Badi Amin Bahaji v Republic

4. The trial court erred in law and fact in sentencing the appellant to a harsh and excessive sentence of 15 years imprisonment. Case for prosecution 3. The case for the prosecution is that the victim herein was a grade 2 pupil aged 7 years. She was living with her mother PW2. The appellant was her grandfather. 4. The evidence of the mother to the complainant PW2 was that she left Lamu town on 30/3/2025 and went to Mombasa for Idd celebrations. She left the victim in the care of her mother. That later on 2/4/2025 her mother travelled to Malindi to attend a burial. She PW2 returned to Lamu on 8/4/2025. The victim then told her that the appellant had taken her to the house of her grandmother at night and did bad manners to her - inserted his penis into her vagina. That this happened on two occasions. She took her to King Fahad hospital where she was examined and defilement confirmed. 5. The victim in her evidence in court initially stated that the appellant did not do anything to her. She was stood down and when she was placed in the dock for a second time, she stated that the appellant inserted his male organ into her hole for urinating. 6. A cousin to the victim PW3 told the court that he was staying with the complainant and her mother. That at the material time the victim`s mother had travelled and he was sleeping on the same bed with the complainant. The appellant`s room was close by. That on two mornings he woke up and found the complainant missing from their bed and was in the room of the appellant. When the mother to the complainant returned from her safari, he learnt that the victim told her that the appellant had defiled her. 7. PC Kitangatana PW4 testified that he is one of the officers who arrested the appellant on a complainant of defilement. 8. The officer who investigated the case left the station and the police file was handed over to PC Roseline Dama PW6 who testified on behalf of the investigating officer. It was her evidence that the victim told the investigating officer that she was asleep when a person went to her room and tied her hands. That she woke up and saw the person as the appellant. That he then inserted his penis into her vagina. That this was done on 3rd and 5th May 2025. 9. The complainant was attended to at King Fahad hospital and her P3 form completed by Dr. Bahaji. The doctor found her with injuries in her vagina and the hymen was torn. The doctor formed the opinion that there was vaginal penetration. He completed her P3 form. During the hearing the examining doctor was unavailable and the P3 form was produced by a colleague doctor, PW5. PC Dama PW6 produced the complainant`s birth certificate as exhibit, PExh.1. It indicated that the complainant was born on 16/1/2018 Defence Case 10. The appellant stated in his defence that the victim is his grandchild. That he is a tour guide. That between 3rd and 5th May 2023 he was on a safari to Kiwayu and the complainant`s mother had travelled to Mombasa. The victim had been left with a person called Bayi. She was sleeping with L (PW3) on the same bed. That L is her uncle. That the child never raised any issue that he defiled her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12312/eng@2026-07-31 2

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Submissions 11. Counsel for the appellant submitted that the conviction on the appellant was unsafe and unsupported by the evidence on record. That the complainant gave contradictory evidence on whether the appellant touched her or not. 12. The respondent on the other hand submitted that the charge was proved beyond reasonable doubt. Analysis and determination 13. This being a first appeal, this court is mandated to analyse 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.” 14. The Appellant was convicted of the ofience of committing an indecent act to a child contrary to section 11(1) of the Sexual Offences Act. The section provides as follows: Any person who commits an indecent act with a child is guilty of the ofience of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 15. The ofience of indecent act is defined under Section 2 of the Sexual Offences Act as an unlawful intentional act which causes; a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration. b) ….. 16. The ingredients of the ofience of committing an indecent act with a child that the prosecution needed to prove are: proof of the age of the complainant (that she was a minor), identity of the perpetrator and the indecent act itself. 17. The victim in this case when placed in the witness box gave evidence that the appellant did not touch her but when she came to testify on the second time, she told the court that he inserted his penis into her vagina. The trial court in its judgment said that it had taken note that the victim had injuries around the vaginal orifice. That from the evidence placed before the court it was probable that there was penetration and that there was also a possibility that there was no penetration. That the evidence proved that the appellant caused his penis to come into contact with the vagina of the victim but did not cause penetration. The court further made a finding that the bruise on the vaginal orifice was an external injury which may not necessarily mean that there was penetration. The court hence made a finding that the appellant committed an indecent act with a child. 18. The trial court explained the contradictions on the evidence of the complainant on the ground that it was due to the trauma that she had experienced. That there was no evidence that the inconsistency was intentional or that the child was couched. That the inconsistency was justifiable. That the inconsistency did not go to the core of the evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12312/eng@2026-07-31 3

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19. There is no doubt that there were contradictions in the evidence of the victim. The Court of Appeal in the case of Munene v Republic [2018] KECA 186 (KLR) dealt with the issue of contradictions in a criminal case and held as follows: “ We begin with the submissions that the prosecution evidence was contradictory. In a criminal trial, the accused person enjoys a presumption of innocence because the burden of proving the charges is on the prosecution, and to do so beyond any reasonable doubt. Secondly in an adversarial system the purpose of evidentiary rules is to assist the court in establishing the truth and in the process provide protection to the accused in respect to his right to a fair trial. As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 20. In this case the discrepancies in the evidence of the victim were whether or not the appellant inserted his penis into her vagina. The issue was a substantial and fundamental one as it went to the core of the case on whether the ofience was committed or not. It was therefore not a trivial issue that the court could ignore as inconsequential. The victim had to give a proper explanation for the contradictions which she never did. The trial court was in error to dismiss the contradictions on its own explanation that it was due to the trauma the victim had experienced. It was an error for the trial court to find that the contradictions did not go to the core of the case. 21. The fact the trial court was wrong in its conclusion was demonstrated by the evidence of the police officer who took over the police file and investigations, PW6, after the initial investigation officer went on transfer. The said witness testified that the statement recorded by the initial investigating from the victim stated that on the night of 3/5/2025 she was sleeping when a person went to her room and tied her and “put the hand on the penis”. That she woke up and saw it was the appellant. That the appellant then proceeded to insert his penis into her vagina. 22. The question then is: if the incident took place as narrated by the victim in her statement to the investigating officer, why did she not give the same kind of narrative to the court? More so, did the act take place in the room where she was sleeping as stated in her statement or it took place in the room of the appellant as stated in her evidence in court? If it took place in the room where she was sleeping, how did she at that hour of the night identify the appellant as the person who tied her and inserted his penis in her vagina? 23. In Ndungu Kimanyi v Republic [1979] KLR 283, the Court of Appeal 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12312/eng@2026-07-31 4

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person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 23. In my consideration the victim was not a truthful witness. The contradictions and discrepancies in her evidence should have led to the conclusion that it was not safe to convict on the basis of her evidence. The trial court did not properly interrogate her evidence before coming to the conclusion that she was a truthful witness. It was for the prosecution to prove the case beyond reasonable doubt and not on a balance of probabilities. In the absence of such proof, the appellant was entitled to the benefit of doubt. 24. In view of the foregoing, it is my finding that the case against the appellant was not proved beyond reasonable doubt. The conviction is thereby quashed and the sentence thereof set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 31ST DAY OF JULY 2026 J. N. NJAGI JUDGE In the presence of: Mr. Oluoch for Respondent Appellant: present virtually at G.K. Prison Malindi Court Assistant - Luckson https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12312/eng@2026-07-31 5

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