John Wambua Moni v Republic

5. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment on 14th February 2023. B. Petition of Appeal & Amended Grounds of Appeal 6. 7. 8. Being dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal against both the conviction and sentence in his undated Memorandum of Appeal raising two grounds of appeal as follows:-. i. the learned trial magistrate erred in both fact and law by convicting him on evidence that didn’t meet the minimum threshold to uphold a conviction ii. the learned trial magistrate erred in both fact and law by not considering his sworn defence The Appellant has through his submissions further raised three amended grounds of appeal namely that: i. the learned trial Magistrate erred in law and facts to rely on penetration evidence when it was apparent that the Victims credibility rendered her testimony un- worth of belief. ii. the Learned trial Magistrate erred in law and facts to invoke Section 124 of the evidence Act without consistent medical corroboration evidence given that PWl did not understand the consequences of telling truth in Court. iii. the sworn defence evidence adduced by the Appellant was improperly rejected given the shoddy investigations conducted in this case thereby rendered Life sentence being harsh in the circumstances. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 29/04/2024 while the Respondent’s submissions are dated 07/03/2025 filed by Ms. Agatha Abang, prosecution counsel. I have had the opportunity to read through the parties’ respective submissions. C. Analysis and Determination 9. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appellate court which was well captured by the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where the Court stated thus: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 10. The court is not involved in finding evidence to support the conviction. It is involved in wholesome review of evidence and reaching its own conclusions. Guided by the above principle, I have carefully https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 2

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and exhaustively considered the grounds of appeal, the amended grounds of appeal, the evidence presented before the trial court and the written submissions filed on behalf of the Parties. 11. I have also keenly read the proceedings and judgment of the trial court. Having done so, I find that the issues arising for my determination are; i. whether the evidence adduced by the prosecution was sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt and; ii. whether the trial court failed to consider the Appellant’s sworn defence i. whether the evidence adduced by the prosecution was suffcient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt. 12. On the first issue, the offence of defilement is created by Section 8 (1) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) provides as follows: “ (1) 13. 14. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The ingredients of the offence of defilement were reiterated by the High Court in the case of George Opondo Olunga Vs Republic [2016] eKLR, which are: i. Proof of age of the complainant to be below 18 years ii. Proof of penetration iii. Proof that the accused person was the perpetrator (identification). The question which needs to be answered is whether the above ingredients were proved to the required standards? Age of minority 15. It is not in dispute that the complainant (PW1) at the time of the commission of the offence was six (6) years old as the same could be determined from the Birth Certificate produced as PExt.4 showing the complainant was born on 14/04/2013; and the age of the complainant has not been a subject of the instant appeal. The ingredient of age was therefore proved beyond reasonable doubt. Penetration 16. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows: “ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 17. The evidence touching on penetration herein is that PW1-Victim, PW2-victim’s cousin (ordinarily referred to as victim’s big sister) and PW4- Dr. John Mutunga who examined the victim. The trial court noted that the complainant PW1 aged 6 years did not understand the meaning of oath taking and therefore she gave unsworn statement. She proceeded to state that on the 9/11/2019 the Appellant was burning trees at her grandmother's farm. She was curious and approached the Appellant. He then requested her they go to the store to look for iron sheet. He opened the store and they entered. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 3

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Appellant then removed her short and he removed his trouser. The victim stated the Appellant did bad manners (she pointed at her vagina). She further stated that the Appellant used his part for peeing and put it on her part for peeing. She then heard PW2 voice calling. She came out first then the Appellant. She went to the house and told PW2 what happened. PW2 called her grandmother who came and checked if she was bleeding but she wasn’t. PW1 was taken to hospital by her grandmother and was treated. She couldn’t recall if she was given medicine. Before they went to hospital, they reported the incident at Masii police station. 18. PW2 testified that she did not find PWI in the compound and when she called out to the Appellant and the victim PWl, they came out of the shed, PWI came out first then the Appellant. She confirmed that when she questioned PWI what they were doing, she didn’t answer. She asked twice and the Appellant came out holding a small iron sheet and said he was looking for it. He proceeded to go down to the farm. She went with PW1 to the house and inquired what happened. She took a stick and threatened to beat her and she showed her signs of "moving back and farther" to her that showed the act of sex. PWI then told her in Kamba "ekitaa kunginda" which means he was having sex with her. PWI then started crying. PW2 then called the grandmother who came and she told her what happened. The grandmother came and PW2 was crying. S came and she told him and together they went looking for the Appellant but couldn’t find him. The grandmother called the first born who came and the grandmother also checked PW1. The next day they went to Masii where they were given an OB and they went to Machakos Level 5 Hospital. They went with their cousin a nurse at the hospital. PW1 was treated. The grandmother is JS. PW2 did not know what the doctor found. She confirmed PW1 was with her cousin the nurse when she was being examined. 19. PW4, Dr. John Mutunga who according to the record, appeared in court following issuance of warrant of arrest on 16/08/2022 by the trial court. PW4 testified that he had the Victim’s P3 form -PEx.3. She was aged 6 years. History was of alleged defilement on 02/12/2019 by a person known to her. PW1 had no physical injuries on her body but her private parts vagina was swollen and painful. Hymen was torn old not fresh. Lab results; HVS red blood cells seen, presence of blood in urine. HIV negative, pregnancy negative. Minor calm during examination. Form filled on 20/12/2019. On cross examination PW4 stated that urinalysis had presence of blood and her clothing were changed. 20. My careful and cautious consideration of the foregoing analysis of the evidence on the alleged penetration herein raises concerns and in congruencies that are inconsistent with the truth, that is:Whereas PW1 and PW2 (the minor witnesses herein) alleged that the incident occurred on 19/11/2019, PW4 the doctor testified that he was presented with a history of the alleged defilement having occurred on 02/12/2019. A difference of almost three weeks. When exactly did the alleged incident occur and was the Appellant connected to the incidences on both dates?Whereas PW1 testified that she went to the house and told PW2 what happened, PW2 testified that when she questioned PW I what they were doing, she didn’t answer. She asked twice and the Appellant came out holding a small iron sheet and said he was looking for it. He proceeded to go down to the farm. She went with PW1 to the house and inquired what happened. She took a stick and threatened to beat her and she showed her signs of "moving back and farther" to her that showed the act of sex. Is it that PW1 was threatened to say what PW2 wanted to hear or was she coerced into making an admission to the occurrence of the defilement. What was this "moving back and farther" that according to PW2 showed the act of sex. Could this also have been perceived to be a kind of dance by someone else?.Whereas PW1 testified that PW2 called her grandmother who came and checked if she was bleeding but she wasn’t, the Dr. PW4 who examined PW1 almost three weeks later testified that there was presence of blood in her urine. There was no indication whether this presence of blood in urine was as a result of the alleged defilement or an infection.Whereas PW2 testified that the next day they went to Masii Police Station where they were given an OB and then they went to Machakos Level 5 Hospital, the Doctor filled the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 4

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P3 Form on 20/12/2019 exactly a month after the incident as per the Charge Sheet and the evidence of PW1 and PW2.Whereas the doctor testified that the vagina was swollen and painful, he at the same time stated that PW1 was calm during examination.The Doctor confirmed that the hymen was torn old not fresh. If indeed PW1 went to hospital the following day after the incident as it is alleged then probably, she could have been examined by a different doctor and not Dr. Mutunga herein or that the torn old hymen was not connected to the defilement herein. It was not linked to the Appellant at all.According to PW3, Cpl Joseph Komen, the mother of PW1 went in search of the minor and saw the Appellant come out of the chicken pen. The Appellant ran away and she found the minor inside. She inquired and the minor informed her she had been defiled. She reported to police and took the minor to hospital. PW3’s evidence was at variance and in contradiction to the evidence of PW1 and PW2 who did not mention PW1’s mother at all. PW1’s mother was nowhere in the picture in this case.Lastly, this court is wondering why the grandmother JS who is said to have checked PW1 upon being informed of the alleged incident and the cousin nurse who accompanied her to hospital were not called to shed some light on the issue of defilement herein particularly whether the PW1’s bled after the alleged incident or the state of her private parts after the alleged incident considering that she was a child of only 6 years old. The grandmother would have been in a better position to inform the court what she saw when she checked PW1. 21. It is my position that, the fact that there was an old torn hymen does not mean that the Appellant was responsible. The hymen may have been broken long time ago and therefore not automatic that the complainant had to bleed. In this case it is not proved whether the victim bled after the alleged incident. It is also my considered opinion that the complainant’s swollen and painful vagina parts could have been as a result of many other factors including sexual assault. See Criminal Appeal Number 186 of 2010, P.K.W Vs Republic where the Court of Appeal at Nyeri held that: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girt child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. " 22. I therefore find that the ingredient of penetration was not proved to the required stand of proof beyond reasonable doubt. Proof that the accused person was the perpetrator (identification). 23. PWI testified that she was at her grandmother's farm where the Appellant was burning trees. PW2 confirmed that the Appellant had been hired to cut trees. PW2 was aware he was at the homestead as she called out his name first when she was looking for them. Further PW2 found them and saw them leave the shed, PWI first then the Appellant claiming he was getting the iron sheet. It was late in the afternoon thus still day time. 24. The court agrees that identification was by recognition which is the best form of identification and the Appellant could have been identified as such but then the Prosecution failed to prove beyond reasonable doubt that the Appellant committed the offence of defilement herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 5

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ii. whether the trial court failed to consider the Appellant’s sworn defence 25. The Appellant gave sworn evidence. He denied committing the indecent act with the complainant and contended that the case had been fabricated against him. He stated that Diana, PW2 wanted him and he refused since he had a family and didn’t want her. PW2 said she would put him in a place he will not remove himself. 26. In the judgement, the trial court only stated what the Appellant had said in his sworn defence as follows: “ DW1, stated that the case had been fabricated against him. That PW2 had wanted him and he refused her. That he had told her he had a family and PW2 had told him she would put him a place he would not remove himself”. 27. I find that the trial court did not give its consideration of the defence in its judgement. 28. Lastly, I have considered the provisions of Section 124 of the Evidence Act Cap 80 Laws of Kenya which provides that: “ Notwithstanding the provision of Section 19 of the Oath and Statutory Declaration Act, where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in a proceeding against any person for an offence, the accused person shall not be liable to conviction of such evidence unless it is corroborated with other material therefore implicating him. Further; Section 124 of the Evidence Act Cap 80 Laws of Kenya provides that: Provided that in criminal cases involving a sexual offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings the court is satisfied that the alleged victim is telling the truth. In light of Section 19 of the Oath and Statutory Declaration Act, if the court is receiving the evidence of a child of tender age, it must be of the opinion that she/he possessed of sufficient intelligence to understand the duty of speaking the truth. If such a child wilfully gives false evidence on oath, he/she will be guilty of perjury. 29. I have perused the trial courts judgement. I couldn’t find any explanation given as to why the trial court believed that the two minors (PW1 and PW2) were telling the truth irrefutably or their alleged corroboration was truthful particularly for PW1, by dint of Section 124 of the Evidence Act. The trial court only stated that it found the complainant was truthful and credible in her narration of what transpired without giving reasons why she believed so. 30. On the whole, I find that the evidence adduced by the prosecution was not sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt and the trial court ought to have given the Appellant the benefit of doubt. 31. Our criminal jurisprudence is that where there are two plausible explanations, then the one that points to the innocence of the accused is to be taken. Doubt does not need to be in all aspect. One material aspect is enough. However, fanciful doubt is not to be taken as doubt. In the case of JMN https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 6

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v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022) (Judgment) Neutral citation: [2022] KEHC 279 (KLR) Justice Mativo as he then was stated as follows: “ Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. This is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.” D. Disposition 32. In view of the foregoing, I find that there was no sufficient evidence for convicting the Appellant for the offence of defilement herein therefore: a. The appeal herein is upheld. The conviction of the Appellant is hereby quashed and the life sentence imposed on him set aside. b. The Appellant is set at liberty forthwith unless otherwise lawfully held. c. Orders accordingly. File closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH JUNE 2025 In the presence of: In person...................for Appellant Ms. Agatha...............for Respondent Milly..................Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14398/eng@2025-06-17 7

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