The High Court in Kakamega has upheld the conviction and life sentence imposed on Kennedy Matekwa for defiling an 11-year-old girl, dismissing his appeal after finding that the prosecution had proved its case beyond reasonable doubt.
Justice D.O. Onyango, in his judgment found no merit in Matekwa’s challenge against his conviction and sentence by the trial court.
Matekwa had appealed on several grounds, arguing that the trial magistrate had failed to properly evaluate inconsistencies in the prosecution’s evidence, particularly regarding the child’s age, penetration and his identification as the perpetrator. He also argued that a mobile phone and money allegedly used to lure the child were not produced as exhibits and accused the trial court of shifting the burden of proof onto him.
The prosecution opposed the appeal, maintaining that the essential ingredients of the offence had been established through the evidence of the child, her grandmother, a clinical officer, an assistant chief and the investigating officer.
The High Court identified three key issues that the prosecution was required to prove: that the complainant was a child, that penetration had occurred and that the appellant was responsible.
On the question of age, the court found that the prosecution had adequately established that the complainant was 11 years old at the time of the offence. A birth certificate produced in court showed that she was born on June 1, 2011, while the offence was alleged to have occurred on February 15, 2023. Justice Onyango therefore rejected the appellant’s argument that the child’s age had not been properly established.
The appellant also challenged the evidence of penetration, arguing that the medical evidence was insufficient and that the broken hymen could not, by itself, prove defilement.
The High Court agreed with the general principle that a broken hymen, standing alone, does not prove that defilement occurred. However, Justice Onyango said the medical findings had to be considered together with the child’s testimony and the rest of the evidence. A clinical officer who examined the child testified that she had a broken hymen and produced the relevant medical documents, including a P3 form, PRC form and treatment notes.
The judge found that the child’s account was consistent and that there was no reason to doubt her credibility. The court consequently concluded that penetration had been proved beyond reasonable doubt.
Matekwa further challenged his identification as the person responsible.
The High Court, however, found that this was not a case involving the identification of an unknown stranger. According to the judgment, the child knew Matekwa before the incident and identified him as the person who had taken her to his house. The judge described the evidence as one of recognition and found no indication that the child could have been mistaken about his identity. The court also noted that Matekwa himself confirmed that he knew the child.
The judgment also considered why the child did not immediately disclose the incident.
According to the evidence before the trial court, the matter came to light after the child’s grandmother discovered a Nokia mobile phone in her belongings and asked where it had come from. The child initially hesitated before later disclosing what had happened.
She told the court that she had not disclosed the incident earlier because Matekwa had threatened to kill her if she told anyone. The grandmother subsequently reported the matter to an assistant chief and the police. Justice Onyango found that the child’s evidence remained consistent despite cross-examination and was not materially shaken.
Matekwa denied the allegations and argued that the prosecution evidence contained contradictions. He also complained that neighbours had not been called to testify. His defence witness described the case as a frame-up and claimed there was a land-related grudge involving the complainant’s guardian.
The High Court, however, found that the defence did not displace the prosecution’s evidence.
The judge noted that Matekwa had not challenged, during cross-examination, the child’s evidence that she had spent the night at his house. The court further noted that the trial magistrate had conducted a voir dire examination before allowing the child to testify on oath and that she had been subjected to extensive cross-examination.
Justice Onyango found her evidence credible and said there was nothing on record to suggest that she had a motive to falsely accuse the appellant. Justice Onyango noted that the sentence was the minimum provided by law for the offence for which Matekwa had been convicted.
