Abich Joseph Ochieng v Republic

b. The Learned Trial Magistrate erred in law and fact by finding that the testimonies of the prosecution witnesses were contradictory but proceeded to rely on the same evidence despite the main witness being the victim contradicting herself in the testimony. c. The Learned Trial Magistrate erred in law and fact by failing to evaluate the victim’s testimony within the rule of evolving capacity of a minor and therefore not taking into account that the provisions of Section 42 of the Sexual Offences Act was not met. d. The Learned Trial Magistrate erred in law and fact in convicting the appellant of the offence of defilement not withstanding that the medical evidence failed to connect the appellant directly to the defilement and the medical evidence before the trial court when properly analyzed and evaluated did not support conviction. e. The Learned Trial Magistrate erred in law and fact by accepting the prosecution’s case as provided without taking into account defence case. f. The Learned Trial Magistrate erred in law and fact by finding that the main charge of defilement as indicated in the charge sheet was proved beyond reasonable doubt. g. The Learned Trial Magistrate erred in law and fact by sentencing the appellant to 20 years in prison despite a clear indication that in the circumstances and inconsistencies the sentence was excessive. 5. This is an appellate court whose duty is to re-evaluate the entire evidence on record and arrive at its own conclusion bearing in mind that it neither saw nor heard the witnesses during their testimony as was held in the case of Kiilu & Another vs. Republic (2005)1 KLR 174, 6. The appellant submitted that the case was not proved to the required standard of beyond any reasonable doubt as the PW1 who is the complainant recanted her evidence and denied having sexual intercourse with the appellant yet prosecution did not deal with her as a hostile witness. Also, that the evidence of PW1 was supported that that of the clinical officer (PW5) who found that that there was no injuries to the labia and cervix, no evidence to confirm recent sexual intercourse. It was submitted that the fact that the hymen was torn before the incident does not confirm that the same was through sexual intercourse relation with the appellant on the material date even if the appellant used protection during the incident as alleged, upon examination. Counsel told this court that that the absence of a hymen is not, in itself, conclusive proof of penetration through a sexual intercourse and relied on the case of In the case of PKW vs Republic [2012] eKLR, the Court of Appeal observed 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 absence of hymen in the vagina of a girl 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. When a girl engages in vigorous physical activity like horseback ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.” 7. Also, that the evidence of PW2 and PW4 is not useful as the merely said they found the appellant and Pw1 in the house. Counsel faulted the investigations terming them unprofessional and below standard as no other evidence was produced in corroboration, including the alleged condoms and or even photographs allegedly taken at the scene. It was submitted that the condom ought to have been taken to a forensic laboratory for DNA analysis with samples from the body of PW1 and the bed, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19218/eng@2025-12-11 2

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bedsheets etc, at the scene but the same was not done PW1. It was further submitted that DNA analysis would have resolved the puzzle of the allegedly recovered condom and the source of the semen in it. Also that circumstantial evidence was not proved and the following case were cited the case of Ndurya v Republic [2008] KLR 135 the Court of Appeal held that before convicting someone on the basis of circumstantial evidence, the court has to be sure there are no other co-existing circumstances which would weaken or destroy the inference of guilt (see also Sawe v Republic [2003] KLR 364 and R v Kipkering arap Koske and Another 16 EACA 135). 8. Counsel submitted that miscarriage of justice was caused to the appellant by the conviction and cited the case of RepublicvEdward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another v State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh v State of M.P. (2002)4 SCC 85 was cited as follows: - “The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent”. 9. On the sentence it was submitted that the issue of sentencing of youthful sexual offenders where victims are also in the same age group ought to be looked into as our prisons are full of young sexual offenders in the case of Bare v Republic (Criminal Appeal E008 of 2025) [2025] KEHC 11735 (KLR) Neutral citation: [2025] KEHC 11735 (KLR) the court stated that, In England for instance, only sex with persons of less than the age of 16 years, which is the age of consent, is criminalized and even then the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. Also, Archbold criminal pleadings Evidence and Practice (2002) page 720). Counsel stated that this is the position in many other jurisdictions. The court opined that “a candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy call for serious interrogation.” 10. The respondent submitted that the age of the child was proved to be 14 and identification was proved as appellant was found in the house with the child. On penetration it was submitted that the evidence of Pw5 though the treatment notes, post rape care form and P3 form (Pexh 1,2 and 3 respectively) proved penetration. Also, that the learned trial magistrate considered defence as per page 49 of the record of appeal. Issues for determination: 11. I have carefully re-evaluated the entire evidence of record and the able submissions by both parties herein. the following issues arise for determination. 1. Whether the ingredients of defilement were proved. 2. Whether the trial court failed to consider properly evaluate the Defence case and therefore wrongly convicted the appellant. 3. Whether the sentence meted was excessive in the circumstances. 4. Whether the conviction and sentence should be quashed. On whether the ingredients of the offence of defilement were proved https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19218/eng@2025-12-11 3

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12. On the ingredients of defilement. Appellant has been charged under Section 8(1) as read with Section 8(4) of the sexual offences Act. The same provides that - (1) A person who commits an act which causes penetration with a child is guilty of an offence termed. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The ingredients of the offence of defilement are that the victim must be a child, the perpetrator must be identified, and there must be penetration. 13. In this case the fact that Pw1 was aged 14 at the material time age of PW1 and that she knew appellant before the incident as a neighbour are not disputed. The only issue for determination is that of penetration. PW1 denied that appellant had sexual intercourse with her. She said she went to borrow a book from her friend J (Dw2) who is a cousin to appellant but she found that her friend had gone to fetch water at the river and so she waited for her but PW2 and Pw4 went there and accused her of having sexual intercourse with the appellant. PW5 said that the hymen of PW1 had been torn long before and that there was no physical injury on the labia of PW1 and there is usually friction on the vaginal walls during sexual intercourse but in this case, there was no such evidence. PW2 JOA the grandfather to Pw1 said he found Appellant and PW1 locked in a house. Pw4 said he is a Nyumba Kumi officer in the scene area and that got information from J (Dw2) that the appellant and PW1 had locked themselves inside the house. He went to the said house and found it locked from inside. Appellant opened the door about 4 minutes after he knocked. PW3 the investigating officer found Pw1 and appellant in the house and PW1 was seated on the bed. He said he recovered a used condom in that house. On cross examination he said that medical evidence would tell whether the appellant had sex with PW1. Appellant adduced sworn testimony and denied the charge said that PW1 found him in the house on the material day to look for J (Dw2) but did not find as she had gone to fetch water. He asked her to wait for DW2 and Pw2 and PW4 went there and accused him of having sexual intercourse with PW1. They locked them in the house and police later went there and they were arrested. This evidence was supported J (Dw2) who testified that Pw1 was a desk mate at [Particulars Withheld] Primary school and that she had promised to lend her a text book on a Sunday and on that day she was to the river and found her and Appellant locked in his uncle’s house. She denied that she is the one who reported the matter to PW2 and also told Pw2 that appellant had given her his phone. 14. It has emerged that PW1 recanted her evidence in court but prosecution did not seek that she be declared hostile so that the veracity of her evidence could be tested by way of cross examination as required by law. Pw1 said she did not have sex with appellant. This was supported by PW5 who said the hymen was torn and old looking, there was no physical injury to the labia and there was no evidence of friction on the vaginal walls meaning that Pw1 was sexually active before the incident. Appellant denied having sexual intercourse with PW1 on the material day as alleged. The condom which Pw3 said he collected at the scene and the clothes at the scene and evidence from the body of PW1 were also not taken to Government chemist for forensic DNA analysis which was important to establish the nexus between the semen and appellant and also connection to Pw1. This is a criminal matter and the standard of proof is that of beyond reasonable doubt. In The case of Arthur Mshila Manga v Republic (2016) eKLR the Court of Appeal held that “But did the medical evidence on record establish that JM was defiled? We do not think so. It is apposite to produce verbatim the findings of J after examining JM, as narrated before the trial court by PW3. No blood stain was seen on clothes. On the head, abdomen and thorax nothing was seen. On the genitalia the hymen was absent and the vagina was open. No discharge was seen. No injuries on the legs or hands. Pregnancy and HIV tests were negative. The urine https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19218/eng@2025-12-11 4

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was negative. HIV test was to be done after three months. I wish to produce the PW3 form as PEX 1........ “From both the evidence of PW3 as well as the P3 form, which we have carefully perused, other than noting absence of hymen and consequently an open vagina, J never expressed any opinion that the JM had been defiled, or defiled the previous day. There was nothing on record to suggest that JM had lost her hymen the day before J examined. The medical evidence having failed to confirm that JM was defiled, the only other evidence of defilement was that of JM. It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed v Republic (2008) KLR G&F, 1175 and Jacob Odhiambo Omuombo v Republic (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.” Also, the Michael Mugo Musyoka v Republic (2015) eKLR: “We have looked at the evidence on record, there is no evidence or testimony to prove that there was any contact between the genital organs of the appellant with that of the minor. We are of the considered view that the evidence of PW1 was hearsay and did not carry much weight. We say so because she was not present at the house and did not witness what actually happened. She relied on what her daughter C had allegedly told her. Without the evidence of the said or eye witness we find that the prosecution did not prove that the appellant had intentionally and unlawfully indecently touched the child.......we find that the case against the appellant was based on a mere suspicion. . Whether the learned trial Magistrate Properly Analyzed the evidence on record 15. Prosecution seek to rely on circumstantial evidence as no one witnessed the appellant having sexual intercourse with the complainant herein. It is trite law that before arriving at a conviction based on the same, the court must be upon considering all the circumstances of the case be satisfied beyond any reasonable doubt that the offence was committed by no other person other than accused as was held in the case of Sawe v Republic (2003) KLR 364; “In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other co-existing circumstances weakening the chain of circumstances relied on.” 16. Section 161 of the Evidence Act, Cap 80 Laws of Kenya provides that: The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in crossexamination by the adverse party. In the case of Abel Monari Nyanamba & 4 Others vs. Republic [1996] eKLR: “The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt.” 17. The complaint having departed from her statement which he recorded with the police, it was incumbent upon prosecution to apply that she be declared hostile so that they could cross examine her on her statement to police. The purpose of cross examination of a hostile witness by the person who calls him is to test his reliability as a witness. This was not done and Pw1 remained firm on cross https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19218/eng@2025-12-11 5

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examination that appellant did not defile her, the evidence of Pw1 was not impeached and thus stands. A complainant is a very crucial witness in a criminal matter as his evidence forms the foundation every case. The evidence of Pw2, PW3 and PW4 does not support the evidence complainant herein. Penetration is a crucial element of sexual offences. The version of complaint was supported by the appellant and his witness Dw2. The evidence adduce by defence was firm, consistent and was backed up by Dw5 the clinical officer who said that there was no evidence of sexual intercourse by PW1 on the material day. I find that penetration was not proved as rightly submitted by counsel for the appellant. 18. The evidence adduce by prosecution amounts to mere suspicion which cannot sustain a conviction. In the case of Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998, the court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life”. 19. The investigations herein were casually conducted and left many doubts which can only be resolved in favour of the appellant. I find that the learned trial Magistrate did not properly analyze the evidence on record and this arrived at a wrong conviction which was not supported evidence. On whether the conviction and sentence ought to be quashed 20. In the upshot, there was thus insufficient evidence to convict appellant of the offence of defilement contrary to section 8 (1) as read with 8 (3) of the Sexual Offences Act or even the alternative charge. I proceeded to quash the conviction and sentence of the appellant herein. He is henceforth set free unless otherwise lawfully held. T.A ODERA JUDGE 11.12.25 Delivered Virtually in the Presence of: Miss Moenga for the State Miss Okal for the Appellant Appellant Absent. Court Assistant - Ogendo https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19218/eng@2025-12-11 6

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