Daniel Maina v Republic

3. 3. That the learned trial magistrate erred in law and facts by failing to find that the evidence was fabricated and full of discrepancies and was thereby not safe to conviction on. 4. That the learned trial magistrate erred in law and facts by failing to consider the Appellant`s defense evidence. The prosecution called 5 witnesses in the case while the Appellant defended himself and called 3 witnesses. Case for Prosecution 4. The case for the prosecution was that the complaint was at the material time aged 15 years and was living with her mother PW1. It was her evidence that she dropped out of school in class 8. That she met the appellant who seduced her and asked for a love relationship from her. She declined but he persisted. She later gave in to his advances and she started a love affair with him. They had sexual intercourse between the months of September and November, 2024. That on 29/11/2024 during the Lamu cultural festival she left her home and went to the house of appellant. His home is not far from her home. She stayed there up to 8/12/2024. That during that time her mother, brother and cousins were looking for her. On 6/12/2024 her brother called Patrick went to the appellant’s house in the company of her cousin and they asked her to return home but she refused. That on the following day her mother and cousins went and asked her to a company them home and she refused. That on a subsequent day she was at the market with appellant when the appellant was called by neighbors and informed that her mother was waiting for her at the house of the appellant. They did not return home until they received a report that her mother had left. Later on, the appellant returned her home. 5. The complainant’s mother PW2 testified that the complaint escaped from home during Lamu festival in November 2024. She did inquiries and learned that she was at the home of the appellant. She made a report to the police and continued to look for her. That one day her husband called her and told her that he had seen the complainant and the appellant at the market. She went to the house of the appellant with a cousin to the complainant. While there her husband called her and told her that the complainant had been returned home by some men. She PW2 sent a cousin to the complaint to pick her and take her to the home of the PW2’s sister. She was taken there. They reported to the police. They were referred to hospital. During the hearing PW2 identified the complainant ‘s treatment notes and birth certificate. 6. A doctor at king fahad hospital Dr. Ahmed PW5 testified that the complainant was attended to their hospital by Dr. Yunus who found her with an old scar of a broken hymen. There were no bruises. That the complaint P3 form and post Rape care forms were completed by Dr. Amir Abdalla of the same hospital. 7. A police officer at Lamu police station PC Muinde PW3 testified that on the 29/12/2024 he was on patrol in Sportlight area with other police officers when he saw the appellant. He was aware that he was being sought over a case of defilement. They arrested him. 8. The case was investigated by PC Dama Gharama PW3 of Lamu police station. It was her evidence that the mother to the complainant PW2 made a report of a missing child on 6/12/2024 and the case was minuted to her for investigation. That 8/12/2024 PW2 went to the police station with the complaint. She interrogated the complaint who told her that she was in a love relationship with appellant since the September 2024 and that she had been having sexual intercourse with him. That on 29/11/2024 during the Lamu she met the appellant and she went to his house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6094/eng@2026-04-29 2

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9. It was the evidence of the investigating officer that she escorted the complaint to King Fahad hospital where she was examined. The doctor confirmed that her hymen was missing. Later she recorded the statements of the complainant and her mother. She instructed her colleagues to look for the appellant. He was arrested by PC Muinde on 29/12/2024. She charged him with the offence. 10. During the hearing of the case in court Dr. Ahmed PW5 produced the treatment notes and post rape care form made by Dr. Yunus as P. Exh. 2 and 3 respectively. He produced the P3 form completed By Dr. Amir Abdalla as P.Exh. 4. The investigating officer PW4 produced the complainant’s birth certificate as exhibit. P.Exh.1. The appeal was canvassed by way of written submission. Defence Case 11. The appellant stated in his defence that he was arrested by P.C Muinde who accused him of dealing with drugs. He searched him but did not find him with anything. He then told him that he had defiled a school going child, the complainant. He denied it but admitted knowing her since they were staying in the same area. It was his evidence that it is a man called Salim who was having an affair with her. He denied that he was at any time with the complainant. 12. The appellant called 3 witnesses. Richard Nkonge DW2 testified that he was living at Sportlight area of Lamu town. That starting the month of October 2024 he hosted the Appellant in his house for 4 months. That after 2 months he started to date a certain girl he did not remember the name. She used to visit him in the house and they were behaving like man and wife. That the Appellant later found her with another man and ended the affair. 13. Peter Waweru DW3 testified that he was living at Kashmir village. That he is the one who brought the Appellant to Lamu. That the Appellant was arrested over a certain girl of whom he was paying Ksh.200/= daily to her mother so as to officially take her as his wife. 14. Michael Mureithi DW4 told the trial court that he was a neighbour to the Appellant. That the Appellant and the victim herein were in a relationship with the knowledge of her mother. That the Appellant took custody of the girl and started to pay Ksh.200/= daily to her mother which was for the mother to gauge whether he was in a position to take care of her. That the girl later eloped with another man. The mother to the girl asked the Appellant to produce the girl and she reported to the police. The Appellant was arrested. The appeal was canvasses by way of written submissions. Appellant`s submissions 15. The Appellant submitted that he was not contesting the age of the compliant which was proved by the birth certificate produced in the case. That what he contested was penetration. He submitted that the prosecution in proof of penetration relied on the evidence that the complaint`s hymen was not intact. He submitted that mere absence of hymen is not conclusive prove of penetration. He in this respect made reliance in the case of Hillary Nyongesa v Rrepublic (2017) eKLR where the court held that a broken hymen is not conclusive proof of sexual intercourse as the same can result form causes unrelated to sex such as physical activity or accidental injury. 16. It was submitted that the doctor who produced the medical documents in court PW5 was not the maker of the documents. That no lawful basis was laid for failure to call the maker of the documents. Reliance was made in the case of Kiarie -v- Republic (1984) KLR 739 where it was held that medical evidence must as a general rule be produced by the maker unless the law permits otherwise. Therefore, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6094/eng@2026-04-29 3

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the trial court erred by relying on improperly tendered medical evidence to infer penetration, which evidence amounted to hearsay. That the medical evidence was inadmissible. 17. It was submitted that the prosecution evidence was riddled with material contradictions between the evidence of the compliant and her mother. 18. It was submitted that PC Muinde PW5 arrested the Appellant over an offence of defilement yet the report made to the police by the mother to the complainant PW2 was that of missing child and not one sexual offence. That in this case the appellant was arrested first and the offence formulated later. 19. The appellant submitted that the defence evidence established that there existed romantic relationship between the appellant and the complainant prior to the institution of the proceedings. That the relationship was known to PW2 who received Kshs 200/= daily from the appellant for daily upkeep of the compliant for a period of 2 months. That the evidence was not challenged. That the appellant was misled. That the complainant behaved like an adult particularly in light of acquiescence by the complaint’s mother. It was submitted that the trial court failed to interrogate the appellant’s defence and dismissed it without any analysis. Therefore, that the charges were based on speculation and suspicion. The appellant urged the court to allow the appeal. 20. The respondent on the other hand submitted that the appellant penetrated the vagina of the complainant. That her evidence to that effect was corroborated by that of clinician PW5 who examined her and found that her vagina had been penetrated. 21. It was submitted that the appellant was a person well known to the complainant. That there could have been no mistake as his identification. That identification was by recognition as the appellant was a neighbor to the complaint and she stayed with him for a week while knowing that she was a minor. Therefore, that the ingredients of the offence of defilement were proved against the Appellant. The respondent urged the court to uphold both the conviction and the sentence. Analysis and Determination 22. This being a first appeal, the duty of the court is to analyze and re-evaluate the evidence of the lower court afresh and arrive at its own independent conclusion while keeping in mind that the lower court had the advantage of seeking and hearing the witnesses testify and that it was therefore better placed to assess their demeanor. 23. The appellant was charged with defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act which provides as follows: A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 24. The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and identity of the perpetrator, see George Opondo olunga-v- Republic (2016) eKLR. 25. The appellant did not contest the age of the complainant as he admit that the same was proved by the birth certificate, P.exhibit 1, that indicated that at the time of the commission of the offence she was aged 15 years. The age of the complainant was proved at 15 years. 26. The Appellant also does not dispute his identity as he says that he was living in the same area with the complainant. What he denied is that he penetrated her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6094/eng@2026-04-29 4

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27. Penetration is defined in Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 28. The trial court in its judgment believed the evidence of the complainant that she was in a love relationship with the appellant for a period of two months between September and November, 2024 during which time they engaged in sexual intercourse. That the relationship was confirmed by the witnesses called by the appellant, DW2, DW3 and DW4. That penetration on the complainant was corroborated by the evidence of the doctor PW5. That the appellant was well known to the complainant and therefore his identification was proved. 29. The appellant submitted that the medical evidence adduced before the trial court did not support penetration on the complainant and did not link him with the commission of the offence. More so, that the medical documents were not properly admitted in court as they were not produced by the makers. 30. The medical documents were produced in court by Dr. Abduhakim Ahmed PW5 who testified that the treatment notes were made by Dr.Yunus while the P3 form and the post rape care form were made by Dr. Amir Abdalla. It was the evidence of Dr. Ahmed PW5 that he was working with two doctors at King Fahad hospital and that he was familiar with their handwriting and signature. He said that they were off duty at the time and he wished to produce the documents on their behalf. Before the doctor produced the documents, the court prosecutor made an application pursuant to section 33 and 77 of the evidence for Dr. Ahmed to produce the medical documents on behalf of the two doctors who were unavailable. The court records shows that the court asked the appellant whether he had any objection to the application and he replied that, “no objection.” 31. Dr. Ahmed then proceeded to produce the documents. Section 33 of the Evidence Act provides for situations where documents may be produced in court by persons other than the makers where the makers of the documents are unavailable or cannot be procured without unnecessary delay. In the case of Republic v Teresia Wairimu Thuo (2019) 3KLR, where the document was produced by a police officer, the Court of Appeal the document could be so produced as long as the consent of the accused person was sought. In the present case the consent of the Appellant was sought and he said that he had no objection to the doctor producing the documents. In view of fact that Dr. Ahmed was working at the same hospital with the doctors who made the documents and he was familiar with their handwriting and signatures, I find that the documents were procedurally produced in court. 32. On whether the medical document proved penetration on the complainant by the appellant, it is trite that mere absence of hymen is not proof of defilement see P.K.W v Republic (2012) eKLR. The mere fact that the complainant was found with a broken hymen did not link the appellant to defilement. There was no evidence that the hymen was freshly broken so as to link the appellant with defilement on the complaint. The end result is that there was no medical evidence to support the defilement. 33. However, absence of medical evidence in support of defilement is not fatal to the case as defilement can be proved in other ways other than by medical evidence. In AML v Republic [2012] eKLR (Mombasa), the Court of Appeal held the view that: “ The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” In Kassim Ali v Republic, Criminal Appeal No. 84 of 2005, the same court stated “ … [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6094/eng@2026-04-29 5

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34. Additionally, in sexual offence cases involving children the court may pursuant to the provision of section 124 of evidence act convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and records reasons for believing the evidence of the victim. 35. The trial court in believing the evidence of the complainant said that she engaged in sexual intercourse with the appellant between the months of September and November 2024. That the Appellant’s own witnesses confirmed that the appellant had a love affair with the appellant. Therefore, that penetration was proved. 36. I have on my part considered the evidence adduced against the Appellant and weighted it against the appellant ‘s defence. There is no doubt that the Appellant was in a love relationship with the complainant. This was confirmed by the appellant’s witnesses DW2, DW3 and DW4. DW2 confirmed that the complaint used to visit the appellant in his house. The evidence of the complainant that she engaged in sexual intercourse with him for a period of 2 months between September and November 2024 must therefore have been true. 37. The evidence of the complaint that she disappeared from home on 29/11/2024 was corroborated by her mother PW2. Her evidence that she was living with the appellant from that date upto 8/12/2024 must have been true. Her mother PW2 confirmed that the complaint was not at home during that time and she was looking for her. There was no reason to disbelieve the evidence of the complaint that she was living with appellant during that period. 38. The appellant submitted that there were material contradictions in the evidence of the prosecution witnesses. I have keenly gone through the evidence and I do not find any such evidence that would create doubt in the evidence tethered by prosecution. 39. In view of the foregoing, I find that the evidence adduced against the Appellant was overwhelming and the charge against him was proved beyond reasonable doubt. I find no merit in the appeal and the same is dismissed. DELIVERED VIRTUALLY, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF APRIL 2026. J. N. NJAGI JUDGE In the presence of: Miss Mkongo for Respondent Appellant – present in person at GK Prison Malindi Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6094/eng@2026-04-29 6

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