1.The appellant was convicted for defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, and sentenced to twenty (20) years imprisonment.
2.Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied upon the following supplementary grounds of appeal:-1.The charge sheet relied on by the trial court was defective as in breach of Section 134 of the CPC.2.The trial court relied on inadmissible evidence of identification which was not positive.3.The trial court relied on insufficient evidence and that the prosecution did not prove this case beyond reasonable doubt and therefore, the appellant’s defence should not have been rejected without any justifiable reasons.4.The trial Magistrate failed to understand that hearsay evidence is in-direct evidence as in breach of Section 63 of the Evidence Act (Cap.80) Laws of Kenya.5.The lower court erred both in law and fact to comply with Section 124 of the evidence Act; corroboration required in criminal cases and the appellant was denied the opportunity to cross-examine the essential witnesses which contravened Article 50(2)(g)(h) of the Constitution.6.The appellant’s rights and criminal procedure system was hampered by the trial court and is in breach of Section 77 and 154 of the Evidence Act.7.That this court should subject the entire findings on record and evidence as a whole to an exhaustive scrutiny alongside his contention and to come up with an independent opinion apart from the trial court.
3.The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
4.This being a first appeal, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
5.The main elements of the offence of defilement have been defined in many decided cases in Kenya, including the case of Charles Wamukoya Karani =Versus= Republic – Criminal Appeal No. 72 of 2013. They are the age of the victim, the proof of sexual penetration and positive identification of the perpetrator. It being a criminal offence, the prosecution is required to prove each element beyond any reasonable doubt.
6.In proving their case herein, the prosecution called five (5) witnesses. On his part the appellant tendered sworn defence testimony and called three (3) defence witnesses.
7.Having considered all the evidence on record, I come to the conclusion that the age of the complainant PW2 was proved beyond reasonable doubt as a birth certificate was relied upon and produced in court as an exhibit by PW4 Cpl. Zainabu the investigating officer.
8.With regard to sexual penetration, again in my view this crucial element of defilement was also proved beyond reasonable doubt as the complainant PW2 stated in court that she was sexually penetrated and the medical evidence of PW5 George Ombayo, the Clinical Officer of Taveta Sub-County hospital was that the complainant’s hymen was missing and she was two (2) months pregnant.
9.I thus find that the prosecution proved beyond any reasonable doubt that sexual penetration had occurred on the complainant PW2.
10.Did the prosecution prove beyond any reasonable doubt the perpetrator? In my view, from the evidence of the prosecution and the defence on record, there is reasonable doubt that the appellant was the perpetrator.
11.This is because, though the complainant testified in evidence that she was sexually penetrated severally by the appellant in her sleeping room, which she shared with another child, no attempt was made to call that child to testify nor was any explanation given by the prosecution for their failure to call this witness.
12.The more crucial reason why there exists a reasonable doubt as to whether the appellant is the culprit is that there was the sworn evidence of the appellant denying the offence and the prosecutor did not ask a single question in cross-examination.
13.There was also the sworn evidence of DW2 RKM the complainant’s father), DW3 JM all supporting the appellant and stating that the complainant was infact taken to live in the home of the appellant due to her previous involvement with men, which was not challenged by the prosecutor, as the prosecutor did not ask a single question in cross-examination.
14.As such, the defence of denial by the appellant remained unchallenged, and he was entitled to be given the benefit of the doubt so created which I hereby do. The appeal will thus succeed on that account.
15.The appellant has complained that the charge is defective. I find no defect in the charge. That ground is thus dismissed.
16.For the reason that the prosecution did not prove beyond reasonable doubt that the appellant sexually penetrated the complainant, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.