Dkn v Republic

4. The learned magistrate erred in law and facts by convicting the Appellant without giving proper reasons why his Alibi defence was rejected, yet it was not even rebutted by the prosecution, the same was also shoddily investigated. Case for prosecution 3. The case for the prosecution was that the Complainant, who was PW1 in the case, was at the material time aged 10 years and was a standard 4 pupil. The Appellant is her father. 4. It was the evidence of the complainant that on the material day she left the Appellant at home and headed for school. That after walking for some time she found the Appellant on the way. It was around 5am. He got hold of her and led her into the bush. He was wearing a leso on the waist. He dropped it down. He inserted his penis into her vagina. He pulled out a knife from his pocket and threatened to break her skull if she disclosed the incident to anybody. She went to school. She did not tell it to anybody nor to her mother as the Appellant had threatened to chase her mother away if she told her of the incident. On the following day she took herself to Gongoni police station and reported. She was taken to a hospital at Gongoni and then to Malindi sub county hospital. 5. It was further evidence of the complainant that the Appellant had been engaging in sex with her since when she was in class one. That he started by inserting his fingers into her vagina. That he used to say that she and her siblings are not his children. 6. A clinical officer at Malindi sub-county hospital PW2 testified that the complainant was examined at their medical facility by a colleague clinical officer who found her with swollen labia, lacerations and bruises and a cut 5 cm at 6 o`clock position on the lower side of the vagina. 7. The case was investigated by PC Ibrahim Jasho PW3 who told the court that the complainant brought herself to the police station on the morning of 5/10/2022 at 7.34 am. That she had walked a distance of about 20 km from her village to the police station. That she reported that her father had defiled her on that day as he was escorting her to school. That he had been defiling her since when she was in class one. He issued her with a P3 form and escorted her to Gongoni dispensary where she was treated. Her P3 form was filled at Malindi sub county hospital. Her father, the Appellant, was arrested and charged with the offence. During the hearing of the case in court the clinical officer PW2 produced the treatment notes, the P3 form, the age assessment report, laboratory request form and Post Rape care form as exhibits, P.Exh.1 -5 respectively. Defence Case 8. When placed to his defence the appellant stated in a sworn statement that he is a farmer. That on the 8/10/2022 he was arrested by policemen and taken to Gongoni police station. He was not told the reasons for his arrest. He was charged. He said that the charges are fabricated because of hatred between him and his wife after he caught her red handed in the act with another man. Submissions 9. The Appellant submitted that the age of the complainant in this case was not proved. That the complainant told the trial court that she did not know how old she was. That the investigating officer PW3 stated in his evidence that she was aged 12 years but it is not known where he got this information from. More so that the charge sheet indicated that she was aged 10 years. In addition, an age assessment report was produced by the clinical officer PW2 without him adducing any evidence about it. That the age assessment report was not procedurally produced in court and could not be relied on to support the conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1251/eng@2026-02-06 2

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10. The Appellant submitted that the evidence of the complainant was not believable. That it was not believable that she had left for school at 5am. That it was not believable that she had walked for 20 km to report the matter at Gongoni police station and failed to report to the area sub-chief, chief or other person in authority. It was submitted that it was unsafe to convict him on the basis of the evidence of the complainant. 11. The Appellant submitted that the prosecution evidence did not dislodge his alibi defence. He urged the court to allow the appeal. Respondent`s submissions 12. The Respondent submitted that the case against the Appellant was proved beyond reasonable doubt. That the age of the complainant was established by the age assessment report. 13. It was submitted that the evidence of the complainant proved that the Appellant had penetrated her when she was on the way to school. That her sole evidence was sufficient to sustain the conviction in view of the provisions of section 124 of the Evidence Act which allows the court to solely rely on the evidence of a child victim of tender years provided that the court is satisfied that the child is truthful. The case of Salali Omar v Republic (2017) eKLR was cited in this respect. 14. It was submitted that the trial court found the evidence of the complainant to be truthful and that it was corroborated by medical evidence of PW2. 15. It was submitted that the Appellant identified the Appellant as her step-father. That the complainant gave a vivid account of the incident. That she indicated that it was not the first time that it had occurred. 16. The Respondent submitted that there were no inconsistencies in the evidence for the prosecution. That the Appellant did not put up a strong defence capable of being weighed against the evidence tendered by the prosecution. That the sentence of 19 years was justified considering that section 20(1) of the Sexual Offences provides for a sentence of life imprisonment. The Respondent urged the court to dismiss the appeal. Analysis and determination 17. This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. These principles were re-stated by the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174, thus: An appellant on a first appeal 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 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; 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.” 18. The Appellant was charged under Section 20 (1) of the Sexual Offences Act that provides that: Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1251/eng@2026-02-06 3

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19. In NRO v Republic [2021] KEHC 2975 (KLR), the court said the following on the section: Flowing from provision of this section, the ingredients for incest under the section are as follows: a) The accused must be a male; b) The victim must be a female; c) She must be his daughter, granddaughter, sister, mother, niece, aunt or grandmother; d) He must have knowledge of the relationship; and e) There must be penetration. 20. The complainant told the court that she was at the material time aged 10 years although she did not know her year of birth. The Appellant submitted that the age of the complainant was not proved as she told the trial court that she did not know her age (though the complainant never stated that she did not know her age). That the investigating officer PW3 stated in his evidence that she was aged 12 years while the charge sheet indicated that she was aged 10 years. 21. The law is that the age of a person can be proved in various ways. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows: “ ... 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 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. The complainant in this case was examined by a clinical officer who completed her P3 form. The clinical officer estimated the age of the complainant in part C of the P3 form at 10 years. The Court of Appeal in the case Safari Charo Koyo v Republic [2017] eKLR stated that where actual age of a victim of defilement is not established, the court can go by the apparent age of the child as opined by a medical officer. The apparent age of the complainant as per the opinion of the clinical officer who saw her was 10 years. 23. Age may also be proved by observation or common sense. In the case of Musyoki Mwakavi v Republic [2014] KEHC 5681 (KLR), the court cited the Ugandan case of Francis Omuroni versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 where it was held that; ....Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...” 24. The trial court in this case conducted a voir dire examination on the child which means that the court by its observation was persuaded that she was of tender age. An age assessment report was produced wherein the age of the complainant was assessed at 10 years. I find that the prosecution had proved that the complainant was of the age of 10 years. 25. The complainant testified that the Appellant was her father. She testified that she was living with him and her mother. This evidence was not challenged in cross-examination. Neither in his defence did the Appellant deny that he was father to the complainant. I therefore find that the Appellant was father to the complainant and had knowledge that he was her father. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1251/eng@2026-02-06 4

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26. The complainant testified that the Appellant waylaid her on her way to school and penetrated her vagina with his penis. 27. Section 2 of the Sexual Offences Act defines “penetration” as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 28. The complainant was examined at hospital and found with swollen labia, lacerations and bruises and a cut 5 cm at 6 o`clock position on the lower side of the vagina. The fact that the complainant was upon examination found with injuries in her vagina corroborated her evidence that she was penetrated by a person into her vagina. Penetration was therefore proved. 29. Penetration having been proved, the question was whether the complainant identified the person who penetrated her. 30. The offence was said to have been committed at 5am. The court takes judicial notice that 5am is at night. In such circumstances, it was incumbent upon the prosecution to prove that the complainant identified the person who penetrated her at that hour of the night. 31. It is trite that the court before basing a conviction on evidence of identification should examine the evidence carefully and satisfy itself that the circumstances of identification were favourable and free from the possibility of error. This position was re-stated by the Court of Appeal in the case of Kariuki Njiru and 7 others v. Republic CR. Appeal No. 6 of 2001 that; The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. 32. The same was stated in Wamunga v Republic [1989] KLR 424 where the Court of Appeal stated thus: It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. 33. In addition, even where identification is by recognition at night, the evidence must be absolutely watertight to justify conviction, see Nzaro v. Republic (1991) KAR 212. 34. The complainant in her evidence did not tell the court how she managed to identify the Appellant at 5am. She was not asked how she did so. The trial court never considered the question of how the complainant identified the Appellant at night. The court seems to have assumed that the complainant identified the Appellant as the perpetrator even when there was no evidence led towards that end. In view of the fact that the incident took place at night and no evidence was led as to how the complainant identified the Appellant as the perpetrator, there was no positive identification of the Appellant as the perpetrator of the offence. The Appellant was in the circumstances entitled to the benefit of doubt. 35. In view of the going, I find that the evidence adduced against the Appellant was not sufficient to sustain a conviction. The appeal is merited. Consequently, the conviction is quashed and the sentence set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 6TH DAY OF FEBRUARY, 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1251/eng@2026-02-06 5

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J. N. NJAGI JUDGE In the presence of: Miss Ochola for Respondent Appellant – present virtually at G.K. Prison Manyani Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1251/eng@2026-02-06 6

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