Salim Said Karisa v Republic

3. 4. That the learned trial magistrate erred in law and fact by shifting the burden of proof from the prosecution to the appellant. 5. That the learned trial magistrate erred in law and fact by failing to come to the conclusion that crucial witnesses were not called by the prosecution. The prosecution called 5 witnesses in the case while the Appellant did not call any witnesses in his defense. Prosecution case 4. The case for the prosecution was that the complainant was at the material time aged 7 years and was in school. She was living with her father PW3. The Appellant was from their village. 5. It was the evidence of the victim, PW1, that on the material day she and her younger brother came from school and started their journey to their shamba where her father was. That on the way they passed by the house of the appellant. The Appellant called them. He gave the victim`s younger brother Ksh. 50/and sent him to the shop to buy him flour. The appellant then sent her to his mother to get his phone. That when she went back with the phone she found the appellant in his one roomed house. As she gave him the phone, he pulled her into the house. He placed her on the bed and removed her panties and removed his. He inserting his penis into her vagina. After he finished he told her to go home. She went home and did not find anybody. When her father went home she informed him what had happened. They on the same day went to ask the Appellant. He denied doing it. They went with him to Malindi town. She was taken to hospital. 6. The father to the complainant, PW2, testified that he was on the material day working in his shamba when his youngest son reached there and told him that him that the victim, PW1, was locked up in the house of the appellant. He went to the home of the appellant and found him cutting bushes. He called the Appellant`s uncle and they asked him but he said he had not seen PW1. He sent his son to call the victim. When the victim went there she said that the Appellant had defiled her inside his house. The appellant told him to do what he wanted. There were boda boda riders there and they attacked the Appellant and beat him up. They took him to Malindi police station. He took his daughter to hospital. 7. At Malindi sub county hospital, the complainant was examined by a Clinical Officer PW4 on 26/3/2019 who found her with a broken hymen, swollen and tender labia minora, whitish discharge and was in a lot of pain. The whitish discharge had bits of blood. He concluded that there was vaginal penetration on the minor. 8. The case was investigated by PC Marian Hussein PW3 of Malindi police station. It was her evidence that the matter was reported on 26/3/2019. She interrogated the complainant who stated that she was from school with her brother. That on their way to see their father at the shamba, they met the appellant who sent her brother to the shop to buy him flour. He then gave her Kshs.10/- to buy “tumbako”. She went and bought what she was sent and took it to the appellant at his house. That as she was leaving, the appellant pulled her hand and took her into a room, removed her clothes, lay her on the bed and defiled her. She also stated that the appellant tied her mouth with a cloth and threatened to kill her if she told anyone what he had done. The appellant then gave her a banana and told her to go. She met her brother who informed her that their father was looking for her. She issued the victim with a P3 form that was completed at Malindi sub county hospital. 9. It was the evidence of the investigating officer that the Appellant was arrested by members of the public who beat him up and he was taken to the police station. During the hearing of the case in court the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5564/eng@2026-02-27 2

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clinical officer PW4 produced lab request and report, the treatment notes and P3 form as exhibits, P.Exh.1(a) and (b), 2 and 3 respectively. Defence Case. 10. In his defence the appellant told the court that he taught at a madrasa (Islamic school). That in 2019, he had a dispute with PW2 over his marriage to his sister. He interfered until they separated. They again had a land dispute over a piece of land he PW2 had bought from his family. That he wanted an extra piece from them but his brothers refused. He told his brothers to give him since he had bought it and the issue was resolved. He later accused him of having an affair with his wife and he threatened him. That on 26/3/2019 he went to the shamba early and worked until 11:30 a.m when he was accosted by PW2 and his children. He was helped by an in-law who took him to dispensary and to the police station. He said that he did not know the complainant and never saw her on the material day. Submissions 11. In his written submissions, the Appellant faulted the trial magistrate for convicting him and sentencing him to serve 60 years imprisonment without proper consideration of the principles of sentencing and the provisions of the constitution. He submitted that the sentence imposed on him was harsh, excessive and inhuman. 12. The Respondent submitted that the appellant’s assertion that the trial court erred by failing to find that the appellant’s identification was unfounded as the appellant was a neighbor and was well known to the complainant. He submitted that the appellant was positively identified by the complainant. Counsel also submitted that the defence tendered by the appellant was mere denial and could not dispel the overwhelming evidence tendered by the prosecution. 13. On whether crucial witnesses ought to have been called by the prosecution, counsel relied on Section 143 of the Evidence Act which provides that no particular number of witnesses shall be required for the proof of any fact. He submitted that the prosecution only needs to call such witnesses as are sufficient to establish the charge beyond any reasonable doubt. He asserted that the prosecution called sufficient witnesses to establish the case against the appellant. He relied on the case of Julius Kalewa Mutunga vs Republic (2006) eKLR where the court held as follows; “ As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.” 14. He further submitted that the prosecution witnesses gave direct evidence in support of the prosecution case. That the testimonies of the prosecution witnesses were not only consistent but corroborative of each other. He submitted that the prosecution presented a strong case and was able to discharge its burden of proof beyond reasonable doubt. Analysis and determination 15. This being the first appellate court in the matter, the court is guided by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal held that: “ The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5564/eng@2026-02-27 3

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court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash 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 decisions.” 16. 17. I have considered the grounds of appeal, the evidence adduced at the lower court and the submissions filed by the Appellant and the prosecution counsel. The issues for determination are; i. Whether the prosecution proved its case beyond a reasonable doubt and ii. Whether the sentence was manifestly harsh and excessive The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act which provides: “ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(2) “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.” 18. 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 proof of: the age of the complainant; penetration and identity of the perpetrator, see the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013. 19. The Appellant in his grounds of appeal states that the charge of defilement was not proved beyond reasonable doubt. 20. The victim herein told the trial court that she did not know how old she was but that she was in class one. The trial court found that the victim did not understand the consequences of an oath. The court thereupon permitted her to give unsworn evidence. 21. The father to the victim PW2 said that the complainant was aged 8 years at the time he, PW2, testified in court in July 2021. The investigating Officer PW3, produced the complainant’s age assessment form, P.Exh.4, that indicated that she was aged 8 years. The trial court relied on the age assessment report to hold that the age of the complainant was proved at 8 years. 22. It is however apparent that the investigating officer was not the maker of the document. She did not lay out before the court the basis of producing the document herself and why the maker could not be called. There was no evidence that she knew the person who made the document. The consent of the Appellant was not sought for the investigating officer to produce the document in court without calling the maker. The document was therefore not procedurally produced in court. The trial court made an error to rely on the document to hold that the complainant was aged 8 years. 23. The age of a person can be proved in various ways including by way of oral evidence of the parents or guardian and by way of documentary evidence. In the case of Edwin Nyambaso Onsongo Vs Republic (2016) eKLR, in which the court cited the case of Mwolongo Chichoro Mwanyembe Vs Republic, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5564/eng@2026-02-27 4

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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.” 24. The father to the complainant knew the age of the complainant. The fact that the complainant was in class one is a pointer to her age. It is safe to rely on the evidence of the complainant`s father to hold that the child was aged 8 years. 25. The clinical officer who completed the complainant`s P3 form, PW4, estimated the complainant`s age in part “C” of the P3 form at 8 years. The Court of Appeal in the case Safari Charo Koyo v Republic [2017] 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.” 26. In view of the finding by the clinical officer PW4 that the estimated age of the girl was 8 years coupled with the evidence of her father that the girl was aged 8 years, I find that the age of the complainant was proved at 8 years. 27. On penetration, the same is defined in Section 2(1) of the Sexual Offences Act penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 28. Penetration can be proved by the oral evidence of the victim or by way of circumstantial evidence which can be corroborated by medical evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5564/eng@2026-02-27 5

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29. The medical evidence adduced by the clinical officer indicated that the complainant had pain and swellings in her genitalia. The medical evidence supported the evidence of the complainant that she had been defiled. 30. The victim herein was a child of tender years. Her evidence has to be considered in the context of section 124 of the evidence Act which provides that in sexual offence cases involving children the court can 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 finding so. 31. The trial magistrate in her judgment said that she found the complainant victim to be truthful. That her evidence was corroborated by the medical evidence. That the defence offered by the Appellant did not dislodge the prosecution evidence. 32. Having carefully re-examined the evidence of the complainant, I have no reason to differ with the finding of the trial magistrate that the complainant was a truthful witness. Her evidence in court was consistent and she did not waver even under cross-examination by the Appellant. She did not have reason for fabricating such kind of evidence against the appellant. Her evidence that the Appellant defiled her on the material day was corroborated by the evidence produced before the trial court that showed that her labia minora were swollen and tender to touch. She was examined at the hospital on the same day of the incident. There is no reason to doubt the medical findings. 33. Though the Appellant in his evidence said that he did not know the complainant, he never put such a question to her during cross-examination. The complainant identified the Appellant to her father a few minutes after the defilement. The defence must have been a made-up story. The Appellant was a person well known to the complainant as they were from the same home area. He was therefore properly identified. 34. The Appellant alleged that the case was fabricated by the complainant`s father after threatening him that he will show him after suspecting that he was having an affair with his wife. Similarly, he never put such a question to the complainant`s father in cross-examination. His defence to that end can only have been an afterthought. 35. Upon considering the evidence in its entirety, I find that the evidence adduced against the Appellant was overwhelming and he was convicted on solid evidence. The conviction is thereby upheld. 36. The sentence for defiling a child of or under the age of 11 years is imprisonment for life. The victim herein was aged 8 years. The trial court sentenced the Appellant to 60 years imprisonment. 37. The section the Appellant was charged with provides for a sentence of imprisonment for life. I accordingly set aside the sentence of 60 years and substitute it with a sentence of imprisonment for life. DELIVERED, DATED AND SIGNED AT GARSEN THIS 27TH DAY OF FEBRUARY, 2026 J. N. NJAGI JUDGE In the presence of: Mr. Oluoch for Respondent Appellant – present virtually at Manyani Maximum Prison Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5564/eng@2026-02-27 6

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