Alice Lanya v Republic

a. That the trial magistrate erred in law and fact by not observing that the prosecution failed to discharge burden of proof to the required standard. b. That the prosecution evidence was fast contradicted and fabricated. c. That penetration was not proved. d. That she was not accorded a fair trial. e. That the trial magistrate erred in law and fact by failing to notice that the prosecution case was marred with inconsistencies, doubt and contradiction. f. That the trial magistrate erred in law and fact in failing to realize that essential exhibits were not tendered in evidence. 6. PW1, AG stated SM is her daughter and was born on 4/3/2019. PW1, also stated that SM is a PP1 pupil at EC. The, further, stated that she employed the appellant as househelp from 22/5/2023 to 12/6/2023. 7. On 12/6/2020, in the evening, PW1 stated, she went to sleep with SM and she told her she was in pain.PW1, further, stated the child also informed her that the appellant inserted fingers in her vagina and gave her a pink tablet when she felt pain. PW1 also stated that she examined M’s vagina and it was reddish on upper part.Further, PW1 stated that M informed her that the incident happened after school in the bedroom. 8. At about 3 am, PW1 stated, she woke the appellant up and together with M they went to Moi Teaching & Referral Hospital (MTRH) and thereafter went to the police where she was issued with a P3 form which was filled. PW1 also stated that she escorted the appellant to the police. 9. PW2, Dr. Irene Simiyu works at MTRH. She examined the complainant on 13/6/2023 and that the patient’s number was 088xxx8. PW2, testified that the child’s posterior fourchette was red(mild erythema) but hymen was intact. The doctor also produced the appellants P3 form marked P. Exhibit No. 1. 10. PW3 No. 9xxx1 PC (W) Caroline Mapenzi is a police officer based at Lugari Police station. She produced a copy of the complainant’s birth certificate marked P. Exhibit 2. The birth certificate indicates the complainant was born on 4/9/2019. 11. In her defence, the appellant admitted she was employed by PW1 as house help on 22/5/2023 and she stayed peacefully wit her employer. On 13/6/2023 at 3:00 am, the appellant stated, PW1 woke up and requested her to escort the minor to hospital because she was sick with tonsil. 12. PW1 called for a taxi, the appellant stated and they were driven to MTRH where the minor was treated. The appellant, further, stated that thereafter did not return home but instead PW1 took her to a boutique in town and they ate food. Subsequently, the appellant stated, requested her to stay with the child. Later, the appellant, PW1 made arrangement for the appellant and the child to be taken to her brother’s place using a boda boda claiming she was busy. 13. At 5:00 am, the appellant stated, PW1 availed a taxi and while at the car, PW1 instructed the driver to take them to Langas Police station. At station, PW1 took her child away and she was interrogated by and charged in court with the offence herein. 14. The issue for determination is whether the trial magistrate erred in law and fact in finding that the appellant indecently assaulted the complainant. This being a first appeal this court is obligated to re- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12604/eng@2026-08-03 2

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appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. (see.Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR 15. Section 5(1) of the sexual offence Act provides that: “ Any person who wilfully penetrates the genital organs of another with – i. Any part of the body of another or that person or ii. An object manipulated by another or that person except where such penetration is carried out for any proper and professional hygienic or medical purposes. iii. Manipulate any part of his or her body in the body of another person so as to cause penetration of the genital organ into or by any part of another person’s body is guilty of an offence termed Sexual assault. iv. A person guilty of an offence under this section is liable upon conviction to imprisonment for a term not less that ten years but much may be enhanced to life imprisonment”. 16. To prove the offence of sexual assault the prosecution must prove that there was penetration of the genital organ of the victim by any part of the body of the accused person or any other person or object manipulated by the accused for that purpose. The essential elements of the offence therefore are proof of penetration and positive identification of the appellant. 17. PW 1 the complainant’s mother testified that she employed the appellant from 22/5/2023 to 12/6/2023 as a house help. On 16/6/2020 in the evening, PW1, she went to sleep with the complainant and she told her she was in pain.PW also stated that the complainant also the appellant inserted her fingers in her vagina and gave a pink tablet to ease off pain. At 3:00 am PW1 woke up the appellant called a cab and together they took the child to MTRH hospital and PW1 claimIng that the child had tonsils. After the child was treated, PW1, further dubbed the appellant to believe there were going back home only to escort her to Langas Police where she was arrested and charged with offence herein. 18. PW2, Dr. Irene who examined the child stated that child’s posterior fourchette was reddish though her hymen was intact. The doctor also produced the complainants P3 form which indicates the complainant had mild erythema at her posterior fourchette. 19. The minor did not testify and no application was made Article 50(7) and section 31(1) of the Sexual Offences by the prosecution was to have PW1 testify as intermediary on behalf and no leave was granted by the trial Court. As it stands the appellant was convicted primarily on the basis hearsay evidence tendered PW1 that received from her child of tender age 20. It is noted that the evidence of PW2 indicated that the complainant’s hymen was intact. 21. In the absence of the evidence of the complainant herself, this court finds that the hearsay tendered by PW1 to be doubtful and unreliable. 22. The conduct of the PW1 of lying to the appellant that the child suffered from tonsils, keep her waiting in a boutique and later calling for a taxi to supposedly to take home only to escort her to apolice station cast PW1’s credibility in bad light. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12604/eng@2026-08-03 3

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23. Based on the evidence on record and the conduct of PW1, this court finds it was not for the trial court to convict the appellant for the offence of sexual assault. 24. The upshot of my findings above is that the appellant’s appeal has merit and the same is allowed. Accordingly, the conviction of the appellant is set aside and the appellant is set at liberty unless otherwise lawfully held. 25. Right of appeal within 14 days. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 3RD DAY OF AUGUST 2026. HON. P. K. ROTICH JUDGE In the presence of: Appellant in person. Mr. Kirenge for DPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12604/eng@2026-08-03 4

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