Ali Karisa Charo v Republic

by the knife and also from her vagina and her underpants were soaked in blood. He then gave her his number. The Complainant then went home and reported the matter to her father. She gave him the description of the Appellant and the clothes he was wearing. She was then taken to Bamba Dispensary for examination and treatment. The Appellant was arrested and she identified him in a parade that had many people. 6. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated: The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant. 7. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the assailant. 8. As regards age, PW4 Anderson Kaingu from Kilifi County Hospital produced and age assessment report indicating that the Complainant was 17 years old. The Complainant herself stated that she is 17 years old, as did her father PW2. The ingredient of age was thus established. 9. As regards penetration PW4 produced the PRC and P3 forms. He stated that upon examination, the Complainant was found to have no visible injuries. Her hymen was broken and the blood in her underwear was menstrual blood. There was no spermatozoa. PW4 stated that the hymen could be broken by other means. Notably, he did not conclude that there was penetration. 10. In her testimony, the Complainant stated that she had bled from the cut in the finger with the knife the Appellant had. She added that she had been pricked by thorns Further that the Appellant had held the knife to her neck and had also strangled her. Additionally, that the defilement ordeal had lasted about 2 hours and that the Appellant defiled her 3 times as a result of which she bled in her vagina. She further stated that her clothes were torn during the struggle with the Appellant. On his part, PW2 had stated that the Complainant had visible injuries on her finger from the knife and had thorns all over her legs. This evidence of the Complainant and PW2 is inconsistent with the medical evidence of PW4. If indeed their account was true, then surely, PW4 would have noted injuries on the Complainant’s genitalia, neck, finger and legs. Having found no visible injuries on the Complainant and having not stated that there was penetration, doubt has been raised in the mind of the Court as to whether there was indeed penetration of the Complainant’s vagina on the material date. Accordingly, the ingredient of penetration was not proved. 11. I now turn to the issue of identification of the perpetrator. The Appellant denies committing the offence with which he was charged. The Complainant stated that she described the Appellant to her father and the clothes he was wearing. She and her father PW2 stated that there was an identification parade in which the Complainant was able to pick out the Appellant. However, PW3 No. 11xxxx PC Boniface Amukata the investigating officer stated that no identification parade was done. Given that the Complainant stated that the Appellant was not known to him prior to the incident, her identification of the Appellant as the perpetrator of the offence is doubtful. 12. There are serious gaps in the prosecution evidence. In particular there was no clear cut evidence that the Complainant was defiled on the material date. There is also no evidence linking the Appellant to the offence. Taking all these factors together and weighing the evidence on record as a whole as guided by Okethi Olale v R [1964] EA 555, this Court finds that the prosecution failed to prove its case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16977/eng@2025-11-21 2

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13. In the premises, the conviction of the Appellant was unsafe. The Appeal succeeds and the same is allowed. Accordingly, the conviction is quashed and the sentence imposed on the Appellant set aside. He is forthwith set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED IN MALINDI THIS 21ST DAY OF NOVEMBER 2025 _________________________ M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16977/eng@2025-11-21 3

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