Benjamin Ltarapua v Republic

5. a. That the Learned trial Magistrate erred in both law and fact in convicting the appellant when the crucial and mandatory ingredients of the offence were never established and proved beyond reasonable doubt. b. That the Learned trial Magistrate erred in both law and fact in convicting the Appellant solely on the evidence of the minor without giving reasons as to why the testimony of the minor was believable in line with Section 124 of the Evidence Act Cap 80 Laws of Kenya. c. That the learned trial Magistrate erred in both law and fact in receiving and admitting hearsay evidence of PW-8 without justification. d. That the learned trial Magistrate erred in both law and fact in convicting the appellant on the face of material contradiction and inconsistency of the evidence by the prosecution. e. That the learned trial Magistrate erred in law and in fact in convicting the appellant without extenuating circumstances of the case. f. That the learned trial Magistrate erred in law and fact in disregarding the Appellant’s defence without justification and consequently deciding the case against the weight of evidence. g. That the learned trial Magistrate erred in both law and fact in convicting the Appellant whilst relying on her own conjectures, speculations and suppositions and thus arrived at the wrong decision. The Appeal proceeded by way of Written Submissions. The Appellant’s Advocate however sought for and was granted a chance to orally highlight the submissions. Appellant’ Submissions 6. It is the Appellant’s Submissions that the essential elements of the offence of defilement were not proved; that the prosecution failed to discharge the burden of proof as required of them under Section 107 (1) of the Evidence Act . 7. On the age of the victim, the Appellant has questioned the sufficiency of the victim’s Birth Certificate as proof of her age. 8. On penetration the Appellant faults the trial Court for relying on the hearsay evidence of PW8 and used the said evidence to corroborate the testimony of the Complainant. In this regard the Appellant has relied on a number of past decisions to expound on the nature of hearsay evidence and instances where the courts have rejected such evidence. It is submitted that the Clinical Officer did admit that a hymen can be broken through strenuous exercises. It is further stated that the medical report relied on bore the name of one Collins Lepatoye, and not that of the Complainant. Consequently, The Appellate urges the court to find that there was no sufficient evidence to establish penetration. In this regard, the case of Bassita vs Uganda S.C Criminal Appeal No. 35 of 1995 has been relied on. 9. On the element of identification it is submitted that the testimonies of PW 1, PW2 and PW3 showed that the Appellant and Complainant were strangers to each other and therefore there was no proper identification. 10. It is the Appellant’s further Submissions that there was no voir dire examination conducted; that whereas it is evident that the trial court relied on the evidence of the Complainant only ,there was no compliance with Section 124 as the Evidence Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 2

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11. It is the Appellant final Submissions that the Prosecution’s evidence was marked by inaccuracies, contradictions and inconsistences. It is pointed out for instance, that the medical records produced did not bear the name of the victim in this case; that the results of DNA analysis of the condom allegedly picked from the scene was never produced; that the car in which the defilement allegedly took place was also not submitted in evidence. The Appellant has urged the court to infer that these two pieces of evidence would have been adverse to the prosecution’s case. The decision in the case of Bukenya & Others vs Uganda [1972] E.A 349 has been relied on. 12. The Appellant concludes by submitting that the evidence used to convict the Appellant was hearsay, based on suspicion, rumours, speculation and conjectures and that, it is trite law that Suspicion however strong cannot be a basis of conviction. Respondent’s Submissions 13. On whether the prosecution proved all the elements of defilement beyond reasonable doubt, the prosecution submits that the age was proved through the Complainant’s Birth Certificate, P3 Form and the testimony of PW2 . 14. On penetration, the prosecution submits that the errors in the medical records namely P3 and PRC form vis-à-vis what is on the Charge Sheet are incapable of any cure under Section 382 of the Criminal Procedure Code. The Respondent concedes to this ground, therefore. 15. On identification the perpetrator, it is submitted that the complainant and Appellant were strangers to each other; that the Complainant was intoxicated and the Appellant through his defence , removed himself from the scene. The Respondent equally concedes to this ground of Appeal. 16. It is Respondent also admits that the material contradictions on the names of the victim were fatal to the prosecution 17. On the proviso to Section 124 of the Evidence Act, the Respondent faults the trial Court for failing to comply with the provisions of the proviso and “for failing to warn herself on the dangers of convicting the Appellant on the evidence of a single witness” 18. It is the Respondent’s final Submission that failure to call the Government Analyst, to produce the results of the DNA analysis on the condom allegedly collected from the scene, as well as the vehicle which was allegedly the scene of crime, was fatal to the Prosecution’s case. Analysis and determination 19. This being a first Appeal, this Court is under the duty to review the evidence, re-evaluate it, and arrive at its own findings. However due allowance must be made for the fact that the trial Court had the advantage of hearing the witnesses first- hand and observing their demeanor . 20. The following issues arise for determination on this appeal: a). Whether the essential elements of the offence were proved. b). Whether there were Contradictions and inconsistences that substantially affected the Prosecution’ case c). Whether the trial Court relied on hearsay evidence. d). Compliance with the Proviso to Section 124 of the Evidence Act. e). Whether vital witnesses were left out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 3

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Whether the essential elements of the charge were proved. were proved. 21. Section 8 (1) and (4) of the Sexual Offences Act (The Act) defines defilement as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term not less than fifteen years." The age of the child. 22. It is the Appellant’s contention that sufficient proof of age of the victim was lacking. A Birth Certificate was produced (PExb 1), showing that the victim was born on 21/10/2006. Thus, as at the time of the incident on January 2023, the Complainant was 16 years. The Age of the victim can also be proved by other documents like Baptismal Cards, or Oral evidence of the parent/guardian and by way of medical assessment. In this case the Birth Certificate produced was the most conclusive proof of age. The Appellant’s submission that there was no sufficient proof is therefore unfounded. Penetration 23. Section 2 of the Act defines penetration to mean “the partial or complete insertion of the genital organs of one person into the genital organs of another person” . On proof, in the case of Bassita Hussien vs Uganda (Supreme Court Criminal Appeal No. 35 of 1995 the Court held:- “ that acts of sexual intercourse or penetration can be proven by direct or circumstantial evidence, typically established through the victim's testimony and corroborated by medical evidence”. 24. In the present case, the Complainant (PW2) told the court: “ we entered the vehicle. I sat at the back seat. He too sat at the back; he locked the vehicle and he immediately removed his trouser. He started pushing my trouser out. He had a condom. He forced me to do sex with him. I tried to scream but nobody heard and so he had sex with me. He removed the condom and threw it outside. He entered me again without the condom”. 25. The Appellant has argued that the description given was not detailed enough. In this regard the Appellant has relied on the case of Julius Kioko Kivuva vs Republic [2015] e KLR where the Court held interalia that “Evidence of sensory details such as what victim heard, saw, felt and even smelled is highly relevant evidence to prove penetration as a victim’s testimony is the best way to establish the element in most cases.” 26. I wish to point out, firstly, that the said decision while it may be persuasive, is not binding on this Court. Secondly, I take the view that such specificity is only necessary in respect of victims of tender years, who may not fully comprehend the nature of penetrative sex. The Court would therefore need to hear some specific words or terminologies being used by the child in order for the Court to determine whether what the child perceived, was an act of penetration. 27. In this case however, the victim was a 16-year-old, and was in form four. At the very least, she would have, learnt the nature and process of human reproduction which is normally taught both in primary and secondary schools in Kenya. She was at an age where she understood the act of sexual penetration. In this regard therefore, the use of such words as “ he forced me to do sex with him”..........he entered me again without a condom” sufficed for purposes ascertaining the fact that the perpetrator penetrated her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 4

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28. Further in the case of Julius Kioko (Supra), it comes out from the court’s decision that the evidence of the victim was the only evidence that was available on penetration .In this case however the Complainant evidence was corroborated by medical evidence. PW 7 testified that on examining the complainant, he found that her private parts were tender; her hymen was broken and bleeding, and the vaginal wall was bleeding. He proceeded to state that based on the bleeding hymen and vagina, he concluded that penetration had taken place. Thus, unlike Kioko’case (supra) the conviction of the Appellant herein was not on the basis of the Victim’s Oral evidence alone. 29. It is appropriate at this point to address, what the Appellant has submitted to be, and indeed conceded to be by the Respondent, as contradiction between the medical and oral evidence. It is true that as observed by the trial court the PRC form belonged to a different person. However, the P3 form bore the name of the Complainant. The evidence contained in P3 form and oral testimony of the Clinical Officer were sufficient to constitute medical evidence and this is what the trial court relied on. The fact that one strange document found its way to the prosecution’s document did not nullify the other documents that were found to be valid, namely the P3Form. It would have been an error if the trial court had relied on the said PRC form to arrive at her findings, which she did not. 30. The other issue, which need to be determined at this point is provisions of Section 124 of the Evidence Act. The Appellant has argued that the trial Court failed to conduct voir dire examination and further failed to warn herself on the dangers of relying on the evidence of a single witnesses. That consequently there was therefore no compliance with the Proviso to Section 124 of the Evidence Act as aforesaid. 31. Section 124 of the Evidence Act provides as follows: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 32. Section 19 of the Oaths and statutory declarations Act ( cap 15 Laws of Kenya) sets out the prerequisite conditions before the court can rely on the evidence of a child of tender years to arrive at a conviction. It provides that evidence of a child of tender years may be taken, without the need for an oath, as long as the court is satisfied that the child is intelligent enough to comprehend what is required and appreciates the importance of telling the truth. The process of ascertaining the ability of the child is by carrying out voir dire examination. 33. Section 124 of the Evidence Act then comes in to qualify the provisions of section 19 of the Oaths and statutory declarations Act, namely that such evidence require corroboration. However, the proviso to section 124 of the Act sets an exception to the rule, by stating that the evidence of the child alone can be a basis of conviction as long as the trial court gives reason for believing that the child victim is telling the truth. 34. The pertinent question in this case is whether the complainant herein was a child of tender years so as to call for compliance with section 19 of the Oaths and statutory declarations Act and the proviso to section 124 of the Evidence Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 5

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35. Although in the past the courts had taken different approaches on the definition of a child of tender years , the position taken by the court of Appeal in the case of Karimi v Republic [2016] KECA 812 (KLR), has since settled the issue. In the case the court discussed the different approaches that the courts have taken in the past and arrived at the conclusion that for purposes section 19 of the Oaths and statutory declarations Act a child of tender years is one under the age of 14 years . The court cited with approval the leading case of Kibangeny Arap Korir v Republic, [1959] EA 92, where the court held that “ tender years means a child under the age of 14 years” . The court then went on to conclude that the age of 14 years remained a reasonable indicative age for purposes of section 19 of the Oaths and Statutory Declarations Act. 36. It follows that in the present case, in which the victim was 16 years , section 19 of the aforesaid Act was not applicable. In this regard I find further support in another court of Appeal decision in the case of MK v Republic [2015] eKLR; the court considered “unnecessary” voire dire examination which the trial court had conducted on a 15- year old. Thus, contrary to both parties Submissions, there was neither requirement to take a 16-year-old through voir dire examination nor to comply with the Proviso to Section 124 of the Evidence Act. 37. I am therefore satisfied that the testimony of the complainant and Clinical Officer were sufficient proof of penetration. Identity of the perpetrator 38. The Appellant submits that based on the testimony of PW 1, P2 and PW3, it came out that the Appellant was a stranger to the complainant and consequently the trial court ought to have first scrutinized the evidence of identification with utmost care and be satisfied that the circumstance under which the Appellant was identified was favourable as was held in the case of Wamunga vs Republic [1989]KLR 424. The respondent’s counsel has supported this line of submission by stating that Complainant and Appellant were meeting for the first time. The respondent further states that the Prosecution had failed to challenge the Appellant’s assertion that he was not on the scene of crime. 39. Firstly, the last part of this Submission by the Respondent is not true. On cross-examination, the Appellant admitted to have been at [particulars withheld] Hotel which was the crime scene. He also admitted to have sat with the Complainant, on the same table. The respondent’s submission in this regard is therefore misleading. 40. On identification of a stranger, the leading decision is the landmark case of R. vs. Turnbull and others [ 1976] 3 All ER 549 where the court held as follows: “Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be make. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? 41. I have considered the circumstances of identification in this case . There is no dispute that the complainant and the Appellant were meeting for the first time. However, from the Appellant’s own testimony the two were in the same places at least between 10am to 4pm. The first encounter, according the Compliant, was at Northern gate Hotel. she stated that she went towards the pool where she met two people. She went to greet to them. One was a neighbor, Simon (The then co- Accused). He was with a friend who was unknown to her (page 550 of the Record of Appeal.). she told the court: ......“so https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 6

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accused 2 was talking to me. He asked me my name we talked and I went back to the pool” (pg. 51 of the record). At 4 p.m they left for Serapark. The two sat on the same table with another girl, identified as Jackline (PW8) ,as Simon went to talk to someone else. They also ate together (pg. 51). At some point the Complainant wanted to use the toilet and inquired from the Appellant. The Appellant offered to take her. But on the way to the washrooms the Appellant told her that they first enter Simon’s Car “to pick Something”. Inside the car he defiled her. They were only the two of them. 42. There were other observations she made. On cross -examination for instance, she stated that the Appellant was drinking, she too was drinking. She even noticed the brand of alcohol that the accused was drinking (Smirnoff ice) .On further Cross-examination she stated that they were in [particulars withheld] between 5 to 7:00 pm. Thus at Serapark they were together for at least 2 hours (between 5-7:00pm ) . The incident took place during the day. They were in close proximity to each other as they drunk. The defilement took place at the park seat of a car. PW 8 too confirmed that she sat throughout with the Complainant and the Appellant. 43. On the conditions appertaining to identification therefore, visibility was good; they were at very close range most of the time , including the crime scene , which was inside a parked car; they spent a considerable hours together as they talked, ate and drunk. In a nutshell contrary to the parties’ submissions, the conditions were favourable for positive identification of the Appellant. Am satisfied that the Appellant was positively identified as the perpetrator. Whether the prosecution’s case was marred with contradictions and inconsistencies 44. The Appellant has referred to the contradictions in the names of the complainant as they appear in the PRC form and the Charge Sheet. The Court has already addressed this issue. However, I reiterate that it is evident that the Court relied on the P3 form, and that evidence sufficed. It did not therefore materially affect the issue of the identity the victim or the fact of penetration. 45. The Appellant has also raised another issue; - the failure of the prosecution to avail the motor vehicle, in which the complainant was allegedly defiled, and results of DNA analysis of the condom that was allegedly picked from the scene. On the results of the DNA, the results would only have been relevant if there was no other evidence identifying the perpetrator. In this regard, this court has found that, there was sufficient evidence on identification. 46. On the Motor Vehicle in which the defilement took place, the testimony of the Complainant was that she was defiled inside the then co-accused’s car. PW8, also testified that, the mode of transport from Northern gate to [particulars withheld] was the co-accused’s car. In any event the Appellant has not pointed the significance of the car to the prosecution’s case. Failure to produce the vehicle did not negate the fact of defilement or identification of the perpetrator. 47. The Appellant has urged the Court to draw adverse inference by the Prosecution’s failure to submit the above two pieces of evidence. However in line with the decision in Bukenya & Other vs Uganda[1972]E.A 349, the inference can only be drawn where the other available evidence failed to prove the Prosecution Case. Indeed the Court in Bukanga case (supra) held “ ...................” while the director is not required to call a superfluity of witnesses if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the Court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses, if called , would have been tended to be adverse to the Prosecution’s case.” . In present case the court declines to draw such inference as there was sufficient evidence to prove the identity of the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 7

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Whether the trial court relied on hearsay Evidence 48. The Appellant has finally faulted the trial court for relying on hearsay evidence to convict the Appellant. He submits that the trial Court relied on the evidence of PW 8 who testified that she was informed by the Pw 2 that she was defiled by the Appellant in the car. A perusal of the judgment shows that this is what the trial Magistrate stated in her Judgment: “From the evidence on record, it is undisputed that both the Complainant and A1 were at [particulars withheld] at the material time. PW2 has testified that the incident happened when she was going to the toilet in A2’s Vehicle. PW8 who was with PW2 and A1 confirmed that both A1 and PW2 left her at the table. That after 20 minutes, she went to the toilet and found when PW 2 was crying.PW 2 informed her that she had been defiled by A1. This evidence by PW 8 clearly lead (sic) credence that both A1 and PW2 were not with her throughout as DW 1 points in is defence” (The 3rd paragraph at page 16 of the judgment. 49. Thus, it is evident from the above cited portion of the Judgment that the trial Court was clearly using that particular portion of PW 8 ’s evidence to counter DW 1’s allegation that all the three were together throughout. It is a misconception to suggest that was used as a finding on penetration or indeed the entire conviction. This ground of Appeal has no basis. 50. The Appellant has pleaded that his defence was ignored. The last paragraph of the judgment, clearly show that the Court took into consideration his defense. Turning to the said defence, I have considered it. Save to state that he never followed the Complainant to the toilet, and that they never used any vehicle to [particulars withheld] or Northern gate, the rest of the evidence of the Appellant mirrored that of PW2 and PW8. For instance, he stated that he met a lady at Northern gate who knew Simon; PW2 equally told the Court that at Northern gate, he met Simon and another person, who later turned out to be the Appellant herein. He also admitted that they all went Serapark Hotel; that on reaching [particulars withheld] his co-accused sat in another table while he sat with the two ladies. Further again he told the court that he left their table ten minutes after the other lady left. The above portions of his testimony, mirror what PW 8 and the complainant told the Court. The court finds it implausible that whereas there is consistency between the Complainant’s evidence and PW8 on one hand, and that of the Appellant largely on what took place before the incident, the former two would then lie on whether the Appellant followed the complainant or not. I find his defence incredible. 51. In the end, I find that, the offence of defilement was proved beyond any reasonable doubt , and the Appellant was properly convicted. 52. There was no appeal on sentence. It suffices to state however that it was within the law 53. Before I conclude, I need to state that I have read with disquiet the Respondent’s Submissions. I am not convinced that it was for want of appreciation of the facts and the law, on the part of the Respondent’s counsel, that he took the line of submission he took. It disturbingly points to either a case of dereliction of duty, or at worst, a case of intellectual dishonesty. 54. In conclusion, the Appeal fails. It is hereby dismissed. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 26TH DAY OF FEBRUARY, 2026 S. CHIRCHIR JUDGE In the presence of:Ismail Abdow-Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 8

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The Appellant Ms. Oongo for Lesaigor, for the Appellant Mr. Majale for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2608/eng@2026-02-26 9

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