1.AE the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual offences Act No. 3 of 2006. The particulars being that the appellant on diverse dates between 2nd March 2021 to 5th March 2021 at [particulars withheld] in Kimilili sub-county within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of M.N.W a child aged 13 years.
2.He also faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars being that the appellant on diverse dates between 2nd March 2021 to 5th March 2021 at [particulars withheld] in Kimilili sub-county within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of M.N.W a child aged 13 years.
3.The appellant upon amendment of the charge sheet faced a second (2nd) count of incest contrary to section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars being that on diverse dates between 2nd March 2021 and 5th March 2021 the appellant while at[particulars withheld] in Kimilili sub county within Bungoma County unlawfully and intentionally caused his penis to penetrate the vagina of M.N.W who was to his knowledge his daughter.
4.He pleaded not guilty and the case proceeded to full hearing with the prosecution presenting four (4) witnesses while the appellant gave an unsworn statement of defence. The trial court found him guilty and convicted him of the main count of defilement and sentenced him to twenty (20) years imprisonment.
5.Being aggrieved the appellant filed this Appeal against the judgment. He initially raised seven (7) grounds of appeal. However on 4th August 2022 he filed twenty five (25) amended grounds which are as follows:
6.The appeal was disposed of by written submissions. In his undated submissions filed on 4th August 2022 the appellant took issue with the amended charge sheet saying it was unprocedurally amended depriving him of the right to fair trial under Article 50(2) of the constitution. He argues that the prosecution was not sure of its investigations hence charging him for both defilement and incest. Relying on Fappyton Mutuku Ngui v. Republic  eKLR he identifies the ingredients to be proved for a charge of defilement to succeed. These are:
7.About age he claims the same was not proved since an immunization card can’t prove age. On whether he was identified as the perpetrator he submits that it is not clear when the offence was committed and why no report was made earlier on. He adds that the dock identification is unreliable as he was framed up and the complainant coached to do so.
8.He submitted that the medical evidence by PW4 ruled out any form of defilement of the complainant. He relied on the P3 form and treatment notes in support. On the missing hymen he argues that this alone was not proof of penetration. He relied on the case of P.K.W vs. Republic  to support his argument.
9.The appellant submitted further that crucial witnesses like the neighbours who ignited these allegations never recorded statements nor testified. He urges the court to find the complainant to be an incredible witness. See Ndungu Kimanyi vs Republic  KLR 283.
10.Its his submission that his alibi defence was cogent and trustworthy and ought to have secured him an acquittal.
11.The respondent’s submissions dated 3rd August 2022 were field by learned counsel M/s Hilda Omondi. It is her submission that age was proved by the evidence of the mother who produced the victim’s clinic card showing she was 13 years. On identification she submitted that the victim is a step daughter of the appellant. She had lived with the appellant since she was young and knew him well. That there was solar light in the house, which enabled her identify him.
12.It’s her further submission that despite the medical evidence showing that there was no penetration she agreed with the court’s disagreement with that finding. She submitted that the evidence of PW2 and PW3 corroborated the version of events by the complainant. The trial court observed the complainant’s demeanour and was satisfied that she spoke the truth.
13.Counsel urged the court not to interfere with the trial court’s discretion as was held in Republic vs. Abeid  eKLR. She contended that the trial court considered the appellant’s defence at length and correctly rejected it as not being plausible. On the sentence she submitted that the appellant ought to have been given a stiffer sentence since the complainant is a step daughter. She urged this court to enhance the sentence.
14.A brief summary of the evidence on record is that PW2 (EN) is the wife of the appellant and the mother of the complainant (M.N.W). When PW2 got married to him she already had M.N.W. as her firstborn child. They continued living together and she got three (3) other children with the appellant.One night in March 2021 PW2 disagreed with the appellant who ordered her to leave the house. She left with M.N.W. for a neighbour’s house. The next day M.N.W. went to school and after school went back home. PW2 went for her at 9pm but the next day the little girl again went back to her siblings.
15.This went on and on. When PW2 finally returned after being away for a week, M.N.W reported to her what the appellant had been doing to her in terms of defilement. She reported to two village elders who did not assist him. Neighbours were also notified. The police came and arrested him as M.N.W was taken to hospital for treatment.
16.PW4 Patrick Koros the clinical officer based at Kimilili sub country hospital examined M.N.W and produced the P3 form (PEXB3) and the treatment notes (PEXB2). His finding was that there was no indication of defilement from the two documents, and his examination.
17.In his unsworn defence the appellant denied the charges against him. He stated that on 28th February 2021 he was at his place of work when he received a call from a neighbour. He was notified of a problem at his house. He rushed there and found his estranged wife with a friend of hers. They had been estranged for one and a half years. She wanted to leave with the children and she even beat his pregnant wife.
18.They had exchanges with the former wife who eventually left with her friend who had accompanied her. He later went to police station on advice of the nyumba kumi elders. He was then charged.
Analysis and Determination
19.This being a first appeal this court has a duty to re-consider and re-evaluate the evidence afresh and arrive at its own conclusion. This was enunciated in the case of Okeno v. Republic  E.A 32 where the Court of Appeal stated:
20.I have carefully considered the evidence on record, grounds of appeal, both submissions, cited authorities and the law. The main issue for determination is whether the ingredients in a charge of this nature were proved to the required standard.
21.However, before I get to that, there is an important issue which has been raised by the appellant in his submissions which I must address. He contends that the inclusion of the count of incest in the amended charge sheet was an afterthought and a sign that the investigations were shoddy.
22.At the end of the Judgment at page 91 the leaned trial magistrate states:
23.The record shows that the appellant was charged with defilement (1st count) and incest (2nd count).Section 8(1) of the Sexual Offences Act defines defilement as follows:Section 2 of the same Act provides that penetration entails the partial or complete insertion of the genital organs of a person into the genital organs of another person.
24.The ingredients of defilement have been clearly set out by both parties in their submissions and I have nothing to add. On the other hand the offence of incest is as provided under section 20(1) of the Sexual Offences Act which states:
25.In the case of Sigilani v. Republic  2 KLR 480 the Court held:
26.The whole purpose for an accused person’s knowing what charge he is facing is for him/her to understand why he/she is in court and to prepare well for his/her defence. Was the appellant supposed to prepare for his defence in respect of the defilement or incest with the same child?What was done in this case is referred to as multiplicity in a charge sheet. This arises from charging of a single criminal act or offence as multiple separate counts. The trial court should not have allowed that as it confused the appellant as to what offence he was actually responding to.
27.The appellant herein should have been charged with either the 1st or 2nd count and not both. Having considered the record, circumstances of this case and the fact that the appellant was convicted on 25th October 2021 I find that justice would demand for a re-trial of the appellant, upon a new charge with only one main count being preferred. That being the case I shall not proceed to re-evaluate the evidence as that would pre-judice the re-hearing of the case. The issue of multiplicity of counts has sorted out this appeal.
28.The upshot is that the appeal partially succeeds. The conviction and sentence are hereby set aside. The file is remitted back for re-trial at Kimilili law courts before any competent Magistrate besides Hon. G. Odhiambo. The appellant to be presented before the said Court on 16th day of September, 2022 for plea taking.If convicted the period served from 25th October 2021 to date to be taken into account.Orders accordingly.