David Makhelo Malaba v Republic

3. That the trial court erred in law and fact in not assessing the position, credibility and personal demeanour of all the prosecution witnesses pursuant to section 200 (3) of the CPC, hence reaching a wrong decision by lowering the standard of proof beyond a reasonable doubt. 4. That the trial court erred in law and fact in not making an order that the appellant’s sentence should run from the time of his arrest. 5. That the trial court erred in law and in fact in not appreciating the appellant’s defence that overwhelmed the prosecution's case. 4. The appellant seeks to have the conviction quashed and the sentence set aside. 5. He argued that the evidence of penetration was not proven to the required standard. He cited the case of P.K.W v Republic (2012) eKLR, where the court noted that in many sexual offences, courts often assume that the absence of a hymen in a girl's vagina, alleged to have been defiled, is proof of the offence. However, this assumption is scientifically and medically incorrect. It was also contended that the trial court failed to highlight or consider Pw1’s demeanour, which the court relied upon as the basis for accepting Pw1’s uncorroborated testimony. The appellant further questioned Pw1’s credibility, noting that she did not immediately tell her mother about what happened. He claimed that he was framed by Pw3 after failing to settle his debt, with Pw3 allegedly using the complainant and her mother to implicate him. It was argued that the court did not evaluate the credibility and demeanour of the prosecution witnesses as required under section 124 of the Evidence Act. Additionally, he criticised the lower court for failing to allow the appellant to re-summon and cross-examine witnesses after a later magistrate began hearing a partially completed case, contrary to section 200(3) of the Criminal Procedure Code. He requested the court to order that the sentence commence from the date of his arrest, pursuant to Section 5.1.21 of the SPGs 2023 and Section 333(2) of the CPC. 6. The respondent submitted that the minor was 11 years old at the time of the offence, as proved by her birth certificate. The minor was taken to hospital and treated with a post-rape care kit. A P3 form dated 24/10/2022 indicated that the minor had a perforated hymen, split but healing, an indication of penetration. On the issue of sentencing, it was submitted that the sentence was appropriate for the offence committed. Analysis And Determination 7. As the first appellate court, my duty is clearly defined, namely to re-examine the evidence presented before the trial court and analyse it afresh to form an independent judgment on whether to uphold the trial court's decision. (See Okeno v Republic [1972] EA 32). 8. NWW (Pw1) testified that on the evening of 19/10/2022, she was looking for firewood when the appellant called her and sent her to buy sugar and salt. He gave her Kshs 100/-. After purchasing the items, Pw1 returned the Kshs 45 balance to him, but the appellant gave her the money. The following day, the appellant called her, and she expected him to send her to the shop. The appellant was their neighbour, and his house was 50 metres from theirs. However, when Pw1 arrived at his home, the appellant grabbed her hand and pulled her into his house. He tied her mouth with a white cloth and her hands with a blue net. The appellant took her to the bedroom, pulled off her clothes, and took the thing he uses to urinate and put it in her thing for urinating. Pw1 recalled that after the act, he let her go. There was no one at home; Pw1’s father was at work, and her mother was in hospital caring for her grandmother. On 22/10/2022, the appellant did the bad things he had done to her again at 3:00 p.m. She met CMN (Pw3) and told her what happened. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18882/eng@2025-11-24 2

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9. Pw3 testified that on 22/10/2022 she saw Pw1. Pw1 was not walking properly and asked her what was wrong. Pw1 told her that the appellant had slept on her. She tried calling her mother’s phone, but there was no answer. The next day, she went to speak with Pw1’s mother at her home. Pw3 told SNN (Pw1) that her daughter had told her that the appellant had had sexual intercourse with her. 10. Pw2 testified that she was informed of her daughter’s ordeal on 23/10/2022. She called Pw1 and asked what had happened. Pw1 explained the events of 19th and 22nd October 2022. On 24/10/2022, Pw2 reported the incident to the police and took Pw1 to hospital. Pw6, Dr Edward Vilembwa, produced the P3 form filed by his colleague Leticia. He stated that, upon examination of the vagina, the hymen was split but healing. She also had vaginal discharge, which was tested. The results showed that Pw1 tested negative for syphilis and HIV. However, there were pus cells, which are associated with sexual activity. 11. The investigating officer, No. 257158 PC Knight Agui (Pw4), testified that the complainant and her mother reported the matter on 24/10/2022. Pw4 visited the scene and confirmed that the distance between the complainant’s house and the appellant’s was 50 metres. He also produced the minor’s birth certificate. 12. The appellant, in his defence, denied committing the offence. He testified that he was framed by a lady who was his customer and who, after taking goods on credit, failed to pay for them. 13. The trial court convicted the appellant of the offence of defilement and sentenced him to 20 years' imprisonment. Analysis And Determination. 14. I have considered the appeal, the rival submissions and the record of the subordinate court. The issues raised are whether all ingredients of defilement were proved and the appellant’s defence considered, and whether section 200 (3) of the Criminal Procedure Code was complied with. 15. Pw4 produced the minor’s birth certificate, which showed she was 11 years old at the time of the offence, and this was not challenged by the appellant in his submissions. There was also sufficient evidence from the prosecution that the appellant was well known to Pw1. Pw1 testified that the appellant was their neighbour, living about 50 metres from their home. Pw4 visited the scene and confirmed that the appellant’s home was 50 metres from the complainants. On 22/10/2022, the complainant testified that the appellant defiled her at 3:00 p.m., in broad daylight. The prosecution, therefore, proved beyond a reasonable doubt that Pw1 was a minor, aged 11, and was identified by the complainant. 16. I now consider whether the prosecution proved penetration. Pw1 testified that the appellant inserted his penis into her vagina. On the first day, he tied her up, and later, he sexually assaulted her while she had gone to fetching water. Pw1’s evidence of penetration was well supported by medical evidence. Although the appellant argued that the only observation was the trial magistrate's finding of a torn hymen, this is not entirely correct. The trial court also observed lacerations on the vagina. According to the treatment notes and the P3 form, Pw1 had a laceration in the perineum consistent with the offence of defilement. Pw6 testified that the high vaginal swab revealed pus cells, which could be associated with sexual activity. Therefore, the prosecution presented sufficient evidence of penetration. 17. I now turn to consider whether the trial magistrate complied with the provisions of section 200(3) of the Criminal Procedure Code. The said provision provides as follows: “ 200 (3) where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18882/eng@2025-11-24 3

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witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.” 18. The Court of Appeal in John Bell Kinengeni v Republic [2015] eKLR, stated as follows regarding non-compliance with this requirement of the law: “ …..the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and that failure to comply with that requirement would in an appropriate case render the trial a nullity as section 200(3) requires in a mandatory tone that the succeeding magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate. In Cyrus Muriithi Kamau and another versus Republic Nyeri Criminal Appeal No. 87 & 88 of 2006, the Court added that the use of the words “shall inform the accused person of that right” in section 200(3) (supra) was clearly meant to protect the rights of an accused person and the duty to see that the right is protected is placed on the trial magistrate and the burden to inform an accused person of the right to have the previous witnesses resummoned and reheard is placed on the magistrate in mandatory terms. In Bob Ayub Alias Edward Gabriel Mbwana Alias Robert Mandiga (supra) the court ruled that the mere mention in the judgment that section 200(3) was complied with is hollow without any evidence from the record that it was actually complied with in accordance with the law.” 19. In this case, the evidence was first taken by Hon. M. Munyekenye; however, on 21/9/2023, when Hon. V. Yator took over, the proceedings before the subordinate court were as follows: “ Court: Section 200 Criminal Procedure Code explained. Accused: I pray that the case proceeds from where it had stopped. Court: Case to proceed from where it had stopped” 20. In this case, the trial court explained the provisions of section 200 of the Criminal Procedure Code to the appellant, and he elected to have the trials proceed from where they had reached. Consequently, I find that the trial court complied with section 200 of the Criminal Procedure Code, and therefore this ground of appeal must fail. 21. On the sentence meted out, section 8(1) and 8(2) of the Sexual Offences Act provides as follows: 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) 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. 22. The complainant was 11 years old at the time of the offence and therefore, he ought to have been imprisoned for life. However, the respondent did not file any notice to enhance the sentence. Interestingly, they supported the appellant’s sentence. Therefore, this court finds that the sentence was lenient and the same is upheld. 23. In the end, the appeal is dismissed in its entirety. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 24TH DAY OF NOVEMBER 2025. R.E. OUGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18882/eng@2025-11-24 4

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In the presence of: David Makhelo Malaba -For the Appellant Miss Matere -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18882/eng@2025-11-24 5

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