Mwalo Daniel Poko v The Republic

2024 and judgment was delivered on 15th October 2024 where the appellant was convicted for count 1 and sentenced to a life imprisonment. 3. The appellant filed the petition herein after being aggrieved by the aforesaid judgment and he raised the following summarised grounds: a. That the trial court erred in law and fact by failing to determine the ingredients of age and identification which led to a wrong conviction. b. The trial court erred in law and fact as it did not consider that crucial witnesses were not summoned. c. That the trial court erred in law and fact by imposing a sentence of life imprisonment contrary to the current jurisprudence with regard to the mandatory nature of the relevant penal law. The Law 4. Section 8 (1) of the Sexual Offences Act which provides for Count 1 that: “ A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement.” The sentencing provision is in section 8 (3) of the Sexual Offences Act provides that: “A person who commits an ofience 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.” Summary of the evidence 5. PW 1 was victim J.M and she testified that on 16th October 2022 she had gone to the toilet at around 10pm to relieve herself when the appellant walked in without knocking and held her throat with one hand and removed his trouser with the other hand and removed his trouser and short with the other hand and proceeded to penetrated her vagina. She had on a pink dress and biker and panty the latter two which she had already removed for purpose of relieving herself. She said she felt severe pain but she could not scream because the appellant was squeezing her throat. Thereafter she saw a whitish discharge form the appellant and also saw blood in her vagina. She identified him as her neighbour who was staying in the same plot and even used to greet her. She further informed the court that during the act, her mother was calling her loudly but she was not able to answer because of the chokehold on her throat. After the act she left the toilet and met her mother who tried to demand an explanation from the appellant but no answers came forth. When her father came, she told the people surrounding the appellant that she had been defiled after which her father proceeded to the police station and she slept after cleaning herself. 6. However, she then stated that she was taken to the hospital and was examined and mentioned to the court that it was her first time.She clarified that inside the toilet was dark but outside the toilet there was a bulb light and moonlight where she saw the accused clearly and even stated that the appellant was wearing the same shirt in court that he was wearing on the date of the ofience. She added that she was taken for counselling for one month. On cross examination she informed the court that the appellant knocked on the door and after telling her she was in the appellant forced his way in. 7. PW 2 was JMM, the father of the victim J.M and he testified that on 16th October 2022 at around 9 pm he was called by the mother of the victim since he was a boda boda rider and was working. He was informed that the appellant had been found with his daughter inside the toilet and he quickly https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 2

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rushed home where he found the neighbours, the mother, the daughter and the accused who was sitted outside his house wearing only a shirt and towel. He interrogated the appellant who impudently told him not ask him any questions. 8. He further stated that the appellant wanted to leave but he was able to detain him and when the village elder came, the same suggested that they call the police which they did. The police came and arrested the appellant and were advised to go the police station later on after hospital. His daughter informed him about the defilement. He said that they were told to first attend to the hospital before going to the police station. At the hospital, the doctor informed them that the victim had been defiled and had an old healing scar. He recognised the appellant as a neighbour who would sit at his door and chew mogoka. 9. PW 3 GW was the mother of the victim J.M and she narrated that on 16th October 2022 after she had her supper, she ordered her child to remove her shoes outside and put them inside. However, the victim wanted to go to the toilet which was outside the house but not very far. She described the plot as open without any gate and had two toilets which operated as bathrooms as well. She got concerned after waiting for around 10-20 minutes because her daughter did not come back and she kept calling her but there was no response. She saw a leso hanging outside the toilet with a faulty door. After trying severally to call her she heard faint response and the child came out after three minutes shaken. She narrated that the victim passed her without saying any word and she then stood outside and waited for another 10 mins after which she saw the appellant coming out of the same toilet and when she asked him, he refused to respond. Both the appellant and the victim had come out of the toilet with a faulty door. She called her husband who came and tied his hands when he tried to escape. She also reported to her neighbour After the police had arrested the appellant, and were told to report to the police station the following day. They went to the hospital where the doctor confirmed the defilement but stated it was not the first time. She was adamant that the victims not free with her an did not tell her what happened. 10. Upon cross examination she added that she saw her daughter going to the toilet daughter was so afraid to open up on the material day and only did so the following day as the appellant had threatened to kill her. 11. She identified the appellant as a neighbour and used to refer to him as a mogoka man and that after her daughter came out, she saw a leso which was hanging outside the same toilet and so she waited to see who would come out. She recognised the leso as the one he normally wears. So, when he left the toilet after the victim, he picked his leso while ignoring her enquiries. She had assumed that the appellant had forgotten the leso as the residents usually also bath in the toilets. PW 3 interestingly testified that when the appellant came, she asked him and the appellant told her exactly what she thought he was doing with her daughter. She was told at the police station that the appellant had threatened the victim and had closed her mouth with a leso. 12. PW 4 Gabriel Mugola is a doctor at Coast General Hospital and he testified on behalf of Dr. Mugero Juliu. He produced the PRC form and P3 form. He detailed that the vagina had swollen labia majora and minora and the hymen had an old scar and it was broken. The lab request form on high vaginal swab did not show any spermatozoa but showed epithelial cells which meant that there was an infection s well as protein cells. She also categorically stated that there was no blood. 13. On cross examination she testified that she examined her private parts and her vagina was swollen and there was no spermatoxoa or blood noted and she could not tell whether the victim was misleading about the defilement. She added that the PRC form was filled on 31st October 2023 but the information therein is what is contained in the P3 form. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 3

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14. PW 5 PC Getrude Kwamboka from Bamburi Police Station testified on behalf of the previous I.O PC Irene Kenga. She reiterated the testimonies of PW 1, 2 and 3 and narrated that the appellant was a neighbour to the victim and he inserted his penis into her vagina. She told the court that the victim told PW 3 the events of that night and the former I.O took the victim to the Coast General Hospital. She produced the birth certificate as PEXH 1. She told the court that the former I.O took the victim to the hospital She denied that incident of the leso was recorded in the statement and admitted that she was in court when PW 4 testified 15. DW 1 the appellant testified and narrated events without giving dates. He stated that he had a dispute with PW 1 as she was at her door and that PW 3 asked why he did not go to his ‘usual place’. He responded by telling him to leave them as he did not want anyone to say he seduced her. The following day he greeted her but she did not respond and the day after that she started asking what he was doing with her daughter in the toilet. The child said she was defiled by a person wearing a leso. Upon cross examination, he stated that he has been close neighbours with the victim for a year and even accused PW 3 of wanting a relationship with him. He informed the court that PW 3 asked him what he does for a living as she always sees him taking miraa. The duty of the court 16. As a first appellant court, it is now settled as was held in Okeno V Republic (1977) EA 32 that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them giving evidence and give allowance for that. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated 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.” 17. The issue for determination is whether the appeal has merit or not? 18. The late Justice Majanja, in Peter Mokami Nahashon vs Republic [2014] eKLR stated as follows on the ofience of defilement: “ A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person. (Emphasis supplied)” 19. On the issue of identification, there is no proper contest that that has been raised. PW 1,2 and 3 testified that the appellant was a neighbour and PW 1 testified “In the toilet It was dark but outside there was a light, a bulb light was just outside the toilet and there was a moon light that I used to see the accused clearly. I saw him very well. I am not confusing with anyone. The shirt he is putting on now is the one he had worn on that day he defiled me.” To any fair trial court this was sufficient to prove identification. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 4

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Further the mother claimed that she waited 10 minutes for the appellant to come out of the court and she saw him come out of the same toilet which had a faulty door and he picked his leso which was standing outside. 20. On the issue of age the court refers to the Peter Mokami Nahashon case where the judge held that proof of age is required to establish the ofience and the sentence to be meted out. PW 5 produced a birth certificate PEXH 1 showing that the victim was 12 years at the time of the alleged ofience. 21. The court has taken note that an application to amend the grounds of appeal was filed on 18th February 2026 where the appellant amended his earlier grounds and added that penetration was not proved beyond reasonable doubt. PW 4 testified that there was swollen labia majora and minora and that there were epithelial cells. The court in A mbal e v Republic [2022] KEHC 27094 (KLR) held as follows: “ In its submissions, the prosecution stresses the fact that epithelial cells were found in the complainant’s vagina. Epithelial cells are by their mere presence in the vagina not conclusive proof of penetration. Epithelial cells occur naturally in the body and act as protective barrier lining the all faces of organs and cavities. It is thus possible to detect epithelial cells in the urine or faeces. In fact, even male have epithelial cells in their organs including the urethra. Presence of epithelial cells, ipso facto, can thus not be the sole proof of penetration. If the argument should be that it is the friction or erosion that presented the epithelial cells, in the complainant’s vagina, then more probe should have been conducted and more insight obtained from PW4 whether friction caused by a playing or running girl can be cause of presence of epithelial cells in the vagina. That was not done and it leaves a reasonable doubt that ought to be resolved in favour of accused.” In this case, PW 4 testified that not only was the labia minora and majora swollen but after a high vaginal swab the only substance found was epithelial cells. There were no bruises or any evidence of spermatozoa and blood. PW 4 also did not find any injuries normally attributed to forceful penetration such as cuts, bruises or abrasions either externally or inside the vagina. She categorically stated “I do not know if the complainant lied to the court”. It should also be noted that there was an old healing scar where the hymen used to be. Normally this means nothing as the hymen can tear where the girl is exposed to extreme activities such as sports or exercise. 22. In Mkala Nyanje Mdzele v Republic [2018] KEHC 4416 (KLR)this court held that the swollen labia major and minora despite the hymen being intact and coupled together with the evidence of the victim could only lead to the conclusion there was defilement. The court of appeal in RS v Republic [2019] KECA 457 (KLR) agreed with the finding of the magistrate and high court that the presence of epithelial cells plus pus was indicative of friction on the vaginal walls hence proving penetration. 23. However, in ION v Republic [2021] KEHC 3064 (KLR) this court recorded the submissions of the appellant who cited the court of appeal case in Arthur Mshila Mlanga vs Republic (2016) eKLR which held as follows: “ He also cites the case of Arthur Mshila Mlanga vs Republic (2016) Eklr whereby the Court of appeal concluded that the medical evidence before it reproduced verbatim as follows did not establish that the complainant was defiled: “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….” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 5

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The court then held as follows: “It is trite that the absence of the hymen is not proof of penetration. The absence of other physical injuries such as bleeding, lacerations to the labia soreness and discharge is telling and, in my view, raises some reasonable doubt in regard to the issue of penetration. The child’s evidence was that the appellant did “tabia mbaya”. to her. She was not however pressed to say what she meant by that. It could be that the perpetrator kissed her as that is also considered to be “tabia mbaya” by children of that age. It therefore behoved the prosecutor and the court to “press” the child to describe to the court what exactly was done to her because as it is the absence of such description creates a gap in the prosecution’s case which raises doubt as to the guilt of the appellant, the benefit of which must go to the appellant. I am alive to the principle that a court can convict solely on the evidence of a victim of a sexual ofience. It is my finding however that the testimony of the victim in this case falls short of the standard acquired to sustain a conviction and I need not go into the other elements of the ofience. For the aforegoing reasons this appeal is allowed.” 24. This is the same predicament the court is in as the victim is the only eye witness and although section 124 of the Evidence Act allows this court to convict on the evidence of the her testimony, there is a rider that the court must be satisfied that the victim is telling the truth. There are inconsistencies in her testimony. She alleged to have been able to seethe appellant in the dark toilet although she used the bulb light and moon light as reasons. PW 3 described the toilet where the victim and the appellant were as having a faulty door. The victim also testified that she saw a whitish discharge and blood from the appellant yet none was recorded in the PRC, P3 and the lab request form. During examination in chief she testified that the appellant did not knock but forced himself inside while in cross examination she stated that he did knock and asked. There is also the strange narrative that she was held in a chokehold for the entire period but strangely there was no bruising on her neck. The court could go on and on in mentioning other inconsistencies but there is no need as the court has made up its mind. 25. In the court of appeal case of Ndungu Kimanyi vs Republic [1976-1980] KLR 1444: “ We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise a suspicion about his trustworthiness or to do or say something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence.” 26. The court cannot trust the evidence of the victim and so far there has been no proof that penetration occurred. The option left under section 354 (3) (iii) is to consider the alternative charge of indecent act contrary to section 11 (1) of the Sexual Offences Act . In Paul Otieno Okello v Republic [2019] KEHC 7705 (KLR) the ingredient for an indecent act were listed as follows: a. Proof that the victim is a child in law; b. Proof that there was contact between any body part of the accused person with the genital organ, breast or buttocks of the child victim (but that act must not be an act that caused penetration) or proof of exposure or display of any pornographic material to a child; c. Proof that the act(s) in (b) was/were intentional; d. There should be no legal justification in the act(s) complained of. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 6

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27. Once again, the only eye witness was the victim whom the court has considered untrustworthy. None of the other witness can testify physical contact between the appellant and the victim. The appeal is therefore allowed. 28. It is so ordered. DATED, SIGNED, AND DELIVERED IN MOMBASA VIRTUALLY THIS 18TH DAY OF MARCH, 2026. W. K. MICHENI JUDGE SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI DATE: 2026-03-24 20:14:14 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4086/eng@2026-03-18 7

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