James Muuo Makonge v Republic

5. Aggrieved by the Judgment the appellant preferred this appeal which according to the Amended Petition is premised on the following grounds; “ 1. That the Learned Magistrate erred in law and in fact by failing to find that the prosecution failed to prove penetration of the alleged complainant’s genitalia as required by law. 2. That the Learned Magistrate erred in law and in fact by failing to find that the prosecution never proved the age of the complainant as required by law. 3. That the Learned Magistrate erred in law and fact in failing to find that he was not properly identified as the perpetrator of the offences alleged as defined by law. 4. That the Learned Magistrate erred in law and fact in failing to find that the witnesses in the case were incredible witnesses whose evidence could not be used to base a conviction. 5. That the Learned Trial Magistrate erred in law and in fact in convicting the appellant based on the complainant’s single evidence without giving reason for believing the said complainant’s testimony.” 6. The Appeal was canvassed by way of written submissions. 7. The Appellant submitted that the testimony of PW3 was highly inconsistent and contradictory thus casting doubt on the issue of penetration and that the prosecution did not discharge the burden of proving beyond reasonable doubt the ingredients of defilement. 8. The appellant also contended that there were inconsistencies with the evidence of the prosecution witnesses which in turn displaced the credibility of those witnesses thus dislodging the prosecution’s burden of proof. 9. The Appellant also had an issue with the prosecution’s failure to disapprove his defence of alibi and also that the trial court failed to give due consideration and weight to his compelling evidence of a previous good relationship with the victim. 10. The appellant submitted that the prosecution did not prove the ingredients of defilement namely age, penetration and identification. 11. He urged the court to quash his conviction and set aside the sentence 12. For the Respondent it was submitted that the prosecution discharged its burden of proving the offence beyond reasonable doubt; that the three ingredients of the offence of defilement were proved. 13. It was also submitted that the witness testimonies were consistent, credible and reliable and that the testimonies of PW2 and PW4 were consistent with the testimony of PW3. 14. It is finally submitted that the sentence of 30 years passed was not consistent with the provisions of Section 8(2) of the SOA that provides for a minimum sentence of life imprisonment, given the recent jurisprudence in the Supreme Court. They urged that the sentence of 30 years imprisonment be enhanced to life imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16793/eng@2025-11-14 2

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Determination 15. I have considered the Appeal, the Trial Court record and the submissions of parties on record. 16. This is a first Appeal and in the case of Okeno v Republic [1972] EA 32 the court stated: “ 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 R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v R., [1957] E.A. 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 findings 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] E. A. 424.” 17. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller v Ministry of Pensions (1947) 2 All ER, 372 stated as follows: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 18. The Appellant herein was found guilty and convicted of the offence of defilement contrary to Section 8(1) as read together with section 8(2) of the Sexual Offences Act. 19. Section 8 (1) and (2) of the Act provide as follows; A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 20. The elements of defilement are thus the age of the victim (must be a child), penetration and the positive identification of the perpetrator. This was stated in the case of George Opondo Olunga v Republic [2016] eKLR. 21. The first element of age was elucidated by the Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16793/eng@2025-11-14 3

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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 reliable.” 22. Further, in the case of Fappyton Mutuku Ngui v Republic [2012] eKLR it was held that: ... That “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases. 23. In this case a Certificate of birth was produced and the same clearly indicated the victim’s date of birth was 17th November 2015. She was therefore 7 years and 5 months as at the time of the alleged offence hence a child as defined in Section 2 of the Children’s Act. The element of age was therefore proved beyond reasonable doubt. 24. The second element is penetration. Section 2 of the Sexual Offences Act defined penetration as follows: “ The partial or complete insertion of the genital organ of a person into the genital organs of another person.” 25. Section 124 of the Evidence Act, Cap 80 provides as follows: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, 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.” 26. In the case of DS v Republic [2022] eKLR, the court stated that; “ Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.” 27. The victim PW3, testified that the accused person took her to his house and did bad manners to her by touching her private parts and also inserting his penis in her vagina. The medical evidence adduced through John Njuguna (PW1) revealed that the child’s genitalia was normal; that the hymen was broken but not fresh and that she was seen in the hospital after six days. It is trite that the absence of a hymen per se is not proof of penetration as the hymen can be lost due to various other reasons. There must be cogent proof of penetration in order for a conviction for a defilement to be safe. That evidence can be that of the victim solely and it need not be corroborated – see the proviso to Section 124 of the Evidence Act. However, the court must believe the testimony/evidence of the victim and must give the reasons for so doing. 28. At the trial, the child had to be stood down once or twice in order for her to give evidence which would satisfy the learned Magistrate she was speaking the truth. It is instructive that standing down was not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16793/eng@2025-11-14 4

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because the child was nervous, fearful or not composed but because the trial magistrate did not trust that she was telling the truth of what had infact taken place. After being stood down she came back and gave the court another version of what she had given initially. It can therefore be correctly stated that there were inconsistencies and contradictions in her evidence. 29. In the case of Jackson Mwanzia Musembi v Republic [2017] KECA 748 (KLR) the Court of Appeal dealt with the issue of contradictions and citing the case of Twahangane Alfred v Uganda CR. Appeal No. 139 of 2002 (2003) UGCA, 6 with approval it stated:“ with regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case”. 30. Similarly, in the case of Joseph Maina Mwangi v Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 31. The child initially denied ever being defiled by the Appellant and had to be stood down several times as the court was of the view that she required counselling for her to open up on what had happened. The trial court did not trust she was telling the truth. This is despite that a voire dire had been conducted and the trial court was convinced that she was possessed of sufficient intelligence and understood the duty of speaking the truth and hence could testify on oath. She had as a matter of fact eloquently explained the consequences of lying to the court meaning she was not going to lie. It is not discernible from the record why the magistrate did not believe her the first time. 32. On my part, I find that the contradictions in her testimony are weighty and cannot be ignored. They go to the credibility and reliability of her testimony. To me it is difficult to tell at what point she spoke the truth and at what point she was not telling the truth. It is my finding that in view of the contradictions in in her evidence, the conviction was not safe. The discrepancies cannot be attributed to her age or fear of the Appellant given that during the voire dire she proved that she knew the difference between telling the truth and lying and the consequences thereof. It might very well be that when she testified the first time, she was indeed telling the truth. The possibility of coaching in the guise of counselling cannot also be ruled out. The contradictions go to her credibility as a witness and I am not sure that I should believe her. In the premises I give the benefit of the doubt to the Appellant. 33. This appeal is merited and it is allowed. The conviction is quashed and the sentence is set aside. The appellant shall be released forthwith unless otherwise lawfully held. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 14TH DAY OF NOVEMBER 2025. E N MAINA JUDGE In Presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16793/eng@2025-11-14 5

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Ms Kaburu for the State/Respondent Appellant in person (virtually from Kamiti Max Prison) C/A: Geoffrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16793/eng@2025-11-14 6

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