Musangi v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 5200 (KLR) (13 April 2026) (Judgment)

Musangi v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 5200 (KLR) (13 April 2026) (Judgment) Neutral citation: [2026] KEHC 5200 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E006 of 2025 CJ Kendagor, J April 13, 2026 Between Anderson Nyamai Musangi Appellant and Republic Respondent (An appeal from the conviction and sentence in the SPM Magistrates Court at Tawa, Sexual Offence Case No. 19 of 2019, Judgment delivered on 6th August, 2024 by Hon. S. Jalang’o SPM) Judgment 1.The Appellant was charged with the offence of defilement of a child contrary to Section 8 (1) as read with Subsection (2) of the Sexual offences Act No. 3 of 2006. The particulars of the charge were that in the 2nd June 2019 at [Particulars Withheld] sublocation, [Particulars Withheld] Location in [Particulars Withheld] Sucounty within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of CM a child aged 6 years. He was found guilty and convicted of the said offence. The Court sentenced him to serve 15 years imprisonment. 2.The Appellant was dissatisfied with the Judgment and brought this appeal against the conviction and the sentence. Having considered his grounds of Appeal, the issue for determination is whether the offence of Defilement was proved to warrant the conviction. 3.This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR. 4.The Court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator. 5.I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR), the Court held as follows;19.Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. 6.The Complainant was PW1. She narrated to the Court how the Appellant allegedly defiled her on 2nd June, 2019, and described how it happened. She stated that she felt pain. PW5 was the medical officer who produced the medical reports, which showed that the Complainant was examined on 4th June, 2019. The medical examination revealed that the Complainant’s clothes were not stained. On vaginal examination, it showed that the hymen was broken but is did not indicate whether it was freshly broken. In addition, there were no lacerations on vaginal wall and there was no discharge. 7.I note that the Complainant was examined within 48 hours of the incident. I also note that, from her testimony, it appears to this Court that the alleged penetration was forceful. Yet, a medical examination conducted within 48 hours did not detect anything to suggest forceful penetration. Given these facts, I find that the medical evidence did not corroborate the Complainant’s testimony on penetration. 8.However, a Court can convict on uncorroborated evidence of a victim of a sexual offence, if it is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;“Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth”. 9.Before commenting on whether I believe the Complainant was telling the truth, I have reservations on the manner in which the lower Court took the Minor’s testimony, having found and declared her a vulnerable witness. The Minor gave evidence through an intermediary, a probation officer based at Mbooni Station, who was appointed by the Court. 10.The Courts have given guidance on how to take the evidence of an intermediary. The Court of Appeal in M.M v Republic [2014] KECA 441 (KLR) outlined the procedure to be followed before taking evidence through an intermediary. It observed as follows;“It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voir dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed.It is clear from what we have said so far that the procedure of appointing an intermediary precedes the testimony of the intended vulnerable witness even where the court does so suo moto. It is also clear that an intermediary can be an expert in a specified field or a person, who through experience, possesses special knowledge in an area or a social worker, or a relative, a parent or a guardian of the witness.The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings”. 11.The Appellant, who was unrepresented at that time, did not object to the appointment of the Intermediary. However, according to the record, the trial Court missed key procedural aspects before allowing the Intermediary to participate. One, the Intermediary did not subscribe to the appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. She ought to have taken the prescribed oath. In addition, the trial court did not give directions to delineate the extent of the Intermediary’s participation in the proceedings. 12.I also note that, later in the proceedings, the Appellant instructed a counsel to represent him and the prosecution witnesses were recalled for a second cross-examination. 13.From the record, the Complainant was 6 years old at that time when she testified through the intermediary. I also note that at the time the Complainant was recalled for the second cross-examination, she was 11 years old. However, from the record, it is not clear whether, this time round the Complainant testified by herself or through the intermediary. The record only shows that “PW1 recalled sworn and states in Kiswahili.” The Court record should have been clearer on whether the Complainant was cross-examined directly or through an intermediary. 14.I have considered whether the Court should acquit the Appellant or order for a retrial. The Appellant was charged in June 2019. The Appellant has been incarcerated for 2 years 8 months since August, 2023. In addition, the Court has made substantial comments on the prosecution’s evidence, meaning that, in case of a retrial, the prosecution would have an added advantage to seal any loopholes already discussed by this Court. 15.Having considered all these factors, and the unique circumstances of this case, I find that it would not serve the ends of justice to order a retrial in this case. In the premises, I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held. Disposition: 16.The Appeal succeeds. 17.The Conviction is hereby quashed and the sentence is set aside. 18.The Appellant be set at liberty forthwith unless otherwise lawfully held. 19.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF APRIL, 2026.…………………………HON. C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylAppellant – presentMs. Musango, ODPP