https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10502

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CRIMINAL APPEAL NO. E027 OF 2025** **JONATHAN OMARA BUYA…..….……………………APPELLANT** **VERSUS** **REPUBLIC……………………………….……………….RESPONDENT** *(Being an appeal from the original conviction and sentence by Hon. L. N. Wasige, Senior Principal Magistrate, in Garsen Senior Principal Magistrate’s Court Sexual Offence Case No.E014 of 2023 delivered on 4/6/2025)* **JUDGMENT** 1. The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(2) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were that on the 5th day of April and 7th April 2023 at (name withheld) village in Tana Delta sub county within Tana River County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.N.K. (herein referred to as the complainant), a child aged 8 years. 2. The Appellant was sentenced to serve 30 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 3. The grounds of appeal as per his amended grounds of appeal are that; 1. That the learned trial magistrate erred in law and facts by failing to conduct vior dire to the complainant contrary to Section 19(1) of the Oaths and Statutory Declaration Act Cap 15 Laws of Kenya thereby rendering the adduced testimony of the complainant not worthy of belief. 2. That the learned trial magistrate erred in law and facts by failing to find that the element of penetration was not proved in accordance with the threshold required by the law. 3. That the learned trial magistrate erred in law and facts by not considering section 333(2) of the Criminal Procedure Code when sentencing Appellant. 4. That the learned trial magistrate erred in law and facts by failing to consider the Appellant’s defence. **Case for prosecution** 4. The case for the prosecution is that the complainant was at the material time aged 8 years and was in class 2. She was living with her parents. Verna PW2 is her mother. The Appellant used to frequent their home. 5. It was the evidence of the complainant that on unspecified day she was at home when the Appellant went there and picked her. He took her on his motor bike to his house at Minjila township. That on getting there he removed her panties and placed his organ “dudu” into her private parts. She felt pain but he told her to keep quiet. That her mother then went there and peeped through the window. She called at them and she responded. Her mother raised alarm and members of the public went to the place. The Appellant opened the door. They were removed from the house. The people started to beat the Appellant. She was taken to hospital. 6. The mother to the complainant PW2 testified that on the 5/4/2024 the Appellant went to her home and hanged around. Later she realized that the Appellant had gone away and her daughter was missing. She started to look for her and did not get her. On returning home she found the Appellant having returned her daughter home. She warned him on taking her daughter away. 7. That on the following day the Appellant went to her home. That at midday she realized her daughter was missing. She went looking for her at Minjila town where the Appellant was a boda boda rider. She did not find the Appellant. She did not know where his house was. She made inquiries. A certain woman took her to the house of the Appellant. The house had 3 rooms and one of them had its window open. She checked through the window and saw the Appellant`s pair of trousers hanged on the door inside the house. She called at them. Her daughter responded. The Appellant opened the door and wanted to escape on his bike. She held him. The complainant said that the Appellant had removed her panties and inserted his organ into her vagina. PW2 raised alarm. Members of the public went there. They took him to the police station and then she took the complainant to hospital. She was examined and treated. 8. A clinical officer at Ngao sub county hospital PW3 testified that he examined the complainant on 7/4/2023. She had a history of defilement. He examined her genitalia and found her with bruises on the labia which were tender. She had no hymen. The clinical officer formed the opinion that she had been penetrated. She filled her P3 form. 9. The case was investigated by Col Nuru Abdullahi PW4. It was her evidence that the complainant told her that the Appellant had taken her to his house at Minjila on 5/4/2023 and defiled her. That on 7/4/2023 the Appellant took her to the same house and defiled her again. That the mother to the complainant went there and found them. She raised alarm and members of the public went there, arrested him and beat him up. He was taken to the police station. She, PW4, took the complainant to Ngao hospital where she was examined and her P3 form filled. She charged the Appellant with the offence. 10. During the hearing the clinical officer produced the P3 form and the treatment notes as exhibits, P.Exh.1 an2 respectively. The investigating officer PW3 produced the complainant`s birth certificate as exhibit, P.Exh.3. **Defence Case** 11. The Appellant stated in his defence that he knew the complainant through her mother PW2. That PW2 has a sister who was his girlfriend. That he parted ways with her. That this annoy ed PW2 who vowed to teach him a lesson. He denied that he defiled the complainant or that he was found with her in his house. He said that the complainant`s mother went with the complainant to his house and found him about to enter into his house. She confronted him and started to shout that he had defiled her daughter. The residents attacked him and beat him up. 12. The appeal was disposed of by way of written submissions. **Analysis and determination** 13. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of **Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR** where the Court of Appeal held that: - “**On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”** 14. The appeal herein is based on grounds that the trial court failed to conduct a voir dire on the complainant thereby rendering the testimony of the complainant unsafe to convict on; failing to prove the element of penetration; failing to consider his defence and failing to consider the time spent in custody when sentencing him as required by section 333(2) of the criminal Procedure Code. 15. The Appellant submitted that voir dire was not properly conducted. This is however not true. The record of the trial court shows that the voire was properly conducted. It is clear that the trial court asked the child to state her age, the class she was in, her religion, whether she understood the duty of telling the truth and whether she knew the meaning of the oath. The court on conducting the voir dire examination concluded that the child did not understand the nature of oath but understood the importance of telling the truth. The court thereupon ordered that the child gives unsworn evidence. I find the questions put to the witness were sufficient to enable the court arrive at that conclusion. The fact that the trial court did not record down the questions put to the child and only recorded her answers did not vitiate the voir dire examination. 16. On penetration the appellant submitted that the medical evidence was contradictory. The Respondent on their part submitted that penetration was proved by the evidence of the complainant that the Appellant inserted his penis into her vagina which evidence was corroborated by the evidence of the clinical officer, PW4. 17. The trial court found that the complainant was telling the truth considering that she was found in the Appellant`s house. The court found the Appellant`s defence an afterthought and a mere denial. 18. I have on my part re-evaluated the evidence adduced against the Appellant. The complainant was examined by a clinical officer PW4 on the following day after the incident who found her with lacerations on the labia. This is clear indication that the child was penetrated. 19. The evidence of the complainant that she was found by her mother in the house of the appellant was corroborated by her mother PW2. It is in the least unlikely that the complainant fabricated all this evidence. Whereas the appellant in his defence stated that the complainant went with her mother to his house, the Appellant never put such questions to the complainant and her mother when he cross-examined them in court. Neither did he put any question to the complainant`s mother that she is the one who fabricated the case because she was angry with him for parting ways with her sister. I agree with the trial magistrate that the defence was an afterthought. 20. The Appellant was a person well known to the complainant. She positively identified him as the person who penetrated her. He admitted that the complainant was a girl of about 8 years of age. The trial magistrate believed the evidence of the complainant that she was telling the truth. I have no reason to differ with the finding. I find that the Appellant was convicted on solid evidence. The conviction is upheld. 21. The Appellant argued that the trial court did not take into account the time spent in custody when it sentenced him. That is however not true as the court ordered the sentence to run from the date he took plea in court. The time spent in custody was therefore taken into account. 22. Consequently, I find the appeal to be without merit and dismiss it. **Delivered, dated and signed at GARSEN this 3rd day of July, 2026.** **J.N. NJAGI** **JUDGE** **In the presence of:** **Mr. Oluoch for Respondent** **Appellant – present virtually at G.K. Prison Malindi** Court Assistant - Rahma