Republic v Ibk

3. 5. That the learned trial magistrate erred in law and in fact by failing to analyze each of the ingredients of the offence that the respondent was facing. 6. That learned trial magistrate erred in law and in fact by failing to apply the law to the facts thereby arriving at a wrong decision in acquitting the respondent The prosecution called 4 witnesses in the case while the Respondent defended himself and called 3 witnesses. Case for prosecution 4. The case for the prosecution was that the complainant victim, who was PW1 in the case, was at the material time aged 2 years and was living with her mother PW2. The Respondent is a cousin to PW2 and were at the material time neighbours. 5. It was the evidence of PW2 that she used to go for work in Malindi town and was leaving the child victim at home with her mother and a house help. 6. That on 19/11/2019 she was bathing the child in the evening and that when she was bathing her around her private parts, she said that she was feeling pain in her vagina. She asked her as to who had touched her vagina but she did not answer. She, PW2, informed her mother what the child had told her but she did not take any further action. 7. That in January 2020 she was again bathing the child when she said that she was feeling pain in the vagina. She asked her who had touched her vagina and she said that it is Kaka I, the Respondent, who had done so. That Kaka I used to play with her daughter. She informed her mother and the mother of Kaka I about it. That in early March 2020, she moved out of her mother`s house and went to live in a house away from the family house. 8. That she took keen interest in her child and she noticed that she was taking every opportunity to insert her fingers in her panties in the vaginal area. That she kept on asking her who was touching her vagina and she kept on saying that it was the Respondent, Kaka I. She kept on asking her how it happened and in the month of May 2020 she told her that the Respondent “alinindunga shindano kwa tupu tupu” – translated – he injected me with syringe in the vagina. On 12/5/2020 she, PW2, took the child to GBVR Hospital at Malindi where she was examined and found to have been defiled. On 19/5/2020 she made a report at Malindi police station and was issued with a P3 form. The Respondent was arrested and charged with the offence. 9. The victim gave unsworn evidence in the case. It was brief and as follows: “ I play with Kakaimu. Alinindunga shindano kwa tupu tupu….Other than to prick me with a needle he also took a piece of clothe and wiped me on the vagina. Kaka Imran is here”. 10. Dr. Moses Rimba PW 3 of Malindi sub county hospital testified that the complainant victim was taken to their hospital by her mother on 18/5/2020. That the mother reported to him that the child had been scratching her vaginal area for the last one month. That he interrogated the child and she told him that her uncle had been putting his penis into her vagina. That he did a physical examination on her and found her with lacerations on the vagina and a broken hymen. She sent her to the lab for further testing. He formed the opinion that the child had been defiled. He completed her P3 form. During his evidence in court the doctor produced the treatment notes, the lab results and the P3 form as exhibits, P.Exh.2 – 4 respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 2

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11. The case was investigated by PC Humprey Kosgey then of Malindi police station who went on transfer and handed over the file to Cpl Marian Hussein PW4. PW4 told the court that the complaint was that the complainant victim had been defiled by the Respondent. That PC Kosgey had visited the scene, completed the P3 form and had arrested the Respondent and charged him with the offence. Defence case 12. The Respondent stated in his defence that the he lives with his parents at [Particulars Withheld] village. That the grandmother to the complainant, NHK, is a sister to his father and is their neighbour at [Particulars Withheld] area. The complainant victim is his cousin. She was living with her mother PW2 at Mijikenda but they moved to [Particulars Withheld] area. That the complainant used to visit her grandmother N {the mother to her mother) at [Particulars Withheld] area. That there was a grudge between his mother and PW2 and the mother to PW2 NH. That as a result of the differences, he and his siblings do not interact with the complainant victim and they do not visit them. That the victim also does not visit them. That the charges were fabricated and PW2 couched the complainant victim to lie against him. 13. The witnesses called by the Respondent are his parents - his mother DW3 and his father DW4 - and a village elder DW2. The evidence of DW3 was that the sister to her husband NH and her daughter PW2 were opposed to her marriage to her husband DW4 and have been frustrating her marriage. That her children including the Respondent were watching T.V at the house of NH but she did not want them to do so. That she as a result in the year 2018 barred her children from going to the house of NH. That the charges are fabricated because the mother to the complainant PW2 hates her family. That some of her other children were suspected of committing the same offence on the complainant. 14. The father to the Respondent DW4 testified that his sister NH and her daughter PW2 were opposed to his marriage to DW3. That his sister has since 2018 chased his children from visiting her house. That at one time PW2 went to his house, abused him and spit on him. He made a report to the police. That two of his other children were also accused of defiling the complainant. 15. The village elder DW2 testified that there were differences between the mother to the Respondent and her sister-in-law NH. That the mother to the complainant used to live at Mijikenda before moving to [Particulars Withheld] area. That he had no information that the daughter to PW2 used to visit her grandmother NH. He said that there were other people who were being suspected over the charge that the Respondent was charged with. 16. The appeal was canvassed by way of written submissions. Appellant`s submissions 17. The Appellant through the prosecution counsel submitted that the judgment of the trial court did not set out issues for determination as required by section 169 of the Criminal Procedure Code. More so that the trial court failed to analyze the evidence presented to it against the ingredients of the offence of defilement and weigh it against the defence tethered. 18. It was submitted that the ingredients of the offence of defilement were proved. That the age of the complainant was proved by the birth certificate which was produced as P.Exh.1 which evidence was not challenged by the defence. In addition, that the court had the opportunity to see the child as that of tender years. 19. It was submitted that the victim narrated to the court how the Respondent pricked her with a needle in her vagina after which he wiped her vagina. That the testimony of the victim was corroborated by https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 3

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the evidence of the doctor PW3 who examined her and noted that she had lacerations on the vagina and the hymen was broken. That the victim told the doctor that the Respondent had been inserting his penis into her vagina. That the doctor found that there had been vaginal penetration. Therefore, that the vagina of the victim was penetrated. That she said that the Respondent, “alinidunga sindano kwa tupu tupu”. 20. The Appellant submitted that the victim positively identified the Respondent as the person who penetrated her. That the identification was by recognition. 21. It was submitted that the defence tethered by the Respondent revolved around an allegation that the victim`s mother had a grudge with the Respondent`s family. However, that the defence did not lay a basis of the grudge when they cross-examined the prosecution witnesses and as such the defence evidence did not rebut the overwhelming evidence presented by the prosecution. 22. The Appellant faulted the trial court for dismissing the case based on extraneous issues which did not form part of the matter before court. That the trial court based its decision on that the mother of the victim told the doctor who examined the victim that the child had been irritable in her vagina for about a month which meant that the offence took place before 18th April 2020. That the trial court was at fault in making such a conclusion while ignoring the evidence of the doctor that the child had lacerations in her vagina and her hymen was broken which could not have been common for a two-year old. 23. The court was faulted for finding that the victim`s mother contradicted herself in saying that the victim was the Respondent`s uncle yet the victim`s mother PW2 referred to the respondent as the victim`s cousin. 24. It was submitted that the trial court said that the victim referred to a person called Kaka I as the one who pricked her with a needle and that the charge sheet should have indicated a needle and not a penis. The Appellant faulted the trial court for reaching on that kind of decision and failed to apply simple logic that a 2-year old cannot appreciate what a vagina and penis are. That the Court of Appeal in Muganga Chilejo Saha v Republic (2017) eKLR acknowledged the use of euphemisms by children to describe acts of sexual intercourse and held that: Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M M v R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her. 25. The Appellant submitted that the victim proved that she was penetrated by the Respondent. The prosecution counsel urged the court to quash and set aside the judgment of the lower court and convict the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 4

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Respondent`s submissions 26. Counsel for the Respondent submitted that the voir dire examination conducted on the complainant victim was not properly done as it only recoded the result of the examination and not the questions put to her during the assessment. Further that the court ordered the child to give unsworn evidence and to talk through her father but her father was not sworn so as to ensure that he was bound to tell the truth. Therefore, that there is no sufficient proof that the evidence of the victim is her evidence and not that of a stranger. 27. It was submitted that the victim identified the person who pierced her with a needle as Kaka I but identified the person who was present in court as Kaka Imran. It was submitted that the witness did not identify the Respondent as the person who pierced her with a needle. 28. It was submitted that the mother to the victim noted that the child had pain in her vagina on 14/11/2019. That she thereafter noted that she had a habit of inserting her fingers inside her pants in her private parts. However, that she did not take action until the 19/5/2023 when she reported to the police. That she did not give any explanation for the delay. 29. Counsel submitted that the mother to the victim admitted in cross-examination that she beat up the child for her to disclose who had touched her vagina. It was submitted that PW2 coerced the victim into mentioning the respondent. 30. It was submitted that the evidence presented before the court did not point at the Respondent as the cause of penetration on the complainant victim. That the evidence of the doctor PW4 proved that forcefully putting fingers into the vagina can break the hymen and that scratching can cause laceration. That the complainant had been scratching her vagina severally for over a period of one month. That the doctor admitted that he could not establish the object used to cause penetration. Counsel consequently submitted that it is the victim`s actions that caused her to inflict lacerations in her vagina and break her hymen. 31. It was submitted that the doctor indicated in the P3 form that the victim told him that it is an uncle who had defiled her. That PW2 in her evidence said that she has a brother called KH, who is an uncle to the victim. That these allegations were not investigated. 32. It was submitted that the defence evidence established that there was long standing grudge between the mother to the victim and the parents to the Respondent. That the complainant`s mother and her mother were opposed to the marriage between the parents of the Respondent. That it was proved that the victim was not visiting her grandmother who is neighbour to the Respondent and that she was not visiting the home of the respondent at the material time. Counsel for the Respondent urged the court to dismiss the appeal. Analysis and determination 33. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding of the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174 that: 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 5

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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.” 34. The Respondent was facing a charge defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006. The sections provide as follows: “ 8. 35. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child under the age of 11 years is liable upon conviction to imprisonment for life. It was the duty of the prosecution to prove the said charge beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 set the standard as follows: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 36. The ingredients of the offence of defilement are: proof the age of the victim, proof of penetration and the positive identification of the perpetrator – see Dominic Kibet Mwareng v Republic (2013) eKLR. 37. Starting with the element of the age of the complainant victim herein, I have noted from the proceedings that a copy of the birth certificate was marked during the evidence of PW2 but the same was not thereafter produced. That notwithstanding, it was not disputed that the victim was at the material time aged 2 years which fact was confirmed by her mother PW2. It is trite that the age of a person can be proved in various ways including by the evidence of a parent. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows: “ ... 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.” 36. The mother to the complainant PW2 knew the age of the victim. In addition, the trial magistrate had the opportunity of observing and examining the child and found her of very tender age. The doctor who examined her estimated her age at 2 years. The age of the victim was therefore proved at 2 years. 37. On the issue of penetration, the same is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organ of a person into the genital organs of another. Penetration can be proved by oral evidence or by way of circumstantial evidence and can be corroborated by medical https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 6

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evidence. In sexual offence cases involving children it can also be proved by the sole evidence of a child as provided by section 124 of the Evidence Act Cap 80. 38. The question in the instant appeal is whether there was evidence of penetration on the victim. The trial court did not make a clear finding on the issue and in the circumstances, I am bound to address my mind to the issue. 39. The doctor who examined the victim PW3 found her with a broken hymen and lacerations on both the left and right labia minoras of the vagina. The doctor stated in cross-examination that scratching can cause lacerations on the vagina and that forceful insertion of fingers into the vagina can break the hymen. The mother to the complainant PW2 told the doctor that the victim had been scratching her vagina for about a month. She told the trial court that the victim would take every opportunity to insert her fingers inside her panties in the vaginal area. It is then possible that the scratches noted by the doctor on the labia minoras was caused by frequent scratching. I however do not think that a girl of the age of 2 years would have forcibly inserted her fingers into the vagina to the point of breaking the hymen. In view of that, I find that somebody must have penetrated her into her vagina and as a result broke the hymen. Penetration was therefore proved. 40. The question then is whether the victim identified the Respondent as the person who penetrated her. The trial court in dismissing the case found that the doctor PW3 wrote in the P3 form that the victim told him that her uncle had been putting his penis into her vagina. The court noted that the Respondent is not an uncle to the victim but a cousin. The court dismissed the evidence of the victim`s mother PW2 implicating the Respondent as wild allegations. 41. Indeed, the doctor in his general medical history that he took from the victim as recorded in Section A of the P3 form was that the victim told him that, “her uncle has been putting his penile tissue into her vagina for a period she can’t remember.” I have noted that the doctor recorded the same thing in his treatment notes dated 18/5/2020, P.Exh.2. 42. The mother to the victim told the court that the Respondent is a cousin to the victim. The victim was not asked in court to explain why she told the doctor that it is her uncle who defiled her. Her mother PW2 confirmed in court that she has a brother who is an uncle to the victim. Due to the tender age of the victim, she may not know the difference between an uncle and a cousin. It was however for the prosecution to elicit an answer from her. They had the medical documents all the time and they knew what she had told the doctor. Failure to elicit an answer from her left unanswered the question as to who between the Respondent and the victim`s uncle defiled the victim. 43. The victim told the trial court that the Respondent injected her with a needle in her vagina and wiped the vagina with a piece of cloth. The Appellant submitted that the word “needle” as used by the victim was an euphemism for penis. The victim was however not asked to explain what kind of “needle” it was or how the injection took place. She was not asked whether what the Respondent was wiping from her was blood or what it looked like. It is from such examination that the court would have concluded whether the child meant that the Respondent penetrated her with his penis. In the case of Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR that was cited by the Appellant where the child said that the Appellant did “tabia mbaya” (bad things) to her, the witness went ahead to explain what she meant by those words and said that the Appellant used “…. his penis. He inserted it inside me. He inserted it at the place I pass urine through”, which left no doubt what the witness meant by that phrase. In the present case there was no such explanation. I consequently find no evidence that the Respondent penetrated the victim with his penis. Neither was he identified as the person who penetrated the victim herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 7

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44. The trial court held that the evidence of the victim was uncorroborated. The law on defilement of children as stipulated under section 124 of the Evidence Act is that the court may convict on the uncorroborated evidence of a child victim if the court is satisfied that the child is telling the truth and records reasons for so finding. The victim herein told the doctor PW3 that she was defiled by an uncle only for her to thereafter allege that it is the Respondent who defiled her. The Court of appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283, held the following on credibility of witnesses: The witness in a criminal case 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 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. 36. The victim herein having told the doctor PW3 that she was defiled by a different person who is not the Respondent, only for her to thereafter allege that the person who did so is the respondent created the impression that she was not a reliable witness. I do not find credible evidence that the victim was telling the truth. 37. The defence by the Appellant was that the case was fabricated because of an existing grudge between his family and that of the victim. The mother to the victim PW2 said that the victim disclosed to her in the month of January 2020 that the Respondent had defiled her. She did not take the complainant to hospital until 12/5/2020. Even then she did not make a report to the police until a week later on 19/5/2020. She did not give a plausible explanation for the delay of 4 months before she took action. In view of the discrepancies and flaws noted above in the evidence of the prosecution, there is no basis for faulting the trial court in dismissing the case. It is evident that the case was not proved beyond reasonable doubt. 38. The upshot is that it is my finding that the trial magistrate did not err in acquitting the Respondent of the offence. I consequently do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF APRIL 2026. J. N. NJAGI JUDGE In the presence of: Mr. George Kariuki for Appellant Miss Mkongo for Respondent Respondent – present virtually Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5965/eng@2026-04-29 8

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