Alex Mutua Muoki v Republic

B. Petition of Appeal 4. 5. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds that; i. the trial court erred in law and fact by holding that the prosecution had proved its case against the Appellant beyond reasonable doubt. ii. the trial court erred in law and fact by convicting and sentencing the Appellant when the key ingredients of the offence were not proved by the evidence tendered. iii. the trial court erred in law and fact by relying on the evidence of a single witness to convict the Appellant and overlocked the glaring inconsistent and/or contradictory evidence tendered by the prosecution. iv. the trial court erred in law and fact by convicting and sentencing the Appellant without considering the weight of the defence evidence. v. the trial court erred in law and fact by rejecting the defence tendered by the Appellant while convicting and sentencing him vi. the trial court erred in law and fact by convicting and sentencing the Appellant to serve an excessive sentence at the circumstance. The appeal was canvassed by way of written submissions. The Appellant’s submissions are filed on 27/1/2024 by the law firm of Fred K. Musyimi & Associates Advocates while the Respondent’s submissions are filed on 19/2/2025 by Ms. Agatha Abang, prosecution counsel. Appellant’s Submissions 6. The Appellant’s counsel submitted that the prosecution did not prove its case against the Appellant beyond reasonable doubt since the evidence tendered against the Appellant was not sufficient to sustain his conviction. That considering the evidence tendered in totality, it is evident that the prosecution failed to prove all the mandatory three key ingredients of defilement to the required standard. 7. Counsel cited the case of Gonjobe v Republic (Criminal Appeal E015 of 2022) [2023] KEHC 18079 (KLR) (25 May 2023) (Judgment) it was succinctly held that:“ The standard of proof in a criminal case is that of beyond reasonable doubt. This burden is always on the prosecution to prove an accused person guilty beyond reasonable doubt. The burden is discharged by availing by the prosecution of evidence that will prove an accused person guilty of the commission of the offence beyond any reasonable doubt." 8. Reliance was also placed on the case of Langat v Republic (Criminal Appeal E021 of 2021) 120231 KEI-IC 25548 (KLR) the court held that:“ It is now a trite law 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." 9. It was submitted that the prosecution had a duty to establish all the three ingredients beyond reasonable doubt for the charge of defilement to stand. That the trial court appreciated this legal principle in its https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 2

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judgment; however, the court failed to analyse the evidence in totality and consequently, erred in its finding that all the three ingredients had been proved beyond reasonable doubt. 10. As to whether there was penetration, it was submitted that the trial court relied on the testimony of PW2, the victim, where in the judgment the trial court stated as follows:“ PW2 who is the victims testified that the accused on the material day called her while she was from church, when she heeded the call, the accused took her to the bedroom tied her eyes legs and hands with a lesso and defiled her by inserting his penis in her vagina after which he gave her a sweet and asked her to pass by again the following day wherein he did the same thing. The reports produced by the doctor did confirm that there was perforated hymen." 11. It was further submitted that, the Doctor testified as PW4 to the effect that his findings upon medical examination were, external genitalia was normal, hymen was perforated which was old. That a high vaginal swab showed she had pus cells, no spermatozoa seen and the victim was calm. His conclusion was that there was no defilement. 12. That PW4 upon production of P3 Form and the PRC for the complainant as exhibits, the expert witness noted that he took samples for investigation and found pus in the urine, for pregnancy it was negative. It was PW4’s testimony that the pus cells indicated that they are available but not infection parse. It was the opinion of PW4 that no indication indicates that defilement took place since those are common observations in children. 13. That PW4 upon cross-examination testified that they did not see evidence of penetration since the hymen could not be intact if sexual intercourse took place. The medical report is in support of the testimony of PW4. 14. It was submitted that, the trial magistrate in her judgment wrongly made reliance on the fact that the hymen of the minor was perforated as evidence of penetration, however, the evidence of the doctor was to the effect that there was no penetration. It was the counsel’s submission that perforation of the hymen is not proof of penetration. This was a grave misapprehension of facts by the trial court. 15. Counsel relied on the case of Olukuru v Republic (Criminal Appeal E005 of 2024) [2024] KEHC 7700 (KLR) where the court held that:“ When AAO was examined on the alleged offence date, her labia minora and labia majora were normal. There was a white discharge, and no spermatozoa were seen. The only positive finding was a broken hymen, which was not recent. A broken hymen alone cannot be used as proof of penetration”. 16. This was also the view of the Court of Appeal in the case of P.K.W v Republic [2012] eKLR. The court observed as follows: “ 15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child's hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse. 16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 3

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proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it, like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen v Manuel Vincent Quintanila [19991 AB QB 769." 17. Counsel submitted that the only evidence that the minor was defiled; though not cogent; is that of the minor herself and her evidence was not corroborated by any other witness and upon medical examination; the claim on defilement was scientifically disapproved, thus, creating a doubt as to whether there was penetration. 18. It was submitted that the prosecution witnesses and the complainant, gave vastly contradicting accounts of what happened on the 15th and 17th of May 2022 – in both their statements and in their testimony during trial. The trial court failed to consider the effect of the inconsistent on the overall evidence in the case. 19. The evidence of PWI was that the minor came home on 15/5/2022 at 2.00 p.m., was at home and the minor was in the house but PW1 realised she had left church alone. When she came back, she was limping and when asked what was wrong, she kept quiet. On 16/5/2022 she went to school. On that day she used a different route and PWI asked her why she changed route, she kept quiet and beat her. She did not say anything and she was limping. PWI testified that she inquired again on Wednesday and that is when PWI decided to check her genetalia and noted she was defiled. Checked the vagina. It had blood. 20 PW1 upon cross-examination, she testified that she reported the case on 17th and recorded a statement at police station and went to hospital on 18th. It was PWI’s evidence that the minor went to school on 16th but she was limping. The minor did not tell any teacher. On the hand PW2 testified that she told the head teacher of the defilement. 21. Counsel submitted that, on the other hand, PW1 gave testimony to the effect that the Appellant called her on 15/05/2022 and she heeded his call and entered his house. They went to the bed. It was her evidence that she went to school on Monday. She passed by the Appellant's home; he also did the same thing again and then went home. At night PWI woke up PW2 and told her to remove her clothes and lift up her legs. They went to the police in the morning. 22. On Cross-examination PWI testified that she went to school on Monday and Tuesday and told the head teacher. Whereas Pw2 testified she was defiled on 15/5/2022 and 16/5/2022 and PWI knew of the defilement on 17/5/2022 when she noticed blood from vagina and reported to the police on the morning of 18/5/2025 and on the same day they visited the hospital. Upon medical examination, there was no evidence of blood and the doctor reported that the hymen was intact. 23. Whereas PW1 testified that the minor had left Sunday school and was playing outside and when PWI checked she was missing. On the other hand, PW2, the complainant, testified that while she was from church, the Appellant saw her on the road and called her. 24. Further, the investigation diary (see page 47 of the record of appeal) is indicative that it was reported the defilement happened several times last week, however, the evidence of the PWI was that the incident https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 4

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happened twice on 15th and 16th before it was reported on 18/5/2022. It is our submission that there is more than it meets the eye in this case. 25. That the circumstances as explained by PW1 & PW2 cannot therefore be relied upon alone to convict the accused in the face overwhelming medical evidence to the contrary. It is therefore, counsel’s humble submission that the inconsistencies or contradictions in the Prosecution evidence are substantial and fundamental to the main issues in question and thus it is apparent it creates doubts in the mind of the court that the Appellant ought to benefit from it. 26. Counsel for the Appellant cited the case of JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR), where the court held that: “ To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right 27. It was submitted that the conviction of the Appellant was not only unsafe owing to the fact that the evidence of the complainant was uncorroborated; but also, the trial magistrate failed to warn herself on the danger of acting on the uncorroborated testimony of the complainant minor; albeit the discrepancies in the complainant's testimony and the appellant's defence that the charges were framed against him owing to his broken intimate relationship with PW1. 28. It is the Appellant’s counsel submissions that the trial court erred by convicting the Appellant solely based on the minor victim without warning itself to the danger of doing so by recording reasons in the proceedings why the trial court was satisfied that the alleged victim was telling the truth. 29. In its judgment, the trial court in convicting the appellant held thus:“ The minor evidence on what the accused did was candid that he took his penis and inserted in her vagina. I choose to believe the victims evidence seeking solace in the provisions of the proviso to section 124 of the Evidence Act which allows the trial court to convict on the evidence of the victim alone, I say so as I am convinced on the facts before it that the victim has spoken the truth in regard to penetration." Sic 30. That looking at the words of the trial magistrate, they do not qualify to be a warning issued by the magistrate to herself or as to reasons why the trial magistrate was satisfied that the alleged victim was telling the truth but the words are a form of an affirmation by the magistrate. This contrary to the legal principle- governing uncorroborated evidence in sexual offences. 31. Reference was made to Section 124 of the Evidence Act: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim 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 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 5

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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." [Emphasis added] 32. Reliance was also placed on the Court of Appeal sitting in Mombasa in Sahali Omar vs. Republic [2017] eKLR was cited which held that: “ On the first issue, the appellant took issue with lack of corroboration of the complainants' evidence, which he said ran afoul of section 124 of the Evidence Act... The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short that even though the court is satisfied that the child is competent to tell the truth. their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto. the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim. provided the court first satisfies itself on reasons to be recorded. that the child is being truthful. 33. It was submitted that, the trial court erred in not considering the weight of the Appellant's evidence in his defence to the allegations. The Appellant's testimony was to the effect that prior to the accusations, the Appellant in the year 2021 was in an intimate relationship with the complainant's mother (PWI) and had planned to marry, however, the relationship turned sour and the two broke up after 7 months. It was the Appellant's testimony that, PWI had threatened to teach the Appellant a lesson. PWI promised the Appellant that he will never marry whilst PWI is alive. PWI during cross-examination confirmed that she had an intimate relation with the Appellant. 34. The trial magistrate therefore erred by dismissing the Appellant's defence that he was framed of the offence owing to an existing grudge between PW1 and the Appellant due to a botched up intimate relationship. 35. Counsel added that in a criminal trial where the sentence is so severe like in the present case, this evidence cannot be wished away as the trial court did. The trial court ought to have given a critical consideration of the evidence, which it failed to do. Consequently, the trial magistrate failed to appreciate the minor’s testimony was couched especially given the set of facts that the complainant had been defiled one day prior to going for medical examination and yet there was no broken hymen or injuries on the vagina making the set of facts unbelievable. Respondent’s submissions 36. 37. The Respondent submitted that to prove the offence of defilement the following ingredients must be met: a. Penetration b. Age of minority c. Identity of the accused On penetration it was submitted that PW2 is the complainant stated that on the said date the Appellant called her and she heeded to the call and went to his house. She states the Appellant closed her eyes, hands, legs and mouth. She stated that he then slept on her. He did “tabia mbaya” he did it here (points to her genitalia) it is called private part, he used “hiyo kitu yake”. It is called penis. PW2 stated that it was painful. She also passed by his house the following day and he did the same thing. She testifies that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 6

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the Appellant inserted his penis into her vagina. PWI indicates that on the said date, she was at home and she realised that the victim PW2 was limping when she came home. She questioned her but she kept quiet. She also noticed that PW2 changed her route when going to school. She questioned her but she kept quiet. After beating her and probing her, she decided to check her genitalia and saw she had been defiled. PW2 said she found blood in PW2 vagina. PW 2 told her that the Appellant defiled her on 15th and 16th . She told her that he called her to his house and tied her mouth, hands and legs and threatened to kill her and her mother if she told her. PW3 also testified that PW2 informed him that the Appellant had defiled her. 38. PW 4 was the medical doctor. He stated that upon examination from the P3 Form PExt. I his findings on the were that the external genitalia was normal, hymen was perforated which was old. The high vaginal swab showed she had pus cells, no spermatozoa seen. From the PRC Form PExt. 2 no injuries were noted on the body map and the external genitalia was normal with an old perforation. He explained that perforated means a wound that has healed with time and that it can be an indication of penetration. In cross examination he said that hymen cannot be intact if sexual intercourse took place. 39. PW2 indicates that the Appellant called her to his house. In a grotesque way, he tied her hands, feet, legs and covered her mouth and defiled her. She states that she felt pain, an indication that there was penetration. PW2 hymen was not intact and PW3 indicated that the perforation can be an indication of penetration. 40. The Respondent submitted that the evidence on penetration is proved. PW2 indicated that she felt pain when the Appellant inserted his penis into her vagina and her hymen was perforated. This is proof of penetration, which is thus solid. 41 In regards to age of minority, the Respondent submitted that PWI stated that PW2 was 8 years old and was born in February 2014. PW2 testified that she was 8 years old and was in grade 2. PW4 stated that the victim PW2 when examined was 8 years old. PW5 took the victim PW2 for an age assessment and according to the report she was 8 years old. The report was produced as PExt. 4. The evidence shows that the victim PW2 was 8 years as at the time of the incident. The age of minority was proved and solid. 42. On identity of the Appellant, the Respondent submitted that PW2 testified that she knew the Appellant as Mutua and that he worked at shop. She told her mother PWl, PW3 and PW5 that the Appellant was the perpetrator and defiled her. The Appellant was a person well known to her. PWI also knew the Appellant as Mutua and they had relationship together. Identification was by recognition which is the best form of identification. From the evidence on record the identity of the Appellant is proved and therefore solid. 43. On the Appellant’s defence, the Respondent submitted that the Appellant gave sworn evidence. He denied that he did not defile the victim PW2. He alleged that he had a dispute with the complainant's mother PWI as they had an intimate relationship and were planning to marry but he married another lady. He alleges that the child would visit him at his home. However, when he cross-examined PWI this issue of seeking revenge against him was not questioned. The Respondent submitted that the defence is an afterthought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 7

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C. Analysis 44. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appellate court which was well captured by the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where the Court stated thus: “ 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.” 45. 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 on behalf of the Parties. 46. I have also read the proceedings and judgment of the trial court. Having done so, I find that the main issue arising for my determination is whether the evidence adduced by the prosecution was sufficient to prove the charge of defilement preferred against the Appellant beyond any reasonable doubt. 47. On the first issue, the offence of defilement is created by Section 8 (1) as read with 8 (2) of the Sexual Offences Act No. 3 of 2006. Section 8 (1) provides as follows: “ (1) 48. 49. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The ingredients of the offence of defilement were reiterated by the High Court in the case of George Opondo Olunga Vs Republic [2016] eKLR, which are: i. Proof of age of the complainant to be below 18 years ii. Proof of penetration iii. Proof that the accused person was the perpetrator (identification). The question which needs to be answered is whether the above ingredients were proved to the required standards? Age of minority 50. It is not in dispute that the complainant (PW2) at the time of the commission of the offence was 8 years old as the same could be determined from the age assessment report; and the age of the complainant has not been a subject of the instant appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 8

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Penetration 51. On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows: “ The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 52. The Complainant PW2 testified that on15/5/2022 at 7.00a.m, she woke up and went to church, AIC Katisaa alone. While on the road, the Appellant called her and she heeded the call. She entered his house and went to the bed. The Appellant closed her eyes, hands, legs and mouth. He used a lesso to cover her face, mouth too. He tied her hands with a towel. She did not see what he used to tie her legs. He then removed her panty and slept on her. He did “tabia mbaya” using “hiyo kitu yake” which is penis. It was painful but PW2 did not scream as her mouth had been covered. The Appellant gave her a sweet after the incident and she went home where she found her mum outside the house. She did not tell her anything. She went to school on Monday. The Appellant told her to pass by his home. She passed by, and the Appellant did the same thing again. He inserted his penis in her vagina. She went home and at night her mum woke her up and told her to remove her clothes and lift her legs. The mother then told her that they would go to the police station. When her mum told her to remove clothes, she had a cane and a knife in her hands. She beat her with a cooking stick. She told her mum that Baba Riziki had done the bad manners. He is called Alex Mutua. She stated that at the hospital they were given documents which she identified by seeing her name on. 53. On cross-examination, PW2 admitted that they had talked about the case with her mum just once and her mum had asked her to tell the truth if she lied, she could be arrested or she be arrested. Her mum is very harsh and beat her a lot. Her mum had told her to say what she had told her. She confirmed that her mum had said she would beat her if she did not say what she wanted. She stated that the Appellant’s house is on a plot and that other neighbours were there but none of them saw her enter the house. She confirmed having gone to school on Monday and Tuesday and having told the head teacher about the incident. In re-examination she denied that her mum had told her to come and lie and what she said about the incident is what happened. 54. PW1, the victim’s mother testified that she was in the house and realised that PW1 had left for church alone. When she came back. she was limping and when she asked her what was wrong, she kept quiet and she left it at that. On 16/5/2022 PW2 went to school. She usually uses one route to school but on that day, she used a different route. She asked her why she changed route but she did not answer. She beat her but still she did not say anything. She was still limping. She inquired again on Wednesday night why she changed route, when she had warned her but she kept quiet. She decided to check her genetalia and she noted PW2 had been defiled. She checked the vagina and found it had blood and asked PW2 who had done that and she said it was Mutua who did it to her. PW1 stated that she knew the Appellant well as he was her boyfriend. She reported the incident to the police station and took PW2 to hospital where a P3 Form and PRC were filled. 55. On cross-examination, PW2 stated that she did not know how to write and that the police recorded the statement for her and read it over to her. She did not record the aspect of limping in her statement. PW2 did not tell any teacher about the incident. She admitted to having beaten PW2. That she didn’t know the Appellant’s Christian name when she recorded her statement. She only knew him as Mutua. She admitted to have been in an intimate relation with him and they parted in February 2022. She again changed and stated that her statement was not read over to her. She saw the medical documents but did not read them. She denied framing the Appellant. She denied beating PW2 to lie. She also stated at https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 9

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page 10 line 9 and 10 of the record of proceedings that she saw PW2 enter the Appellant’s house. She admitted that she did not say in her statement that PW2 showered and washed herself as instructed by the Appellant and that PW2 was showered by the Appellant. 56. On re-examination, PW1 stated that PW2 found her at home asleep when she returned from church and she went out but when she came back, PW1 was outside. 57. PW4: Dr. John Mutunga testified that he was attached to Machakos Level 5 hospital. He had and produced in evidence a P3 Form in respect of PW2 then aged 8 years old. PW2 went to the hospital with history of defilement by a person known to her on 15/05/2022. His findings upon examination were, external genitalia was normal, hymen was perforated which was old. He took samples to the laboratory for investigation, a high vaginal swab showed she had pus cells, no spermatozoa were seen, a test done for pregnancy, HIV was negative. He tested syphilis which was negative. The victim was calm at the time. The doctor’s opinion at page 23 line 15-18 of the proceedings is that no indication indicates that defilement took place. These are common observations in children. Hymen being perforated means a wound that has healed with time. It can be an indication of penetration. 58. On cross examination, PW4 stated that according to investigations they did not see evidence of penetration. An old perforated hymen, means a week and above. The hymen block entrance to high vaginal wall. The hymen cannot be intact if sexual intercourse took place. Upon examination, there was no blood or discharge noted. 59. I have considered the evidence on record touching on the ingredient of penetration in the circumstances of this case. I have observed that the key witnesses that addressed this ingredient were the complainant PW2, her mother PW1 and the Doctor PW4. I have also been able to identify and thoroughly analysed the testimonies of the 3 witnesses and I agree with the Appellant’s counsel that the said prosecution witnesses gave vastly contradicting accounts of what happened on the 15th and 17th of May 2022 in both their statements and in their testimony during trial leaving a lot of to be desired. For instance:PW2 testified that she went home where she found PW1, her mum outside the house whereas the Mother PW1 testified that PW2 found her asleep when she came from church.PW2 testified that she told the head teacher of the incident whereas her mother denied that PW2 told any teacher about it.PW1 testified that she saw PW2 enter the Appellant’s house whereas PW2 testified that while on the road to church the Appellant called her and she heeded the call and entered the Appellant’s house.PW2 testified that the Appellant closed her eyes, hands and legs and mouth with a lesso to cover her face, mouth too. He tied her hands with a towel. She did not see what he used to tie her legs. He then removed her panty and slept on her. He did “tabia mbaya” using “hiyo kitu yake” which is penis. What this court is struggling to understand is how the Appellant removed PW2’s panty and penetrated her vagina with her legs tied.PWI knew of the defilement on 17/5/2022 when she noticed blood from PW2’s vagina and reported to the police on the morning of 18/5/2025 and on the same day they visited the hospital where upon medical examination, there was no evidence of penetration and there was no blood in PW2’s vagina.Why didn’t PW1 fail to record the vital aspect of limping of PW2 in her statement considering that this is what led her to suspect the alleged defilement.PW1 stated that PW2 showered and washed as instructed by the Appellant and at the same time she contradicts herself by stating that PW2 was showered by the Appellant.Why did PW1 wake up PW2 and tell her to remove her clothes and lift up her legs and later tell her they would go to the police station. Why did PW1 decide to check PW2’s genetalia in the first instance instead of any other part like the leg, toes, knee. At this time PW1 had a cane and knife in her hands.PW2 stated that she did not know how to write and that the police recorded the statement for her and read it over to her before she signed it but again, she changes her testimony and states that the statement was not read over to her.How could https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 10

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PW1 fail to know the Christian name of the Appellant, someone she had been in intimate relationship with for a while.Why had PW1 warned PW2 not to use a particular route? 60. The most critical evidence on the alleged penetration herein is the Doctor’s (PW4’s) opinion at page 23 line 15-18 of the proceedings where the Doctor stated that: “ no indication indicates that defilement took place. These are common observations in children. Hymen being perforated means a wound that has healed with time. It can be an indication of penetration. .. according to investigations we did not see evidence of penetration. An old perforated hymen, means a week and above.” 61. It is clear from the above evidence of the Doctor, PW4, that according to investigations they did not see evidence of penetration on the complainant. A perforated hymen, means a week and above. In this matter the incident is said to have occurred on 15 and 16th May 2022 whereas PW2 was examined on 18/5/2022 which was 4 days after and thus less that a week and above. 62. The big question here is, why would the complainant be believed that the Appellant defiled her on 15/5/2022 and 16/05/2022 when she kept this information to herself until when she was confronted by her mother PW1 who had a cane and knife and beat her to force information on the alleged defilement? The evidence of the Doctor (PW4) would have corroborated her evidence that indeed the Appellant defiled her on the material date yet the said Doctor refuted that penetration took place. Without the doctor’s evidence corroborating the complainant’s, there was no reason for the trial court to believe the evidence of the complainant that she was telling the truth that the Appellant defiled her on 15th and 16th May 2022. 63. Further, was there any truth in the complainant when she alleged to have reported the incident to her head teacher? How come, the head teacher did not take action on such a serious report? I find that the trial magistrate did not give sufficient reasons for believing the evidence of the complainant that the Appellant defiled her on the material days. Accordingly, penetration was not proved beyond reasonable doubt. Identiffcation of the Appellant as the perpetrator 64. PW2 testified that she knew the Appellant as Mutua and that he worked at a shop. She told her mother PWl, PW3 and PW5 that the Appellant was the perpetrator and defiled her. The Appellant was a person well known to her. PWI also knew the Appellant as Mutua and they had relationship together. Identification was by recognition which is the best form of identification. However, having found that penetration never took place as confirmed by the Doctor, then the Appellant cannot be identified as the perpetrator in the circumstances of this case. The ingredient of identity was not proved. 65. On the whole I find that the trial court failed to consider the effect of the inconsistent on the overall evidence in the case whereby the conviction and sentence of the Appellant was unsafe. D. Disposition 66. In view of the foregoing, I find that there was no sufficient evidence for convicting the Appellant for the offence of defilement. The appeal herein is upheld. The conviction of the Appellant is hereby quashed and the sentence of 30 years imprisonment imposed on him set aside. 67. The appellant is set at liberty forthwith unless otherwise lawfully held. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 11

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JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH JUNE 2025 In the presence of: In person..... for Appellant Ms Agatha.................. for Respondent Milly.......... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14367/eng@2025-06-18 12

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