Ismael Mohamed Adhee v Republic

4. 3. That the learned magistrate erred both in law and facts in not taking the evidences of PW5 and PW7 with caution. The prosecution called 8 witnesses in the case while the Appellant testified in the case and did not call any witness. Case for prosecution 4. The case for the prosecution was that the complainant was at the material time a class 7 pupil aged 16 years. She was living with her mother PW3. The Appellant lived not far from the home of the complainant and was well known to her. 5. It was the testimony of the complainant who was PW1 in the case that on the 27/2/2019 the Appellant went to the complainant`s home while riding a motor cycle. He was in the company of a colleague called Omari. They asked the complainant and her friend called Fatuma PW2 to accompany them to their village. The 2 girls agreed and boarded the motor cycle. They headed towards the village of the Appellant. They dropped Omari and Fatuma on the way and the Appellant proceeded with the complainant upto his house. On getting there they engaged in sex. At 5am they boarded the motor cycle for the Appellant to return the complainant home. They picked Omari and Fatuma on the way and took the girls home. On getting there the mother to the complainant inquired where they had been. They refused to disclose. The mother to the complainant beat her up and she disclosed where they had been. In the morning the two girls were taken to the area Assistant chief PW 4. The complainant gave the phone number of the Appellant to the assistant chief. He was called and he went to the chief with Omari. Policemen were called. They, the complainant and Fatuma PW2 were taken to the police station. The girls were taken to Hola county referral Hospital where they were examined. The complainant was found to be pregnant. 6. The evidence of the complainant that she and PW2 had on that night disappeared from home and they came back in the morning was corroborated by her mother PW3 and Fatuma PW2. Fatuma corroborated the complainant`s evidence that she and Omari were dropped on the way in the bush by the motor cycle while the Appellant and the complainant proceeded ahead. She corroborated the complainant` evidence that she and Omari were picked by the motor cycle at 5 am and they were taken home whereupon their mothers took them to the assistant chief PW4. 7. A clinical officer at Hola Hospital PW7 testified that he examined the complainant at the said hospital on 2/3/2019 and found her with a broken hymen. Her pregnancy test was positive. 8. Another clinical officer at the same hospital PW5 completed the complainant`s P3 form on 4/3/2019. She was examined for age assessment by an oral health officer PW6 at the said hospital who assessed her age at 16 years. 9. The case was investigated by Cpl Mildred Agisa PW8 of Hola police station. She took the girls to hospital where they were examined. She charged the Appellant with the ofience. During the hearing of the case in court, the clinical officer PW5 produced the complainant`s P3 form as exhibit, P.Exh.3. The other clinical officer PW7 produced her treatment notes as exhibits, P.Exh. 1. The oral health officer PW6 produced the age assessment report as exhibit, P.Exh. 2 Defence case 10. When placed to his defence, the appellant stated in an unsworn statement that he and a colleague were arrested by the chief for reasons not known to them. Policemen were called and they were taken to the police station. Two girls were brought and they were asked whether they knew them. They said they https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6034/eng@2026-04-29 2

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did not. The girls were asked whether they knew them and they said they did not. They were taken to court and charged. 11. The appeal was canvassed by way of written submissions. Submissions 12. The Appellant faulted the trial court for not joining the case of the Appellant and that of Omari. That the medical evidence presented against him failed to prove penetration as the complainant was found with a normal vagina with no injuries. That the pregnancy test conducted on her did not connect him with the pregnancy. That no DNA or paternity test was done to ascertain whether he was the cause of the pregnancy. That the medical personnel who testified in the case PW5 and 7 did not prove their expertise in science before they testified. Therefore, that their evidence was not reliable. Reference was made to the case of Onoka Mutonyi and Jackson Kamande v Republic No. 92 of 2010. 13. The Respondent on the other hand submitted that the case against the Appellant was proved beyond reasonable doubt. That the age of the complainant was proved vide the age assessment report. That the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was a minor of tender years. That penetration was proved by the complainant by her evidence that the Appellant inserted his penis into her vagina. That her evidence was corroborated by the clinical officer PW5. That the Appellant was well known to the complainant who identified him as the person who penetrated her. That the complainant stayed at the house of the Appellant from 8pm to 5am and therefore there could have been no mistake on identification. In view of the foregoing, the Respondent urged the court to find that the appeal lacked merit and should uphold the conviction and the sentence. Analysis and determination 14. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 15. I have considered the grounds of appeal, the record of the trial court and the submissions of Appellant and those of the Respondent. The appellant`s grounds appeal are basically that the charge was not proved beyond reasonable doubt. 16. The appellant was charged with the ofience of defilement contrary to section 8 (1) as read with section 8 (4) 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 ofience termed defilement. 8(4) A person who commits an ofience of defilement with a child aged between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than 15 years.” 17. The ingredients of the ofience 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6034/eng@2026-04-29 3

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18. As regards the age of the complainant, the trial court relied on the evidence of the complainant and her mother, as well as the evidence of the officer who did the age assessment PW6 to hold that the complainant was at the time aged 16 years. It was the evidence of an oral health officer PW6 that he examined the teeth of the complainant and assessed her age at 16 years. From all this evidence, it is my finding that it was proved that the complainant was at the time the ofience was committed aged 16 years. The age of the complainant was therefore proved. 19. 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 person. Penetration can be proved either by the evidence of the child or by circumstantial evidence. The same can be corroborated by medical evidence. 20. The Appellant submitted that the medical evidence presented before the trial court did not connect him with the ofience. The clinical officer who examined the complainant PW7 found her with a broken hymen and being pregnant. The mere fact that the complainant had a broken hymen is not by itself proof of defilement, see the Court of Appeal decision in PKW v Republic (2012) eKLR. The fact that the complainant was pregnant was not by itself proof of defilement by the Appellant. There had to be medical evidence to support that the Appellant was liable for the pregnancy but the same was lacking in the case. Consequently, it is my finding that there was no medical evidence to support the defilement. 21. However, lack of evidence to support defilement is not fatal to the case as defilement can be proved by other ways such as by oral evidence of the victim or by circumstantial evidence. In Kassim Ali v Republic Criminal Appeal No. 84 of 2005 (Mombasa), the court stated that: The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence. 22. The Court of Appeal in the case of AML vs. Republic (2012) eKLR, authoritatively stated that: “ The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.” 23. Additionally, section 124 of the Evidence Act provides that in sexual ofience cases involving children, the court may 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 such a finding. 24. The trial court in convicting the appellant of the ofience said that the complainant`s evidence that the Appellant penetrated her was credible and consistent. That the Appellant`s defence was a made-up story. 25. I have considered the evidence adduced in court in respect to penetration by the Appellant against the defence ofiered by the Appellant. Indeed, there was no reason to doubt the evidence of the complainant that the Appellant picked her from her home on a motor cycle, took her to his house and penetrated her into her vagina after which he returned her home at 5am. The complainant`s evidence that the appellant picked her from home, took her away and returned her home at 5am was corroborated by Fatuma, PW2. The complainant`s mother PW3 corroborated the evidence that the complaint went missing from home on the night of 27/2/2019 and that she returned home at 5am. The fact that the complainant went missing from home coupled with her evidence and that of her colleague PW2, gives credence to the evidence of the complainant that the Appellant penetrated her in his house on the night of 27th and 28th February 2019 by inserting his penis into her vagina. I have no reason to doubt the finding of the trial magistrate that the complainant was a credible witness. The fact that a DNA was not conducted was not fatal to the case as the issue was on whether the Appellant penetrated the complainant on the material day and not on the paternity of a child conceived by the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6034/eng@2026-04-29 4

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26. The Appellant in his defence stated that he did not know the complainant before his arrest. Whereas the Appellant cross-examined the complainant at length, he never questioned her that he never knew her before his arrest. There is no way that he would have failed to ask her such a material question during cross-examination if it is true that he did not know her before the material date. The allegation that he did not know her before can only have been an afterthought and a fabricated story. The complainant said that she had known him since 2019. This evidence was not challenged. He was therefore a person well known to the complainant and she had no reason to lie against him. 27. The Appellant submitted that the charge against him was defective in that it did not mention the date the ofience was committed. I have considered the argument. Section 134 of the Criminal Procedure Code which deals with drafting of charges provides for what the components of the charge sheet should constitute as follows:“ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific ofience or ofiences 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 ofience charged." 27. The test in determining whether a charge is defective is to first consider whether the charge is indeed defective and if so whether the defect can be remedied. In the case of Peter Ngure Mwangi v Republic (2014) the Court of Appeal stated that: On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. 27. In the case of Benard Ombuna v Republic (2019) eKLR the same Court held that: In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 27. In the case against the Appellant, the charge that he was facing was disclosed in the charge sheet. The particulars of the ofience stated that the ofience was committed in February 2019. In my view, the fact that the exact date the ofience was committed was not stated in the charge sheet was not prejudicial to the Appellant as the same was stated in the evidence of the prosecution witnesses. There was no confusion on the charge that he was facing. He did manage to put up an appropriate defence. The defect in the charge is one that is curable under the provisions of section 382 of the Criminal Procedure Code that provides that: 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 injury 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/2026/6034/eng@2026-04-29 5

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27. The Appellant did not raise the issue during the hearing before the trial court. The omission did not occasion a failure of justice. 28. Having carefully re-examined the evidence adduced before the trial court, find that the Appellant was convicted on water tight evidence. There is no 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: Miss Mkongo for the Respondent Appellant – present virtually at Manyani Maximum GK Prison Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6034/eng@2026-04-29 6

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