Roo v Republic

a. That the trial court erred in both law and fact by failing to consider that the ingredients forming the offence of defilement were not proved to the required standard. b. That the trial court erred in law and in fact in not appreciating the appellant’s defence that overwhelmed the prosecution case. c. That the trial court erred in both law and fact by failing to note that the evidence tendered by the prosecution was full of contradictions and inconsistencies hence doubtful and thus pointing to a fabricated case. d. That the trial court erred in law and fact in failing to consider the appellant’s mitigation and proceeding to pass a sentence that failed to take into consideration the time spent in custody 7. The appeal was disposed off by way of written submissions which this Court has duly considered. 8. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 9. The complainant, EAO testified as Pw1. It was her testimony that on the 30/11/2020 between 5 and 6pm, she was at home covering the chicken when the appellant came held her by the hand, led her to the kitchen where there was a bed and raped her. That the appellant put her on the bed and slept on her. That he removed her skirt and panty while on the bed then removed his short and underwear. He took his penis and put it inside her vagina. 10. That her father returned from herding cattle and when the appellant saw him, he ran away leading to her father asking her why he was running away. She told him that the appellant had defiled her. That she was taken to hospital and subsequently to the police. It was her testimony that she tried to resist but the appellant covered her mouth. She identified the appellant as R her uncle. That the appellant had never done anything like that before. 11. In cross-examination, she reiterated that the appellant held her mouth so that she could not scream. That the appellant was clad in a black short and stripped shirt. 12. Pw2, DOO, the complainant’s father testified that he returned home on the 30/11/2020 at around 5.30pm when he saw the appellant, his brother, crawling out of the kitchen before leaving. That he later asked the complainant what had happened and after first denying, the complainant informed him that the appellant had promised her Kshs. 50 if she agreed to sleep with him. 13. That he subsequently took the complainant for treatment and later reported the matter. That the appellant was his younger brother and that he did not have a grudge with him. 14. In cross-examination, he told the court that he was a distance away when he saw the appellant and that the appellant was clad in a long trouser and yellow shirt. That the complainant may have forgotten the colour of the clothes but that she was mentally challenged. 15. Pw3, George Mwita, a Senior Clinical Officer at Ahero County Hospital produced and testified on the P3 form filled after examination of the Complainant. 16. It was his testimony that the complainant was examined on the 4/12/2023. That she had an injury on the right thigh with bruises, that the hymen was absent with whitish foul smelling discharge and that she gave a history of having been defiled. That the same findings were reflected in the treatment notes and PRC form. He produced the P3 form as PExh 2, Treatment notes as PExh 4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3940/eng@2026-03-25 2

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17. It was his testimony that the Complainant was noted to have a mental disability as detailed in a report produced as PExh 5. 18. Pw4 No. 23xxx PC Jane testified that Pw2 accompanied by the Complainant and one MO reported the incident of defilement. That it was confirmed that the Complainant had a mental disability and was 15 years old. That the initial investigating officer visited the scene and arrested the appellant. 19. When placed on his defence, the appellant denied committing the offence and stated that the complaint against him was instigated by his brother, Pw2 with whom they had a property dispute. That Pw2 who practically raised him has been mistreating him since 2004 when their parents died, that he made him stop school and herd cattle which he later took and trades with. 20. It is on the foregoing evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly. 21. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(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.” 22. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 23. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penal provisions in the Sexual Offences Act. The younger the child, the more severe the sentence. 24. In this case, there was no dispute over the complainant’s age. The Complainant testified that she was 15 years old, a fact corroborated by her father, Pw2. A birth certificate produced as PExh1 showed that the Complainant was born on 17/7/2005 and was thus slightly over 15 years old and a few months at the time of the incident. 25. On penetration, section 2 of the Act defines penetration as follows: “ the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 26. The complainant, despite being mentally unstable, testified how the appellant lured her into the kitchen where there was a bed before he “took his big thing in his susu and put it between her legs where she uses to pee and did bad manners to her”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3940/eng@2026-03-25 3

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27. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences. 28. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That the hymen was broken and the existence of a whitish foul smelling discharge. This corroborated the complainant’s testimony that she had been defiled over a long duration of time. 29. The final issue is whether the appellant was positively identified as the perpetrator. The appellant was well known to the complainant who testified that he was her uncle. She told the court that after defiling her and upon noticing that Pw2 had returned from herding cattle, the appellant ran away. Pw2 stated that he saw the appellant leaving the kitchen when he arrived back at the home. 30. From the foregoing, it is clear that the appellant was not a stranger to the victim. 31. In his defence, the appellant denied the charge. He stated that he was implicated with the charges because of a purported property dispute between him and Pw2, his elder brother and father of the complainant. 32. The evidence of the prosecution was that the offence occurred on 30/11/2020 at about 6pm. Pw2 stated that he saw the appellant creep out the kitchen. That the complainant told him that the appellant had defiled her. However, the complainant was not taken to hospital immediately or the following morning or the day after. It took them 4 days later to take her to the hospital and report the matter to the police. There was no explanation for this long delay. 33. If the father of the complainant knew of the offence he immediately return home, why did he take such a long time to take the action he took? It is not lost of this Court that the appellant complained that the charges were tramped up against him because of a property dispute between him and the father of the complainant. 34. The appellant impugned the trial court’s judgment on account that it failed to consider his defence. In the last paragraph of the impugned judgment, the court analyzed the appellant’s defence before concluding that the same was an afterthought. The court did not however consider the 4 day hiatus between the alleged commission of the offence and the taking action. In my view, that should have been resolved in the favour of the appellant. 35. The appellant complained that his conviction relied on contradictory evidence. It is undisputed that there was a contradiction on the clothing the appellant wore on the date of the incident as described by the complainant vis a vis her father, Pw2. In my view, these contradictions were material in that, if Pw2 knew the appellant as the perpetrator, why not take action at the earliest? 36. In the present case, the Court has carefully considered the evidence of the prosecution and is unable to find that the same was overwhelming as against the appellant’s defence. I find the conviction to have been unsafe. 37. Accordingly, I find the appeal to be meritorious and allow the same. The conviction is hereby quashed and the sentence set aside. The appellant is to be forthwith set at liberty unless otherwise lawfully held. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF MARCH, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3940/eng@2026-03-25 4

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