Timothy Makau Mbuthu v Republic

give evidence, and give allowance for that. (See Okeno v Republic (1972) EA 32 and Mark Oiruri Mose v R (2013) eKLR. b. Whether the Ofience of Defflement was Proven to The Required Standard Thereby Warranting a Conviction 5. The Court in George Opondo Olunga v Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator. 6. I shall start with the element of penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR), the Court held as follows; “ 19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.” 7. PW5 was a Clinical Officer who produced the medical reports. He told the Court that the hymen was broken but not fresh. He testified that the minor did not have bruises and laceration, and there was no vaginal discharge. I have seen the said medical reports, the P3 dated 7th January, 2022, the PRC form, and treatment notes from Kisau Sub-County Hospital. They corroborate the medical officer’s oral testimony. 8. PW1 and PW3 told the Court that the minor was defiled on 5th January, 2022, at around 2.00 pm. The medical reports showed that the medical examination was conducted on 7th January, 2022, at 10.00 am. This means that the minor was examined within 48 hours of the alleged incident. In addition, I have read the minor’s testimony and she seemed to state that the penetration was forceful. 9. Courts have observed that where the penetration is “forceful” or “forced sex,” the medical examination of the victim is likely to reveal presence of bruises or lacerations, discharge, and blood stains. In Eliud Muraya Wabuchi v Republic [2020] eKLR, the Court observed as follows; “ The evidence of PW3 the Clinical Officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis.” 10. I note that the medical examination found no lacerations, no bruises, no vaginal discharge, the hymen was broken but it was not fresh. Bearing in mind that the alleged penetration was forceful, and that the minor was examined within 48 hours of the alleged incident, I find that the medical examination did not corroborate the minor’s testimony on penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5175/eng@2026-04-13 2

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11. However, a Court can convict on uncorroborated evidence of a victim of a sexual offence, if the Court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides; “ 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.” 12. The minor told the Court that she was defiled in the forest, while on her way from school. However, she told the Medical Officer and the Investigating Officers a different version as captured in the medical reports. In the reports, she told the Medical Officer and the Police Officer that she was defiled at her brother’s house. I do not readily appreciate why the minor told the Police Officer and the Clinical Officer a narrative that is counter to what she had told her Teacher and her grandmother, particularly on the place of the alleged defilement. 13. I also have reservations on the manner in which the lower court took the minor’s testimony, having found and declared her a vulnerable witness. The minor gave evidence through an intermediary, her Teacher, who was also the PW1. 14. The Courts have given guidance on how to take the evidence of an intermediary. The Court of Appeal in MM v Republic [2014] KECA 441 (KLR) outlined the procedure to be followed before taking evidence through an intermediary. It observed as follows; “ It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voir dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed. It is clear from what we have said so far that the procedure of appointing an intermediary preceeds the testimony of the intended vulnerable witness even where the court does so suo moto. It is also clear that an intermediary can be an expert in a specified field or a person, who through experience, possesses special knowledge in an area or a social worker, or a relative, a parent or a guardian of the witness. The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings.” 15. In this particular case, PW1 was appointed to assist the minor testify. There is no doubt that PW1 had a special relationship with the complainant because she was the minor’s Teacher. The Appellant, who was unrepresented, did not object to the appointment of the Intermediary. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5175/eng@2026-04-13 3

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16. However, according to the record, the trial Court missed key procedural aspects before allowing the intermediary to participate. One, the intermediary did not subscribe to the appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. She ought to have taken the prescribed oath. In addition, the trial Court did not give directions to delineate the extent of the intermediary’s participation in the proceedings. 17. In my view, the trial Court ought to have delineated the extent of the intermediary’s participation in the proceedings. This is more so because the intermediary was also the PW1. Clearly, such delineation was necessary in the circumstances. It was the only way for the court to assure itself that the intermediary could distinguish her role as PW1 vis a vis her role as an intermediary for PW2. 18. For these reasons, I find that penetration was not proved, and thus the conviction cannot stand. The Appeal succeeds and the conviction is set aside. Disposition 19. The Appeal succeeds. 20. The conviction is hereby quashed and the sentence is set aside. 21. The Appellant be set at liberty forthwith unless otherwise lawfully held. 22. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF APRIL, 2026. .......................... HON. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl. Appellant – present. Ms. Musango, ODPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5175/eng@2026-04-13 4

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