not proved its case beyond reasonable doubt; that the evidence was inconsistent and contradictory; and that the sentence imposed was harsh and excessive.
5. The appeal was canvassed by way of written submissions.
6. The appellant impugned the sufficiency and consistency of the prosecution evidence, particularly that of PW2 (Asanat Agustino) who gave two conflicting accounts concerning her observation of the minor’s condition.
7. He also highlighted inconsistencies in the testimony of PW3 (the complainant’s mother), who recalled that at Bandari Clinic, the minor stated she had been defiled by “a grown-up not known to her.”
8. PW4 (Dr. Brian) testified that the history given was that fingers had been inserted into the child’s private parts, whereas whilst PW5 (Cpl. Gladys)said the complainant first alleged penile penetration and later claimed a stone was used.
9. The appellant argued that these contradictions rendered the evidence unreliable, and that the sentence was harsh and excessive.
10. He cited Paul Kanja Gitari v Republic (2016) eKLR, Ndungu Kimani v Republic* (1979) KLR 282, and Dickson Amalemba Lisanza & Another v Republic* (2021) eKLR.
11. The respondent had not filed submissions by the time of this determination.
Determination
12. As the first appellate court, this Court must re-evaluate and analyze the evidence afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses (*Okeno v Republic* [1972] EA 32).
Whether the Prosecution Proved Its Case Beyond Reasonable Doubt** 13. 13. Section 5 of the Sexual Offences Act defines the offence of sexual assault. Its essential elements are : proof of penetration and positive identification of the perpetrator
. 14. Penetration may be proved through the complainant’s testimony corroborated by medical evidence.
But we bear in mind the provisions of Section 124 of the Evidence Act permits a conviction on the sole testimony of the complainant if the court believes it and records reasons.
15. The appellant pointed to inconsistencies between the complainant’s version and those of her mother, the doctor, and the investigating officer. 16. The Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) held that contradictions in sexual offence cases must be carefully weighed because such offences often occur in secrecy.
17. In Philip Nzaka Watu v Republic [2016] eKLR, the court observed that minor discrepancies are normal, but material contradictions that go to the root of the case may render the evidence unreliable.
18. In this case, the complainant, a child of tender years, underwent voir dire examination and gave an unsworn statement. She said “Babake Jamilo” led her into his house and inserted a big stone into her private parts.
19. PW4 (Dr. Brian) produced medical forms showing a freshly broken hymen, redness, and swelling.
20. At a first glance, this appeared to corroborate the complainant’s story. However, deeper scrutiny reveals inconsistencies. The P3 form indicated the minor reported defilement by a known person and even the doctor or clinician who filed the p3 form noted under nature of offence defilement. At bandari clinic she had said ”nilishikwa na mtu simjui’ translated to I was defiled by some un known person In fact this is the charge that was initially brought to court and the prosecutor only amended it to sexual assault after the minor gave evidence.
21. Amendments of charges are allowed under section 204 0f the criminal procedure code but in this case there were too many red flags.
20. It defies common sense that a large stone could penetrate a five-year-old without causing cuts or lacerations to the vaginal walls or external genitalia. The alleged mode of penetration appears improbable.
21. The record also contains three conflicting versions of the alleged act :by penis, by fingers, and by a stone. Such material contradictions go to the core of the prosecution’s case.
23. Further the date of the alleged offence was unknown, yet the hymen was described as “freshly torn,” raising further doubt as to the timeline and reliability of the evidence.
24. Bearing the above in mind the defence of pre-existing grudge between the complainant’s mother and the appellant ought to have been considered by the trial court. More so her threat to teach him a lesson.
24. While the Courts must zealously protect vulnerable child victims from sexual abuse, it must equally ensure that convictions rest on credible and consistent evidence. The inconsistencies herein create reasonable doubt.
25. Accordingly, this Court finds that the conviction was unsafe
Disposition
26. In view of the foregoing, the appeal succeeds . The conviction is quashed and the sentence of twenty (20) years imprisonment is set aside.
27. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
28. Any security deposited shall be released to the depositor.
DATED, SIGNED AND DELIVERED IN OPEN COURT / ONLINE VIA MS TEAMS This 23rd day of October 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
- The Appellant and his Advocate
- Mr. Ngiri for the State
- Bebora, Court Assistant –
'
1. The appellant was charged with the offence of Sexual Assault contrary to Section 5(1)(a)(ii) as read with Section 5(2) of the Sexual Offences Act No. 3 of 2006, and faced an alternative count of Committing an Indecent Act with a Child contrary to Section 11(1) of the same Act.
2. The particulars of the main charge were that, on an unknown date during the month of August 2023 at Ashian Quarters Estate in Mvita Sub-County within Mombasa County, the appellant unlawfully penetrated the vagina of T.A.O a child aged five (5) years, using a stone manipulated by him. In the alternative count, he was charged with unlawfully and intentionally touching the vagina of the said child.
3. After a full trial, the appellant was found guilty on the main count and sentenced to twenty (20) years imprisonment. Aggrieved by the conviction and sentence, he lodged the present appeal.
4. In his amended grounds of appeal, the appellant contended that the learned trial magistrate erred in law and fact by failing to find that the prosecution had not proved its case beyond reasonable doubt; that the evidence was inconsistent and contradictory; and that the sentence imposed was harsh and excessive.
5. The appeal was canvassed by way of written submissions.
6. The appellant impugned the sufficiency and consistency of the prosecution evidence, particularly that of PW2 (Asanat Agustino) who gave two conflicting accounts concerning her observation of the minor’s condition.
7. He also highlighted inconsistencies in the testimony of PW3 (the complainant’s mother), who recalled that at Bandari Clinic, the minor stated she had been defiled by “a grown-up not known to her.”
8. PW4 (Dr. Brian) testified that the history given was that fingers had been inserted into the child’s private parts, whereas whilst PW5 (Cpl. Gladys)said the complainant first alleged penile penetration and later claimed a stone was used.
9. The appellant argued that these contradictions rendered the evidence unreliable, and that the sentence was harsh and excessive.
10. He cited Paul Kanja Gitari v Republic (2016) eKLR, Ndungu Kimani v Republic* (1979) KLR 282, and Dickson Amalemba Lisanza & Another v Republic* (2021) eKLR.
11. The respondent had not filed submissions by the time of this determination.
Determination
12. As the first appellate court, this Court must re-evaluate and analyze the evidence afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses (*Okeno v Republic* [1972] EA 32).
Whether the Prosecution Proved Its Case Beyond Reasonable Doubt** 13. 13. Section 5 of the Sexual Offences Act defines the offence of sexual assault. Its essential elements are : proof of penetration and positive identification of the perpetrator
. 14. Penetration may be proved through the complainant’s testimony corroborated by medical evidence.
But we bear in mind the provisions of Section 124 of the Evidence Act permits a conviction on the sole testimony of the complainant if the court believes it and records reasons.
15. The appellant pointed to inconsistencies between the complainant’s version and those of her mother, the doctor, and the investigating officer. 16. The Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) held that contradictions in sexual offence cases must be carefully weighed because such offences often occur in secrecy.
17. In Philip Nzaka Watu v Republic [2016] eKLR, the court observed that minor discrepancies are normal, but material contradictions that go to the root of the case may render the evidence unreliable.
18. In this case, the complainant, a child of tender years, underwent voir dire examination and gave an unsworn statement. She said “Babake Jamilo” led her into his house and inserted a big stone into her private parts.
19. PW4 (Dr. Brian) produced medical forms showing a freshly broken hymen, redness, and swelling.
20. At a first glance, this appeared to corroborate the complainant’s story. However, deeper scrutiny reveals inconsistencies. The P3 form indicated the minor reported defilement by a known person and even the doctor or clinician who filed the p3 form noted under nature of offence defilement. At bandari clinic she had said ”nilishikwa na mtu simjui’ translated to I was defiled by some un known person In fact this is the charge that was initially brought to court and the prosecutor only amended it to sexual assault after the minor gave evidence.
21. Amendments of charges are allowed under section 204 0f the criminal procedure code but in this case there were too many red flags.
20. It defies common sense that a large stone could penetrate a five-year-old without causing cuts or lacerations to the vaginal walls or external genitalia. The alleged mode of penetration appears improbable.
21. The record also contains three conflicting versions of the alleged act :by penis, by fingers, and by a stone. Such material contradictions go to the core of the prosecution’s case.
23. Further the date of the alleged offence was unknown, yet the hymen was described as “freshly torn,” raising further doubt as to the timeline and reliability of the evidence.
24. Bearing the above in mind the defence of pre-existing grudge between the complainant’s mother and the appellant ought to have been considered by the trial court. More so her threat to teach him a lesson.
24. While the Courts must zealously protect vulnerable child victims from sexual abuse, it must equally ensure that convictions rest on credible and consistent evidence. The inconsistencies herein create reasonable doubt.
25. Accordingly, this Court finds that the conviction was unsafe
Disposition
26. In view of the foregoing, the appeal succeeds . The conviction is quashed and the sentence of twenty (20) years imprisonment is set aside.
27. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
28. Any security deposited shall be released to the depositor.
DATED, SIGNED AND DELIVERED IN OPEN COURT / ONLINE VIA MS TEAMS This 23rd day of October 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
- The Appellant and his Advocate
- Mr. Ngiri for the State
- Bebora, Court Assistant –
'