Eric Ngugi Kimani v Republic

The particulars being that:“ On the 7th day of January, 2016 at Majengo Estate in Thika Township within Kiambu County intentionally touched the Vagina of NW, a child aged 3 and half years with his penis.” 3. Upon trial, the Appellant was convicted and sentenced to serve thirty-five (35) years imprisonment. Aggrieved by both conviction and sentence, the Appellant filed this appeal, raising twenty-two (22) grounds in his petition dated 27th August, 2021. 4. This being a first appeal, this Court as a first appellate court is enjoined to reconsider the entire evidence, evaluate it afresh, and make its own findings and conclusions, while bearing in mind that it did not have the benefit of observing the demeanour of the witnesses or hear their testimonies. This duty is well established in the cases of Odhiambo v Republic (2008) KLR 565 and Okeno v Republic [1972] EA 32 as follows: “ ... The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence”. See also Okeno v Republic (1972) EA 32 which held: “ An Appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 5. In view of the above-cited findings, this Court is therefore duty-bound to engage in a comprehensive and dispassionate reappraisal of the record, while bearing in mind that it did not have the benefit of observing the witnesses’ demeanour first-hand as the trial Court did. 6. The prosecution called four (4) witnesses to establish its case. They are, the minor complainant (PW1), her mother MKN (PW2), Clinical Officer George Maingi (PW3), and Police Constable Hadija Mohammed (PW4). 7. The complainant testified as PW1 and gave unsworn testimony after a successful voire dire examination which established her capacity to understand the importance of telling the truth before the court. In her testimony, she stated that she was familiar with the Appellant, whom she identified as "Uncle Caro". She recounted that on the day in question, she was playing outside near the toilet when the Appellant called her inside. Once she entered, he shut the door behind her. He then undressed both himself and her and proceeded to use his (showed the private part) and put something in her private part while standing up. She described experiencing pain during the incident and stated that the Appellant also pressed her stomach with his hands before instructing her to leave. She complied, dressed herself, and returned home. At that time, her mother (PW2) was not present. However, upon her mother’s return later that evening, while bathing her, PW1 disclosed the incident. She informed her mother that "Uncle Caro" had touched her private part and mentioned that he had also given her a mango. PW1 further testified that the Appellant lived in the same neighbourhood and was a familiar to her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 2

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8. Upon cross-examination, PW1 reiterated her awareness of the importance of telling the truth. She stated firmly that she understood that lying was wrong and would lead one to punishment while explaining that she believed a liar would "go to the devil." She denied any suggestion that she had been coached or told to fabricate a story for the court. She maintained her earlier account while stating that she went to the toilet where the Appellant did the inappropriate act to her and thereafter gave her a mango. During re-examination, PW1 confirmed that it was the Appellant, whom she referred to as Uncle Caro, had called her into the toilet on that day. She added that prior to the incident, she had frequently seen him from the balcony of her house.Top of Form 9. PW2, the mother of the complainant, testified that on the 7th of January, 2016, at approximately 5:00 pm, she left her house to purchase dinner. At the time, she left her daughter, PW1, playing outside their home, but upon returning approximately one hour later, she found PW1 visibly distressed and crying while holding a mango. Concerned by the child’s emotional state, she inquired some minutes later while bathing her, where she had obtained the fruit. PW1 responded that the mango had been given to her by a person she referred to as “Uncle Caro”. PW2 questioned why she had accepted the fruit from a stranger. 10. Later, PW1 disclosed that the person known as “Uncle Caro” had removed his belt and done something to her private parts (which she pointed at in court). That upon examining the child’s clothing, PW2 noticed an unusual discharge which she believed to be sperms. She immediately called a neighbour she identified as B’s mother, who came to her house and in the presence of this neighbour, PW1 repeated the same account of what she said had transpired. PW2 then took off PW1’s panty, accompanied her daughter to Thika Police Station to lodge a formal complaint. From there, they were referred to Thika Level 5 Hospital for medical evaluation. At the trial, PW2 produced several documents in support of the case, including the Post Rape Care (PRC) Form (marked PMFI 1), the medical treatment notes (PMFI 2), the P3 medical examination form (PMFI 3), and the child’s birth certificate (PMFI 4). PW2 further testified that the Appellant was arrested following his identification by PW1’s father. She stated that the Appellant was well-known within the neighbourhood where he had lived for approximately three (3)years. And although she personally knew him as Ngugi, he was commonly referred to by the children in the area, including her daughter, as “Uncle Caro.” 11. During cross-examination, PW2 reaffirmed that she had left her daughter playing within the compound at around 5:00 pm and returned home by approximately 6:00 pm. She candidly admitted that it may not have been prudent to leave the child unattended, but emphasized that the child had remained within what she considered to be a relatively safe environment. She stated that she did not witness the incident herself and relied entirely on the report she had been given by her daughter. PW1 had told her that the Appellant had done bad things to her while the two were inside the toilet, and afterwards, he gave her a mango. PW2 reiterated that she knew the Appellant as Caro’s brother, but confirmed that children in the neighbourhood typically referred to him as “Uncle Caro.” 12. PW3, the Clinical Officer told court that he examined the child and filled the P3 and PRC forms. That on examining her, PW3 noted a foul smell and whitish discharge on the complainant’s underpants. The hymen was found intact, but he classified the nature of the offence as sexual assault. He then produced the PRC form and treatment notes as PExb 1 and 2 respectively. 13. PW4, the Investigating Officer, testified that she received the Report on 8th January, 2016, recorded statements, and took the complainant and her undergarments for forensic testing. The DNA analysis revealed that the seminal fluid collected matched the DNA profile of the Appellant. She produced the DNA results dated 19th March, 2018 as PExb 6a and b and PW1’s birth certificate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 3

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14. At the close of the prosecution’s case, the trial Court found that the Appellant had a case to answer. In his defence, the Appellant opted to give an unsworn statement in which he generally denied the offence, attributing the charges to a domestic misunderstanding and claiming that he had since reformed. 15. In his Judgment, having analysed all the evidence that was adduced before him, the trial Magistrate found that the prosecution’s case had been proved beyond reasonable doubt. The court then proceeded to find the Appellant guilty and convicted and sentenced to serve thirty-five (35) years imprisonment. Analysis and Determination 16. Having carefully read through the evidence that was adduced before the trial court and in evaluating the same, the court is now called upon to determine the following key issues:a. Whether the voire dire examination was properly conducted; b. Whether the conviction was safe and based on sound evidence; and, c. Whether the sentence of thirty-five (35) years was lawful and appropriate in the circumstances. a) Whether the Voire Dire Examination was Properly Conducted 17. The Appellant argued that the voire dire examination of the minor complainant was not properly conducted. However, the record shows that the trial Magistrate examined the minor on her understanding of the duty to speak the truth before court. The child stated she goes to church where she has been taught to tell the truth and that lying would lead her to “hell–Satan.” The court found her competent to testify and allowed her to do so unsworn. 18. This court agrees with the established precedent, as laid out in the case of Nyasani Sospeter v Republic [2006] eKLR in which it was reiterated that the essence of viore dire is to establish whether a child witness possesses sufficient intelligence to understand the solemnity of oath and if not, at the very least, understands the duty to speak the truth before testifying. 19. In this case, the record shows that a brief interview was conducted on PW1, the Minor complainant, who indicated to the court that the failure to tell the truth would lead her to hell. Having satisfied herself that the minor understood the import of speaking the truth before court, this Court thus finds no fault in the voire dire process that was conducted by the trial Court and affirms that the evidence of PW1 was properly admitted. This Ground of Appeal therefore fails. 20. The Appellant further contended that he was a minor at the time of trial (aged 16 years) and was not informed of his constitutional right to legal representation, thus rendering the trial unfair. In this Court’s view, Article 50(2)(g) and (h) of the Constitution guarantees every accused person the right to be informed promptly of their right to legal representation and to be provided with an advocate by the State if substantial injustice would otherwise result. 21. In the case of David Njoroge Macharia v Republic [2011] eKLR, the Court held that legal representation at State expense is not automatic but depends on whether substantial injustice is likely to result from its absence. Similarly, the Court of Appeal in the case of Karisa Chengo & Others v Republic [2017] eKLR emphasized that such entitlement is more critical in capital offences. 22. In the present case, the Appellant was charged with defilement, not a capital offence attracting the death penalty. The record reveals he understood the charges, cross-examined witnesses, and participated effectively in the trial process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 4

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23. Drawing guidance from this Court’s decision in the case of Mokaya v Republic [2024] KEHC 4607 (KLR), where a similar issue was raised, it was held that the failure to inform an accused of their right to counsel is not fatal unless it results in prejudice. No such prejudice has been demonstrated here and accordingly, this ground of appeal also fails. b) Whether the Conviction was Safe 24. Section 8(1) of the Sexual Offences Act defines defilement as the act of penetration with a child and the prosecution must prove three essential elements including: (i) the age of the complainant, (ii) the fact of penetration, and (iii) identity of the perpetrator. 25. This being a case for defilement, what was to be proved are the ingredients of the offence of defilement. In the case of George Opondo Olunga v Republic [2016] eKLR, it was stated that the ingredients of the offence of defilement are; identification or recognition of the offender, penetration and the age of the victim. 26. In this case, the issue of identification has not been challenged in this appeal. The complainant’s evidence is that of recognition and this has not been disputed. The Appellant was positively identified by the complainant, who knew him as “Uncle Caro", a familiar neighbour. Her mother (PW2) corroborated this, stating that the Appellant had lived in their neighbourhood for three years. Therefore, the court is satisfied that in this case, the accused person/Appellant was positively identified. 27. In regard to the age of the complainant herein, the same is not in dispute, as a birth certificate tendered was in court as evidence indicating that the victim was born in 2012 and was aged 3½ years at the time of the offence hence this ground was equally sufficiently proven. 28. The next element is proving of penetration of the victim occurred. "Penetration" is a term of art and is defined under Section 2 of the Sexual Offences Act to mean 'the partial or complete insertion of the genital organs of a person into the genital organs of another person'. 29. In the case of John Mutua Munyoki v Republic [2017] eKLR, the Court of Appeal in this regard held that:“ Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. The Clinical Officer was categorical that he was not in a position to ascertain the act of defilement after examining the complainant. He testified that he conducted vaginal examination and found no tears, no bruises, no hymen and no discharge. In addition, there were no spermatozoa and yeast cells or fungal cells. The complainant had also confirmed to him that she had previously engaged in sexual intercourse and was therefore not a virgin. Accordingly, the lack of hymen could not be attributed to the alleged incident involving the appellant. In a nutshell, there was no evidence of penetration. Faced with similar situation, this court in the case of Arthur Mshila Manga (supra) observed while allowing the appeal 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 Jenliza after examining https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 5

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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 was negative. HIV test was to be done after three months. I wish to produce the PW3 form as PExi.” The court proceeded and stated that: “ 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, Jenliza 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 Jenliza examined her. 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.” As we shall endeavour to demonstrate later in this judgment, much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the complainant was actually defiled by the appellant since there was no credible evidence as to the penetration of the complainant. It is trite that those doubts should have been resolved in favour of the Appellant.” 30. In line with the provisions of Section 2 of the Sexual Offences Act and the above cited case, the primary evidence relied upon by the prosecution to establish the element of penetration was the testimony of the minor complainant, corroborated by the medical evidence presented through PW3, the Clinical Officer, as well as the treatment notes and medical report produced in court. The complainant testified that on the material date, the Appellant removed her skirt and proceeded to touch her with his private part. She further stated that her panty was not removed, though the Appellant touched her private area. 31. Given the tender age of the complainant and the nature of the allegations made, it was crucial for the prosecution’s case to be supported by objective medical findings. PW3, the Clinical Officer who examined the complainant, testified that upon medical evaluation, there were no visible injuries on the complainant’s genital area and that her hymen remained intact. Based on his professional assessment, he classified the incident as a sexual assault due to the absence of any physical signs of penetration. 32. However, the trial Court convicted the Appellant on the basis of DNA evidence, specifically the seminal stains from the Appellant which matched the Appellant’s DNA found on the complainant’s innerwear, as sufficient proof of the offence of defilement. With due respect, this Court finds that the trial court misdirected itself in law and fact by relying solely on the presence of such seminal stains to infer penetration. For a conviction on the charge of defilement to stand, the prosecution must establish, beyond reasonable doubt, that penetration, defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of a genital organ, actually took place. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 6

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33. In the present case, in her testimony, the complainant clearly stated that although the Appellant removed her skirt, he did not remove her innerwear, thereby casting doubt as to whether any form of penetration actually occurred. This account is further reinforced by the Clinical Officer’s findings, which confirmed the absence of injury or any clinical indicators typically associated with forced or actual penetration. Accordingly, while the seminal fluids found on the complainant’s inner wear raised legitimate concerns and may indicate inappropriate conduct, it was, in and of itself, insufficient to prove the offence of defilement, particularly in the absence of medical or physical corroboration. This court, therefore, concludes that the standard of proof required to establish penetration was not sufficiently met. 34. The Court of Appeal in the case of Mwangi v Republic [1984] KLR 595 at 603, pronounced itself in a concise manner on this issue when it held thus: “ The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has sexual intercourse nor is absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetration, an essential fact of the offence of rape.” 35. In light of the foregoing analysis, the absence of any clinical or physical evidence indicative of penetration into the complainant’s genital area raises material doubt regarding one of the essential elements of the offence of defilement. It is a well-established principle in Criminal Law that where doubt arises in the prosecution’s case, as in this case particularly with respect to such a critical element such as penetration, that doubt must invariably be resolved in favour of the accused. In the present matter, while the complainant’s testimony suggested inappropriate conduct, it was not supported by the objective medical evidence presented in court to infer penetration. The Clinical Officer, PW3, testified that no signs of injury, or any other indicators of intrusion were observed during examination. 36. Accordingly, this court is constrained to find that the prosecution did not establish, to the required standard of proof beyond reasonable doubt, that the act of penetration occurred. Without proof of this foundational element, the charge of defilement under Section 8(1) as read with Section 8(2) of the Sexual Offences Act cannot stand. It is thus the considered finding of this Court that the prosecution’s case was not sufficiently cogent or watertight to support a conviction, and as such, this Court respectfully disagrees with the conclusions reached by the trial court. In view of the above findings, this court holds that the conviction of the Appellant was unsafe and cannot be sustained in law. 37. Accordingly, the conviction is quashed, and the sentence imposed by the trial Court is hereby set aside in its entirety. The appeal is allowed and the Appellant shall be released from custody forthwith unless he is otherwise lawfully held for any other reason. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 24TH DAY OF JUNE , 2025. D. O. CHEPKWONY JUDGE In the presence of: Appellant in person. M/s Ndeda counsel for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 7

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Court Assistant - Martin. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19425/eng@2025-06-24 8

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