Bmt v Republic

4. 3. That the trial court erred in law by not putting in notice that the appellant was not taken through the DNA tests in line with Section 36 of the Sexual Offences Act neither was the age assessment of the said minor proved to required standards. 4. That the trial court erred in law and facts for not proving the offence beyond reasonable doubt to the appellant who is still a layman who has little knowledge of the rule of law. 5. That I pray to be furnished with copy of the trial record if any and Judgment to be able to raise more reasonable grounds during the appeal hearing. The appellant prays that the appeal be allowed, the conviction be quashed, sentence be set aside and he be set at liberty. The respondent opposed the appeal. The court gave directions that the appeal be canvassed by way of written submissions. The Respondent’s Case 5. PW1 MKK was the complainant, a child aged eight (8) years and gave evidence on oath after a voice dire examination. On the material day she went to fetch firewood when she met the appellant who held her hand and led her to the garden. The appellant did ‘tabia mbaya’ to her which left her with pain in her vagina. The appellant told her not to tell any one. When she went home, she informed her grandmother (shushu) untie and uncle. She was escorted to hospital after the matter was reported to police. The complainant told the court that she knew the appellant as he was living with her in her home and he had seen him all along. 6. PW2 SK as an eleven-year-old boy who testified on oath after a voire dire examination. He told the court that he lives with the complainant where they live with shushu, Auntie and Babu. The PW2 testified that the complainant was her cousin. On the material day he went to get goats and while there he saw the appellant and he complainant doing ‘tabia mbaya’. They then stood and he asked the complainant where she was. The complainant told him he had done tabia mbaya with M, the appellant. 7. PW3 JMM testified she lives with the complainant in a compound where many families live. The complainant is her niece. On the martial day, she missed the complainant and she learnt that she had gone to collect firewood. The complainant resurfaced at 7.00pm and she asked her where she was. PW1 said she had gone to pick firewood and she met the appellant who told her to remove her clothes. The appellant then defiled her. The complainant was escorted to hospital. 8. PW4 JKN testified that the complainant is her grandchild. On the material day PW1 was taken to her place of work by Joel Kathuku who alleged that she had been raped by M who is her brother’s child, (nephew). PW4 took the child to Kauwi Health Centre. 9. PW5 Raphael Mumo Koroi is a clinical officer who hold a diploma in Clinical Medicine and Surgery and Higher Diploma. He works at Kauwi Sub-County Hospital where he had worked for four years at the time of this incident. On 13/8/2001 he filled a P3 form for KK, a child aged eight years on allegation of defilement. On examination, she had pain on urinating. On examination, the external genitalia was normal, normal labia majoras and bruised libia minoras. The hymen was intact. He concluded that there was defilement because there was trauma on liabia mainora. He filed the PRC form and the P3 form. He testified that the urinalysis had nothing significant and no spermatozoa was seen. He produced the treatment notes, the P3 form and PRC form as exhibits 1, 2 & 3 respectively. 10. PW 6 No. 92xxx0 CB Sammy Kisangani Sayeni is the Officer -in-charge (OC) Kathivo Police Post of Matinyani Police Station. On 12/8/2021 the report of defilement was made at the Police Post. He caused the complainant to be escorted to hospital. She was examined and PRC as well as P3 form were https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 2

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filled. He confirmed that defilement had occurred. He then instructed officers to arrest the perpetrator who is the appellant in this case. He was then arraigned in court. He obtained the birth certificate of the appellant which shows that she was born on 9/11/2012. The birth certificate was produced as exhibit 4. 11. The learned magistrate gave a ruling at the close of the prosecution case and held as follows: “ I am satisfied that the prosecution has been able to establish a prima facie case with regard to the alternative charge and the accused has a case to answer with regard to the charge.” Defence Case 12. The appellant gave unsworn defence and told the court that on 11/8/2021 he went to the shamba upto 2.00pm then went to Kathivo Centre till 7.30pm. on 12/8/2021 the complainants’ mother told her that she will plough the land when he is in the remand. On 20/8/2021 he was arrested from his house at 5.00am. he was taken to Kathivo Police Station and was told that he defiled a child on 11/8/2021. He was then charged. Determination 13. The learned magistrate held that the offence of defilement was proved against the accused person and she went ahead and convicted him. Analysis and Determination 14. I have considered the proceedings before the learned magistrate and the submission. The issue for determination is whether conviction of the appellant should be upheld. 15. This is a first appeal in this court and it is important to mention the duties of a first appellate court. The jurisdiction of the High Court on appeals from the sub-ordinate Courts is anchored at Section 347 of the Criminal Procedure Code (Cap 75 Law of Kenya) which provides as follows: Appeal to High Court 1) Save as is in this part provided – a. 2) A person convicted on a trial held by Sub-ordinate court of the first or second class may appeal to the High Court and An appeal to the High Court may be on a matter of fact as well as on a matter of law.” So, an appeal to the High Court is on both matters of fact and law. 16. This has been considered in various decisions by the High Court and the Court of Appeal. The leading authority on the subject is Okeno -vs- Republic (1972) E.A 32 where it was stated: “ The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence. However, it must warn itself that it did not have the benefits of seeing the witnesses when they testified and must leave room for that.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 3

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17. In David Njuguna Wairimu -vs- Republic, C.A (20100 eKLR while citing with approval the case of Okeno -vs- Republic (supra), state as follows: “ The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions we do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 18. The court further stated: “ An appellant on a 1st appeal is omitted to expect the evidence as a whole to be subjected to a fresh exhaustive examination, (Padya -vs- Republic (1975) EA 336) and to the appellate court’s own decision on the evidence. The appellate court must itself weigh the conflicting evidence and draw its own conclusion. In doing so, it must make allowance for the fact that the trial court has had advantage of hearing and seeking the witnesses, see Peters -vs- Sunday Post 1978 EA 424.” 19. It is well settled that the first appellate court has a duty to analyze and re-evaluate the evidence and come up with its own independent finding, the whole exercise is a retrial based on the evidence before the trial court without the benefit of hearing the evidence first hand and assessing the demeanor of witnesses. 20. I have considered the submissions by the appellant and the prosecution. In this case there was a grave error in the proceedings which I should deal with as it has the potential of disposing off the appeal. Under Article 50 of the Constitution which deals with the right fair trial, it is provided that an accused person has the right to be informed of the charge with sufficient details to answer it. Article 50(1)(2) (b) of the Constitution provides: “ Every accused person has the right to a fair trial which includes the right to be informed of the charge with sufficient detail to answer it.” 21. The article guarantees an accused person the right to fair trial. Section 134 of the Criminal Procedure Code deals with the requirement to have the charges and information to specify the offences charged with clear details for the accused person to understand the charge. Section 134 of the Criminal Procedure Code provides as follows: “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 22. The accused is therefore supposed to be charged with a particular offence and sufficient details be given. In this case, the appellant was charged with defilement contrary to Section 8(1)(2) of the Sexual Offences Act and an alternative charge of Indecent Act with a child contrary to Section 11(1) of the Sexual offences Act. Under the Criminal Procedure Code, when a person pleads not guilty, a trial is held with the prosecution calling witnesses to testify and upon presenting all the evidence the prosecution https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 4

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closes its case. The court has to determine whether the prosecution has made out a case to warrant the accused to be called upon to give his defence. Section 210 of the Criminal Procedure Code provides as follows: “ If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.” Section 211 states: “ (1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any). (2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.” 23. So, when the court rules that an accused person has no case to answer, he stands acquitted of that charge. In this case the court gave a ruling that the appellant had no case to answer on the charge of defilement. The upshot was that the appellant was at that stage acquitted of the charge of defilement. The appellant was put on his defence on the alternative charge of indecent act with a child. The appellant gave his defencce and the learned magistrate rendered her Judgment convicting the appellant on the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act. 24. Section 134 of the Criminal Procedure Code (supra) provides that an accused person shall be charged with an offence and be given sufficient particulars to enable him to understand the chare. The appellant’s right to fair trial was infringed as he was convicted of a charge which he had been acquitted by the learned magistrate. This court has no jurisdiction to reverse an acquittal and to substitute it with a conviction. Section 354 of the Criminal Procedure Code spells out the powers of the High Court when hearing and after hearing Criminal Appeals. 25. Section 354 (1)(2)(3) of the Criminal Procedure Code provides as follows: “ (1) At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 5

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(2) The court may invite the appellant or his advocate to reply upon any matters of law or fact raised by the respondent or his advocate in his address. (3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may— (a) 26. in an appeal from a conviction— (i) reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or (ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or (iii) with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence; (b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence; (bb) in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High court thereon to the subordinate court for determination, whether by way of rehearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as High Court may think fit; (c) in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re- hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit; (d) in an appeal from any other order, alter or reverse the order, and in any case may make any amendment or any consequential or incidental order that may appear just and proper.” The provisions does not need interpretation, it simply talks of the powers of the High Court in an appeal from conviction (emphasis mine), the powers of the High Court under Section 353(3) are https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 6

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powers to be exercised when dealing with appeals from a conviction and not appeals from acquittal, Section 354(3)a & e. the appeal before this court is against a conviction not an acquittal. 27. The learned trial magistrate erred by convicting the appellant on the offence of defilement having acquitted him of this offence under Section 210 of the Criminal Procedure Code. The next “Legal quagmire” in this appeal is that the appellant was but on his deefnce for the offence committing an indecent act with a child and ended up being convicted for the offence of defilement contrary to Section 8(1)(2) of the Sexual Offence Act. The Law requires that an accused person be tried and if found guilty he be punished for that offence. Article 50(2)(b) of the Constitution (supra) refers. The right to fair trial was violated as the learned magistrate did not comply with this provision. 28. He put the appellant on his defence for indecent act with a child and convicted him for defilement. The appellate was prejudiced because Section 11(1) of the Sexual Offence Act provides: “ Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” 29. When it comes to defilement Section 8(1)(2) of the Sexual Offences Act provides: “ Any person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 2) 30. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The appellant was prejudiced as the offence for which he was put on his defence and for which he would have been convicted carries a less severe sentence. The rights to fair trial were violated. Article 25 of the Constitution provides that the right to fair trial cannot be limited. On the Judgment by the learned magistrate that there was penetration, I would wish to point out that his finding was flawed as the magistrate sat on her appeal having stated as follows in her ruling on no case to answer: “ The charge of defilement has not been properly established since the medical report indicates that the hymen was not broken.” 31. Be that as it may, this statement was clearly wrong as penetration is defined under Section (2) of the Act as follows: “ Means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 32. Penetration need not be deep, the presence of trauma on the genitalia was sufficient evidence of penetration. This was properly explained by the Clinical Officer who examined the complainant. Partial penetration is sufficient to prove penetration and does not require prove of rapture of the hymen or presence of semen. The acquittal under Section 210 was not based on sound Judgment but I have to leave it at that. I have said enough. Conclusion 33. The conviction of the applicant cannot stand as he was convicted for an offence which he had been acquitted. The offence of indecent Act with a child was an alternative charge. Though he was put on his defence under that charge, it was not considered as the learned convicted him of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 7

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The Appeal has merits. The conviction is quashed. The appellant be set at liberty unless he is otherwise lawfully held. DATED, SIGNED AND DELIVERED AT KITUI THIS 23RD DAY OF JANUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4307/eng@2026-01-23 8

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