Benjamin Kivindu Mwania v The Republic

* That the prosecution failed to prove the case against him beyond a reasonable doubt for the following reasons. * That there was insufficient evidence to support the charge. * That crucial witnesses were not called. * That the medical examination and the doctor’s report were contradicting as the examination was done after 5 days. * That the trial Magistrate relied on the evidence of a single witness who was not at the scene. * That the learned trial court failed to consider or believe the appellants defence. * That the court failed to consider the material contradictions, discrepancies, and inconsistencies in the case for the prosecution and arrived at an erroneous decision causing miscarriage of justice. 6. The appellant filed submissions on 2/3/2025. He submitted that his appeal epitomized “ the unfair consequences of that are inherent in a critical enforcement of the Sexual Offences Act, No. 3/2006… and the unquestioning imposition of some of its Penal Provisions which could easily lead to a statute backed purvey of harm, prejudice and injustice quite apart from the noble intentions of legislation…” 7. On the age of the child, he submitted that the Oaths and Statutory Declarations Act does not define a child – neither does interpretation and General Provisions Act, Cap 2, he cited the definition in the Sexual Offences Act. He argued that the complainant was a child of tender years as defined by Kibageny V R (1956) E.A 92 and that the court ought not to have allowed the child to testify on oath. 8. On the credibility and reliability of the complainant’s testimony he submitted that the trial court erred in finding , from the voire dire examination it conducted , that the complainant who was 12 years old was capable of telling the truth. He pointed out that the complainant testified to be 13 years old yet the charge sheet stated his age to be 12 years 9. On penetration he relied on section 2 of the Sexual Offence Act. He stated that the court could rely on section 124 of the Evidence Act but there was no evidence to support the same. 10. On the medical evidence he challenged the credibility of the doctor’s report. He submitted that the complainant was seen on 5/2/2022, the P3 form was filled on 7/2/2022. He submitted that the doctor testified that the bruises on the complainant’s anus could have been due to constipation. He argued that the medical evidence did not prove penetration. He submitted that in Mercy Chelagat V R [2002] eKLR the court was of the view that penetration may be proved by the victim’s own evidence or other evidence, and that it is not a hard and fast rule that victim evidence and medical evidence be adduced in every case to prove defilement. However, that evidence adduced by prosecution to prove penetration must be sufficient to prove it beyond reasonable doubt. 11. On penetration he submitted further that the complainant’s testimony as to where the appellant allegedly put his urinating thing was confusing. That he said that he inserted it in his poopoo, that he also said it was in the (matako) buttocks, yet the charge sheet states that he is accused of inserting his penis into the anus of the complainant. To quote from his submissions He states“What is poopoo or matako? Nobody knew what the Pw1 was talking about” 12. He submits further that the evidence of the mother is unreliable as she was not at the scene and was only told of what happened. He submits that the complainant told the court that he told his mother the day after he went home , and his mother told the court that PW1 told her about the incident after 2 days . That after he told her about the incident, she checked his buttocks but did not see anything. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 2

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13. On the investigations the appellant submitted that none were conducted; that PW3 the Investigating Officer testified that he did not visit the scene due to transport challenges, and did not investigate the case. He argued further that the court shifted the burden of proof to him. He cited Charles Karani V R Criminal Appeal No. 72/2013 on why this was erroneous. 14. He submitted that courts had already settled that suspicion however strong, could not provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. 15. Though he was acquitted of the alternative charge the appellant submitted that no evidence was led to prove that particular charge at all or that he had committed the alleged indecent act. 16. He cited ERRO Oba V R [2009] eKLR on defective charges 17. I have checked the court record and I have not seen any submissions by the respondent – I have also checked the CTS, and the respondent’s submissions are also not there. 18. The appellant highlighted his submissions .He reiterated his submissions with regard to Pw2, 3 & 4. 19. I have carefully considered the Record of Appeal, the before the lower court, the submissions by the appellant, and the issues that arose for determination are:- 20. 1. Whether the charge sheet was defective. 2. Whether the complainant ought to have given evidence on oath – as a child of tender years. 3. Whether the trial court shifted the burden of proof to the appellant. 4. Whether the prosecution’s case stood the test of proof beyond a reasonable doubt. In a first appeal, the appellant is entitled to a re-evaluation of the evidence given before the trial court – the duty of this court is to re-analyze, re- evaluate and re-examine .afresh, the evidence adduced before the trial court – and to draw its own conclusions – always keeping in mind, that it never saw or heard the witnesses testifying first hand; and that it never had the opportunity to observe their demeanour. This is what was held in Okeno V R [1972] EA 32 where the court also cited Pandya V R [1957] EA 570, Peters Vs Sunday Post [1958] EA 424. These authorities lay down the guiding principles on 1st appeal – * That the evidence on record shall be submitted to a fresh and exhaustive examination * That the appellate court shall weigh conflicting evidence and draw its own conclusions. * That the appellate court shall give allowance to the fact that it did not have the advantage of hearing and seeing the witnesses. * That the appellate court shall exercise .caution in determining whether or not the conclusion of the trial court shall stand – see Peters Vs Sunday Post above. 21. The complainant testified on 16/11/2022. During voire dire he told the court that he was 13 years old and in class 8. The court asked him. “ Do you go to Church? Minor:- I go to AIC Church. What are you taught in court? Minor: - We are taught how to pray, we are also taught to say the truth to avoid going to Satan. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 3

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Court: The minor is intelligent and does understand the meaning of an oath. To give sworn testimony.” 22. The complainant testified that on 2/2/2022 he was at [Particuars Withheld] area, in a shop belonging to one B watching TV with other people. The appellant who was previously married to his mother, came and asked him to go home with him. They went to a bar where the appellant took alcohol, while he sat on the floor waiting for him. Later, they went to appellant’s house where he told complainant to serve himself githeri, which he ate. Then he asked him to go and sleep – he told him to undress, which he did, then, he also undressed. He told him to lie on his stomach – which he did. He said the appellant lay on him and inserted his thing for urinating into his poopoo (matako), that he felt a lot of pain, but did not scream because he was scared, and the appellant had threatened him. He said the appellant sent him out to sleep – but he came back, slept till morning, sneaked out in the morning and went to his mother’s. 23. There was no one at home as she had gone to work. He did not tell her about this until the next day – 4th. He was taken to Kibwezi hospital on 5th and the matter was reported to the police. He identified the P3, PRC Form, and his certificate of birth showing that he was born on 18/8/2008. On cross- examination by Ms. Joan, counsel for the appellant, he confirmed that his mother was married to appellant at some time back but he could not recall when. He denied fabricating the case against the appellant because of the issue of his mother and the appellant. He told the court that he went with the appellant to his house after appellant had been to a club with him. That the appellant inserted his penis into his buttocks, that he bathed in appellant’s house, and later left for his mother’s house; that there was no one at home when he arrived and that he went to sleep. 24. PW2 CMM the complainant’s mother testified how her son left for the market on 2/2/2022 and came the following day. That he after 2 days he told her that appellant had sodomised him. She called neighbours who arrested the appellant and took him to Ulilinzi police station – and she went, recorded her statement, then took the child to hospital. 25. On cross-examination she told him that she was married to the appellant in 2021 but they separated in December 2021. She denied fabricating the case against the appellant. She said appellant lived in a rental house within the market. That according to her son’s report the incident happened in the appellant’s house. She said she had 5 children, the complainant was the 1st born. She said she obtained the certificate of birth on 17/2/2022, after the alleged incident on 2/2/2022, she said she reported her son’s disappearance to the village elder – but he came back on 3/2/2022. She said he was going to school at the material time. 26. PW3 No. 00086 Sergeant Alfred Amica was incharge of Ulilinzi police post – under Kibwezi Police Station. He testified that on 9/2/2022 he received the complainant who reported to have been sodomized by his ‘adopted’ father. He recorded statements, the complainant was escorted to Kibwezi hospital. He received a P3, PRC form and he charged the appellant. On cross-examination, he said he was handling the case with another officer who had since retired. He said he was not the Investigating Officer, he did not visit the scene. He said the matter was brought to court on 8/2/2022. He said he could not rule out bad blood. He said the appellant was the ‘adopted’ father of the complainant. He said he did not dwell on their relationship. 27. Pw4 Dr. Pauline King’oo testified on behalf of her colleague Dr. James Mbiu . She testified that he examined the complainant on 7/2/2022. That the complainant had a history of sodomy. Approximate age – 12 years, anal orifice was inflamed and tender and the approximate age of injuries was 5 days. She read the P3 stating that the probable type of weapon was penis; degree of injury – harm; nature of offence – defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 4

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28. On cross-examination she told the court that the doctor indicated in the P3 that there was no prior treatment before the examination on 7/2/2022, and the PRC said he had pain during defecation. That PRC showed evidence of reddening and bruising of anus. That a bruise shows signs of healing 3 – 5 days. That a bruised/red anus could be caused by constipation, severe hemorrhoids or any other. On re-examination she told the court that a bruise depends on where it is located. That there was an error in the entry on PRC as the bruise was shown on the female genitalia. 29. The appellant was put on his defense. He gave a sworn statement. He said on 2/2/2022 he was at Maengeni Market in Chalize Restaurant/Club from rom about 6:00 pm. He said he drank till morning at 7:30 am the following day. He said he was there with HK, MM and others.On 3/2/2022 he went home and slept – at his house where he said he lived with his sister in the same compound, not very far from the market about 300 m. He slept the whole day – on 4/2/2022, he and HK worked on his house which was under construction. 30. On 5/2/2022 he was in his house when there was a knock. MM was there with MM, KA, MJ and complainant’s mother. They did not tell him what he had done but they took him to the police station. He was placed in cells. He was told he had defiled his stepson. They demanded 2 acres of land from him to give to the complainant’s mother . He refused he denied committing the offence – He was charged. 31. He told the court that he never saw the complainant on 2/2/2022. He told the court that children are not allowed in clubs. That PM whom the complainant said was in the same bar ought to have been called as a witness to confirm the story.He said that he had relocated from the market in 2021 October.He said he married complainant’s mother in February 2019, till October 2021. He said they separated when he found her with another man.He gave details. He said that he had been away. He came back home to find the children on their own. They told him that the mother had gone to Maengeni Market. He said he went looking for her – it was around 7:00 pm. He was told she had been seen with one M. He went to M’s home, heard them talking, pushed the door, found both naked – and both ran out of the house into the farm – from where she shouted that she would do something to him. He went back home. He reported to her parents. She later came and took the children away to her parents. He said he even took care of the 5 children, paid their fees while they were together. He said she just wanted land from him. 32. On cross-examination he told the court that he married her when she already had her children, and complainant was the eldest. He said this case was fabricated against him. He denied making up his defence. On re-examination he told the court that he had been in custody since his arrest, that his parents were deceased, that he lived with his only sibling his sister, in their home, but she had her own house. Analysis and Determination 33. On the 1st issue on whether the charge sheet was defective the appellant submitted that the charge sheet was defective because it speaks about anus yet the complainant spoke about poopoo, matako and buttocks – from the record the complainant testified that the appellant put his penis in his poopoo, and also in his matako, and in his buttocks. The charge sheet states that the appellant inserted his penis into the anus of the complainant. Evidently buttocks and matako are not the same as anus. The poopoo can be understood to mean the place through which the complainant was defecating if one is aware of the use of thus language to mean anus 34. Under the Sexual Offences Act poopoo ( I take it to mean anus) and buttocks/matako cannot be used interchangeably. The prosecution had the duty to create the requisite clarity considering the seriousness of the offence. It was not ok to lead evidence that used these terms interchangeably. This is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 5

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because “buttocks” are part of the specific offence referred as “indecent act” in the Sexual Offences Act – the Act says that Indecent Act means any unlawful intentional act which causes a) Any contact between any part of the body of a person with the genital organs, breast or buttocks of another, but does not include an act that causes penetration” 35. Clearly the prosecution needed to be clear as to what part of the body, as anus is defined as a genital organ. This is important because of the definition of penetration to meant “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. In my view the use of “ poopoo,” and “buttocks (matako)” by the prosecution rendered the charge defective to the extent that in the Act buttocks are not a genital organ – and the appellant could not be charged with defilement for inserting his genital organ into buttocks – and that is where the prosecution was required to ensure clarity in the testimony by the complainant. 36. To that extent – the prosecution led conflicting evidence and the appellant was entitled to the compliant he made that the charge was defective for conflict between the evidence and the charge sheet. 37. On the second issue the prosecution obtained the certificate of birth after the charge , however the P3, PRC and the mother said that the complainant was born on 18th August 2008. While the voir dire examination was brief , the record shows that the only question that could assist the court to determine whether or not the child understand the nature of an oath and was possessed of sufficient intelligence to justify the reception his evidence as per s. 19(1) of the Oaths & Statutory Declarations Act Cap 17 laws of Kenya, was the question about church. This in my view was very limited. 38. However, the trial court had the advantage of observing the demeanour of the child, and to determine, first that the age of the complainant and second that the child could testify on oath. Bearing in mind the limitation that this court did not see or hear the witness testify first hand this ground is untenable. 39. On the 3rd issue whether prosecution shifted the burden of proof to the appellant? The appellant gave his defence and told the court that he spent the whole night in the bar drinking. The complainant alleged that Mr. PM was in the same bar. The prosecution had the opportunity to rebut this evidence. The appellant was known to the complainant. The I.O testified that he never investigated that matter and could not rule out bad blood as the reason for this case matter was never investigated. The case for the prosecution had many gaps and by failing to call crucial witnesses, the prosecution and the court appeared to expect the appellant to fill those up. He had a credible defence in light of the case for the prosecution. 40. On the 4 th issue whether the prosecution proved the charge beyond a reasonable doubt –the ingredients are age, penetration and identity if the perpetrator together with a consideration of the circumstances of the offence. 41. On age – the same appears to be disputed by the - the appellant who testified that when he began to live with the complainant’s mother, the complainant was 11 years old in 2019 and that they lived together for 21/2 years. That would mean that the complainant was 131/2 years at the time of the alleged offence. 42. The relevance of age of victim in Sexual Offence is because it determines the sentence. Where the victim is upto 11 years – It is life imprisonment; between 12 – 15 years the mandatory sentence is 20 years imprisonment. In this case despite the dispute – the sentence would not be affected for as long as the age is between 12 years and 15 years. Hence age was properly established. 43. Was penetration established? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 6

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This appellant is accused that he inserted his genital organ into the genital organ of the complainant. The court is required by section33 of the Sexual Offence Act to take into account the circumstances of the case to determine inter alia whether or not an offence was committed. 44. The complainant testified that he was at the material time in class 8. On 2/2/2022 he went to the market around 5 pm, at 10:00 pm, he was watching TV at Ulilinzi Market in the shop of one B with others – then the appellant went and asked him to go home with him. They first went to another bar where the complainant set on the floor the accused sat on a chair and continued to drink alcohol. He said the club belonged to Kioko Musembi, and one PM was also in this bar. The appellant denied the charges. The prosecution has the duty to prove the charge beyond a reasonable doubt. 45. The first issue here was for the prosecution was to establish that the appellant was with the complainant on the material night. Was the complainant away from home on that night? His mother alleged she reported he was missing to the village elder. He was not called. He is said to have been in the shop of on B with others at that 10 pm watch TV. Neither B nor any other person was called to confirm that a 12 year old school going child was watching TV at the market at 10:00pm.That should have been a concern for the prosecution if the I.O did not pick up the issue. 46. The other key witness was one PM who was mentioned by the complainant as having been at the TV place and the bar where he ended up with the appellant , not the owner of the Bar . The failure by the prosecution to call these witnesses who would have established without doubt that the appellant was with the complainant in the places where the child said he was as this was the fact leading to the offence as presented by the prosecution. That the prosecution did not call these witnesses places their case in the position laid out in Bukenya V R (1972) EA 549 where Lutta AG V.P held – 47. “ (ii) The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. (iv) Where the evidence called is barely adequate, the evidence of the uncalled witness would have tendered to be adverse to the prosecution” The Court of Appeal in Joseph Maina Mwangi V Republic [2000] KECA (KLR) had this to say about this – In the result the failure by the prosecution to call Mr Kikwai who personally delivered the firearm to the ballistic examiner is of no consequence. In Bukenya v R [1972] EA 549, it was held that where the prosecution fails to call a witness and it transpires that the evidence in support of the charge against the accused concerned is barely adequate, the Court trying the case is perfectly entitled to draw an adverse inference that had the witness testified his evidence would have tended to be adverse to the prosecution case. We cannot possibly hold that the evidence regarding the appellant’s possession of the rifle is barely adequate. The appellant admitted he was arrested on 27th May 1986, together with two others. He admitted he was then taken to Nyahururu Police Station with another person. The entries of the particulars of the firearm in the OBs at both Ol Kalau and Nyahururu Police Stations carry those particulars. Besides, the appellant in his inquiry statement admits he was found in possession of the firearm. We do not lose sight of the fact that the appellant retracted his statement. His evidence was that he signed the statement at gunpoint. The trial magistrate nonetheless admitted it in evidence because he was satisfied not only that it had been given by the appellant, but also that he gave it voluntarily. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 7

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48. The complainant’s mother’s testimony did not assist either .She testified that the complainant told her that the appellant had sodomised him. There was no description of what she was told. That he was taken to hospital for treatment but the doctor who testified stated that there was no evidence of such treatment. It appears that upon the report being made to the police – the next thing was the examination of the complainant for the P3. The doctor said he could have been given pain killers and that the PEP could have been out of stock. All possibilities but not supported by evidence yet the P3 shows that the report was made on 5/2/2022, and the referral was made on 5/2/2022 and the the PRC was completed on 5/2/2022. 49. It is noteworthy that the perpetrator is described as the “father”, of the complainant, a fact that the PW2 knew was not true. 50. The PRC described reddening and bruising of the anus of the male complainant however alleged bruising on the anus was indicated on the female genitalia map in the PRC. If indeed the doctor examined the complainant how was that possible? It states clearly female genitalia, it is distinct drawing that bears no resemblance to the equally graphic drawing of the male genitalia. The trial court was of the view that the lack of evidence of treatment did not raise any doubt as the other medical evidence had been produced. However, the medical evidence that was not produced was not consistent. First – there is the reddening and bruising pf the anus – the doctor who testified said it could have been as a result of constipation or other factors. The P3 completed 5 days later described the anal orifice as inflamed and tender. The doctor who testified said that a bruise shows healing 3 – 5 days later. However, inflammation would normally be more recent. There ought to have been healing bruises. And she appeared to rule out that the inflammation could have resulted from the alleged defilement. Clearly the circumstances of the offence create discrepancies that the trial court did not resolve. Yet the trial court relied on this evidence . 51. I perused the Judgment of the trial court, the court did not rely on the proviso to section 124 of the Evidence Act – but relied on the evidence on record. That evidence had sufficient gaps to create doubts as to whether the offence was committed as alleged by the prosecution 52. Having considered this evidence in totality and I find that it was not sufficient to prove the fact of penetration beyond a reasonable doubt. 53. From the foregoing I find and hold that the case for the prosecution was insufficient to establish the guilt of the accused beyond a reasonable doubt. 54. I find that the appeal has merit. 55. The appeal is allowed. The conviction is quashed. The sentence is set aside. The appellant is to be set at liberty unless otherwise legally held. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH APRIL 2026 MUMBUA T MATHEKA JUDGE CA CHRISPOL Appellant present virtually Ms. Musango for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6443/eng@2026-04-14 8

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