https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7646

Bambare v Republic (Criminal Appeal E024 of 2025) [2026] KEHC 7646 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7646 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E024 of 2025 JN Njagi, J May 28, 2026 Between Emanuel Ngombo Bambare Appellant and Republic Respondent (Appeal from original conviction and sentence by Hon. R.C. Mwachi, Resident Magistrate in Mpeketoni PM`s Court Sexual Offence Case No.E011 of 2023 delivered on 18/12/2024) Judgment 1.The Appellant was convicted of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 12th August 2023 at (name withheld) in Lamu West sub county within Lamu County, he intentionally and unlawfully used his fingers to penetrate the vagina of MM (herein referred to as the victim), a girl aged 4 years. 2.The Appellant was sentenced to serve ten years imprisonment. He was aggrieved by the conviction and the sentence and lodged an appeal on the following amended grounds;1.That the learned trial magistrate erred in law and fact in basing the conviction on the evidence of PW1 which evidence was unreliable.2.That the learned trial magistrate erred in law and fact in failing to find that the case for the prosecution was not proved beyond reasonable doubt.3.That the learned trial magistrate erred in law and fact in imposing a sentence that was harsh, excessive and unjust.4.The case for the prosecution was that the victim herein was at the material time aged 4 years and was in PP1. The Appellant was working for her parents as a shamba boy.5.It was the evidence of the complainant that on the material day she was grazing her family cows with two boys. That when they returned the cattle home, they were met by the Appellant who was called “Walewale”. The appellant inserted his finger into her private parts. She reported to her parents and they took her to hospital.6.The mother to the complainant PW2 testified that on 12/8/2023 she was preparing to bath the victim herein when she told her that she was feeling pain on her private parts. She checked the private parts of the girl and found that they were dirty. The victim told her that she had been defiled by “Walewale”, the Appellant. PW2 reported to her husband PW 3. They went to the house of the appellant and asked him. At first he denied but she promised to forgive him if he told them the truth. He admitted defiling the victim. They took him to Baharini police station. They took the victim to hospital. PW3 confirmed his role in the case as stated by his wife.7.A doctor at Mpeketoni sub county Hospital PW4 testified that the victim was on the 12/8/2023 seen at their medical facility by a colleague doctor, Dr. Fatiya Shibu, on complains that she had been sexually assaulted. On examination the hymen was found to be intact but she had bruises on the labia majora and whitish discharge on the external genitalia. The examining doctor completed her P3 form.8.The case was investigated by PC James Mwangi PW5 of Baharini police station. He recorded statements of witnesses and visited the scene of the incident. He obtained the birth notification card of the minor that showed that she was born on 12/5/2019. The Appellant was charged with the offence of defilement and in the alternative committing an indecent act with a child. During the hearing of the case in court the investigating officer produced the birth notification card as exhibit, P.Exh.3. The doctor PW4 produced the treatment notes and the P3 form on behalf of Dr. Fatiya as exhibits, P.Exh.1 and 2 respectively.9.When placed to his defence the appellant stated in a sworn statement that he was working for the victim`s parents as a shamba boy. That he was later arrested and accused of defiling the victim herein. He denied it. He was taken to Mpeketoni police station and he was charged with the offence. Submissions 10.The appeal was disposed of by way of written submissions. The appellant submitted that there were inconsistencies and irregularities in the evidence of the prosecution witnesses which raised reasonable doubt on whether the offence was committed. More so that the charge did not accord with the evidence adduced before the court in that the charge indicated that he caused his fingers to penetrate the victim`s vagina while the victim in her evidence in court said that the appellant touched her private parts. The appellant faulted the trial court in failing to consider the inconsistencies. 11.The appellant submitted that the investigating officer did not conduct thorough investigations in the case. He submitted that the charges were based on suspicion which is not a strong foundation for basing a case against an accused person. He submitted that whenever there is doubt in a case the benefit ought to be accorded tot the accused. He urged the court to find that the charge was not proved. 12.The respondent on the other hand submitted that the ingredients of the offence of indecent act with a child are proof that the child is a minor, proof of contact of one`s body part to either the genitalia, breasts or buttocks of another and that the contact was done intentionally. 13.It was submitted that the age of the victim was proved by the clinic card which proved her age at the time of the incident at 4 years. 14.On the issue of unlawful contact, the respondent referred to the evidence of the victim that the appellant: “alinifanya tabia mbaya na mkono.” The respondent cited the case of Maganga Chilejo Saha v Republic (2017) eKLR where the Court of Appeal analyzed various cases where descriptive terms were used to narrate sexual abuse and the court held that:Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE v R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M M v R voi H.C Cr. App. No. 35 of 2014, EMM v R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her. 19.The respondent submitted that there was indecent act from the descriptive words used by the victim herein. The respondent urged the court to uphold both the conviction and the sentence. Analysis and determination 20.This being a first appeal to the High Court, it is an appeal on both facts and the law. The duty of the first appellate court was succinctly captured by the Court of Appeal in Kiilu & Another v Republic, [2005] eKLR, to be as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion; it must make its own findings and draw its own conclusion. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 21.I have considered the grounds of appeal, the evidence on record and the written submissions of the parties herein. It was the submission of the Appellant that the charge against him was not proved beyond reasonable doubt. The issue that calls for determination is whether the prosecution proved the guilt of the appellant beyond reasonable doubt. 22.The Appellant was facing a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The section provides as follows:Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 23.The offence of indecent act is defined under Section 2 of the Sexual Offences Act as an unlawful intentional act which causes;a)Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.b)….. 24.The ingredients of the offence of committing an indecent act with a child that the prosecution needed to prove are: proof of the age of the complainant (that she was a minor), identity of the perpetrator and the indecent act itself. 25.As regards the age of the complainant, a birth notification card, P.Exh. 3, was produced that proved the age of the complainant at 4 years at the time of the incident. It is trite that the age of a person may be proved in various ways as was stated by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR that:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 26.In my view a birth notification card is a credible way of proving the age of a person. The age of the victim was thus proved at 4 years. 27.The Appellant was a person well known to the victim as he was working for her parents. The incident was said to have occurred during the day. His identification was therefore not an issue. The issue was whether he committed the indecent act he was convicted of. 28.The trial court in convicting the Appellant of the offence stated that the offence of committing an indecent act with a child was proved by the oral evidence of the victim as supported by medical evidence adduced in the case. That the complainant gave clear narration of the events of that day and her evidence was not shaken in cross-examination. That the evidence of bruises to her labia majora was sufficient evidence that her genitalia was touched. 29.The victim in her evidence stated that the Appellant touched her private parts and more particularly said that, “alinifanya tabia mbaya na mkono”, which meant that he did bad manners to her with his hand. She continued to say that he inserted his hand into her private parts. 30.The Court of Appeal in the case of Omambia v Republic [1995] KECA 156 (KLR) held that the well-known and ordinary meaning of the phrase "private parts", means the genitalia of the complainant and to no other part of her body, or as defined in the Shorter Oxford English Dictionary, the "pudenda" or "external genital organs". Though the victim did not say so in clear language and she was not asked to clarity the phrase, she can only be understood to have meant that the appellant touched her external genitalia of her vagina. 31.The mother to the victim PW2 on her part testified that the victim told her that the Appellant defiled her. She did not state whether the victim told her how the defilement took place. It ought to be noted that the term “defilement” is a technical term and is inappropriate to use in proceedings, see the warning by the Court of Appeal in Maganga Chilejo Saha v Republic (supra). It can only be construed in its context that witness meant that the appellant penetrated the child into her vagina with his genital organ. This is in view of the meaning of the term “penetration” that it is the partial or complete insertion of the genital organs of a person into the genital organs of another person. 32.It was further the evidence of PW2 (the victim`s mother) that when she and her husband interrogated the Appellant, he admitted to having defiled the child. It is important to note that PW2 never talked of the child telling her that the Appellant inserted his finger into her private parts. Her evidence was on defilement of which she did not explain how it took place. 33.While the trial court accepted the evidence of the complainant that the Appellant inserted his finger into her private parts, he did not consider the evidence of the complainant`s mother that she (the mother) only talked of defilement and not indecent act of inserting a finger into the victim`s private parts. Defilement and committing an indecent act with a child are two different offences. So, whereas the victim talked of the Appellant having committed an indecent act to her by inserting his hand into her private parts, her mother talked of him having penetrated the child with his genital organ. The victim`s mother was the first person to receive the report from the victim. According to her, the child told her that the appellant penetrated her into her vagina. She checked her vagina and found it dirty. However, according to the child, the appellant inserted his hand into her vagina. Which of these two is the truth? 34.It would seem that the child never told her mother that the Appellant inserted his hand into her private parts as the mother never talked about it. If then the child never told her mother about that, was she telling the truth that the appellant inserted his hand into her private parts? Was she a credible witness? 35.The Court of Appeal in the case of Ndung`u Kimanyi v Republic [1979] KLR 283, held the following on credibility of witnesses:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 36.The fact that the victim did not tell her mother that the appellant inserted his hand into her private parts and told her a different story creates doubt on her credibility. The victim was the sole material witness as to what the appellant did to her. In my view it was not safe to convict on her evidence. 37.The trial court in convicting the appellant of the offence made reliance on section 124 of the Evidence Act which allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for so finding. The court however never considered the crucial contradictions between the evidence of the victim and that of her mother. In my consideration there wasn’t sufficient evidence against the appellant that he committed an indecent act with a child. 38.Before I pen off, it is important to note that the particulars of the charge against the appellant were that he used his fingers to penetrate the vagina of the victim herein. The definition of the offence of indecent act with a child, as stated above, is the unlawful and intentional contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration. Was the offence charged that of indecent act with a child or sexual assault? The trial court failed to make a distinction between the two. 39.The upshot is that the charge against the Appellant was not proved beyond reasonable doubt. Consequently, the conviction entered by the trial court on the Appellant is quashed and the sentence set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 28TH DAY OF MAY, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant - present virtually at G.K Prison MalindiCourt Assistant – Rahma