https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12347

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E030 OF 2024** **ATHMAN SULEIMAN ATHMAN..............................APPELLANT** **VERSUS** **REPUBLIC…………………………….........................RESPONDENT** *(Appeal from the original conviction and sentence by Hon. E.K.Usui. CM In Malindi Chief Magistrate’s Court Sexual Offence Case No. E143 of 2023 delivered on 23/4/2024)* **JUDGMENT** 1. The appellant herein was convicted for the offence of defilement contrary to section 8(1) as read together with 8(3) of the Sexual Offences Act No. 3 of 2016 and was sentenced to serve 20 years imprisonment. The particulars of the offence were that on diverse dated between the month of June, 2023 to 6th November 2023 at (name withheld) area of Malindi Sub County within Malindi County, he intentionally and unlawfully caused his penis to penetrate the vagina of F.K (herein referred to as the complainant/victim), a child aged 12 years. 2. Aggrieved by the conviction and the sentence, the Appellant lodged an appeal on the following amended grounds of appeal: 3. That the trial court erred in law and fact by failing to find that the charge sheet was incurably defective; 4. That the trial court erred in law and fact by failing to find that *voire dire* examination was not conducted on the minor thus rendering the trial a nullity; 5. That the trial court erred in law and fact by failing to consider that identification/recognition at the scene was not proven; 6. That the trial court erred in law and fact by failing to find that there were no arresting or investigating officers called to testify in the case. 7. That the trial court erred in law and fact by failing to consider the defense offered by the appellant; and 8. That the trial court erred in law and fact by failing to consider that the prosecution witnesses’ testimonies were not corroborated. **Case for the prosecution** 1. The case for the prosecution is that the victim herein was at the material time aged 12 years and was a class 6 pupil. She was living with her mother PW2. The appellant hailed from the locality of her home. That she had known him since August 2023. 2. It was the evidence of the victim that on a certain Sunday in the month of October 2023 she was in church. That she left church and went to her step mother’s place to make her hair. She later in the day left for home. That on the way she passed by the place where the appellant was living and found him seated outside his house. He called her and invited her to go to his house to take a soda. She obliged and she followed him to his room. In the room she sat on a mattress on the floor. He sat next to her. He started to ask her about her home. He then held her on the waist and led her to lie on the mattress. He removed her clothes. He then removed his clothes. He inserted his penis into her vagina. She was injured in her vagina but she did not bleed. They finished and dressed up. She went outside and found people outside some of whom were her friends. It was about 9pm at the time. She had stayed in the house of the appellant for 3 hours. The appellant said that it was late for her to go home and he asked her to spend the night at his place. She complied and spent the night at his house. They had sexual intercourse two more times. On the following day she left his place at 1pm. She went to a friend’s home. She and her friend accompanied her friend`s mother to town and returned to the home at night. After that she went home. She found her grandmother at home. She enquired as to where she had been. She called the victim’s mother and a *nyumba kumi* elder. They went to the house of the appellant. She was then taken to a private clinic and later to Malindi Sub- County hospital. 3. The mother to the victim PW2 testified that the appellant was her neighbour. That on one Sunday she went to church with the victim and her other children. That after church she, PW2, went home but the victim went to her grandmother’s home. That she PW2 went for a meeting and when she returned home at 6pm, the victim had not returned home. She assumed that she had decided to spend the night at her grandmother’s home. She went to sleep and in the morning the victim had not come back. That she returned home at 7pm with neighbours. She had lied to them that she, PW2, had chased her away. She asked her as to where she had been and she said that she had spent the night at the appellant’s place and that she had sex with him. She, PW2 went and reported to the village elder. She went with village elder to the appellant and he admitted that the victim had been to his house and that he had had sex with her. They reported the matter at Malindi police station. The victim was taken to Malindi Sub- County hospital where she was examined and treated. 4. PC Walter Chonzo PW3 of Malindi police station told the court that the case was reported by the victim and her mother on 7/11/2023. That he investigated the case. The victim told him that she had been in a sexual relationship with the appellant since June 2023 upto 6/11/2023. He issued her with a P3 from and escorted her to Malindi sub county hospital for examination. He recorded statements of witnesses and obtained the victim`s birth certificate that indicated that she was born on 22/11/2011. He visited the scene. The appellant was taken to the police station by the victim and her mother. He was charged with the offence. He visited the scene after the appellant was arrested. 5. The victim was examined at Malindi sub county hospital by Dr. Rimba who found her with a broken hymen and some vaginal discharge. Other tests were normal. The doctor completed the victim`s P3 form. During the hearing of the case in court the said doctor was unavailable. Dr. Ibrahim Mohammed PW4 produced the medical documents - treatment notes, the P3 form and the lab request and report – on behalf of Dr Rimba as exhibits, P.Exh.1, 2 and 4 respectively. He also produced the complainant`s birth certificate as exhibit, P.Exh.3. **Defense case** 1. When placed to his defence the appellant gave sworn evidence wherein he stated that he was sleeping when he heard a knock on the door. The door was opened and he saw the victim and her mother outside. That the mother pushed the victim into the house and said that he had had sex with her. There were people outside who were baying for his blood. He was taken to the hospital for examination and later to the police station. He denied having known the victim. He denied that he defiled her. He said that while in prison a cousin to the victim with whom he was working with has been threatening him. It was his defence that the charges were fabricated so that he could lose his job so that the complainant’s relatives could be employed in his place. 2. The appeal was canvassed by way of written submissions. **Submissions** 1. The appellant submitted that the charge sheet before the trial court was defective in that the counts were too general in terms of dates and time of the alleged offence which position was prejudicial to him. 2. He submitted that the *voire dire* examination was not conducted and did not meet the requirements of section 19 of the Oaths and Statutory Declaration Act. That convicting him without adhering to the due process of the law was prejudicial to him and occasioned a failure of justice. 3. The appellant submitted that the victim in her evidence did not indicate whether it was day time or night time when she followed him to the house. That she did not indicate as to how she was able to identify him. That the evidence on identification was insufficient to support the charge. 4. It was submitted that the evidence of the victim PW1 and that of her mother PW2 did not corroborate each other and this injured the prosecution’s case. 5. It was submitted that the police officer who testified in the case PW4 was neither the arresting officer nor the investigating officer. That failure to call the said officers as witnesses injured the prosecution’s case. 6. The appellant submitted that the trial court did not consider the appellant’s defense of alibi. 7. On the part of the respondent, it was submitted that the evidence tendered was sufficient to prove the elements of the offence and that the evidence by the defence was an afterthought and could not outweigh the respondent’s evidence. **Analysis and determination** 1. The duty of this court while exercising its appellate jurisdiction of a first appellate court is as was set out by the Court of Appeal in **Okeno v. Republic [1972] E.A. 32** and re-stated in **Kiilu and another vs. R (2005) 1 KLR 174**. It is the duty of the court to submit the evidence as a whole to a fresh and exhaustive examination and weigh conflicting evidence and draw its own conclusions. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses. 2. The court should also be guided by the principle that a finding of fact made by the trial court shall not be interfered with unless it was based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles, see**Gunga Baya & another v Republic [2015] eKLR).** 3. I have considered and re-examined the evidence which was tendered before the trial court, the amended grounds of appeal and the submissions tendered by the parties. The issues calling for determination are whether the prosecution tendered sufficient evidence to prove its case to the required standard.However, in the amended grounds of appeal, the appellant raised two grounds which ought to be determined *in limine* as they might affect the outcome of the appeal. These are the averments that the charge sheet was defective and that *voire dire* examination was not conducted. 4. The appellant submitted that the charge was defective in that it was too general in terms of date and time of the alleged offence that this prejudiced him. 5. It is trite that an accused person is entitled to not only be charged with an offence recognized under the law but also to be furnished with all the necessary details of the offence so as to enable him appreciate the nature of the charge(s) against him and to enable him to prepare an appropriate defence. It follows, therefore, that a charge sheet that was deficient in substance would prejudice an accused person’s right to a fair trial as provided for in Article 50(2)(b) of the Constitution. It is on this reasoning that section 134 of the Criminal Procedure Code provides that every charge or information shall contain, and should be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. In **Sigilani v Republic [2004] 2 KLR, 480** the Court of Appeal stated that:- **“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable the accused to prepare his defence.”** 1. Further it is trite that for a charge sheet to be defective so as to lead to an acquittal, such a defect must have prejudiced a party so as to occasion a miscarriage of justice or a violation of his fundamental right to a fair trial. In **Benard Ombuna v** Republic [2019] eKLR the court held that:- **“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”** 1. I have perused the charge sheet which was before the trial court and do observe that the same described the offence in that it indicated the statement of the offence that the respondent was charged with. The said offence is known in law. The charge sheet also contained the particulars of the offence. The issue as to it referring to “on diverse dates…….” cannot be a ground to conclude that the charge sheet was defective and even if it would have been a ground, the court finds that the appellant was never prejudiced in any way. He proceeded with the hearing and cross examined the witnesses and they all testified as to what happened. The argument by the appellant that the charge was defective is thereby dismissed. 2. As to *voire dire* examination, the appellant submitted that the same was not conducted and thus there was a violation of section 19(1) of the Oaths and Statutory Declaration Act Cap 15. 3. The said section requires that where any child of tender years is called as a witness and does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section. 4. The purpose of *voire dire* examination was explained by the Court of Appeal in **Johnson Muiruri v Republic [1983] KLR 445** and the court held that;- **“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.”** 1. I have perused the trial court’s record and noted that the trial court did not conduct a *voire dire* examination on the victim before she gave her evidence in court. The trial court said that the complainant was not a child of tender years yet the charge sheet indicated that she was of the age of 12 years. The copy of the birth certificate produced in the case indicated that she was born on 22/11/2011 and she testified on 21/11/2023. This shows that she was one day less of 12 years at the time of her testifying in court. 2. A child of tender years was defined in **Kibangeny Arap Korir -vs- Republic, [1959] EA 92**, where the Court of Appeal for Eastern Africa held that tender years refers to a child of or under the age of 14 years. (See also **Patrick Kathurima v Republic [2015] eKLR**). In **Maripett Loonkomok v Republic [2016] KECA 520 (KLR)**, the Court of Appeal in determining the question as to who is a child of tender years held thus; - **“The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of *Kibageny Arap Kolil v R (1959) EA 82* the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in *Patrick Kathurima v R,*Criminal Appeal No.137 of 2014 and in *Samuel Warui Karimi v R* Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination.”** 1. It is abundantly clear from the evidence that the victim herein was a child of tender years and thus *voire dire* examination was required to be conducted on her so as to determine her intelligence or understanding of the nature of the oath before the court could admit her evidence. The trial court erred in not conducting *voire dire* examination on the victim. 2. The question is whether failure to conduct *voire dire* examination was fatal to the case. The court of Appeal in **Maripett Loonkomok v Republic [2016] KECA 520 (KLR)** stated as follows on the issue: - **“It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014”.** 1. The court went on to state as follows: - **“It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case.** **But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that; ‘In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.’ See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015…………”** 1. It is clear from the above decision that evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person unless there is sufficient independent evidence to support the charge. 2. The kind of independent evidence required is not only to prove that the offence was committed but that the accused is the person who committed the offence. The doctor who examined the complainant only found her with a missing hymen. It is trite that a missing hymen is by itself not prove of defilement as the hymen can be broken by more factors such as vigorous exercise – see **P. K. W. -v- R (2012) KECA 103 (KLR).** The doctor in this case did not find the complainant with fresh injuries on her genitalia that would suggest sexual intercourse on the fateful night. The medical evidence therefore did not offer independent evidence to the defilement. 3. The complainant testified that she spent the fateful night at the house of the appellant. It was her evidence that there were people who saw her at the house of the appellant. There are people who would have offered independent evidence in the case but they were not called to testify. The other witnesses who testified in the case including the complainant’s mother, PW2 did not offer independent evidence that the appellant committed the offence. The end result is that I do not find independent evidence that the appellant committed the offence. 4. In the case of **Sammy Ngetich -v- Republic (2018) eKLR** where the trial court took the evidence of the complainant aged 13 years without conducting a *voir dire* examination, the court set aside the conviction. 5. Similarly in the case of **Samuel Warui Karimi v Republic (2016) eKLR** where *voir dire* examination was not conducted on a 12 year old, the Court of Appeal said that the purpose of taking *voir dire* examination in a criminal trial is to protect the guaranteed right to a fair trial. The court held that the evidence of the victim was not properly received and the conviction of the appellant was unsafe. 6. The sole evidence of the complainant herein could not be used to convict the Appellant in the absence of independent evidence. Failure to conduct *voir dire* examination occasioned a failure of justice and the conviction was unsafe. The trial amounted to a mis-trial. 7. Having come to that conclusion, the question is whether I should order re-trial. 8. The principles governing whether or not a retrial should be ordered were stated in **Fatehali Manji v Republic [1966] EA 343** by the East Africa Court of Appeal as follows: **“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.***”* 1. In **Mwangi v Republic [1983] KLR 522** the Court of Appeal also held thus: **“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”**. 1. It is trite that a re-trial can only be ordered where it will not occasion injustice or prejudice to the appellant. The court has to consider whether a conviction may result if a re-trial is ordered. 2. I do not think that the Appellant would in the circumstances of the case suffer any prejudice if he is re-tried of the offence. It is clear that the prosecution had strong evidence against him. The interests of justice demand that I order a re-trial in the case. 3. The upshot is therefore that the trial herein is found to have been a mis-trial. The conviction is thereby quashed and the sentence set aside. I order that the appellant be re-tried of the offence before another magistrate of competent jurisdiction other than Hon. E. K. Usui. **Delivered, dated and signed this 22nd day of July 2026.** **J. N. NJAGI** **JUDGE** **In the presence of** **Mr. Oluoch for Respondent** **Appellant: present virtually at GK prison Malindi** Court Assistant: Rahma