High Court 15125 of 2025

with sentence stating that it was harsh and excessive. In view of the foregoing, the appellant prayed that the appeal be allowed, the conviction be quashed and the sentence be set aside. 4. The appeal was heard on 10th September 2025. Parties elected to rely on their written submissions to persuade this court to find in their favor. However, when I retired to write this judgement, I was only in receipt of the respondent’s submissions. It opposed the appeal. It filed written submissions dated 22nd August 2025 through Prosecution Counsel Cletus Akelo. It complained that the trial court ought to have found that the appellant committed the ofience of defilement because partial penetration qualified the ingredient of penetration in line with section 2 of the Sexual Offences Act. Be that as it may, the ofience of committing an indecent act with a child was proved beyond reasonable doubt. It prayed that the appeal be dismissed. 5. I have considered the submissions, examined the record of appeal and analyzed the law. This being a first appeal, the Court must re-evaluate the evidence and make its own findings. See [Bethwel Wilson Kibor v Republic [2009] KECA 143 (KLR)]. 6. The evidence on record before the trial court is as follows: PW1 SMM’s witness statement dated 7th February 2022 was adopted by the trial court as the minor could not testify. She also stated that on 4th February 2022, she was playing with her friend Itesi and the accused whom she referred to as K. 7. PW2 Doris Nyaange Sangara testified that on 4th January 2022 at 6:00 p.m., the complainant, who is her daughter came home crying. She was 3 years 8 months old when the ofience was committed as per her birth certificate. She was born on 27th September 2018. That evidence confirms beyond reasonable doubt that the complainant was a child within the meaning set out in section 2 of the Children’s Act. 8. PW2 continued that on 5th January 2022, the complainant informed her that she reeled from pain in her genitals. She told her that K, the appellant herein, who was her cousin and neighbour, did something wrong to her on her private parts. PW2 found semen, a greyish/cream fluid and her pants were dirtied by the same fluid. She also observed that her private parts were reddish. 9. PW2 took the complainant to Crista Mariane Hospital. The minor was also taken to Kisii Teaching and Referral Hospital. Thereafter, the matter was reported at Kisii police station. The appellant was later arrested. According to PW2, the appellant admitted the ofience when she asked him. She also stated that the appellant and her husband picked a letter from Crista Mariane. 10. PW3 Daniel Nyameino, a clinical officer attached to Kisii Teaching and Referral Hospital, testified that the minor was treated at Kisii Teaching and Referral Hospital and Crista Marriane Hospital. He testified that the complainant’s vulva was abnormal. She also had white blood cells and pus cells and was treated. According to PW3, that was indicative of possible friction on the vagina. Her hymen was intact and there were no lacerations on her labia. He produced the complainant’s treatment notes, P3 form, PRC form and clinical card. 11. PW4 PC Ryne Juma, attached to Sengera Police Station confirmed that the report was made at Kisii police station on 5th February 2022. It was reported by PW2 in the company of PW1. On interrogating the witnesses, PW4 formed the opinion that it was the appellant who committed the ofience after luring him into his house. 12. At the close of the evidence of the prosecution, the trial court formed the opinion that the appellant had a case to answer. He was placed on his defence. His sworn evidence was that vigilante members of the community arrested him on the orders of the chief. He was taken to the chief and later escorted to Kisii police station. He was later arraigned to answer to the charges preferred against him. He also https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15125/eng@2025-10-28 2

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confirmed that his alias was K. Though admitting that he knew the complainant as his neighbour, he maintained his innocence. 13. In order for the prosecution to succeed, it must establish beyond reasonable doubt the age of the complainant, penetration and identity of the perpetrator; the ingredients to the ofience of defilement. On the complainant’s age, her birth certificate mathematically confirmed that as at the time of the ofience, the minor was 11 years, six months old. Her age was corroborated by her mother. I therefore find that the age of the complainant was proved beyond reasonable doubt. 14. On penetration, PW4 testified that the complainant’s vulva was abnormal. She also had white blood cells and pus cells. That was indicative of possible friction on the vagina as her hymen was intact and there were no lacerations on her labia. The trial court formed the opinion that based on that evidence, no penetration was established. However, the court was of the view that indecent act, in line with section 2 of the Sexual Offences Act, was proved beyond reasonable doubt. 15. Regarding the identity of the perpetrator, it is apparent that the complainant did not testify. PW2 only gave an account of what she was told which amounts to hearsay evidence. Though the prosecution intended to rely on PW1’s recorded statement, the same was not adduced before the trial court. It is not in the record before this court. In the circumstances, it is not clear if the appellant was the perpetrator of the ofience. While it is not in doubt that the complainant sufiered friction on her private parts, it would be foolhardy for this court to make a conclusion that the evidence rendered the conviction safe. 16. I am not persuaded that the appellant was the perpetrator on account of the absence of the complainant’s evidence. That left a serious gap that left the evidence of the prosecution unreliable as it stood. For those reasons, I find that the prosecution failed to prove beyond reasonable doubt that the appellant was the perpetrator. Accordingly, this appeal must succeed. The conviction against the appellant is quashed and the sentence is set aside. I hereby direct the appellant to be immediately released from police custody unless otherwise lawfully held. It is so ordered. JUDGEMENT DELIVERED, DATED AND SIGNED VIRTUALLY THIS 28TH DAY OF OCTOBER, 2025. .............................. HON JULIUS K. NG’ARNG’AR JUDGE Judgement delivered in the presence of: Siele/Kipchirchir (Court Assistants) Appellant present Koime for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15125/eng@2025-10-28 3

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