Peter Bekarisa v Republic

4. That the learned trial magistrate erred in both law and fact by failing to adequately consider the Appellant`s defence. Case for prosecution 3. The prosecution called 4 witnesses in the case. It was its case that the complainant was a class 7 primary school pupil. She was at the material time living with her mother PW2. The Appellant used to operate a workshop near where the complainant`s mother was operating a food hotel. The complainant`s mother used to provide the appellant with lunch meals. 4. It was the evidence of the complainant that sometimes in the month of September 2021 she started a love affair relationship with the Appellant and in that month she engaged in sexual intercourse with him in his office whereby he inserted his penis into her vagina. That on the subsequent months she did the same thing with him in his office on a date she could not remember. 5. It was further evidence of the complainant that on 4/12/2021, at midday she left her home to go to church. She passed by the appellant’s office and found him standing at the door to his office. He called her and told her to go and pick her mother`s utensils from his office. That when she got there the Appellant pushed her into a seat in his office. He removed her inner clothes; biker and pant. She tried to push away but he restrained her and told her not to talk. He removed his clothes and lay on top of her. He lifted her legs by force and inserted his penis into her vagina. After some time, she heard the door being closed from outside by the village elder and the youth leader. The police were called. She and the Appellant were taken to the police station. She was released in the evening. On the following day her mother took her to Mariakani sub county hospital where she was examined in her vagina. 6. The mother to the complainant PW2 testified that on 4/12/2021 she was at home when the village elder asked her to go to police post. She went there and found her daughter, the complainant and the Appellant. She recalled being told by neighbours that the appellant was having a love affair with the complainant. That she had warned the Appellant to stay away from her daughter and even sent emissaries to him but he had not listened. She took her daughter to the hospital. It was her evidence that the complainant was at the time aged 14 years as per her birth certificate. 7. The Clinical Officer who examined the complainant PW4 testified that he attended to her on 5/12/2021 with a history of having been defiled. He found her with normal unkempt genitalia with a missing hymen and whitish clear discharge. He found evidence of habitual abuse on the minor. He concluded that there was habitual sexual abuse on her. 8. The case was investigated by a police officer who left the police station and handed over the investigation file to PC Mwanja, PW4. It was the evidence of PW4 that the complainant was aged 14 years as indicated in her birth health card. The witness however did not produce the document in court as exhibit. 9. During the hearing of the case in court, the clinical officer PW3 produced the treatment notes, the P3 form and the lab request form as exhibits, P.Exh.2, 3, and 4 respectively. Defence case 10. In his defence the Appellant stated that he was running a metal workshop. That on 4/12/2021, he was at his place of work when the complainant`s mother took food to his place. That he ate the food and at about 12:30pm, the complainant`s daughter went to the workshop to pick the utensils. That they were inside the workshop when people he did not see closed the door and locked them up from outside. He tried to push the door open from inside but people were pushing it back. When he finally managed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 2

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to open it, he found two men who informed him that the complainant was inside his workshop. The police later arrived and he was taken to the police station. He denied defiling the complainant on the alleged dates. He said that he had allowed the complainant’s mother to put her merchandise in his workshop and that was the only reason they were there. He said that the reason why the people schemed up against him is because a friend to the complainant’s mother called Beatrice Ngumi had ill feelings towards him. 11. The Appellant called his wife, DW2, as a witness in the case but all that she could say is that she believed that her husband was framed up. Submissions 12. The appeal was canvassed by way of written submissions. 13. The appellant submitted that the case was heard by Hon. Adalo who took the evidence of PW1, PW2 and PW3. That Hon. Chepchirchir later took over the case. She proceeded to hear the evidence of PW4 after which she delivered a ruling on a case to answer and placed the Appellant to his defence. The matter was later taken up by Hon. Kimani who heard his defence and delivered the judgment. 14. The Appellant submitted that Hon. Chepchirchir did not comply with Section 200 of the Criminal Procedure Code when she took over the case from Hon. Adalo. He submitted that it is mandatory for the court to explain to the accused his right to recall witnesses though it is not mandatory for the court to accept the request. He relied on case of Office of Director of Public Prosecution v Peter Onyango Odongo & 2 others (2015) eKLR where it was held that: Section 200 (3) of the Criminal Procedure Code is intended in my view to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused of his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses to enable Court make a just decision. It should be noted Section 200(3) of C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It should be noted it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity. 15. The Appellant further submitted that the trial was a nullity for failure to comply with the section. He cited the case of Paul Ochieng Omollo v Republic (2018) eKLR where Cherere J. held that: “ I need not to labour the point that the appellant’s trial was a nullity and for this reason there is no need to consider the rest of the grounds of appeal; for the same reason there is no basis upon which this court can consider the evidence adduced at the trial and come to its own conclusion, as it always ought to whenever exercising its appellate jurisdiction. If the trial was a nullity, there is in effect no evidence to consider.” 16. It was admitted that the trial court failed to comply with the mandatory provisions of section 200(3) of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 3

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17. On whether the prosecution proved its case beyond reasonable doubt, the Appellant submitted that the age of the complainant was not established nor proved by any of the witnesses that were called. That there were no documents that was produced by the prosecution to prove the same. 18. On whether penetration was proved, he submitted that the complainant’s evidence was not corroborated as the youth leader and village elder whom the complainant referred to in the case did not testify in the case. He further submitted that the complainant`s evidence contradicted that of the clinician officer PW3 who told the court that he found that sexual abuse was habitual and that the incident was not recent. 19. The Respondent on the other hand submitted that the two trial magistrates who subsequently took over the case from the initial magistrate court failed to consider the application of Section 200(3) of the Criminal Procedure Code. Counsel cited the case of Ndegwa v Republic (1985) KECA 138 (KLR) where the court held as follows; “ Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice, if a succeeding magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial.” 20. Counsel submitted that the continuation of a trial without consideration of the provisions of the said section was a grave injustice to the Appellant as it prevented him to refresh the new trial court of what transpired. Counsel submitted that this was prejudicial to the appellant. He submitted that the appropriate remedy in such circumstances would be to order a re-trial. Analysis and determination 21. This being a first appeal, this court is mandated to to analyze and re-evaluate afresh the evidence adduced before the trial court in line with the holding in the case of Odhiambo v Republic Cr. App No. 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”. 22. Having considered the submissions together with the grounds of appeal, the record of appeal and the applicable law, the issues that arise for determination in the appeal are whether the learned trial magistrate complied with the requirement of section 200(3) of the Criminal Procedure Code cap 75 Laws of Kenya upon taking over the matter from the previous magistrate and whether the prosecution proved its case beyond reasonable doubt. 23. The appellant contends that there was non-compliance with Section 200(3) of the Criminal Procedure Code by Hon. Chepchirchir when she took over the case from Hon. Adalo. It is his contention Hon. Chepchirchir never explained to him how she came to take over the matter from Hon. Adalo. 24. I have considered the proceeding and I note that the case was initially heard by Hon. Nelly C. Adalo who took the testimonies of PW1, PW2 and PW3. On 22/3/2022 Mr. Kiseu came on record for the accused and PW1 and PW2 were recalled for further cross-examination by Mr. Kiseu. Thereafter the case was taken over by Hon.Chepchirchir who heard the evidence of the police officer PW4 after which the prosecution closed its case. On 7/5/2023, she ruled that the Appellant had a case to answer https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 4

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and placed him to his defence. On 12/1/2023 Hon. Kimani took over the matter and at that point, Mr.Kiseu made an application under Section 200 (3) of the Criminal Procedure Code to have PW1, PW2, PW3 and PW4 recalled for purposes of cross-examination. The court vide a ruling dated 9th November, 2023 came to a conclusion that there were no exigencies requiring the witnesses to be recalled stating that the opportunity to cross-examine them was well seized and acted upon. The trial court ordered that the matter proceed from where it had reached. The Appellant has not challenged the ruling of Hon. Kimani but is challenging the failure by Hon. Chepchirchir to comply with the provisions of Section 200(3) of the CPC. 25. Section 200 of the Criminal Procedure Code deals with instances where a criminal trial is handled by more than one magistrate. The said provision stipulates: 1. Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may – a. deliver a judgment that has been written and signed but not delivered by his predecessor; or b. where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial. 2. Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercise that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment. 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 witness be resummoned and reheard and the succeeding magistrate shall inform the appellant person of that right. 4. Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial. 26. The Appellant contends that Hon. Chepchirchir did not explain to him his rights under section 200(3) of recalling witnesses. I have considered the issue and noted that Hon Chepchirchir only took the evidence of the police officer PW4 and made a ruling that the Appellant had a case to answer. She went on transfer and is thereby not the one who convicted the Appellant in the case. Section 200(4) of the Criminal Procedure Code provides that where an accused is convicted on evidence not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial. The question is whether the Appellant was prejudiced by failure by Hon. Chepchirchir to explain to him his rights under section 200(3) of the CPC to recall witnesses. 27. The purpose of recalling witnesses is to enable the judicial officer taking over the case to hear witnesses testify so as to enable the court form an opinion on their demeanor. In view of the fact that Hon. Chepchirchir is not the one who convicted the Appellant, her failure to comply with section 200(3) was not prejudicial to the Appellant. I do not find any substance in this argument. 28. I will then move to consider whether the prosecution proved its case beyond reasonable doubt. The appellant was facing a criminal charge. Proof in a criminal trial is that of beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 5

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Lord Denning in Miller v Ministry of Pensions (1947) 2 All ER, 372 stated as follows on the standard of proof in criminal cases: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 29. For the offence of defilement to stand, the prosecution has to prove three ingredients of the offence as was outlined in the case of George Opondo Olunga v Republic [2016] eKLR as: the age of the victim, positive identification or recognition of the offender and penetration. 30. On the question of age, it is trite that the age of a person can be proved in various ways including by way of documentary evidence, by oral evidence of the parents or that of the child if the child is old enough to know her age or even by observation of the court. 31. In the present case, the complainant told the court that she was born on 2nd May, 2007. Her mother PW2 gave the same date of birth and alluded to a birth certificate that was however not produced in evidence. The Investigating Officer PW4 stated that the complainant’s age was established through her health clinic card which was also not produced in evidence. As it were, there was mention of a birth certificate and a clinic card but at the close of the prosecution case, there was no evidence of the two documents being produced as evidence in the case. There was thus no documentary evidence adduced to prove the age of the complainant. 32. The trial magistrate in his judgment stated that the age of a child can be proved by the parent. That the mother to the complainant PW2 was best placed to know the age of the complainant which she stated was 14 years at the time the offence was committed. 33. In the case of Edwin Nyambaso Onsongo Vs Republic (2016) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe Vs Republic, Mombasa Criminal Appeal No.24 Of 2015 (UR) the Court of Appeal held as follows as regards proof of age:“ … 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.” 34. The complainant`s mother knew the date of birth of the complainant. The complainant herself was sufficiently intelligent to know her age. The fact that she was in class 7 was also a pointer to her possible age. 35. The clinical officer who completed the complainant`s P3 form, PW3, estimated her age in part “C” of the P3 form at 14 years. The Court of Appeal in the case Safari Charo Koyo v Republic [2017] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 6

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eKLR stated that where actual age of a victim of defilement is not established, the court can go by the apparent age of the victim as established by the doctor who examined the victim. Said the court: We cannot help but note that PK’s actual age was not established. Consequently, where actual age of a minor is not known, proof of his/her apparent age is sufficient under the Sexual Offences Act. Faced with a similar situation, as in this case, this Court in Evans Wamalwa Simiyu vs R [2016] eKLR, observed that “As to whether the appellant’s age fell within 12 and 15 years of age, the evidence was rather obscure. Although the complainant testified that her age was twelve years, she did not explain the source of this information. The Complainant’s mother did not offer any useful evidence in this regard as she did not say anything about the complainant’s age. This leaves only the evidence of Dr. Mayende who indicated at Part C of the P3 form that the estimated age of the complainant was 12 years. We have anxiously considered the purport of this evidence since the Doctor does not appear to have carried out a specific scientific age assessment. Nevertheless, we do note that under part C of the P3 form the age required is estimated age and under the Children’s Act “age” where actual age is not known means apparent age. This means that in the Doctors opinion the apparent age of the complainant from his observation was 12 years. Thus, although the actual age of the minor complainant was not established, the apparent age was established as 12 years.” 36. The estimated age of the complainant according to the clinical officer who examined her was 14 years. In view of the above observations, I find that the age of the complainant was proved at 14 years. 37. On to the issue of penetration, the same is defined in section 2 of the Sexual Offences Act as the partial or complete insertion of genital organs of a person into the genital organs of another person. It may be proved by oral evidence of the victim or by way of circumstantial evidence which may be corroborated by medical evidence. 38. The clinical officer who examined the complainant found her with a normal genitalia with a missing hymen. The trial magistrate in his judgment held that the finding of the clinical officer that the complainant had undergone habitual sexual abuse corroborated the evidence of the complainant on defilement. That could be so but there was nothing as far as medical evidence was concerned to connect it with the Appellant. The law is that mere absence of hymen is not prove of defilement P.K.W v Republic (2012) eKLR. In my consideration the trial magistrate erred in holding that there was medical evidence to support defilement by the Appellant. 39. There being no medical evidence to support the defilement by the Appellant, that leaves the oral evidence of the prosecution witnesses to see whether they proved the charge against the Appellant. 40. The trial magistrate in convicting the Appellant of the offence stated that the complainant narrated the events of how the Appellant penetrated her. That her testimony on the incident of 4/12/2021 was compellingly persuasive that she was telling the truth. That she was categorical that this was a repeat of similar incidents spanning between September and December 4th 2021. That the complainant remained firm even during cross-examination by the defence counsel. That the Appellant`s defence was a mere denial That the defence that the charges were orchestrated by a friend to the complainant`s mother was spurious as it was not raised during cross-examination. 41. I have re-examined the evidence adduced against the appellant in its entirety together with the defence offered by the Appellant. There was no doubt that the complainant in this case was telling the truth that the Appellant penetrated her on 4/12/2021. The appellant admits that he was found in company of the complainant in his office on that day. The complainant said that the people who locked the door from https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 7

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outside started by knocking the door before they locked it from outside. This shows that h Appellant had locked the door from inside. The complainant said that the door was locked from outside about 30 minutes after she entered into the appellant`s office. There is then no reason to doubt the evidence of the complainant that the appellant was having sexual intercourse with her at that particular time. There is no any other reason why the Appellant would have locked himself and a 14-year old girl in his office during lunch time. 42. The complainant testified that the Appellant had penetrated her before that date. That on the first day he did so he laid her on the carpet of his office. That on 4/12/2021 he did so on a seat in the office. She admitted that her mother used to keep her utensils at the workshop of the Appellant. The complainant`s mother PW2 admitted that she had on that day taken food to the Appellant. In my consideration, there is no way that the complainant could have fabricated the evidence on defilement when there was no grudge between her and the Appellant. 43. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for such a finding, The trial court in this matter believed that the complainant was telling the truth. From the testimony given by the complaint she created a credible impression that she was telling the truth. That the youth leader and the village elder who locked the door from outside were not called in the case did not dent the complainant`s evidence in view of the fact that the accused does not deny that the girl was found in his office. 44. The Appellant alleged that the charges were fabricated by a friend to the mother to the complainant who had ill feelings towards him. These allegations were not substantiated. The Appellant never put such a question to the complainant and her mother during cross-examination. The allegation can only have been an afterthought. There was no fabrication of the matter. 45. The upshot is that Appellant was convicted on very credible and overwhelming evidence. I therefore do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 18TH DAY OF MARCH, 2026. J. N. NJAGI JUDGE In the presence of: Miss Mutua for the Respondent Appellant – present virtually at GK Prison Malindi Court Assistant - Janette https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3850/eng@2026-03-18 8

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