https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12340

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E001 OF 2026** **(AS CONSOLIDATED WITH)** **CRIMINIAL APPEAL NO. E002 OF 2026** **MOSES NELSON LUBANGA …………………………………….………………. APPELLANT** **VERSUS** **REPUBLIC …………………….…………………………………………………. RESPONDENT** **(Being an appeal from the Judgement of Hon. E. Wasike (SPM) in Butere SPM’s S.O. No. E021 of 2020 delivered on 24th December 2025)** **JUDGEMENT** 1. The Appellant was charged, tried and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act with the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. 2. The facts according to the Charge Sheet was that on 22nd April 2020 at (particulars withheld), the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JO, a child aged twelve (12) years. In the alternative, he was alleged to have intentionally and unlawfully touched the vagina of the said JO. 3. After hearing the case, the Appellant was convicted and sentenced to twenty (20) years. The Appellant was aggrieved by the conviction and sentence and filed two separate appeals, which were later consolidated. The grounds of appeal in summary are that the ingredients forming the offence were not proved to the required standard; that the prosecution failed to call crucial witnesses; that there was no credible medical evidence to corroborate the evidence of the minor, that the evidence tendered by the prosecution was full of contradictions and inconsistencies, and that there was no *voir dire* for PW2 and her testimony should not have been relied upon. 4. The evidence before the trial court was that on 22nd April 2020, PW1 was with her younger sister PW2 along the way to Agggy’s home when they met the Appellant. He invited them to his house for money as he liked giving children money. They got into his house and he sent PW2 with Ksh. 100/= to go and buy flour. He then remained with PW1 and defiled her but when he saw PW2 through the windows, he stopped. He took the flour from PW2 then gave her another Ksh. 100/= and sent them on their way. PW1 said that they passed through the shop and bought some personal items which elicited questions from their mother when they arrived home and upon her inquiry, she and PW2 told her of the incident. The mother then asked PW1’s uncle to take her to hospital where she was examined and treated and later taken to the police station. 5. In her testimony, 8 years old PW2, who did not witness the act, largely confirmed the victim’s testimony and added in cross-examination that PW1 was beaten by their mother because they had gone to the Appellant’s house. PW2 also said that PW1 never told her what happened between her and the Appellant and that PW1 was walking properly as they went home from the Appellant’s house. 6. PW3 was the Clinical Officer who produced the medical documents on behalf of the examining Clinician. Her evidence was brief. She produced the treatment notes, and the PRC and P3 forms. She told the court that the record showed that the examination and findings according to the P3 was that the victim had whitish stains on the external genitalia, vaginal discharge, and absent hymen. The lab results were negative for Syphilis and pregnancy but epithelial cells were present. According to the report, evidence of penetration was confirmed. 7. The Investigating Officer was said to have been transferred and PW4, who testified on his behalf stated that on 22nd April 2020, the Complainant and her guardian had reported that she had been defiled by the Appellant and after investigations, the Appellant was charged. PW4 produced the Complainant’s Birth Certificate which shows that she was born on 20th December 2007. 8. The appeal was canvassed through written submissions which I have duly considered. **Analysis and Determination** 1. This is a first appeal and the duty of the Court is as set out in **Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336** which is to subject the whole evidence to a fresh re-evaluation and analysis with a view to arriving at its own independent determination without losing sight of the fact that unlike the trial court, it did not have the advantage of seeing and hearing the witnesses as they testified**.** 2. From the two petitions of appeal and the respective submissions, the issues that arise for determination are as follows:- 3. *Whether the voir dire examination of the witnesses was properly conducted.* 4. *Whether the inconsistencies in the witness testimonies vitiated the proceedings.* 5. *Whether the failure by the prosecution to call certain witnesses was fatal to the prosecution’s case.* 6. *Whether the prosecution’s case was proved beyond reasonable doubt.* 7. Section 125 of the Evidence Act requires the court to subject a minor to voir dire examination to determine their competence as a witness. Additionally, Section 19 (1) of the Oaths and Statutory Declarations Act obligates the Court to carry out an interrogation of a child of tender years for purposes of determining whether the witness understands the nature of the oath. Such investigation would assist the Court decide whether the witness should give sworn or unsworn evidence. The said Section provides:- ***“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness 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.”*** 1. It follows therefore that the court must first determine through an inquiry, whether a witness of tender years is intelligent enough to understand and respond to the questions put to him, and has ability to recollect the events that he is required to recollect in order to justify the admission of the evidence, whether sworn or unsworn depending on the witness’s response to the query as to whether they understand the implications of an oath or the importance of telling the truth. In **Japheth Mwambire Mbitha v. Republic [2019] KECA 813 (KLR)**, the Court of Appeal held that:- ***“[14] In this case, a perusal of the record reveals that prior to receiving the respective testimonies of PW 2 and PW 3, the learned trial magistrate went on an enquiry of whether each of the witnesses understood the meaning of telling the truth and the consequences of lying. Having satisfied herself that the two minors understood the importance of telling the truth, the court went on to record their evidence. No objection was ever raised by the appellant regarding the***voir dire***examination or the subsequent admission of the minors’ testimony. Again, it bears repeating that the purpose of***voir dire***is to ensure that the minor understands the solemnity of oath and if not, at the very least, the importance of telling the truth. In this case, the record shows that a brief interview was conducted in this regard on each of the two witnesses; to which the two minors even indicated to the court that failure to tell the truth renders a liar ineligible to go to heaven.”*** See also **Patrick Kathurima v. Republic [2015] KECA 539 (KLR)**. 1. The evidence of PW2, who said that she was seven (7) years old was taken without observing Section 19 (1) of the Oaths and Statutory Declarations Act. However, PW1 was subjected to *voir dire* examination. The record reflects that the trial Court questioned in verbatim the witness and recorded both the questions and her responses thereto. At the end of the exercise, the trial Court was satisfied that PW1, who was 12 years old, was possessed of sufficient intelligence, and understood the gravity and solemnity of an oath and the consequences of taking it. In **DWM v. Republic [2016] eKLR**, the Court of Appeal explored the mode to be adopted by a trial Court while undertaking *voir dire* and held that:- ***“14. There was however no hard and fast rule laid down by this Court in the Kathurima case (supra) that in all cases where voir dire procedure had not been strictly administered the prosecution case stood vitiated. Each case has to depend on its own set of facts and that is why the court observed thus:-*** ***“It is best though not mandatory in our context that the question put and the answers given by the child during the voir dire examination be recorded....”*** ***The trial magistrates’ failure to reflect on the record the questions put to H.W. during the voir dire examination was not therefore per se fatal to the prosecution case. The sustainability or otherwise of the prosecutions’ case solely depended on whether the evidence on which it was anchored met the thresh hold of proof beyond reasonable doubt.*** (Emphasis added) 1. In the premises, the *voir dire* examination was proper. It was not necessary for the trial Court to explain to the witness the consequences of her testimony as she had already demonstrated that she was conscious of the solemnity of the oath that was subsequently administered to her. 2. Respecting the evidence of PW2, there was no questions to determine whether the witness was possessed of sufficient intelligence. However, from the record, PW2 tendered rational and coherent testimony and was subjected to cross-examination. Her testimony was merely to confirm that she was in the company of PW1 and went to the Appellant’s place on the material date. 3. Section 125 (1) of the Evidence Act provides that:- ***“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.”*** 1. In **Maripett Loonkomok v. Republic [2016] KECA 520 (KLR)**, the Court of Appeal held that:- ***“Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth. So long as that evidence, though not on oath, is taken down in writing, it amounts to a deposition under section 233 of the Criminal Procedure Code. The Code does not prescribe the precise manner of ascertaining and determining whether the child witness understands the nature of the oath or is possessed of sufficient intelligence or even his or her ability to understand the duty of speaking the truth***… **It follows from a long line of decisions that** voir dire **examination of 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 voire dire is not conducted, but there is sufficient independent evidence to support the charge…the court may still be able to uphold the conviction.”** 1. Flowing from the above, the failure to conduct *voir dire* examination of PW2 per se, did not vitiate her evidence. It only rendered the evidence incapable of application as the sole basis of a conviction as it bore less evidential weight by reason of the irregularity. Her evidence therefore needed corroboration, which corroboration is evident from the testimony of PW1. 2. The Appellant highlighted the inconsistencies in the testimonies of the prosecution’s witnesses and submitted that the trial Court should not have relied on the same. The inconsistencies highlighted are that the Investigating Officer indicated that the Appellant allegedly threatened PW1 with a knife and the said weapon was never recovered whereas PW1 did not mention the threat at all to her cousin, mother or to the Court. The Appellant faulted the prosecution for failing to apply for a Search Warrant to search the Appellant’s house for the knife and for the victim’s panty. 3. On reviewing the evidence, the inconsistencies in the prosecution’s case included the fact that whereas PW1 said that the Appellant saw PW2 through his window and stopped defiling her, PW2 did not corroborate this fact and insisted that she did not see the Appellant do anything to the victim. 4. The Court of Appeal has severally dealt with the issue of inconsistencies and contradictions in witness testimonies. It is now settled that inconsistencies or discrepancies in the evidence can only vitiate the proceedings where there are material and go to the root of the case. Moreover, there is no expectation by the law, that prosecution witnesses do recall to exactitude the entire circumstances of the case. The Court must treat the entire evidence as a whole and not nit pick aspects of the testimony for purposes of identifying discrepancies or inconsistencies unless such discrepancies or inconsistencies are material to the case. In any event, it is trite that no two people recall or describe events in the same way. 5. In **Philip Nzaka Watu v. Republic [2016] KECA 696**, the Court of Appeal held that:- ***“…It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”*** 1. The Court concurs with the Respondent that whether or not the Appellant threatened the victim was immaterial. It was not so fundamental as to render her evidence unreliable especially since the alleged inconsistent testimony was tendered by a Police officer who was giving evidence on behalf of the Investigation Officer. 2. As to the failure to call crucial witnesses, the Court finds that although the victim’s mother and James were important witnesses, they were not crucial witnesses and their absence was not fatal to the prosecution’s case. By dint of Section 143 of the Evidence Act, the prosecution is not obligated to call a particular number of witnesses to prove its case. The aim is to call such witnesses as shall be necessary to prove the ingredients of the offence. In **Joshua Onginjo Oduor v. Republic [2026] KECA 609 (KLR)**, the Court of Appeal pronounced itself thus:- ***“The appellant contended that the prosecution failed to call material witnesses, namely Venessa Blessing and Eunice, her mother, who were alleged to have knowledge of key events that occurred on the material day. Section 143 of the***[***Evidence Act***](https://new.kenyalaw.org/akn/ke/act/1963/46)***provides that no particular number of witnesses is required to prove any fact. Where the evidence on record is sufficient to establish the offence beyond reasonable doubt, the absence of certain witnesses does not vitiate the case.”*** 1. Turning to the issue of the ingredients of the offence, the Appellant did not challenge the Court’s finding on proof of age and identification of the Appellant. Hence the only issue challenged is the ingredient of penetration. 2. Since there was no eyewitness to the defilement, the only evidence as to what transpired was tendered by the victim. Section 124 of the Evidence Act provides:- ***“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:*** ***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.”*** 1. PW1 gave an account albeit peppered with euphemisms of what transpired. She said:- ***“He pulled my hand and we entered the house. He removed his shorts. He did bad manners to me. He removed my skirt and panty. He removed his shorts. When he saw Mitchella he stopped… He did bad manners to me down there. (The minor points at vagina). He used the thing he used to urinate to do bad manners to me.”*** Section 8 (1) of the Sexual Offences Act defines defilement as:- ***“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”*** Section 2 of the Act defines penetration as:- ***"Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”*** 1. The Court of Appeal has previously considered the use of euphemisms and colloquialisms in defilement cases. In **Muganga Chilejo Saha v. Republic [2017] KECA 359 (KLR)** 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.”*** 1. Similarly, in **JE v. Republic [2023] KECA 1614 (KLR)**, the Court found the use of euphemisms by a minor victim of defilement to have been established even though the minor through an unsworn statement that the appellant had done “*tabia mbaya*” to her. 2. It is trite knowledge that Africans, in their quest to preserve their culture of modesty are not explicit in their description of genitalia and the sexual act and that they rarely refer to their genitalia using their given names. 3. Having said that, PW1’s evidence was not explicit. A review of her statement does not reveal a description of penetration. The fact that she pointed to her vagina and said that the Appellant did bad manners to her down there to her using the thing he uses to urinate cannot be conclusively said to refer to the act of penetration. The victim’s description was not clear. It left the testimony open to conjecture. The victim did not expressly state the penis was inserted partially or fully into her vagina something a 12 year old would be expected to be able to describe more specifically. The victim’s testimony therefore required corroboration. 4. In **DS v. Republic [2022] KEHC 2502 (KLR)**, Korir J. stated that:- ***“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.”*** 1. The medical evidence adduced through the primary treatment records, PRC form and P3 forms were inconclusive. It is trite that spermatozoa remains in the vagina for about 72 hours. Considering the victim was taken to hospital and attended to within 2 hours of the alleged defilement, which according to the prosecution was completed, the high vaginal swab would have yielded evidence of presence of seminal fluid, even if spermatozoa were absent since according to the P3 form, the victim was sexually penetrated with the penis with no condom. 2. Additionally, since the PRC report indicates that “*Survivor reports evidence of forceful penetration”*, it would be expected that the victim would have had signs of forceful sexual activity which include bruises, tears and lacerations to the vagina, and difficulty in walking, considering the victim’s age vis-à-vis that of her assailant. 3. A full analysis of the prosecution’s case reveals doubt as to whether the ingredient of penetration as defined in Section 8 (1) of the Sexual Offences Act did occur. 4. The doubt is compounded by the inconsistencies in PW1’s narrative. Whereas she informed the court that the Appellant had never harmed her prior to the material date, the primary treatment record indicates that she alleged that the same person had sexually assaulted her a week prior to the day she was treated. This claim was also repeated in the P3 form. The Investigating Officer did not report such claims however, and only stated that the victim had only alleged that she had been threatened by the Appellant with a knife, something PW2 did not claim in her evidence. The Court also notes PW2’s claims that PW1 was beaten by the mother, a fact confirmed by PW1 during cross-examination who claimed that she was beaten not because she refused to speak, but because she went to the Appellant’s house. Consequently, her evidence is not credible. 5. In the end, the Court finds the conviction unsafe and the appeal merited. The appeal is allowed, the conviction quashed, and the sentence set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. Dated, signed, and delivered at Kakamega this 31st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Ogendi for the Appellant Ms. Chala for the Respondent/State Court Assistant: Polycap