Kmm v Republic

father lived in Nairobi. The complainant told the Court that she knew the accused KMM who was a distant cousin. 6. The complainant went on to state that during the month of March 2024 she was supposed to be returning to school. However the complainant was no longer interested in going to school and wanted to pursue tertiary education. Thus she did not report to school on 5th March 2024 as expected but instead travelled to Kiahungu Township to visit the Appellants sister. She stated that the appellant lived in the same compound as his sister but they occupied different houses. The complainant told the court that during that visit she used to sleep in the single-roomed house of the appellant’s sister where she would share a bed with the young children. 7. The complainant went on to testify that one week later she went to the house of the appellant in order to return a gas cooker which they had borrowed for cooking. She then found the appellant and sat on the bed with him watching foot-ball on his mobile phone. Suddenly police stormed into the house and arrested both the appellant and the complainant on allegations that the appellant had defiled the child. 8. On her part the complainant categorically denied that the appellant had defiled her. She insisted that there had been no sexual or intimate contact between them. 9. PW2 MWM is the mother of the complainant. She told the court that she is a business woman residing and working in Lamu County. PW2 told the court that the complainant was her second born child and that during the period in question the complainant was living with her paternal grandmother in Muthinga in Nyeri County. She confirms that the complainant was at the time a Form Two student at Gititu Secondary School and that she had made the necessary arrangements for the child to go back to school in March 2024. 10. A few days later PW2 received a call from one Hellen Muthoni the appellant’s mother informing her that she had spotted the child in Mukurweini town and that the child was married and living with a man as his wife. PW2 requested the lady to stay with the child until she came back from Lamu. She then immediately left Lamu to travel to Nyeri. 11. Upon arrival at the Nyeri Bus Park, PW2 received a call from the police who informed her that her daughter was being held at Mukurweini Police Station. PW2 then rushed to the police station where she found the appellant and her daughter in custody. PW2 told the court that she knew the appellant as a distant relative. She stated that upon questioning the child insisted that the appellant had not defiled her and even insisted that she was still a virgin. 12. PW3 Hellen Muthoni Kimondi was the appellant’s mother. She confirms that the appellant is her first born son and that he is married and lives with his wife at Kiahungu. PW3 went on to narrate that she visited the house of her daughter ‘Anne’ who lives in the same compound as the appellant and found the complainant there. PW3 questioned the complainant as to why she was not in school. 13. PW3 then phoned the complainant’s mother and informed her that her daughter was not in school. That PW2 requested PW3 to allow the complainant to continue staying with Anne; until she travelled back from Lamu. 14. On the day when PW2 was to travel from Lamu PW3 received a call informing her that the appellant and complainant had been arrested. PW3 stated that she enquired from police the reason for their arrest and she was told that the complainant had been found watching football in the house of the appellant. 15. PW4 Martha Wanjiku Mbugua is a registered clinical officer attached to Mukurweini Hospital. She produced the PRC form dated 15th March 2024. Pw4 stated that upon examining the complainant she found that the child’s hymen had old tears and concluded that the complainant had been defiled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 2

page 2 of 8

16. PW5 PC Eusillah Cherop was the investigating officer. She told the court that acting on a report made by the appellant’s wife one Jessica Otieno, she went to the appellant’s house. Upon arrival the police found the appellant and complainant in the house. That they were lying on the bed with the complainant lying on the chest of the appellant. That both were fully dressed. 17. PW5 arrested both the appellant and the complainant and took them to the police station. She later escorted the complainant to hospital for medical examination. The appellant was later charged with the offence of defilement. 18. Upon closure of the prosecution case, the appellant was found to have a case to answer and was placed on his defence. The appellant gave a sworn defence in which he vehemently denied having defiled the complainant. 19. On 16th January 2025 Hon. Bosibori, Senior Resident Magistrate delivered a judgment in which she convicted the appellant on the charge of defilement. The appellant was given an opportunity to mitigate after which the court sentenced him to serve fifteen (15) years imprisonment. 20. Being aggrieved by his conviction and sentence the appellant filed this Amended Memorandum of Appeal praying that his conviction be quashed and the sentence be set aside. The appeal was premised upon the following grounds:“ 1. That, the learned trial magistrate again erred in both law and facts in not appreciating that the matter was not proved against me and I was just framed up by Jessicah Atieno. Who was my wife this instant matter occasioning a serious dereliction of justice. 2. That, the trial magistrate erred in law and fact by failing to consider that the complainant in this case was not a hostile witness. As the prosecution want the court to believe. 3. That, the trial magistrate erred in law and facts by failing to conduct a voiredire examination to find that if the witness understood the nature of giving the truth. Therefore contravening section 151 of the criminal procedure code. 4. That, the trial magistrate erred in law and facts by failing again to find that the crucial witness were not called upon to testify i.e the Jessicah Atieno Onyango. Who was appeared to the police as the complainant in this case. 5. That, the learned trial magistrate erred in law and fact by dismissing my sworn evidence without cogent reason to do so.” Analysis and Determination 21. I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 22. This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of Okeno v Republic [1972] EA 32 the court set out the duties of the appellate as follows:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 3

page 3 of 8

evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). 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 finding and conclusions, it must make its own findings and draw its own 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, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174). 23. Similarly in the case of David Njuguna Wairimu v republic [2010] eKLR the Court of Appeal stated as follows:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 24. The appellant raised as a ground of appeal, the facts that the complainant was not taken through a ‘voire dire’ examination before giving her evidence. ‘Voire dire’ is a latin term which literally means “to speak the truth”. In criminal cases a voire dire examination would be conducted in order to determine the competence and understanding of a witness. It is particularly used in cases where the witness is a child of “tender years.” 25. Section 125 of the Evidence Act Cap 80 Laws of Kenya deals with “Competency of witnesses. Section 125 (1) provides that “ (1) All persons shall be competent to testify unless the court considers that they are, prevented from wider-standing 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.” (2) ……………………………….” 26. In this case the complainant was aged sixteen (16) years old. She was not a child of tender years. Indeed she was on the cusp adulthood. In the circumstances the failure to conduct a voire dire examination did not violate the provisions of Section 125 of the Evidence Act. At that age the complainant clearly knew and understood the importance of taking oath to tell the truth. 27. Therefore I find and hold that the learned trial magistrate did not err in failing to conduct a voire dire examination on the complainant. 28. The Appellant faced in the lower a charge of Defilement. In the case of Charles Wamukoya Karani v Republic [2013] eKLR the Court set out the critical ingredients of a charge of Defilement as follows:“ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 29. The age of the victim is a critical factor in a charge of defilement as the law provides for the sentence to be imposed (upon conviction) based on the child’s age. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 4

page 4 of 8

30. Rule 4 of the Sexual Offences Rules state that “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.” 31. In the case of Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda stated as follows:“ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and commonsense…..” 32. Similarly in Edwin Nyambogo Onsongo v Republic [2016] eKLR the Court stated thus “ …………………….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 has to be credible and valuable.” [Own emphasis] 33. In this case the complainant told the court that she was sixteen (16) years old having been born on 17th January 2008. 34. PW2 who was the complainant’s mother confirmed to the court that her daughter was born on 17th January 2008. The mother showed the court a copy of the complainant’s birth certificate. The document was however not formally produced as an exhibit probably due to inadvertence. 35. PW6 Duncan Kiarie Kagura was a dental officer and the medical superintendent at the Mukurweini Hospital. He told the court that on 28th June 2024 he conducted an age assessment on the complainant using her dental formula. That based on his examination and expertise he concluded that the complainant was aged between 15-16 years old. 36. The evidence regarding the age of the complainant has not been controverted. Both the complainant and her mother gave her date of birth as 17th January 2008. Her given age of sixteen (16) years was confirmed by PW6. Therefore I hold and find that the age of the complainant has been proved to be sixteen (16) years. She was therefore a minor in law. 37. The next element requiring proof is the fact of penetration. Section 2(1) of the Sexual Offences Act 2003 defines penetration as:“ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 38. The prosecution alleged that the complainant was defiled by the Appellant. The complainant herself denied that she was defiled by the Appellant. 39. PW4 Martha Wanjiru Wanyeki a clinical officer attached to Mukurweini Hospital told the court that the complainant was examined on 12th March 2024. The PRC form was produced as an exhibit. Upon https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 5

page 5 of 8

examination it was found that the complainant’s hymen had old tears and no discharge was noted. A high vaginal swab indicated presence of pus cells but no spermatozoa were seen. No physical injuries were seen on the genitals or on the body of complainant. 40. PW4 also produced as an exhibit the P3 form which she had filled on 15th March 2024. Once again no injuries were noted on the genitals or on the body of the complainant but the hymen was found to have old tears. PW4 concluded that the complainant had been defiled. 41. In her evidence the complainant herself admits that she had previously engaged in intimate sexual activity with her former high school boyfriend. Her evidence provides confirmation of the medical findings. 42. From the evidence adduced from the doctor and on the basis of the complainants own admission I find that it has been proved that penetration did occur. 43. The next and crucial question in any defilement case relates to the identity of the assailant. In other words did the prosecution adduce sufficient evidence to prove that it was the Appellant who had defiled the complainant. 44. This is a unique and interesting case where the complainant herself stoutly denies having been defiled by the appellant whilst the prosecution through the investigating officer insist that the appellant did defile the child. As is usual in Sexual Offences there was no eye-witness to the alleged crime. The court can only rely on the evidence of the parties themselves and the arresting officers. 45. The prosecution case was that the complainant decided to drop out of school and instead went to Kiahungu Town where she began to cohabit with the Appellant in his house as man and wife. The prosecution case was that the two were engaging in sexual intercourse. 46. The report regarding the cohabitation of the two was made to police by one Jecinta Otieno who was the wife of the appellant. PW5 who was the investigating officer stated that this Jecinta went to the police station and made a report that her husband (appellant) had chased her out of the house and was now cohabiting with a school-age child. The police went to the said house and found the complainant and the appellant there together. 47. On her part the complainant when first sworn into testify on 23rd April 2024, stated that since she had decided not to continue with her schooling, she decided to go and visit the appellants sister one AN. That the said ‘AN’ lived in the same compound as the appellant (who was her brother) but that the two occupied different houses. The complainant stated that during the time she was there she slept in the house of AN sharing a bed with the children. The complainant categorically denied that the appellant sexually assaulted her. She maintained this stand even after being stepped down and upon being re-sworn to testify on 22nd May 2024. Despite the complainants strident denials the trial court proceeded to convict the appellant. 48. PW5 the investigating officer told the court that in her initial statement to the police the complainant stated that the appellant had defiled her. PW4 the doctor also claimed that the complainant said the appellant had defiled her. The original statement recorded from the complainant was not produced as an exhibit in court. On her part the complainant denied having made such an allegation to police. She states that she was merely directed to sign a document whose contents were not read out to her. 49. In the circumstances the complainant became what is known in law as a ‘hostile witness’ – i.e one who recants her original statement. The proper procedure would have been for the prosecution to declare her hostile and to proceed to cross-examine her on her statement. For unknown reasons this was not done. As stated earlier the written statement signed by the complainant was not produced in court. All https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 6

page 6 of 8

that happened was that the complainant was stepped down and upon being re-sworn some months later maintained her stand that the appellant had not defiled her. 50. The obvious question that arises is if the appellant did not defile the complainant then how can the medical evidence of penetration be explained. The complainant did not deny previous sexual contact. She stated that whilst in High School she had a boyfriend who dated her for two (2) years. She states that it was this boyfriend who broke her virginity. 51. It is Pertinent to note that although the complainant was found to have a broken hymen, the doctor (PW4) stated that both the PCR form and the P3 form indicated that there were ‘old tears’ i.e not indicative of recent sexual activity. Therefore the complainant’s statement that she had been disvirgined by a previous boyfriend is plausible and cannot be dismissed. No samples were taken from either the appellant or the complainant thus no matching of bodily fluids was done. 52. It is my view that the prosecution failed to call certain crucial witnesses in this case. Firstly the wife of the appellant Jecinta Otieno was not called to testify yet she is the one who made the initial report to police, which led the police to visit the Appellant’s house. She was a crucial witness because it was she who had alleged that the appellant was cohabiting with a school girl. 53. The investigating officer told the court that the said witness had relocated to her home in Kisumu County and had switched off her phone thus could not be traced for bonding, Kisumu is not the edge of the world. It is a part of the Republic of Kenya and I have no doubt that using police networks this lady could easily have been traced and bonded. 54. Secondly the appellant’s sister AN in whose house the complainant said she had been staying was not called to testify. Again this was a crucial witness. It was only this AN who could prove or disprove the prosecution’s claim that the complainant was cohabiting with the Appellant. No reason was given why police failed to bond her to testify, yet her place of residence was well known. The suspicion that police deliberately omitted to bond this ‘AN’ because she would have contradicted the prosecution case cannot be overruled. 55. Neither PW2 the complainant’s mother nor PW3 the appellant’s mother had tangible evidence regarding the alleged defilement. PW2 merely stated that she was informed that her daughter had refused to go to school and instead had gone to visit AN. PW3 the appellant’s mother said she went to the house of her daughter and found the complainant there with AN. PW3 then phoned the complainant’s mother to alert her that her daughter had not gone to school. PW3 stated that her daughter informed her that the complainant used to sleep in her house sharing a bed with her children. 56. The complainant told the court that she had only gone to the appellant’s house on that day to return a gas cooker they had borrowed from him. The appellant confirmed this evidence. ‘AN’ the appellant’s sister who could have clarified the position was not called to testify. Both the Appellant and the complainant stated that when the police came they were seated on the appellant’s bed fully clothed watching football on his mobile phone. 57. The police officer who arrested the two stated that she found the two undressed lying on the bed. The court now faces a ‘he said - she said’ situation. Without any credible independent evidence it is difficult to tell what is the truth. 58. It is my view that the prosecution case left more questions than answers. Key witnesses were not called to testify. The complainant was adamant that the appellant did not defile her. There remains real doubt as to what (if anything) exactly took place between the two. The benefit of this doubt must go to the appellant. I find that the prosecution failed to prove the charge of defilement beyond reasonable doubt. In the circumstances the appellant was entitled to an acquittal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 7

page 7 of 8

59. Regarding the alternative charge of Indecent Assault the particulars allege that the appellant had touched the complainant’s vagina. No evidence proving this charge was tendered. The same was not proved. 60. Finally I find that this appeal has merit. The same is allowed. The conviction rendered by the trial court is quashed and sentence is set aside. The appellant is to be set at liberty forthwith unless he is otherwise lawfully held. DATED IN NYERI THIS 14TH DAY OF NOVEMBER 2025. …………………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16633/eng@2025-11-14 8

page 8 of 8