https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11582

Said alias Mwenye Fidla v Republic (Criminal Appeal E023 of 2025) [2026] KEHC 11582 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 11582 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E023 of 2025 JN Njagi, J June 30, 2026 Between Abdulnassir Said alias Mwenye Fidla Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon.F. M. Mulama , Lamu Principal Magistrate`s Court Criminal Case No.E012 of 2023 delivered on 20/6/2024) Judgment 1.The appellant herein was convicted of the offence of defilement contrary to section 8(1) as read together with 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 25th day of September 2023 at around 1300 hours at (name withheld) location in Lamu central sub county within Lamu county he intentionally and unlawfully caused his penis to penetrate the anus of H.S. (herein referred as the victim), a child aged 9 years. 2.The appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and sentence and lodged the present appeal. The grounds of appeal as per his amended grounds of appeal are that:1.The learned trial magistrate erred in law and fact in failing to consider that voire dire examination was not properly conducted on the minor;2.The learned trial magistrate erred in law and fact in failing to note that he was not supplied with witness statements during trial;3.The learned trial magistrate erred in law and fact in failing to note the inconsistencies, contradictions and non-corroboration of prosecution witnesses’ evidence;4.The learned trial magistrate erred in law and fact in failing to consider the appellant’s defense; and that5.The learned trial magistrate erred in law and fact in failing to consider the sentencing policy guidelines. Case for prosecution 3.The case for the prosecution was that the victim, PW3, was at the material time a grade 3 pupil aged 9 years. He was living with his parents. His father was PW2 in the case. 4.It was the evidence of the victim that on the material date he was sent by his mother to pick clothes from the hanging line on the rooftop of their house. He went to do so in the company of his younger brother. That when they were going back he was called by the appellant to his house. He went there with his brother. The appellant asked him to take his brother home and go back to him. The victim did so and when he returned to the appellant’s house, the appellant closed the door. He removed his (victim’s) trouser and also removed his trouser. He did “tabia mbaya” to him wherein he inserted his organ for urinating into his (victim`s) anus. That the appellant threatened him with a knife that was placed on the bed. He then requested him to suck his penis and he ejaculated. He asked him to go away and warned him that he will kill him if he disclosed the incident to anybody. He went and reported to his father. 5.The father to the victim, PW2, testified that he is a madrasaa teacher. That on the material day the victim was sent to go and pick clothes from the hanging line. He PW2 left for madrassa classes but the victim had not yet returned home. That while at the madrasaa, the victim went to him while looking anxious. The victim told him what the appellant herein had done to him. He PW2 went and reported the incident to the village elder. He went with the village elder to the home of the appellant and found him leaving his house. They asked him about the incident and he admitted as having been with the victim but he became violent. PW2 took the boy to hospital and later on to the police. On the following day the appellant was arrested. 6.The village elder PW4 testified that PW2 reported the incident to him and they proceeded to the appellant’s home. That the appellant denied having done anything to the victim. That they went and interrogated the victim herein and he advised PW2 to take the victim to hospital. 7.Another area resident PW5 testified as having been called by PW2 over phone and informed of the incident. That on 26/9/2023 they took the victim to the police and a P3 form was issued. They recorded statements on the following day. 8.Two other witnesses PW6 and PW7 testified that they were called by the chief on 26/9/2023 who directed them to arrest the appellant for defiling the victim herein. They traced him in a nearby shamba and arrested him. They handed him over to the chief. 9.A doctor at King Fahad Hospital PW1 told the court that the victim was examined at their hospital on 25/9/2023 and found with a one-centimetre tear at 7 o’clock position of the anus. An anal swap was taken that gave negative results. He filled a P3 form using the treatment notes. He formed the opinion that the child had been penetrated by use of a penis. The approximate age of the injury was 24 hours. During the hearing the doctor produced the treatment notes, the P3 form, the Post Rape Care form, the consent lab report form and lab results as exhibits, P.Exh.1 – 5 respectively. 10.The case was investigated by Cpl Duba Wako PW8 of Lamu police station. It was his evidence that the case was reported at the police station on 25/9/2023 at 9pm by the victim and his father. He advised them to return to the station on the following day and when they did, he issued them with a P3 form. That on the evening of that day he received a phone call that the appellant had been arrested by members of the public. He and other police officers responded swiftly and went and re-arrested him. He obtained the birth certificate of the victim that showed that he was born on 22/10/2013. He charged the appellant with the offence. During the hearing he produced a copy of the birth certificate as exhibit, P.Exh.6. Defense case 11.The appellant when placed to his defence stated in a sworn statement that on the material date he was away at sea fishing and went back on 26/9/2023. That upon return he went for an evening run and met with a group of people who included PW6 and PW7. They arrested him and tied him with a rope. They beat him up and injured him. They took him to the complainant’s grandfather. Policemen were called who went and took him to hospital. Later he was taken to the police station and then arraigned. He denied having committed the offence. He said that the charges were fabricated as he had a land dispute with the grandfather to the victim. 12.The appeal was disposed of by way of written submissions. Submissions 13.The appellant submitted that the voire dire examination that was conducted by the trial court did not meet the standards required under section 19(1) of the Oaths and Statutory Declaration Act. That from the answers given in the voir dire examination, it was difficult to determine as to whether the minor knew the duty of speaking the truth and that he possessed sufficient knowledge. That convicting on the basis of the said evidence occasioned failure of justice. 14.The appellant submitted that he was not supplied with witness statements and this amounted to violation of his right to fair hearing as provided for under article 50(2)(j) of the Constitution. 15.He submitted that the evidence of the doctor PW1 did not bring out the issue as to whether the tear in the anus was fresh or old. That from the evidence of the doctor the tear was old as there was no blood or fluid seen. 16.Further that the father to the victim PW2 testified as to what the victim told him and that the investigating officer PW8 did not visit the scene and neither did he produce any exhibit. 17.It was submitted that the trial court failed to consider the appellant’s defense of alibi and which would have led to an acquittal. 18.On sentence, it was submitted that the trial court meted a mandatory minimum sentence without considering the sentencing policy guidelines and more so the objectives of sentencing as provided under page 15 therein. 19.The respondent on the other hand submitted that the evidence tendered was sufficient to prove the elements of the offence of defilement to wit age, penetration and identification. Analysis and determination 20.The duty of this court while exercising its jurisdiction as 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 that the evidence of the trial court ought to be subjected 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. The court should 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). 21.I have considered and analyzed the evidence which was tendered in the trial, the grounds of appeal as raised on the petition of appeal and the submissions by the parties. The issue this court ought to determine is whether the prosecution tendered sufficient evidence to prove its case to .the required standard of beyond reasonable doubt. 22.Before that, I find it necessary to consider the issues raised in the amended grounds of appeal on whether voire dire was sufficiently conducted and whether the appellant was supplied with witness statements. 23.The appellant submitted that voir dire examination was not properly conducted and thus a violation of section 19(1) of the Oaths and Statutory Declaration Act. Section 19 of the Oaths and Declaration Act Cap 15 provides that voir dire examination ought to be conducted where the witness is a child of tender years. 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) and Maripett Loonkomok v Republic [2016] KECA 520 (KLR)}. 24.Section 19 provides the purposes of voire dire is to ascertain whether a witness is possessed of sufficient intelligence to justify the reception of his/her evidence, and understands the duty of speaking the truth. (See Johnson Muiruri v Republic [1983] KLR 445). I have perused the trial court’s record and it is clear that the trial court indeed conducted voir dire and proceeded to record the questions and answers put and proceeded to form an opinion as to the competence of the victim/witness. In my view, the questions were sufficient enable the court form that opinion. The appellant did not submit as to what prejudice he suffered as a result of the questions which were asked. 25.As to failure by the trial court to supply witness statements, the appellant submitted that the prosecution did not supply witness statements and thus the same was a violation of his right to a fair trial. I have perused the court’s record and I note that on the plea day the DPP informed the court that they had supplied the appellant with witness statements. The argument is thereby dismissed. 26.Having decided on the preliminary issue, I will determine the issue as to whether the prosecution tendered sufficient evidence to prove its case to the required standard. The appellant submitted that the trial court did not consider the inconsistencies, contradictions and non-corroboration of the prosecution’s case. Further that the trial court failed to consider his defence. 27.The respondent on the other hand submitted that the prosecution was able to prove the elements of the offence the appellant was facing before the trial court. The question therefore is whether the evidence tendered by the prosecution was sufficient to warrant a conviction. 28.As I already stated, the appellant herein was charged with the offence of offence of defilement contrary to section 8(1) as read together with 8(2) of the Sexual Offences Act No. 3 of 2006 29.Section 8(1) provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. Section 8(2) on the other hand provides that “a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life. 30.It is therefore clear from these provisions and its indeed trite that for the charge of defilement to stand, the prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. The standard of proof is settled and it’s beyond any reasonable doubt. 31.The trial court in its judgment considered the three ingredients of the offence of defilement and found that the offence was sufficiently proved. 32.On the issue of age, the importance of proving the same in a case of defilement was emphasized by the Court of Appeal in Kaingu Kasomo -vs- Republic, Criminal Appeal No. 504 of 2010 (UR) where the court stated that:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 33.The court in Francis Omurori -vs- Uganda, Criminal Appeal No. 2 of 2000, held that age can be proved by birth certificate, victim’s parents or guardians and by observation and common sense. 34.In the case before the trial court, a copy of the notification of birth was produced by the investigating officer PW8 and which indicates the date of birth of the victim as being 22/10/2013. The offence is alleged to have been committed on 25/9/2023 and which means that at that time, the victim was one month shy of 10 years. The age was corroborated by other evidence including the medical documents. I therefore find that the prosecution proved the age of the victim. 35.As to penetration, the victim gave sworn evidence to the effect that on the material date he was from removing clothes from the hanging line and that he was called by the appellant to his house. That when he went there the appellant closed the door and removed his (victim’s) trouser and also removed his trouser. He then inserted his penis into his. That he threatened him using a knife. He requested him to suck his penis which he did and the appellant urinated therein. He then asked him to go. 36.The doctor who examined the victim testified that the victim had one-centimetre tear at 7 o’clock position in the anus but there was no blood or fluid on the clothes. The P3 form was produced and which supported this evidence. I find that the evidence tendered sufficiently proved penetration into the genital organ of the victim, namely anus. Section 2 of the Sexual Offences Act defines "genital organs" as including the whole or part of male or female genital organs and for purposes of the Act, the same includes the anus. The evidence sufficiently proved penetration. 37.As to identification, the victim testified that the event took place during the day and the undisputed evidence was that the appellant was the victim’s neighbour. It cannot therefore be said that the victim mistook the appellant to another person. The victim’s evidence was clear and cogent in respect to identification of the appellant 38.The appellant in his defense raised a defense of alibi to the effect that on 25/9/2023 he was away in the sea fishing and he never returned until 26/9/2023. As a rule, an accused person who wished to rely on a defence of alibi is required to raise it at the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the alibi, see Republic vs Sukha Singh S/O Wazir Singh & Others [1939] 6 EACA 145. In the instant case, it is clear that the defense of alibi was raised at the first time during the defense hearing and it is clear that the same was an afterthought. 39.I am aware of the decision of the Court of Appeal in the case of Barisa v Republic [2024] KECA 219 (KLR), the Court of Appeal in discussing the defense of alibi held that even where the defense of alibi is put forth late in the trial, the same should not be ignored but must be considered against the evidence adduced by the prosecution. However, considering the said defense as against the evidence by the prosecution, I find that the prosecution’s evidence displaced the defense of alibi by the appellant. PW2 and PW4 testified that they on the day of the incident went to the appellant’s home and found him leaving. This evidence displaced that of the appellant that he was out fishing on that day. 40.The appellant submitted that the trial court failed to consider his defense of alibi. However, the court stated in its judgment that the facts were largely not challenged. It further noted that the appellant did not challenge his identity in cross examination. It is therefore not correct for the appellant to argue that the trial court did not consider his defense. 41.The appellant raised the issue that the trial court did consider the sentencing policy guidelines. However, from the sentencing proceedings, it is clear that the court noted the purposes of sentencing being deterrence and proceeded to sentence with that in mind. It cannot be said that the court did not consider the sentencing policy guidelines. Further the mandatory nature of the sentence means that the trial court’s hands were tied by virtual of the Supreme Court’s decision in Muruatetu 2. The sentence cannot as thus be said to be unlawful. The court acted within the law. 42.Considering the above, I find that the evidence tendered before the trial court sufficiently proved the elements of the offence of defilement. The trial court was right in convicting the appellant of the offence. 43.The upshot is that I do not find any merit in the appeal. Consequently, the appeal is dismissed in its entirety. It’s so ordered. DELIVERED, DATED AND SIGNED AT GARSEN THIS 30TH DAY OF JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for AppellantRespondent – present virtually at GK Prison MalindiCourt Assistant – Rahma