[2025] KEHC 4732 (KLR)

Wanjiru v Republic (Criminal Appeal E129 of 2022) [2025] KEHC 4732 (KLR) (Crim) (26 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4732 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E129 of 2022

CJ Kendagor, J

March 26, 2025

Between

Stephen Kinyua Wanjiru

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence in Chief Magistrate’s Court Makadara Sexual Offence No. 269 of 2019 delivered on 4th February, 2022 by Hon. E. Kanyiri, P.M)

Judgment

1. The Appellant was charged with the offence of attempted defilement contrary to Section 9 (1) as read with Section 9 (2) of the Sexual Offences Act.The particulars of the offence are that on diverse dates between 18th and 20th October, 2019 within Nairobi County the Appellant intentionally attempted to cause his penis to penetrate the vagina of one T.N. a child aged 2 ½ years without her consent.

2. The Appellant faced an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act. The particulars are that on diverse dates between 18th and 20th October, 2019 within Nairobi County, the appellant intentionally and unlawfully touched the vagina of T.N., a child aged 2 ½ years, without her consent.

3. He pleaded not guilty, and the case proceeded to trial. In a judgment delivered on 03rd February, 2022 the trial Court determined that the main charge had not been proven. However, the Appellant was found guilty of the alternative charge of committing an indecent act with a child contrary to Section 11 of the Sexual Offences Act. He was convicted and sentenced to fifteen (15) years of imprisonment.

4. Dissatisfied with both the conviction and the sentence handed down by the trial Court, he filed the present appeal. In his amended grounds for appeal and submissions filed, he primarily contended that the trial Court erred in convicting him despite the lack of sufficient evidence to support the charges against him. He raised concerns about the reliability and credibility of the evidence presented during the trial. Consequently, he seeks to overturn the conviction and sentence.

5. The Respondent opposes the appeal, although they did not submit any written submissions for consideration despite being given sufficient time.

6. As a first appellate Court, I must reconsider and evaluate the evidence in the court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate Court 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 conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; 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.”

7. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties. I have also read the judgment of the trial Court.

8. Having done so, I find that the issue for my determination is whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt, whether the conviction was safe, and whether the sentence was appropriate or excessive.

9. The birth certificate provided verifies the Complainant’s age. At the time the incident in question occurred, she was 2 years old as per the grandmother’s testimony.

10. The child’s grandmother testified as PW1. She informed the Court that she was alarmed after the child told her that on 20th October, 2019 at around 10. 00 p.m., she had bathed the child. As she took some oil to apply to the child's body, the child said in Kiswahili, ‘nilipakwa ingine,’ which translates to she had already been oiled. She stated that upon inquiring, the child pointed to her private parts and said she had been oiled by Baba Nyago - Kinyua, whom she identified as the Appellant in this case and their long time neighbour. She recounted the subsequent hospital and police visits that led to the Appellant’s arrest and charges in Court.

11. The Complainant was a child of tender years who gave unsworn evidence. The record shows that the trial Court conducted a voire dire examination and recorded it in terms. I am satisfied that the trial Court employed the correct procedure in ascertaining the child’s competence to give evidence.

12. The prosecutor guided the complainant during her testimony. The questions posed and responses are as follows:1. Who is that in Court? Baba Nyago2. Nani alikupaka mafuta? Baba Nyago3. Alikupaka wapi? ApaCourt; Child touches her vagina4. Ulisikia aje? Nilisikia uchungu5. Baba Nyago ako wapi? UleCourt; Child points to accused person in court.Cross examinationN sasa? SasaWho told you to come and say what you have said? Silence.’

13. PW3 served as the medical officer at the first institution where the Complainant was presented. PW4 was the medical officer at the institution where the P3 form was filled out. The findings they reported indicated that there were no injuries to the genitalia, except that the vagina had some white discharge.

14. PW5 was the investigating officer. He testified that the Appellant was arrested and escorted to the police by members of the public and also stated that he preferred the charges based on the complaint made. He testified that the child told him that, ‘Baba Nyago alinifanyia tabia mbaya.’

15. The Appellant, in his defence, denied the charge and stated that on the date he was arrested, he was at home when a group of boys forcefully took him from his home and escorted him to the police station, where he was informed about the current case. He acknowledged that they live in the same compound as the Complainant’s grandmother and stated that he had never seen the child. He also faulted the investigating officer for failing to involve him in the investigations.

16. It is the duty of the prosecution in a criminal case to prove the case against an accused person beyond reasonable doubt. In the case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated the following regarding the degree of proof beyond reasonable doubt:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

17. I agree with the trial Court that there was no sufficient evidence to support the main charge of attempted defilement. The learned magistrate found the Appellant guilty of committing an indecent act with a child contrary to Section 11 of the Sexual Offences Act.

18. In the Sexual Offences Act, “an indecent act” is defined as follows:-“indecent act” means 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)Exposure or display of any pornographic material to any person against his or her will.”

19. In this case, I find that the prosecution presented the child’s evidence overly casual. The prosecution questions did not sufficiently focus on eliciting a clear and comprehensive account of the child’s testimony regarding the events in question. There is a notable difference between asking a child about what happened and framing a question based on another witness’s account. In this case, the child was the primary witness, not the grandmother. The prosecution did not ask the child to describe the events; instead, it presented the child with testimony from another witness to confirm the details. This oversight may have impacted the reliability and clarity of the evidence provided. Particularly given that the Appellant’s defence contends the Complainant was coached on how to deliver her testimony.

20. Due to the child’s young age and the sensitive nature of the case, the prosecution had a responsibility to guide the witness more effectively. They needed to adopt an approach that would encourage the child to explain what happened, where it occurred, and how, ensuring that critical details to prove the ingredients of the offence were clearly communicated.

21. In cases where a child’s testimony is the only evidence available, particularly in sensitive matters such as sexual offences, it becomes even more crucial to ask necessary and appropriate questions essential for gathering factual evidence. Failing to engage with young witnesses appropriately could potentially deny justice to the victim, the accused, or both. It is imperative to balance the need for thorough questioning with the protection of minors, ensuring their testimonies are well taken and heard without compromising the accused’s right to a fair trial.

22. The fundamental right of an accused person to be presumed innocent until proven guilty must remain unwavering, even when faced with the challenges posed by the age of a witness. This fundamental right cannot be compromised on account that a witness is young or perceived as vulnerable.

23. The standard of proof beyond a reasonable doubt was not met in this case regarding both the main charge and the alternative charge for which the trial court convicted the appellant. In the circumstances, I find and hold that the Appellant’s conviction was unsafe, and the appeal is successful.

24. I hereby quash the conviction and set aside the sentence. The Appellant shall be released unless he is otherwise lawfully held.

25. It is so ordered.

DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 26TH DAY OF MARCH, 2025. ..........................................C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylAppellant presentMr. Omondi ODPP, for Respondent