John Nzioka Musyoka v Republic

(5) 3. That the trial court magistrate erred in law and fact in convicting the appellant based on the complainant’s single evidence without giving the reason for her believing in the said complainant’s testimony.” In his submissions he amended the grounds (without leave) to: “ (1) That the charge sheet was defective. (2) That the learned magistrate erred in law and fact by convicting and sentencing the appellant yet the case had substantial contradictions and inconsistencies. (3) That the learned magistrate erred in law and fact by convicting and sentencing the appellant yet the witnesses were incredible. (4) That the medical evidence tabled in court was questionable and therefore inadmissible. (5) That the learned magistrate erred in law and fact by convicting and sentencing the Appellant yet the key ingredients of the offence were not proved. (6) That the sentence is illegal, harsh and excessive.” 4. Basically the Appellant’s argument is that the conviction was against the weight of evidence. In other words that the charge was not proved beyond reasonable doubt in that the elements of age, penetration and identification were not proved beyond reasonable doubt. He also contends that the sentence imposed not the proper sentence for the age bracket of the victim and that in any event the charge was defective in several aspects. He urged this court to quash the conviction, set aside the sentence and set him at liberty. 5. The prosecution has however urged this court not to allow the appeal as the charge against the appellant was proved beyond reasonable doubt. Analysis and determination 6. The appellant has taken issue with the charge sheet. This being an appellate court, it is bound by Section 382 of the Criminal Procedure Code which precludes it from setting aside a finding of a lower court for reasons of a defect or irregularity in a charge sheet unless it is demonstrated that the same occasioned an injustice and unless it was raised during the trial. The Section states: “ Finding or sentence when reversible by reason of error or omission in charge or other proceedings Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5796/eng@2026-04-30 2

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7. I have noted from the record of the court below that the appellant made very comprehensive submissions after the close of the prosecution’s case but he did not raise the issue of the deficiency of the charge. Indeed even in his initial petition of appeal that issue was not raised. It only emerged in the amended grounds which are contained in the submissions. It is evident therefore that this issue has been raised as an afterthought. Moreover, there is nothing to demonstrate that any prejudice was occasioned to the appellant. In any event what he refers to as a defect in the charge sheet is not a defect at all. The charge sheet is clear that the dates of the offence were between 1st August and 10th November 2022. The particulars were sufficient to give a reasonable definition as to the nature of the offence and did not cause any confusion at all. Further Section 214 of the Criminal Procedure Code cures any variance there may be between the charge sheet and the evidence in regard to the time the offence was committed. Section 214 states: “ Variance between charge and evidence, and amendment of charge (1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case: Provided that— (i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge; (ii) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination. (2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. (3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.” (Underlining mine). 8. Turning to the merits, the age of the complainant was proved through a child health card (exhibit 1) which indicates she was born on 15th July 2010. This means that as at the date of the offence she was eleven years old. That she was therefore a child, was proved beyond reasonable doubt and her exact age is only relevant for purposes of the sentence. Thus the charge was not defective. 9. On the element of penetration, the victim vividly described how the appellant found her washing dishes at her uncle’s house, how he held her on the hips from behind and pulled her to himself, how he applied oil on his penis, removed her skirt and pulled down her underpants; sat her down on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5796/eng@2026-04-30 3

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table and made her to sit on his penis. She stated that she felt pain and cried but he did not let her go. Whenever he heard people outside he would make her sit on the chair, go outside and come back to continue. She stated that he penetrated her anus and she felt a lot of pain. After defiling her he got out and left. In his defence the appellant stated that he did not know the victim and was shocked he was accused of defiling her. He stated that the lady who reported the matter to the police was a friend of his mother. Having evaluated the evidence by both sides carefully, I am satisfied that the appellant defiled the complainant. The act of defilement was vividly described leaving no doubt in the mind of this court that it happened. 10. The victim’s evidence did not require corroboration and indeed in this case the medical evidence does not offer any corroboration. It is my considered view however that, that is not material. It is evident from the medical notes, P3 form and PRC form that the medics who attended to the victim/ complainant were misguided on what had befallen her. Whereas, she was clear that she had been penetrated in the anus the doctor was looking for evidence of penetration in her vagina. 11. The evidence of the victim of a sexual offence is in itself adequate to sustain a conviction provided the court believes the victim and gives its reasons for doing so. In this case, I find the victim a credible and reliable witness and her evidence trustworthy because she was a very young child yet she courageously described what had befallen her and was able to stand by that during cross-examination. Going through the evidence of the appellant, I found nothing to show that she had any reason to lie against him. There is indeed nothing in the evidence as a whole to suggest that she or any other witness had any reason to frame the appellant. I am therefore satisfied that the element of penetration was proved beyond reasonable doubt. 12. On identification, the victim stated that she used to see the appellant, meaning he was familiar and known to her. Although the appellant alleges that he did not live in the same vicinity with the victim, in the same breath he states that on the material day he was at his mother’s house and that his mother was a neighbour to the complainant’s mother. He even stated that he went outside to give space to his mother and her friend. The victim knew him very well as he was her uncle’s friend. She even knew his name. The evidence of identification meets the standard required and I am satisfied that the element was proved beyond reasonable doubt. It is instructive that whereas the victim alleged that the appellant had defiled her in his house before, the act in question in this case is the one that took place on 10th November 2022. That explains the dates in the medical documents and also the date in her teacher’s (PW5) testimony. 13. The appellant took issue with the use of the initials F.A.N in the charge sheet. However, the law requires that the names of minors be concealed in order to protect their names. This argument cannot therefore hold. 14. The appellant cited several authorities none of which come to his aide. To begin with the particulars of the charge contains a statement of the specific offence with which the appellant was charged together with particulars as were necessary for giving reasonable information to him as to the nature of the offence. The victim’s evidence was neither contradictory nor inconsistent and whereas there were inconsistencies in the evidence of the other witnesses, I do not find them material. The PRC form indicated the victim had been defiled before. There is nothing like consensual sexual intercourse with a child. The victim knew her name and it is her mother who referred to her as Florence being the name she was given at birth hence the initial F.A.N (see the child health card produced as (P. Exhibit 1). 15. The sentence imposed is the minimum prescribed for the offence and it is neither harsh nor excessive. 16. In the premises this appeal fails. It is dismissed in its entirety. The conviction and sentence of the lower court are upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5796/eng@2026-04-30 4

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It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: Appellant in person at Kamiti Maximum prison No appearance for Mr. Masila for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5796/eng@2026-04-30 5

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