Republic v [Appellant] (Criminal Appeal)

(1) That the trial magistrate erred in law and fact by failing to find that there was no proper identification of the appellant. (2) (1 That the trial magistrate erred in law and fact by failing to find that the prosecution case was full of contradictions, discrepancies and inconsistencies. (3) That the trial magistrate erred in law and fact by failing to consider his defence. (4) That the trial magistrate erred in law and fact by failing to consider the time spent in custody when sentencing the appellant. Case for prosecution 3. The evidence of the victim PW1 was that she was at the material time a class 2 primary school pupil aged 9 years. That on the material she had been sent by her mother to fetch water. The appellant who was a person not known to her called her. She refused to go to him. The appellant then grabbed her and placed her on a motor cycle. He took her to a house and placed her on a bed. He removed her clothes and inserted his penis into her vagina. That after he finished, he used her panties to wipe her. He then took a shower. He locked her in the house and went away. She started to cry while banging the door. 4. It was the evidence of a volunteer children welfare officer PW1 that she was informed about a child crying in a locked house. She went to Idsowe police post and reported to PC Kalama. They went to the house. The child GNS.HCCRA.NO.E060/2025 JUDGMENT 2|Page

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told them that she had been defiled by Jara. The Deputy OCS went to the place. He arrested the appellant. They took the child to Garsen health centre. 5. The area chief PW6 testified that he received a report that there was a child crying in a locked house. He went to the house and found a child crying in a locked house. He asked a person called Robert (PW4) to break the door. He did so. They found the victim herein inside the house. They rescued her and took her to Idsowe police post. They went back to the scene and found the Deputy OCS there. The victim showed them the bed where the person had defiled her. While they were leaving the house, the appellant came along while pushing a hard cart. He was arrested. 6. PC Kalama PW3 testified that on the material day he was at Idsowe police patrol base when the area chief went there with an 8-year-old girl whom he reported to have found her in a locked house. That they had broken the door and removed her from the house. The girl said that she had been taken them by a boda boda rider who had defiled her. He went to the house with a volunteer children welfare officer, PW1, the area chief (PW6) and the person who had broken the door to the house (PW4). The child showed them the bed where she was defiled. That while they were there a man came along pushing a hand cart. The victim identified him as the person who had defiled her. He arrested him and escorted him to the post and booked him in. They went back to the house for a GNS.HCCRA.NO.E060/2025 JUDGMENT 3|Page

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second time with the OCS for a search. The Deputy OCS took the appellant and the victim to Garsen health centre. 7. A clinical officer at Garsen health centre PW5 testified that she was on duty at the health centre at night when the victim herein was taken there. She examined her and found her with a missing hymen. The genitalia revealed sexual activity. A laboratory examination was done that did not reveal anything. She filled her P3 form. During the hearing she produced the treatment notes and the P3 form as exhibits, P.Exh.1 and 2 respectively. 8. The case was investigated by PC Elim Ondivo PW7 then of Idsowe police post. He recorded statements of witnesses and charged the appellant with the offence. During the hearing of the case in court, he produced the victim`s birth certificate as exhibit, P.Exh.3. Defence case 9. When placed to his defence the appellant stated in a sworn statement that he was on the 16th November 2016 on the way home from work. That when he was near his house, he saw police officers standing by the side of his house. He was arrested and taken to Idsowe police post and then to Garsen Police station. He was later charged. 10. The appeal was disposed of by way of written submissions Submissions 11. The appellant submitted that the victim gave contradictory evidence on the identity of the person who defiled her. That she first stated that she did not know the GNS.HCCRA.NO.E060/2025 JUDGMENT 4|Page

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person who called her and later on in her defence stated that the person who defiled her has a handcart and used to fetch wate for her mother. In view of this contradiction the appellant submitted that the evidence of the victim was not reliable. It was submitted that while Cpl Kalama PW3 stated in his evidence that he looked for signs of blood on the bed and did not find any, the children volunteer PW1 said that there was waterly fluid on the bed. It was submitted that the contradictions and inconsistencies made the conviction unsafe. 12. The appellant submitted that the trial magistrate did not consider the time spent in custody when sentencing him contrary to the provisions of section 333(2) of the Criminal Procedure Code. 13. The respondent on the other hand submitted (incorrectly) that the appellant was convicted of the offence of defilement and that the ingredients of the offence were proved. Analysis and determination 14. The duty of this court while exercising its appellate jurisdiction as a first appellate court is as was set out by the Court of Appeal in Okeno v. Republic [1972] E.A. 32 and re-stated in Kiilu and another vs. R (2005) 1 KLR 174 that the evidence of the convicting court ought to be subjected to a fresh and exhaustive examination and weigh conflicting evidence and draw its own conclusions. In doing so, it should make allowance for the GNS.HCCRA.NO.E060/2025 JUDGMENT 5|Page

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fact that the trial court has had the advantage of hearing and seeing the witnesses. 15. The court should be guided by the principle that a finding of fact made by the trial court shall not be interfered with unless it was based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles (See Gunga Baya & another v Republic [2015] eKLR). 16. The appeal is based on the grounds that the appellant was not identified as the perpetrator of the offence; that there were contradictions, inconsistencies and contradictions in the evidence of the prosecution witnesses; that the trial court did not consider his defence and the court did not consider the time spent in custody when sentencing the appellant. 17. On the issue of identification of the appellant, the complainant in her evidence sta14. ted that she was called by a person she did not know but later stated in her evidence that the said person was a handcart operator and that he used to fetch water and firewood for her mother. 18. The appellant submitted that the victim was not a consistent and truthful witness. That her evidence was shaky and should not have been relied on to convict him. 19. On contradictions, appellant submitted that the children volunteer officer PW1 said in her evidence that there was some water of liquid on the mattress but that GNS.HCCRA.NO.E060/2025 JUDGMENT 6|Page

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the police officer PW3 stated that he looked for signs of blood on the bed and he did not see any. 20. The respondent on their part submitted that the victim identified the appellant. That identification was by recognition and that there could have been no mistake on identification. 21. I have considered the evidence adduced before the trial court. The trial court in convicting the appellant of the offence stated that the victim identified the appellant at the scene. That he is the one who grabbed her, took her to his home and defiled her. 22. It is however to be noted from the judgment of the trial court that the court did not resolve the discrepancy in the evidence of the victim on one hand that the person who grabbed her was unknown to her and her evidence that the person used to fetch water and firewood for her mother on the other hand. That even a day before that day he had fetched water for her mother. What is the court to make out of this discrepancy? 23. The victim in her evidence did not state that she is the one who identified the appellant when he was arrested. The children volunteer PW1 also never said so. The chief PW6 in his evidence testified that after breaking the house and taking the child to the police post, he went back to the scene with the Deputy OCS. That the appellant went to the house. He was interrogated whether he had lived in that house and whether he had locked a GNS.HCCRA.NO.E060/2025 JUDGMENT 7|Page

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girl therein. He answered in the affirmative to both questions. The chief however never said that it is the victim who identified the appellant when he was arrested. 24. Cpl Kalama PW3 stated that the victim told him that she did not know the person who grabbed her and took her to his house and defiled her. He however said that while they were at the scene with the complainant, the appellant went to the place while pushing a handcart and the victim identified him as the person who had defiled her. 25. The way to treat contradictions and inconsistencies in a criminal case was stated by the Court of Appeal in John Nyaga Njuki & 4 Others v. Republic [2002] eKLR wher the Court of Appeal stated that: “…But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.” 26. The same court in Jackson Mwanzia Musembi –Vs- Republic (2017) eKLR court cited with approval the GNS.HCCRA.NO.E060/2025 JUDGMENT 8|Page

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Ugandan case of Twahangane Alfred –vs- Uganda CR. Appeal No. 139 of 2002 (2003) UGCA,6 where it was held that: “with regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case”. 27. The question then is whether the discrepancies in the evidence of the victim were of a such a nature as to create doubt in the prosecution case or they were inconsequential and could be overlooked. 28. The appellant stated in his evidence that he was arrested when going back to his house. That he found police officers standing by the side of his house. He was then arrested. 29. The person who broke the door to the house where the victim herein was locked up PW4 told the court that it is the appellant who used to live in the said house. The appellant did not challenge the evidence of the said witness in cross-examination that he is the one who used to live in the said house. The appellant admitted that he GNS.HCCRA.NO.E060/2025 JUDGMENT 9|Page

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found policemen beside his house. It is the same house where the victim was locked up. PW4 knew the appellant as the person who was living in the said house. There is then no doubt that the appellant was the occupant of the house where the victim was found locked up. He did not explain why the victim was found locked up in his house. In view of this, there is no reason to doubt the evidence of the victim that the appellant is the one who locked her up in the house and defiled her. The incident occurred during the day and as such the victim could not have mistaken the appellant. Despite the fact that the discrepancies in the evidence of the victim were material to the case, I find that they did not affect the guilt of the appellant. The evidence of the victim that the appellant is the one who locked her up in the house was corroborated by the fact that the appellant was the occupant of the house. The appellant was rightly convicted of the offence. The conviction is thereby upheld. The appellant is lucky that he was convicted of committing an indecent act with a child and not defilement which would have attracted a sentence twice of what he was convicted of. 30. The appellant argued that the trial court did not consider the time spent in custody when it sentenced him which was a contravention of section 333(2) of the Criminal Procedure Code. The section requires a court when sentencing an accused person who has been in custody to take into account the time spent in custody awaiting trial. GNS.HCCRA.NO.E060/2025 JUDGMENT 10 | P a g e

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31. I have perused the record of the trial court and noted that the appellant arrested on 12/11/2021 and arraigned in court on 18/11/2021. He remained in remand custody until 15/6/2022 when he was released on bond. This was a period of 7 months and 3 days. He was later sentenced on 2/9/2024. The provisions of section 333(2) are mandatory and the trial court should have considered the time spent in custody when it sentenced consequently order that the the period appellant. of I between 12/11/2021 and 15/6/2022 spent in remand custody be discounted from the appellant`s sentence of 10 years. 32. Safe for the order on the time spent in custody, I do not find any merit in the appeal and the same is dismissed. Delivered, dated and signed at GARSEN this 31st day of July 2026 J. N. NJAGI JUDGE In the presence of: Mr. Oluoch for Republic Appellant – present virtually at GK Prison Malindi Court Assistant – Rahma GNS.HCCRA.NO.E060/2025 JUDGMENT 11 | P a g e

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