Peter Kyau Maingi v Republic

the vagina of TMM (name withhold) a child aged 5 years in violation of Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. 4. In the alternative he was charged with the offence of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 14th day of October 2019 in Mumbuni Location Machakos Sub-county within Machakos County intentionally touched the vagina of TMM (name withheld) a child aged 5 years with his penis contrary to Section 1 1(1) of the Sexual Offences Act No. 3 of 2006. 5. The Appellant pleaded not guilty to the main charges and the alternative charge and the matter was set down for hearing. The prosecution called eight (8) witnesses in proving its case. The Appellant was convicted on both counts of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced serve 40 years imprisonment for each count on 14th December 2023 and the sentences were to run concurrently. B. Petition of Appeal 6. 7. 8. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds; i. That the learned trial magistrate erred in both fact ad law by convicting on evidence that didn't meet the minimum threshold to uphold a conviction. ii. That the learned trial magistrate erred in both fact and law by not considering his sworn defence The Appellant has through his submission amended his Petition of appeal and raised the following grounds of appeal: i. That the trial court infringed his fundamental rights. ii. That the learned magistrate erred in law and fact in convicting and sentencing him yet the case replete with contradictions and inconsistencies. iii. That the learned magistrate erred in law and fact by convicting and sentencing him yet the witnesses were incredible. iv. That the medical evidence relied upon are contradictory and unprocedurally before the court hence inadmissible. v. That, key ingredients of the offence were not proved. vi. That, the sentence is harsh and excessive The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 28th April 2025 and his rebuttal submissions are dated 5th June 2025 while the Respondent’s submissions are dated on 16th May 2025 filed by Ms. Agatha Abang, prosecution counsel. C. Parties’ Submissions Appellant’s submissions 9. The Appellant submits that he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. He was charged with two counts that on the 14th day of October 2019 in Mumbuni Location Machakos county, he intentionally and unlawfully caused my penis to penetrate the vaginas of EMM and TMM children aged 5 years which is defilement contrary to Section 8(1) as read with section 8(2) of the Sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 2

page 2 of 22

Offences Act No 3 of 2006.1n the alternative, it is alleged that on the same date and place, he touched the vaginas of the said girls with my penis which is an indecent act with a child contrary to section 11(1) of the aforementioned act. 10. That the prosecution marshalled a total of eight witnesses in a bid to prove its case. In his defence, he stated that on 18/10/2019, he was approached by two people who informed him that he was needed in a local primary school. He readily went with them in the hope that the school head teacher was going to pay him for shoes he had sold to him. When they got to the school, he got a rude shock when the said teacher indicated that he should be tied as he accused him of having defiled the two girls. He was taken to the police station and charged with the offences herein. 11. The Appellant submitted that the trial court however found him guilty and sentenced him to 40 years imprisonment in the two main counts and that it is on these convictions and sentences that he is appealing against. The Appellant submitted under various grounds as follows: That his Constitutional rights were infringed 12. 13. The Appellant averred that the trial infringed his fundamental rights as enshrined in the constitution. First and foremost, he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. This is a duration of one week and that this offends Article 49(f) of the Constitution of Kenya, 2010 which provides for an accused person to be brought before a court as soon as reasonably possible but not later than; i. Twenty-four hours after being arrested or ii. If the twenty-four hours ends outside ordinary court hours, or a day that is not an ordinary court day, the end of the next court day. The Appellant submits that this case had two complainants; TMM and EMM. TMM testified on 23/01/2020 a whole three months after his arrest. On the same date EMM was also to testify and was in court for the same. But the prosecution noted that TMM'S testimony was not enough to send somebody to the gallows, they decided not bring EMM in order to prepare, her properly. He has referred the court at page 9 of the trial court’s proceedings which shows as follows: Prosecutor: The other child has been availed but she does not look well. She has fewer. (sic). Order: The child does not look well and is fearing. Matter is adjourned to 6/2/2020. 14. The Appellant questions how the prosecutor knew that the child had fever. That the prosecutor asked for adjournment on the account that the child had fever but the court proceeded and granted the adjournment on account that the child was fearing. 15. The Appellant asserts that the fear and fever persisted and the child could not be brought to court until three years later when she came to testify on 07/03/2022. That all these delays offended Article 47(1), 49(1) and 50(2)(e) of the Constitution of Kenya 2010. 16. The Appellant cited Article 50(2) of the Constitution which stipulates thus: “ Every accused person has right to a fair trial, which includes the right;e) 17. to have the trial begin and conclude without unreasonable delay. The Appellant claims that it took the prosecution three years to deal with this fear and fever. This delay is unreasonable and was not explained https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 3

page 3 of 22

The Appellant drew the court’s attention to Criminal Appeal No 120 Of 2004 Albanus Mwasia Mutua eKLR where it was held that: “ At the end of the day, it is the duty of the courts to enforce the provisions of the constitution, otherwise there would be no reason for having those provisions in the first place. The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right would normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. " 18. The Appellant contended that the violations he has cited above are all unexplained and somewhat inexcusable. He implored the court to agree with the reasoning above and acquit him. 2.There were contradictions and inconsistences in the prosecutions evidence: 19. On this ground, the Appellant submits that this case is replete with incurable contradictions and inconsistencies. That PW1, TMM, opened her examination in chief by saying; "Nobody has ever done anything wrong to me.". He refers at Page 7 of the trial court’s proceedings. 20. The Appellants contends that “Nobody” here includes him. Most importantly the statement confirms that the allegations herein are not true. That being defiled is something wrong and if the child says nobody has ever done anything wrong to me is tantamount to saying that nobody has ever defiled her. 21. That after some prompting, she says; "That person did bad manners to me (points at accused). When I and E are going to school, he would call us to his house and do bad manners”. She confirms at page 8 of the trial court’s proceedings that; "He would use his hand to do bad manners to us here (points at vagina). .. I did not see what he was using to do bad manners to me. He was using ile kitu ya kushika na mkono. 22. The Appellant referred to a book titled Sexual Offences Act No 3 Of 2006 The Prosecutors's Manual vague and ambiguous terms such as "alinifanya tabia mbaya" are frowned at and are inadmissible. This is exactly what PW I used. He did "bad manners." is anything that is not good and is prone to myriad interpretations. 23. Secondly, PWI says she did not see what was used to do bad manners to her. It is erroneous for one to believe that this thing that the complainant did not see is penis. That aside the girl is categorical at page 8 that; "He would use his hand to do bad manners to us here (points at vagina). " 24. The Appellant asserts that the above statement leads to important observations;"He would use his hands to do bad manners to us" means that the charge sheets were defective. The explanation given by PW1 removes the offence from defilement to sexual assault.That the Appellant ought to have been charged under Section 5 of the sexual offences Act and not Section 8."...to us" means both TMM and EMM. For EMM to come three years later to give a different version means that she is not telling the truth. 25. That PW2 MM, grandmother to TMM testified (from pages 27-30 of the proceedings). It was her testimony at page 28 that on 14/10/2019 at 3:00 p.m. while she was cleaning, a coin dropped and her granddaughter came very fast. That the following day while trying to wash her, she was in so much pain. This is not true going by what her granddaughter says at page 8 that; "I did not tell shosho because she knew" https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 4

page 4 of 22

26. The Appellant’s questions when she knew. What she did about it. Why she decided to take action Eat this time and not earlier. 27. That TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.” while her grandmother said (at page 28) that; "they said they had been given 10/=four times. " 28. The Appellant believes that this means that this was not the first time and questions when does somebody experience excruciating pain; during the first or the fourth time? 29. The Appellant submits that the medical reports indicate that both TMM and EMM had their hymen completely raptured something that could only be occasioned by full penetration. That this allegation cannot be true because:A five-year-old defiled by a 21-year-old man must bleed because the hymen being a living membrane, must bleed when raptured. That the TMM and EMM did not bleed is the surest proof that what is said here did not take place.A five-year-old penetrated by an adult, apart from bleeding, will be rendered immobile but if she is lucky to walk, then she would walk with lots of difficulty and in an unfamiliar gait. The fact that both TMM and EMM never walked in an unfamiliar gait or could not walk at all, is another proof that the allegations herein did not take place.Had TMM and EMM bled and walked in unfamiliar gait then the same would have been noticed by their respective grandmothers. The Appellant poses to ask, but even if it is assumed that the grandmothers were naive, what about neighbours, fellow pupils, teachers and playmates? Were all these equally naive? Why didn't they notice this? The truth is that they could not notice as Ethere was nothing to be noticed because nothing happened. 30. The Appellant submits that PW2 MM testified (at page 28 of the Proceedings) that having noted that the child was in pain when she tried to wash her; she tried to interrogate her but in vain. She decided to report to the school to interrogate her. She found the class teacher but because the head teacher was not in, she went back home and went back to school on 18/10/2019. 31. The Appellant finds this to be abnormal as there were teachers in school including the class teacher who under normal circumstances is closer to the child compared to other teachers. The Appellant questions why couldn't PW2 discuss this with any other teacher instead of waiting for the Head teacher. He further, argues that sensitive cases involving female pupils are usually handled by female teachers and again questions why PW2 would just wait for the Headteacher who is a male yet there were many female teachers in the school including the class teacher. To the Appellant, this fortifies his assertion that the head teacher colluded with these grannies to implicate him in this case so as not to pay his debt. 32. The Appellant submits that PWI, TMM testified that they were defiled on the "mud floor" (at page 7 of the proceedings) but EMM the other complainant testified they were made to lie on bed. (at page 37 of the proceedings). That PW1, TMM testified (at page 7 of the proceedings) that; "He did bad manners to both of us three times.”, but PW3 her friend in her testimony talked of one single date 14/10/2019 while TMM'S grandmother talked of four times. 33. The Appellant submitted that his name is Peter Kyau Maingi with no alias. PW3 testifies (at page 36 of the proceedings) that; "We were Egoing to school with my friend Angel. Yohanna held us. He did tabia mbaya to us. " The Appellant argues that the above is very significant. It shows that PW3 knows the perpetrator herein by name and he is called Yohanna. This also lends credence to what PW1 said that she did not report to her grandmother because she knew. From PW3's testimony it is clear that these two grannies are protecting the real perpetrator herein and implicating him https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 5

page 5 of 22

34. The Appellant further submits that PW3 also testified that immediately after being defiled on 14/10/2019 she went to school and told the head teacher. He questions what action the head teacher took and why he had to wait till 18/10/2019 for the grandmother to come to school for him to act. He wonders whether the head teacher has any connection with Yohanna for him to protect him and implicate the Appellant. 35. PW4, RMW, EMM's grandmother in her testimony which runs from pages 38 to 40 of the proceedings, testified that on 14/10/2019 she woke up in the morning and heard MM (PW2) a neighbour calling her. PW4 asked her if she knew what her grandchild was going through. PW2 informed her (granny) that there is a boy who takes the children to his house defiles them and then gives them Kshs.10/=. She said she would investigate. 36. The Appellant asserts that this is not possible because in PW2’s own testimony, the shilling dropped on 14/10/2019 at 3:00 p.m. when she was cleaning. The following day (15/10/2019) when she was trying to bath PW1, she felt pain. She interrogated her but nothing came out. She took her to school but did not make any report because the head teacher was not in. She went back on 18/10/2019 and that is when she knew about the defilement. How could she report the defilement issue to PW4 four days before she knew of the same. The Appellant submits that this is a serious pointer to the existence of a frame up between PW2 and the head teacher, that's why she could not deal with any other teacher. 37. The Appellant submitted that PW4 RM said she told PW2 that she would investigate. The Appellant’s questions whether she ever investigated and what her findings was and why did she wait until 18/10/2019 when she was called by the school. 38. Again, the Appellant submits that the details of arrest as narrated by PW5 and PW6 do not agree. PW5 Charles Kasyoka says at page 41 that they did not go to the Appellant’s place with the kids while his colleague PW6 Robert Mbau testified (at pages 42-43 of the proceedings) that they went with the two children to the Appellant’s place and the children pointed at the Appellant. It is also PW6’s testimony that at the headmaster's office, they found four children who had allegedly been defiled. "At school I found 4 children and the parents while in the head teacher's office. " 39. The Appellant questions what happened to the other two children or their parents Could they have refused to play ball? That this is confirmed by PW2 (at page 28 of the proceedings): "The head teacher entered the accused's home. The children Marion and Terry said they are always put in that house?. Where did Marion and the other girl disappear to? Why did the head teacher have to come to the Appellant’s place yet the community policing guys had been called? The Appellant believes this was so because the headteacher had a personal stake in this case. 40. The Appellant submits further the charge sheet records the date of incident as 14/10/2019 but the investigating officer testified (at page 64 of the proceedings) that a report was made on 08/10/2019. It is also her testimony that this is the day the Appellant was arrested. The Appellant submits that it then means that these allegations took place when he was in custody and there is no way he could have been involved in them. He sees this as another proof of frame-up. 41. The Appellant cited the case of Bakare Vs. State (1987) 1 NWLR (PT 52) 579 on proof beyond reasonable doubt which states thus; “ .....but it does admit of a degree of cogency consistent with an equally high degree of probability" https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 6

page 6 of 22

42. The Appellant submitted that the listed contradictions and inconsistencies are the direct opposite of the above. They push cogency and probability to their lowest degree if not making them non-existent altogether. 43. The Appellant also referred to MTG V Republic (Criminal Appeal E067 OF 2021 [20221 KEHC 189 (KLR) (15TH March 2022) Judgment that: “ Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. " 44. The Appellant drew the court’s attention to Section 111(1) Of The Evidence Act which states: “ Provided further that the person accused shall be entitled to be acquitted of the offence which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused in respect of the offence. " 45. The Appellant invited the court to have a look at Criminal Appeal No 76 Of 2012 Philip Muiruri Vs Republic where the Court Of Appeal stated that; “ To give the 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 doubt in a prudent mind about the guilt of accused is sufficient. The accused's entitlement to the benefit of doubt is not a matter of grace and concession but a matter of right. An accused person is the most favoured child of the law and every benefit of doubt goes to him. " Credibility of witnesses46. On this ground, the Appellant submitted that, the fact that the colossal number of contradictions and inconsistencies discussed in ground 2 above emanate from the witnesses is an attestation to their unreliability, untrustworthiness and unbelievability. To this end the Appellant sought to have the arguments advanced in ground 2 to be adopted as supportive of ground 3 as well. 47. The Appellant invited this court to also look at the decision in Kimani Ndung'u Vs. Republic [19791 KLR 282 where the Court of Appeal stated; “ The witness whose evidence is proposed to rely should not create an impression in the mind of the court that he/she is not a straight forward person or raise suspicion about his/her trustworthiness or do or say something which indicates that he/she is a person of doubtful integrity and therefore unreliable which makes it unsafe to accept his/her evidence. " 48. Reliance was also placed on Criminal Appeal No. 59 Of 2011 Henry And Manning V. Republic where it was held that: “ It has been said again and again that in cases of alleged sexual offences, it is really dangerous to convict on the evidence of the Woman or Girl. It is dangerous because human experience has shown that girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes for no reasons at all. " https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 7

page 7 of 22

49. The Applicant holds that in this; the children and their grandmothers were used by the headteacher to implicate him in the case. Medical documents50. On this ground, the Appellant submits that the medical documents relied on herein are questionable and inadmissible. That Medical evidence is expert evidence and should be devoid of any bias and subjectivism. A medical officer can only prove that there was penetration but there is no test that accurately gives the cause and weapon of penetration. But in this case the presenter comfortably said "penis". 51. The Appellant submits that the medical evidence corroborates the complainant's testimony only if it establishes a scientific nexus between an accused person and the offence. These ones do not. 52. The Appellant submits that the medical documents were tabled in court by the two grandmothers PW2 and PW4. PW2 at page 29 and PW4 at page 39. This makes them inadmissible as the two grannies are not medics. In a bid to rectify this, the prosecution brought in PW7 Dr Kirisha Edmond but this did not help as he himself is not the author of the said documents. Reliance was placed on the case of Lonjerat Leura Dira Vs. Republic (2008) eKLR where it was held that: “ Even if we turn a blind eye to this obviously conjured up evidence and accept that indeed PW1 was assaulted, we would still have a problem of convicting the appellant on the charge of assault. Reason; the P3 form was tendered in evidence in contravention of the law under Section 77 of the Evidence Act. A document purporting to be a report under the hand of a government Analyst, medical practitioner etc. upon any person, matter or thing submitted to him for examination or analysis can be tendered by any other person other than the maker. However, before such a person can be allowed to do so, the trial court is obliged to inform the accused of his right to insist that the maker be called for cross-examination on the document... in the instant case the learned magistrate without taking the trouble to informing the appellant of this aforesaid rights merely acceded to the application by the prosecutor to have Pw3, the investigating officer produce the P3 under Section 77 of the Evidence Act. This was misdirection in law and was prejudicial to the appellant. That being the case the evidence of P3 form must be disregarded. Such evidence having been disregarded there is no other evidence upon which the offence of the assault can be founded. " 53. The Appellant submits that the above is an exact replica of this case and technically expunges the PRC and P3 Form. 54. The Applicant cited the case of James Bani Munyonis Vs. Republic (2010) eKLR where the court was faced with a similar situation such as obtains in this instance where a doctor called just told the trial court that he was familiar with the handwriting of the author of a medical report. Justice Sergon had this to say: “ It is not enough for a witness to state that he is familiar with the handwriting of a particular witness. The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond the prosecution 's control. " 55. The Appellant submits that the medical documents used in this case, apart from being contradictory, are unprocedurally before the court and ought to be expunged forthwith. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 8

page 8 of 22

Ingredients of the ofience not proved56. On this ground, the Appellant submits that the ingredients that ought to be proved in a defilement case are penetration, identification and age. 57. That on penetration, the evidence relied upon by the courts to prove penetration is the complainant's testimony which is usually corroborated by the medical evidence presented by the medical officer. He argues that ground 4 has rendered the medical evidence contradictory, unprocedural and therefore inadmissible. 58. The Appellant submits that, PW1 testified that what was done to them was bad manners and it was done using the hand which effectively transfers this case from defilement to sexual assault- from Section 8 to Section 5 of the sexual offences Act No.3 of 2006. 59. That PW6 testified that there was penetration because the hymen was missing. The Appellant cited the Court of Appeal case in David Mwingiria Vs Republic [2017] eKLR, where Maraga and Rawal (JJA) as they were then held thus; “ In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is 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 the 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 Vs Manuel Vincent Quintanila [1999] AB QB 769." 60. The Appellant submits that the above displaces the testimony of PW6 which the trial magistrate heavily relied on. 61. The Appellant maintained that no five-year-old would be penetrated and her hymen gets completely raptured but does not bleed, walks normally and the guardians, neighbours, playmates, pupils and teachers fail to notice. 62. That the medical report says that there was penile penetration but does not say by who. The fact that the Appellant was not examined by Machakos Level 5 Hospital means that there is no credible evidence whatsoever pointing the court to the direction that he indeed committed the offence. 63. Reference was made to Criminal Appeal No 155 Of 2011 At Kisumu in a defilement case such as this where Omollo, Githinji and Onyang Otieno held that: “ Corroboration in law is evidence to show not only that an offence was committed but also the identity of the person who committed the offence. " 64. Lastly the Appellant submitted that PW3, EMM stated that the person who did bad manners to them is called Yohanna yet he is Peter Kyau Maingi with no alias name. The Appellant submits that penetration was not proved. 65. On identification, the Appellant submits that the learned magistrate found that the victims identified him because he was a neighbour. That this is true and it stops at that; The Appellant admitted that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 9

page 9 of 22

he was a neighbour whom they had been coached to implicate. The surest proof that he was not the perpetrator herein came from PW4 when she said that it is Yohanna who had been doing bad manners to them. The Appellant denied that he was Yohanna and that he was being forced to carry Yohanna's cross. 66. The Appellant relied on the case of Njoroge Vs Republic (1987) KLR 19 the court of appeal stated that: “ Dock identification is worthless. The court should not rely on dock identification. A witness should be asked description of the accused and the prosecution should then arrange a fair identification parade. " 67. That in as much as the above did not take place in his case it remains dock identification which the court says is worthless. 68. Also relied upon was the case of Roria Vs Republic Ea 583 At Page 584 where the Court of Appeal remarked: “ In the present case the learned trial Judge thought Samaji an honest witness. We do not quarrel with the assessment of her honesty but a witness may be honest yet mistaken and excluding the possibility of a mistake on her part, the learned judge, with respect, erred in our view. " 69. The Appellant submits that it is said that recognition is stronger than identification. That may be so but an honest recognition yet mistaken. The question the Appellant pose therefore is; are there reasons pointing to the fact that the complainants could have been mistake. The Appellant answers in affirmative and adds that it includes but not limited to what PW3 said at page 36 of the proceedings that; "We were going to school with my friend Angel. Yohanna held us .... He did tabia mbaya to us. " 70. The Appellant repeats that his name is Peter Kyau Maingi with no alias and that Yohanna should be brought to carry his cross. Sentence71. The Appellant submitted that the sentences meted herein are harsh, excessive and somewhat illegal. To begin with, he states that he was sentenced for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the sexual offences act yet the complainant's testimonies point to sexual assault contrary to Section 5 of the aforementioned act. Secondly, the Appellant submits that the learned magistrate stated that he would have given a life sentence but declined to do so because life sentence was declared unconstitutional. 72. The Appellant cited Criminal Appeal No. 22 Of 2018 At Kisumu where the Court of Appeal held that life sentence does not mean the entire life of a convict but that it translates to 30 years imprisonment. It is therefore contradictory for the learned magistrate to have said that he did not give the Appellant life sentence because of its unconstitutional and then went ahead to give him a sentence that was way beyond the thirty years recommended by the Court of Appeal. The Appellant submitted that applying the principle of stare decisis, he ought to have been given a sentence that is far much below the thirty years declared by the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 10

page 10 of 22

73. The Appellant also cited the case of State Vs Holder 1979(2) Sa And S Vs Rabic 1975(4) SA885 (A) where the court stated; “ Punishment should befit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances" 74. Further in S V Scott-crossley [20081 (1) SACR 223 (SCA) at paragraph 35 it states; “ Plainly any sentence imposed must have deterrent and retributive force. But of course, one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter even the overriding ones" It continues "It is true that it is in the interest of justice that crime should be punished. However, the punishment that is excessive serves neither the interests of justice nor those of the society”. 75. The Appellant submitted that he was still young and prayed that this court does give him an opportunity to go pick the remaining pieces of his life and move on. 76. In conclusion, the Appellant submitted that there was no direct, cogent, convincing and compelling evidence to warrant the trial court to convict him and that the charge sheet and the complainants’ testimonies are at variance making conviction and sentence defective and with no legal force. Prosecution’s submissions 77. The Respondent submits that the Appellant relies on Section 350 (2)(v) of the Criminal Procedure Code to amend the ground of appeal. In reading the provisions of Section 350 (2)(v) it provides that:”notice in writing of an application for leave to amend a petition of appeal shall be given to the Registrar of the High Court and to the Attorney-General not less than three clear days, or such shorter period as the High Court may in any particular case allow, before the application is made; and an application for leave to amend a petition of appeal shall be made either at the hearing of the appeal or, if made previously, by way of motion in open court”. 78. The Respondent submits that the Appellant did not make his application before the court for the said amended grounds of appeal before he went ahead to address them in his submissions. It is submitted that the Court should not consider the said grounds of appeal in the submissions dated 28th April 2025 and consider those mentioned in the undated memorandum of appeal. 79. Be that as it may, the Respondent submits that having read the grounds of appeal and the Appellant's submissions dated 28th April 2025, it opposes the instant appeal. The Respondent submits that the trial court properly evaluated the evidence and came to the right conclusion. The Respondent submitted on each of the Appellants grounds raised in his submissions as follows; 80. On infringement of the Appellant’s rights, the Respondent submits that the Appellant contends that his rights under Article 49(f) of the constitution were violated. He submits that he was arrested on 18/10/2019 and arraigned in court on 25/10/2019. He thereafter submits that the 1st complainant PWI testified 3 months after he was arraigned in court. He then submits that PW3 who was present in court did not testify as was mentioned in page 9 of the proceedings due to illness. The Appellant states that the Prosecution sought time to prepare the witness properly and infers that the prosecution seems to have made up the child had a fever. He then contends that the said complainant testified three years later and the delay offended article 47(1), 49(10 and 50(2)(e) of the Constitution of Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 11

page 11 of 22

89. The Respondent in response, submit that article 49 relates to the rights of an arrested person. These rights relate to the rights that need to be observed when the Appellant was arrested and ensure that the rights are observed. They have no provision that relates to the trial of the matter. Article 50 of the Constitution is what discusses the right to a fair trial. The Appellant is misplaced and indicating that Article 49 was violated by a delay of the matter. 90. The Respondent submitted that PW1 testified within good time of the matter being registered in court. The Appellant should be aware that the two complainants were girls of the tender age of 5 years old. The Appellant would not be correct to indicate that the prosecutor lied that the child was sick. It would not be proper to have a child of tender years testify while sick. The witness was in court as stated in the proceedings and the trial court did also have a chance to see the child and as well the concluded that the child looked fevering. The wordings on page 9 are: Prosecutor: the other child has been availed hut she does not look well. She has fewer. Order: the child does not look well and is fearing. matter adjourned to 6/2/2020. 91. That the wording has been misspelled could be during typing. The Respondent invites this court to look at the original handwritten proceedings to confirm the correct wordings. That be that as it may, both the prosecutor and the trial court noted that the child was not looking well, was sick and thus could not have the said child testify. On this said date two witnesses testified and thus it cannot be said that the prosecutor was not ready to proceed. The next date was set for 6/2/2020. 92. Further, the Respondent invites the court to take judicial notice that the country and the world over was hit with the covid 19 pandemic which disrupted the nation let alone court proceedings in the whole of Kenya. This was beyond the prosecution's control thus the matter delayed due to this. The court was invited to read through the proceedings and note the delay was beyond the Prosecutions control due to the pandemic and the myriads of challenges faced to conduct proceedings virtually at the time. The Respondent submits that the Appellant never raised this issue during trial and the same is an afterthought and that this court should dismiss this ground of appeal. 93. On contradictions and inconsistences, the Respondent submits that, the Appellant indicates that the witness evidence has contradictions and inconsistencies and he makes various references to isolated statements made by the witness PW1. 94. The Respondent invites this court to read the testimony of the said witness PWI in whole. The Respondent submits that the witness was 5 years old when she testified. She was able to identify the Appellant, she was able to state what the Appellant did to her and she was able to point out the private parts in the language she understood. The prosecutor made good to ensure that the witness, who was 5 years old, was able to explain to the court what she means by touching her private parts, pointing at them and calling them by the name she knows. She later went ahead to explain what she meant when she said "alinifanyia tabia mbaya ". That the trial court and the prosecutor considered the age of the witness and made her explain what she meant. Therefore, the evidence of PW1 was water tight and was further corroborated by PW3 and other witnesses. 95. The Respondent further submits that PW1 and PW3 were children and testified when they were still children. It is worthy to note that PW3 testified 3 years later and was able to vividly remember her evidence and was still emotional and teary when she remembered the said events. That the Appellant contends that the head teacher implicated him to the case whereas the Appellant did not mention this aspect during cross examination of the case. Further, the PW2, PW4, PW5 and PW6 indicated they had no grudge or dispute with the Appellant and had no reason to implicate him in any case. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 12

page 12 of 22

victims were 5 years old and they did not and could not have had a grudge against the Appellant. If the Appellant can infer that the evidence of the witnesses was contradictory thus nothing happened, the medical evidence proves the victims were defiled and the victims positively identified the Appellant as their perpetrator. 96. The Respondent cited Section 382 of the Criminal Procedure Code states that: “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge. proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularly has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard 10 the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 97. The Respondent referred to the case of Muli v Republic (Criminal Appeal E043 of 2022) [2023/ KEIIC 20868 (KLR) in quoting several authorities stated: In MW v Republic [2019] eKLR, the court staled that: “ The law as regards the issues of contradictions and discrepancies is very crystal clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. 98. Similarly, in the case of Philip Nzaka Watu v Republic (2016) CR APP 29 of 2015, the stated as follows: “ The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. 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.” 99. Again, the Court, in Joseph Maina Mwangi versus Republic Criminal Appeal No. 73 of 1993, held, inter alia, that: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 13

page 13 of 22

viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences 100. The Court of Appeal decision in Erick Onyango Odeng' v. Republic [2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of 2001, [2003] UGCA, 6 in which it was held as follows: With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case” “ 111. The Respondent submitted that the role of this court is to be in the shoes of the Trial Court in evaluating, assessing and reconciling the evidence and to determine whether the said contradictions, discrepancies and or inconsistencies are prejudicial to the Appellant. 112. That according to Black's Law Dictionary 2nd Edition, contradiction means: In practice. To disprove. To prove a fact contrary to what has been asserted by a witness. 113. Reference was made to the Court of Appeal of Nigeria in the case of David Ojeabuo vs Federal Republic of Nigeria {2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA. where the court stated as follows: “ Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has staled and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains. Pursuant to the above decisions this court shall consider and determine on the above issue. The Counsel for the Appellant submitted that the prosecution case was riddled with material contradictions, discrepancies and inconsistencies that go to the core and root of this case as they concern material facts relating to the case. Counsel poked holes on the absence of the siblings of the victim child as witnesses made the evidence less watertight to convict. It was submitted that Sebastian was not called to testify and so was S and D, according to the Counsel these witnesses could give the evidence of PWl, PW2 and PW3 more weight to conclude that the Appellant was perpetrator in this case”. 114. The Respondent submits that there were no contradictions nor inconsistencies and even if they were there, they are minor and do not go to the root of the prosecution case hence this court should ignore them. The minor inconsistencies (if any) were satisfactorily explained and this shows that the prosecution witnesses were truthful. Further the contradictions, discrepancies and inconsistencies (if any) are not prejudicial to the Appellant. 115. On credibility of witnesses’ medical documents and ingredients of the offence not proved, the Respondent opted to submit on ground 3, 4 & 5 under this heading. 116. The Respondent submitted on the critical ingredients forming the offence of defilement which are age of the complainant, proof of penetration and positive identification of the assailant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 14

page 14 of 22

117. On penetration, the Respondent submitted that PW1 gave unsworn evidence and stated that she knew PW3 who is her best friend. She stated that she and PW3 were going to school when the Appellant would call them and take them to his house and do bad manners to them. That PWI stated that the Appellant would give them Kshs.10 thereafter. That PW1 further stated that the Appellant would remove his pants and lie with them on the mud floor. While she testified, she pointed at her vagina. She stated "he would use his hand to do bad manners to us here (points at vagina). I do not know the name. This place “ni ya kukojoa” I did not see what he was using to do bad manner to me. He was using 'ile kitu ya kushika na mkono” I felt pain. Boys use that thing to do bad manners. The Respondent submitted that PW1 was a tender girl of 5 years. She did her level best to describe that the Appellant inserted his penis into her vagina. Her description and evidence were well understood as to what the Appellant did to her and what he used and where he inserted his penis into her vagina. PW1 stated that the Appellant would defile her when PW3 was outside and then she would go outside and the Appellant would defile PW3 while she was waiting outside. 118. That PW2 testified that on the date of the incident 14/10/2019 as she spread the sheet and shillings coin dropped but she did not ask PW1 about it. She further testified that the following day as she washed PW1 who was so much in pain and when she interrogated her PW1 did not disclose anything to her. She reported to the school to interrogate her. PW2 states that when PW1 was interrogated she disclosed that she was defiled and identified the Appellant as the perpetrator. PW2 indicated in cross examination that PW1 and PW3 would walk to school alone. 119. That PW3 testified that she and PW1 were friends. PW3 testified that the Appellant did something to her while pointing at the accused. She stated that on the date of the incident she and PW1 were going to school when the Appellant held them and did 'tabia mbaya ' to them. She stated that the Appellant took them to his house and to his bed. She stated that "alichukua kitu ya mvulana they use for urinating, he inserted it between my legs in my vagina (mahali natumia kukojoa) " She testified that the Appellant would make them lie on the bed and he would also lie on the bed. PW3 testified that he took it in rounds and he slept on top of her and it was very painful and she started crying. The court recorded that she became teary. PW3 also indicated that PW1 would be outside while the Appellant defiled her and she would be outside while the Appellant defiled PW1. She also confirmed that the Appellant would give them Kshs.10 to buy something. PW3 also was a child of tender years and did her best to describe what the Appellant did to her. She clearly described that the Appellant inserted his penis into her vagina. 120. The Respondent submitted that PW4 testified that PW2 told her about PW3 being defiled. When she questioned PW3 about it she started crying but she did not investigate further. She states that she was called by the head teacher and the victims PW1 and PW3 identified the Appellant. Upon questioning by the court PW4 stated she once noted that the panty/under wear of PW3 had yellow stains which would not come out. She wondered why until she got this information that she linked the two. 121. That in support of the victims PW1 and PW3 evidence the medical officer PW7 testified on behalf of the examining doctor. PW7 relied on the P3 Forms of both PW1 and PW3. On relying on the P3 Form of PW1 (PExt. 5), PW7 testified that the victim was 5 years old as at the time of the incident. It was also noted that the hymen was broken meaning there was penetration. The PRC Form (PExt.4) noted that a high vaginal swab was done and it showed there was bleeding in the vagina. It begs the question why a 5-year-old would have her hymen broken and bleeding in the vagina unless there was penetration because of the trauma caused by the blunt object. It was also testified by PW7 regarding the P3 Form of PW3 (Pext.10) that the victim was 5 years old and her hymen was broken. PW7 concluded that there was evidence of penetration and thus defilement occurred. The P3 Forms and the PRC Forms of the victims PW1 and PW3 corroborated each other. It is not likely for a 5-year-old to have their hymen https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 15

page 15 of 22

broken unless there was some blunt object that would do so. It is not normal for a 5-year-old child in this case, a girl to engage in sexual activities to cause the hymen to be broken or bleeding to occur. The evidence of PW7 corroborates that of PW1 and PW3 and it proved that penetration occurred. 123. The Respondent submitted that the Appellant has challenged the evidence on penetration in his memorandum of appeal. He states that the trial magistrate erred in law and fact by concluding that penetration had been proved yet the doctor's evidence was that the hymen was intact and that no spermatozoa was found on the complainant's genitalia. The evidence on penetration was therefore solid. 124. On age of the Complainants being minors, the Respondent submitted that PW2 testified that PW1 was born on 3/04/2014 and availed the birth certificate (PExt.1). PW3 at the time of testifying was 8 years old, this was 3 years after the incident. PW4 testified that PW3 was born on 22/06/2014 and availed the birth certificate (P Ext. 6). Thus, at the time of the incident the victims PW1 and PW3 were 5 years old. Their age was therefore conclusively proved. 125. On positive identity of the Appellant as the assailant/perpetrator, the Respondent submitted that PWI stated that the Appellant did bad manners to her while pointing to the Appellant during the trial. She stated that she knew the Appellant's home as it was on their (hers and PW3) way to school. PW2 testified that she knew the Appellant as her neighbour. PW2 further stated that they went with the policing officers to the Appellant's home. They were taken by PW1 and PW3. PW3 testified that the Appellant did something bad to her while pointing at him during the trial. She also testified that she went to the Appellant's house together with PW1, the head teacher and the policing officer. PW4 testified that she knew the Appellant as her neighbour. 126. That PW5 and PW6 conduct community policing in the area. They both testified that they were called to the school and were sent to get the Appellant, the alleged perpetrator. PW5 stated that when the victims PW1 and PW3 said the name he knew who it was. He and PW6 took the Appellant to school and the victims PW1 and PW3 were able to identify him. PW6 indicated that he knew the Appellant as he was from his village. He further stated that he took the victim children PW1 and PW3 to the Appellant’s homestead and they were able to identify the Appellant to them. PW1 and PW3 were able to identify the Appellant as they saw him when they were going to school in the morning in broad daylight. They were able to take PW6 to the home of the Appellant and identified him to PW5, PW6, PW2, PW4 and the head teacher. Identification was by recognition which is the best form of identification. The evidence on identification was therefore solid. 127. The Respondent submitted that the Appellant was placed on his defence and gave sworn evidence. He denied committing the offence and indicated there were witnesses who were not summoned to testify and that a teacher owed him a debt and that is why he thought he was summoned to the school. He never raised any of the issues raised in his defence during cross examination in the trial. The defence was a mere denial which was not strong enough to rebut the prosecution case. The trial court was therefore right in disregarding the same. 128. In light of the foregoing, the Respondent submits that the prosecution discharged its burden of proof and that the Appellant was properly convicted of the offence of defilement. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated and if there were any inconsistencies, the same were minor and did not go to the root of the case. That all ingredients of the offence of defilement were established beyond reasonable doubt. The Respondent therefore urge this court to uphold the conviction. 129. On sentence, the Respondent submits that the Appellant contends that the sentence meted on him was harsh, excessive and illegal. That as already stated, the Appellant was sentenced to 40 years https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 16

page 16 of 22

imprisonment for each count to run concurrently. The Prosecution at the trial court indicated that the Appellant had no previous records. The Appellant was given a chance to mitigate and he stated that he was a first offender and he has parents and siblings that depended on him. The Respondent referred to Section 8(2) of the Sexual Offences Act provides: “ A person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. " 130. The Respondent proceeded to set out sentencing guidelines, 2023 and the objectives of sentencing as follows: (i) Retribution: To punish the offender for their criminal conduct in a just manner. ii. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. iii. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. (iv) Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender's contribution towards meeting those needs. v. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender's criminal acts. vi. Denunciation: To clearly communicate the community's condemnation of the criminal conduct. vii. Reconciliation: To mend the relationship between the offender, the victim and the community. viii. Reintegration: To facilitate the re-entry of the offender into the society. 131. The Respondent submits that looking at the circumstances of the case, it is apparent that the Appellant abused the trust bestowed upon him by the society and instead took advantage of young girls who were five years old at the time of the incident. Being a neighbour, he ought to have protected the young complainants who were still of tender children. The Appellant instead turned out to be their tormentor and abused the innocence of the young girls and took advantage of their nativity and ignorance. 132. The Respondent submitted that the Supreme Court has further pronounced itself that the minimal mandatory sentences in the Sexual Offences Act are constitutional and courts should adhere to the same. 133. In conclusion, the Respondent submitted that the 40 years sentence meted out by the trial court is unlawful and not within the law and urged this court to enhance the sentence of the Appellant as per the prescribed law. D. Analysis 134. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 17

page 17 of 22

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.” 135. Guided by the above principle, I have carefully considered the initial grounds of appeal, the amended grounds of appeal through the Appellants submissions, the evidence presented before the trial court and the written submissions filed on behalf of the Parties. 136. I have also keenly read the proceedings and judgment of the trial court. Having done so, I find that three issues arising for my determination are: i. Whether the Appellant’s fundamental rights were infringed during trial. ii. Whether the evidence adduced by the prosecution was sufficient to prove the charges of defilement preferred against the Appellant beyond any reasonable doubt. iii. Whether the sentence meted against the Appellant was harsh and excessive. Whether the Appellant’s fundamental rights were infringed during trial. 137. The Appellant raised two primary issues in his submission’s, that his rights were violated by not being arraigned before court within 24 hours and secondly that his trial was delayed. That these offended Articles 49 (f) and 50(2)(e) of the Constitution. 138. I have perused the record charge sheet and the trial court’s record and I confirm that in deed the Appellant was arrested on 18/10/2019 but was arraigned in court on 25/10/2019 which was almost after 8 days which offends Article 49(f) of the Constitution. I may not say much on the issue of delayed trial as the Prosecution has attempted in their submissions to explain what factors contributed to the delay in the prosecution of the case. 139. I must also state that upon perusing the trial court’s record, I have established that at no point during determination of the primary matter, did the Appellant raise any issue as to infringement of his Constitutional rights. He readily took plea when he was arraigned in court and even proceeded with the trial to the end without raising any issue on the delay. It is therefore my considered view that it is too late in the day for the Appellant to allege that his rights were violated, yet when he had the opportunity, he did not raise any complaint. It cannot be raised as a fresh matter on appeal. That ground of appeal if dismissed. Whether the evidence adduced by the prosecution was suffcient to prove the charges of deffilement preferred against the Appellant beyond any reasonable doubt. 140. This issue invites this court to consider whether the elements of offence of defilement were proved beyond reasonable doubt. 141. The Appellant was charged with two offences of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:8(1)-“a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 18

page 18 of 22

8(2)- “A person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 142. The ingredients that ought to be established in an offence of defilement are: the age of the complainant, proof of penetration and the positive identification of the assailant. See Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 Age of the complainants 143. 144. In a charge of defilement, the age of the victim is important for two reasons: i. defilement is a sexual offence against a child; and ii. age of the child has also been used as an aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence. It is not in dispute that the complainants (PW1 and PW3) at the time of the commission of the offence were both aged five (5) years old as the same could be determined from their respective Birth Certificate produced as PExt.1 and PExt.6 showing PW1 was born on 03/04/2014 and PW3 was born on 22/06/2014; and the age of the complainants has not been a subject of the instant appeal. The ingredient of age was therefore proved beyond reasonable doubt Penetration 145. Section 2(1) of the Sexual Offences Act defines penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 146. According to the Appellant, he did not commit the offences herein. 147. I have gone through the complainants’ testimonies and that of the other witnesses touching on penetration herein over and over again. The complainants were two young girls both aged 5 years at the time of commission of the alleged offences. 148. PW1, TMM, opened her examination in chief by saying; "Nobody has ever done anything wrong to me.". Could this be tantamount to her saying that nobody has ever defiled her. This court is of the considered view that the Prosecution needed to dig deeper and get more clarification on the same from the witness in as far as the charges herein are concerned. 149. PWI further testified that, that person did bad manners to her and pointed at Appellant, when her and E were going to school, he would call them to his house and do bad manners. He would use his hand to do the bad manners to them at the vagina. Later, PW1 stated that she did not see what he was using to do bad manners to her. Again, she stated that he was using “ile kitu ya kushika na mkono”. 150. PW1 testified that the Appellant "alinifanya tabia mbaya". According to the Appellant this phrase is vague and ambiguous which makes it inadmissible. PW1 stated that he did "bad manners", and this could mean anything that is not good and is prone to myriad interpretations. 151. Secondly, PWI says she did not see what was used to do bad manners to her. It is erroneous for one to believe that this thing that the complainant did not see is penis. That aside the girl is categorical that he would use his hand to do bad manners to them and pointed at her vagina. Clearly, the explanation given by PW1 of what Appellant use on her vagina removes the offence from defilement to sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 19

page 19 of 22

assault and the prosecution ought to have noted this and amended the charge sheet in respect to PW1, TMM in Cout 1. 152. PW1, TMM that the Appellant did bad manners to both of them three times. PW3 in her testimony talked of one single date 14/10/2019 while TMM'S grandmother talked of four times. 153. PW4 testified that she once saw the panty had yellow stains that could not come out and wondered until she got the information that linked the two. 154. PW7, Dr. Karisha testified on behalf of Dr. Mutunga who was said to be on leave on medical grounds. The Appellant had no objection to the said witness testifying a such. 155. PW7 testified that upon examination, there were no injuries on the head and neck, injuries were 10 days old. A blunt object penis was used. She received medication. The clinical results were grievous harm. There were no injuries on pelvic examination. Hymen was broken meaning there was penetration. There was no harm to the anal area. The anus was normal. High vagina swab showing there was bleeding in the vagina. He produced the medical report for TMM as PExt.5, PRC form and the P3 Form. He also testified that a second minor EMM who was alleged to have been defiled by a person known to her. Physically she had no injuries on the head, neck, legs, abdomen, Injuries 10 days old. A blunt object used. Pelvic examination on 29/10/2029. There were no injuries noted. The hymen was broken. Again, for EMM, the anal area was normal and high vagina swab showed negative results of HIV and syphilis. 156. The opinion was that defilement and penetration were positive. He produced the medical report for EMM as PExt.10 together with the PRC and P3 forms. 157. On cross-examination, PW7 confirmed he was not Dr. Mutunga. He stated that a 5 year old defiled can still walk with her legs. No sperms were observed but the hymen was missing. Examination was done after 10 days later and the injuries could have healed. The hymen had not healed. That it was not possible for a bicycle to break the hymen not even playing. 158. The findings of the Dr. Mutunga as contained in the 2 medical reports herein and the testimony of Dr. Kirisha (PW7) raise doubt in the court’s mind as to their truthfulness. PW7 testified that the victims were examined 10 days after they were penetrated. Upon examination, there were no injuries on the head and neck but again he contradicts himself and states that the injuries were 10 days old. PW7 further testifies that a blunt object penis was used but does not also state how he knew it was a penis that was used and whether it was that of the Appellant. 159. On the foregoing, there might be a likelihood that penetration into the complainants’ genital organs might have not been caused by defilement attributable to the Appellant. 160. I also note that PW4, testified that she once saw the panty had yellow stains that could not come out and wondered until she got the information that linked the two. What this court cannot comprehend is how the Doctor was able to find blood in the vagina with the high vaginal swab whereas earlier before this examination, only yellows stains and not blood was seen on the panty by PW4. It is expected that PW4 would have seen blood which is red on the panty and not yellow stains. 161. Having considered and analysed the evidence adduced, I come to the conclusion that there is no ample evidence that penetration by the Appellant on 14th October 2019 did occur as charged. The medical evidence produced did not support penetration of the minors. This ingredient was therefore not proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 20

page 20 of 22

c). Was the Appellant the perpetrator? 162. On the issue of identification of the Appellant as the perpetrator, the Court of Appeal in the case of Cleophas Wamunga v Republic (1989)eKLR expressed itself as follows:“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger……” 163. PW3 testifies (at page 36 of the proceedings) that; "We were Egoing to school with my friend Angel. Yohanna held us. He did tabia mbaya to us. " This signifies that PW3 knew the perpetrator herein by name being Yohanna. This also lends credence to what PW1 said that she did not report to her grandmother because she knew. PW5 and PW6 who conduct community policing in the area both testified and stated that they were called to the school and were sent to get the Appellant, the alleged perpetrator. PW5 stated that when the victims PW1 and PW3 said the name he knew who it was. 164. The record shows PW5 did not give the name that PW1 and PW3 had given that made him conclude he knew who it was. The question that the prosecution did not answer is who was “Yohanna” whom PW3 had named as the perpetrator. The trial Magistrate in her judgement did not say anything about the so called “Yohanna”. It is not demonstrated that the Appellant was also called “Yohanna”. There is also nothing to show the house the Community Policing people went to, to arrest the Appellant was the same house the victims had been taken into and that it belonged to the Appellant without being accompanied by the victims. It is to be noted that the witnesses stated that the Appellant was their neighbour and identified the Appellant at the dock which was worthless. See the case of Njoroge Vs Republic (1987) KLR 19 (cited by the Appellant) where the court of appeal stated that: “ Dock identification is worthless. The court should not rely on dock identification. A witness should be asked description of the accused and the prosecution should then arrange a fair identification parade. " 165. In Wamunga v Republic [1989] KLR 424 the Court of Appeal stated thus: “ It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. 166. It is my view that the prosecution ought to have taken precaution and sought clarification from PW3 whether the person at the dock was the “Yohanna” she had referred to. 167. Furthermore, the mere fact that the Appellant resided in the same area as the victims or that he was their neighbour did not connote that he was the perpetrator of the offence as was held by the trial court and considering that the victim had given a name of the perpetrator as “Yohanna” who is not the Appellant herein. In sum, I find that the evidence of identification of the Appellant was not satisfactory and does not meet the threshold of proof in criminal matters. This ingredient was therefore not proved beyond reasonable doubt. 168. In the upshot, I find that the Prosecution failed to prove the key ingredients of penetration and identification against the Appellant. Accordingly, I find that the prosecution failed to prove their case beyond reasonable doubt and that the trial court erred in convicting the Appellant for defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 21

page 21 of 22

Whether the sentence meted against the Appellant was harsh and excessive. 169. The Appellant asserted that the sentence meted upon him is harsh and excessive and that the same ought to be set aside. Section 8(2) of the Sexual Offences Act provides: “ A person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. " 170. The trial court sentenced the Appellant to 40 years imprisonment in both counts, which sentences were to run concurrently. The Supreme Court of Kenya has in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) pronounced itself that the minimal mandatory sentences in the Sexual Offences Act are constitutional and courts should adhere to the same. 171. I find that the sentence of 40 years meted out on the Appellant by the trial court is unlawful and not within the law. Had I dismissed the appeal herein, I would have disturbed the sentence by enhancing it to life imprisonment as per the prescribed law. C. Disposition 172. Having found that the prosecution did not prove the ingredient of penetration and identification of the Appellant as the complainant’s assailant, I find that the instant appeal is merited and I therefore allow it. 173. Consequently, I quash the conviction, set aside the sentence and direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held. 174. Orders accordingly. File closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 16TH JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 16TH JULY 2025 In the presence of: In person........... for Appellant Ms. Agatha...................... for Respondent Milly................. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14400/eng@2025-07-16 22

page 22 of 22