11.The Respondent did not file written submission but on January 27, 2023, the court gave leave to Mr Gacharia for the Director of Public Prosecution to make oral submissions.
12.In his brief oral submissions, Mr Gacharia contended that the trial magistrate properly exercised her discretion under section 186 of the Criminal Procedure Code when she found that the offence charged had not been proved but ingredients of a sexual assault charge had been established.
13.He further submitted that pursuant to section 11 (1) of the Sexual Offences Act under which the Appellant was convicted, the minimum sentence of 10 years imprisonment is provided for hence the sentence imposed on the appellant was a legal sentence which he urged the court not to interfere with.
Analysis and Determination
14.The law is well settled that the first appellate court has a duty to re-evaluate the evidence adduced before the trial court, analyse it and come up with its own independent finding. The court is however supposed to make allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses and assess their demeanour. In Kiilu & Another v Republic  1KLR 174 the Court of Appeal stated that:
15.The issues that come up for determination of this appeal are;
16.The appellant has said that he was convicted on the charge of indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act. The said charge was not read to him during plea taking and thus his right to a fair trial under Article 50 of the Constitution was violated. The appellant pleaded not guilty to the charge of attempted defilement contrary to Section 9(1)(2) of the Sexual Offences Act, No 3 of 2006. The trial court in its judgment stated as follows;
17.Section 179(2) of the Criminal Procedure Code provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
18.Section 186 of the Criminal Procedure Code provides that when a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.
19.The Sexual Offences Act in Section 2 defines indecent act as any unlawful intentional act which causes:
20.Consequently, it was proper for the trial court to convict for an offence of indecent assault where the appellant was only charged with attempted defilement as long as the necessary ingredients for the offence of indecent assault had been established beyond reasonable doubt by the prosecution evidence on record.
21.The next question then becomes, was there enough evidence to prove to offence of indecent act against the minor in this case by the appellant as found by the trial court? The complainant in the trial court, PW1, testified as follows;
22.One of the grounds of appeal by the appellant was that the trial court did not consider his defence. And indeed, it is clear to me that the trial court only set out the defence of the appellant in its judgment but did not evaluate it against the prosecution evidence.
23.The appellant in his defence said he went to his farm at around 1.00 PM that day to get some maize to roast and found three children in his shamba. The complainant was top of a tree picking fruits and throwing them down for the two others who were collecting them. He threatened to report them to their parents then let them free. He went back home, roasted the maize and went back to work.
24.In his submissions before the court, the appellant also submitted that the trial magistrate failed to consider the 1st medical report that was procured at Lusigetti sub-county hospital and solely relied on the subsequent medical reports. The 1st medical report procured at Lusigetti sub-county hospital noted that there was no bruise on the vagina of the complainant in which examination was done on August 19, 2018 which is the date of the incident. The subsequent medical report was filed on August 20, 2018 and noted that there was superficial bruising on the left vagina.
25.The trial court in its judgment opined that medical evidence given by PW 5 (who prepared the second medical report) provided credence to the complainant’s testimony that her genitalia had been touched on the basis of the bruising that had been noticed. The trial court said:
26.I would thus disregard those medical reports which means a critical component that the court used as corroborative of element to the testimony of the complainant also collapses.
27.Was there was sufficient evidence therefore that the complainant had been indecently assaulted? In her testimony, she stated:
28.In his defence the appellant denounced the above narration by the complainant and instead testified that he found three children picking fruits in his farm whereby the complainant was on top of a tree while the other two were collecting the fruits she was picking. She threatened to tell their parents and let them go.
29.In cross-examination that was conducted on behalf of the appellant the defence confronted her with those set of circumstances. She denied she was caught stealing the fruits ‘mapera’ with the other children. She stated:
30.The trial court did not comment on the defence side of the story. It did not even say if it disbelieved it or not. The appellant in his submissions faulted the trial court for failing for only failing to consider his defence but also the failure to record reasons for believing a single witness contrary to Section 124 of the Evidence Act. The said Section provides as follows;
33.It is possible to convict on the evidence of a single child witness but section 124 of the Evidence Act has a rider. It requires the court to give reasons in writing as to why it is satisfied that the child is speaking the truth. It is one thing for the court to establish that the child understands the nature of an oath and the duty to speak the truth and another for a child to live to that expectation when actually testifying before the court hence the requirement that the court has to record the reasons for believing the evidence (evidence that was given) and especially where it is to rely on that evidence to convict. In the present case, the trial court did not record any reasons for believing the evidence of the lone minor, apparently in my view, because it wrongly assumed there was corroboration. The defence mounted serious contestation to her testimony during cross-examination and in the defence tendered by the appellant in which he gave a version of what happened which was different from what the complainant stated. Without a clear finding as why, the trial court believed the evidence of the complainant as against the appellant, and there being no other corroborative evidence to back it up, there was no way of telling whose version was truthful. That means the defence had succeeded in creating doubts in the prosecution case which are to be applied to the benefit of the appellant.
34.From the analysis of the above issues, it is my finding that the conviction of the appellant by the trial court was not safe in the circumstances. I find the grounds of appeal in the petition of appeal dated October 4, 2022 are merited. I set aside both conviction and sentence. The appellant is set free unless otherwise lawfully held.