Okemwa v Republic [2025] KEHC 4894 (KLR)

Okemwa v Republic (Criminal Appeal E132 of 2023) [2025] KEHC 4894 (KLR) (Crim) (26 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4894 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E132 of 2023

CJ Kendagor, J

March 26, 2025

Between

Benjamin Mamboleo Okemwa

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence, judgment delivered on 22nd July, 2022 by Hon. L.R. Gatheru (SRM) in Chief Magistrates Court Makadara Sexual Offence Case No. 158 of 2019)

Judgment

1. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars of the offence are that on diverse dates between 6th May, 2019 and 18th June, 2019, at Nairobi County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.K., a child aged nine (9) years.

2. The Appellant faced an alternative count of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, the particulars being that on diverse dates between 6th May, 2019 and 18th June, 2019, at [Particulars Withheld], Nairobi County, he intentionally and unlawfully touched the vagina of S.K., a child aged nine (9) years with his hands.

3. He pleaded not guilty, and the case proceeded to trial. He was subsequently convicted of the main charge of defilement and sentenced to 32 years imprisonment.

4. Dissatisfied with the conviction and sentence, he filed the present appeal listing three grounds of appeal;a.That the trial magistrate erred in law and in fact while convicting the appellant on the evidence of the complainant that the appellant did ‘tabia mbaya’ which did not necessarily mean the insertion of a genital organ into the complainant’s genital organ while further the trial court did not warn itself against the danger of relying on the evidence of a single identifying witness.b.That the trial magistrate erred further in law and in fact in convicting the appellant based on the evidence of the whole set of the prosecution witness without considering that the accused evidence was riddled with contradiction and inconsistencies unsafe to base a conviction.c.That the trial magistrate erred in law while dismissing the appellant’s defence despite the fact that it was not displaced by the prosecution as required in law hence contravened Section 212 of the Criminal Procedure Code and Section 309 of the same Code.

5. The appeal was canvassed through written submissions. The Appellant submitted that the necessary elements of the offence had not been established and urged the court to find his defence credible.

6. The Respondent submitted that the prosecution’s evidence was credible and cogent, effectively proving all the essential elements of the defilement charge. According to the Respondent, the imposed sentence should be upheld as the trial Court considered the aggravating circumstances of the case.

7. As an appellate Court, I must reconsider and evaluate the evidence before the trial Court and arrive at an independent conclusion, bearing in mind that I did not hear or see the witnesses. I am guided by the decisions in Njoroge v Republic [1987] KLR, 19 & Okeno v Republic [1972] E.A, 32 And Kiilu & another v Republic [2005]1 KLR 174.

8. The complainant was declared a vulnerable witness by virtue of her mental health challenges, and she gave her testimony through an intermediary. At the beginning of her testimony, she said that she did not know who the Appellant was, then she thereafter stated that the Appellant bought her milk as she was going to school and that he took her to a barber shop where he removed his trousers and removed her panties and did ‘tabia mbaya’ to her. She, however, refused to reveal what part of her body she claimed the Appellant put his‘thing’. During cross-examination, she denied that the Appellant bought her the milk and also denied that it was the Appellant who removed her clothes - this was later reiterated on re-examination. She also stated that she had three uncles on the road where the barber shop is located.

9. PW2 was the Complainant’s mother. She narrated the notification she got from school about PW1 and the subsequent medical examinations and police reports. Her testimony was that the Complainant identified the Appellant as the assailant, which is why the Appellant was reported as such. She acknowledged that the child suffers from some confusion because of her mental health challenges but maintained the Appellant’s identity as the assailant. PW3 was the Complainant’s father. He reiterated the testimony offered by PW2. He further stated that, at the time of the Appellant’s arrest, the police gathered 4 - 5 men and asked the child to identify the assailant, who subsequently pointed at the Appellant.

10. PW4 produced the treatment notes for the complainant; she was examined on 24th June 2019. The findings were a torn hymen and a reddened vagina. The history presented was defilement.

11. PW5 was a teacher at the special school that the Complainant attended. She stated that on 18th June, 2019, the Complainant was interrogated about the foodstuff she had brought to school. Initially, she claimed that her mother had given it to her; however, upon further prompting, she reportedly said that a barber had bought it for her and that the barber would call her and defile her at the back of the barbershop. She denied having a relationship with the Appellant and stated that she did not know him before the current case.

12. PW6 reiterated PW5’s testimony regarding the child’s interrogation at school and the subsequent events following the parent’s attendance after being notified of the complainant’s assertions.

13. PW7 produced the P3 form for the Complainant, which was filled out on 12th July, 2019.

14. The investigating officer testified as PW8. He told the Court that after the incident was reported, he went to the barbershop pointed out by the Complainant, who then pointed at the Appellant as the assailant. He stated that the barbershop had a pool table at the back, which he presumed was what the complaint referred to as a bed. In cross-examination, he acknowledged that two people were arrested on the date of the Appellant’s arrest: the Appellant and another individual accused of impersonating a police officer. He stated that the Appellant was arrested outside the barber shop while witnessing the arrest of another person after the Complainant pointed him out as he crossed the road to the opposite side.

15. In his defence, the Appellant claimed he was framed following a severed relationship with PW5. He stated that they had been in a marriage-like relationship until PW5 ended it after a dispute arose between her and his wife,who had come to visit from the village. He stated that PW5 cautioned him that he would regret his actions towards her. According to the Appellant, on the day of his arrest, PW5 called him and asked him to go to the stage area to discuss matters. He stated that when he arrived there to meet PW5, who insisted they go home, he was arrested by police officers whom PW5 informed he was the one they were looking for.

16. The Appellant stated that he protested the arrest and that the Complainant, who was present, told the officers that he was not the one who did bad things to her but another uncle.

17. I have considered and analyzed the evidence that was tendered before the trial Court by the Appellant and the prosecution, the grounds of appeal, and the written submissions by the parties herein

18. The issues for determination are;i.Whether or not the Prosecution proved its case beyond reasonable doubt;ii.Whether or not the sentence meted out by the Trial Court was manifestly excessive.

19. The Complainant was a child of tender years who gave unsworn evidence.The record shows that the trial court conducted a voire dire examination and recorded it accordingly. I am satisfied that the trial Court followed the appropriate procedure in determining the child’s competence to provide evidence and the order for testifying through an intermediary.

20. Section 8 of the Sexual Offences Act defines defilement as;“8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.Penetration is defined as;‘means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

21. In C.W.K v Republic [2015] eKLR, the Court highlighted the ingredients forming the offence of defilement;“The critical ingredients forming the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant.”

22. The burden of proof rests with the prosecution to prove its case against the Appellant beyond reasonable doubt. In Stephen Nguli Mulili v Republic [2014] eKLR, it was held that: -“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington,[1935] UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R, [2013] eKLR.”

23. I am satisfied that the complainant’s minority age was proven to the required standard.

24. I am persuaded from the Complainant’s testimony and the medical findings that she was a victim of sexual abuse. I note from the evidence that the Complainant was examined on 24th June 2024. The teachers stated that she was escorted to the hospital the same day she narrated the abuse, which occurred on 18th June 2024. They also indicated that on the day she reported the incident, she mentioned that the uncle who bought her the food had not done anything to her. It remains unclear if there were any other incidents after the 18th, which may explain the delay in the medical visit until 24th June, 2024 when she was taken to Mater Hospital.

25. This examination of date is crucial for determining the identity of the perpetrator, considering that the Complainant indicated she had several ‘uncles’ along the road she mentioned, along with her testimony stating that the Appellant was the perpetrator and her later retraction claiming he was not.

26. The additional evidence on the Appellant’s identity was by the witnesses, who stated that the Complainant identified the Appellant as the perpetrator. The prosecution did not present evidence that the Appellant actually operated or worked at the barber shop the Complainant allegedly referred to; the defence argues that he works at a hotel, not a barber shop. Additionally, whereas the parents stated that the Appellant was arrested at the barber shop, the investigating officer said that he was arrested outside while crossing the road as he was witnessing the arrest of another person who is stated to have been impersonating a police officer and that the Complainant pointed at him.

27. The investigating officer did not mention the details regarding the ‘identification parade,’ which was purportedly conducted at a local barber shop to confirm the identity of the alleged perpetrator. It is important to note that the child’s mental health status, which was confirmed to affect her abilities, could significantly impair her capability to accurately perceive and identify the suspect. In light of these factors, the prosecution had a responsibility to elevate their approach by either conducting a legal identification parade or providing compelling evidence that unequivocally indicated the Appellant as the perpetrator. This could include corroborative testimonies, physical evidence, or other identifiers that would firmly establish the Appellant’s connection to the offence.

28. The Appellant raised a defence concerning PW5 during the cross- examination of PW2, and this line of defence was elaborated upon in his defence hearing. It casts doubt on the case, particularly when considering the loopholes in the evidence regarding the Appellant’s identification.

29. This Court has reviewed the prosecution evidence as a whole related to the identification and concludes that the identity was not proven beyond a reasonable doubt.

30. The standard of proof beyond a reasonable doubt regarding the main charge and alternative charge was not met in this case. In the circumstances, I find and hold that the Appellant’s conviction was unsafe, and the appeal is successful.

31. I hereby quash the conviction and set aside the sentence. The Appellant shall be released unless he is otherwise lawfully held.

32. It is so ordered.

DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 26TH DAY OF MARCH, 2025. .....................................C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryl Appellant presentMr. Omondi ODPP, for Respondent