David Nyakundi Onchari v Director of Public Prosecutions

4. That the trial court erred in law and fact by relying on medical evidence that was inconclusive and unsupported by treatment records from Eronge Dispensary. 5. That the trial magistrate misdirected herself by treating the presence of a broken hymen as conclusive proof of penetration without establishing when or how the injury occurred. 6. That the learned magistrate failed to properly evaluate the appellant’s defence, including the evidence of a domestic dispute involving KES. 5,000 and the Chief’s letter supporting that defence. 7. That the conviction was unsafe because the evidence on identification was unreliable, the appellant having been implicated without proper examination of recognition evidence. 8. That the trial court erred by relying on untested allegations contained in the presentence report to the prejudice of the appellant. 9. That the sentence of twenty (20) years’ imprisonment was excessive, unlawful, and based on erroneous considerations. 10. That the entire conviction was against the weight of evidence and violated the appellant’s right to a fair trial. 4. The Appellant submitted that the conviction was unsafe as the prosecution evidence was riddled with material inconsistencies that the trial court failed to resolve. It was argued that PW1 gave conflicting accounts regarding the circumstances of the alleged defilement and the identity of the teacher she first reported to, naming different individuals at different points. It was the Appellant’s submission that such contradictions touched on the core of the prosecution case and ought to have created reasonable doubt. He relied on the principles in Ndungu Kimanyi v Republic [1979] KLR 282, where the Court of Appeal held that evidence that is internally contradictory or inconsistent is unreliable and cannot form the basis of a safe conviction. 5. The Appellant further submitted that the prosecution failed to discharge its burden of proving penetration beyond reasonable doubt. He argued that the medical evidence tendered by PW3 was inconclusive, as the clinical officer could not ascertain when the hymenal injury occurred or relate it to the Appellant. He noted that although PW1 alleged multiple visits to Eronge Dispensary, no treatment notes or medical records were produced. Reliance was placed on J O v Republic [2019] eKLR, where the Court of Appeal held that the mere presence of a broken hymen, without more, is not sufficient to prove penetration in a specific incident. 6. On identification, the Appellant contended that although this was a case of recognition rather than identification of a stranger, the trial court was still obligated to approach the evidence with caution. He submitted that recognition can also be mistaken, especially where the circumstances are clouded by inconsistencies and possible ulterior motives. Reliance was placed on Wamunga v Republic [1989] KLR 424, where the Court of Appeal stated that evidence of visual identification, even in cases of recognition, must be examined carefully to avoid error. 7. On the failure to call crucial witnesses, particularly the teachers who allegedly received the first disclosure and the medical personnel from Eronge Dispensary, the Appellant submitted that the prosecution withheld essential evidence. He argued that the teachers’ testimony was vital in corroborating the timing and circumstances of disclosure, while the dispensary records were crucial to substantiating PW1’s alleged visits. Appellant cited Bukenya & Others v Uganda [1972] EA 549, which established that where the prosecution fails to call material witnesses without explanation, an adverse inference may be drawn. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 2

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8. The Appellant also argued that the trial court failed to properly apply the proviso to section 124 of the Evidence Act, which requires the court to record reasons for believing that the complainant is telling the truth when convicting on uncorroborated evidence. He relied on the Court of Appeal decision in Stephen Nguli Mulili v Republic [2014] eKLR, where the court stressed that the proviso cannot be invoked mechanically and must be supported by a reasoned demonstration of credibility. In this case, it was submitted that the inconsistencies in PW1’s testimony rendered the proviso inapplicable. 9. The Appellant further contended that his defence was not adequately considered, particularly the existence of a grudge between him and PW2 over a debt of KES. 5,000, which was supported by a letter from the area Chief. He submitted that this provided a plausible motive for fabrication that the trial court failed to analyse. He cited Okale & Another v Republic [1965] EA 555, where it was held that the defence must be weighed fairly alongside the prosecution evidence. 10. Finally, on sentence, the Appellant submitted that the trial court improperly relied on untested allegations contained in the presentence report, particularly the assertion that the Appellant was “notorious with minors.” He argued that these allegations were prejudicial and should not have influenced sentencing. He relied on Bernard Lolimo Ekimat v Republic [2005] eKLR, where the Court of Appeal emphasised that sentencing must be based on proven and reliable facts. 11. The Respondent did not file submissions despite service. 12. Having carefully considered the record, the grounds of appeal, the Appellant’s submissions, and the absence of submissions by the Respondent, the following issues arise for determination: 1. Whether the age of the complainant was proved to the required standard. 2. Whether penetration was proved beyond reasonable doubt. 3. Whether the prosecution evidence contained material contradictions 4. Whether the failure to call crucial witnesses weakened the prosecution case. 5. Whether the trial court properly invoked and applied the proviso to section 124 of the Evidence Act. 6. Whether the trial court adequately considered the Appellant’s defence. 7. Whether, on the totality of the evidence, the conviction was safe. 8. Whether the sentence imposed was lawful and based on correct principles. 13. As this is a first appeal, this Court is required to undertake a fresh and exhaustive re-evaluation of all the evidence presented before the trial court. In doing so, the Court must reconsider the entire record, weigh the strengths and weaknesses of each side’s case, and arrive at its own independent conclusions, while bearing in mind that the trial court had the advantage of observing the witnesses as they testified. (See Okeno vs. Republic [1972] EA 32). 14. The charge against the Appellant alleged that he intentionally caused penetration with the complainant, a child aged twelve (12) years. An alternative count of committing an indecent act with a child was also preferred. 15. PW1, the complainant, testified that the Appellant defiled her on several occasions. She stated that she sought treatment at Eronge Dispensary after the incidents and that she reported the matter to a teacher at school. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 3

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16. PW2, the complainant’s mother, testified that she learnt of the allegations through a teacher at the PW1’s school. She stated that she accompanied PW1 to hospital for medical examination. 17. PW3, a clinical officer, testified that he examined PW1 and found that her hymen was broken. He further testified that the laboratory tests he conducted were negative. 18. PW4, the investigating officer, testified that he received the complaint and recorded statements from PW1 and PW2. He stated that he relied on their accounts when deciding to charge the Appellant. 19. The Appellant gave sworn evidence denying the allegations. He testified that PW2 owed him KES. 5,000 and that the complaint arose from that disagreement. He produced a letter from the area Chief confirming the dispute. 20. DW2, the Appellant’s landlady, testified that PW1 was not a frequent visitor to the Appellant’s home. 21. The trial court convicted the Appellant on the main count. 22. At sentencing, the trial court considered the presentence report which asserted that the Appellant was “notorious with minors”. Analysis and Determination Whether the age of the PW1 was proved 23. Age is a critical element of the offence of defilement and must be established beyond reasonable doubt, as it determines both the nature of the charge and the applicable statutory sentence under section 8 of the Sexual Offences Act. 24. In the case Alfayo Gombe Okello v Republic [2010] eKLR, the Court of Appeal stated that: In its wisdom, Parliament chose to categorise the gravity of that offence (defilement) on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8 (1). 25. In Musyoki Mwakavi v Republic [2019] eKLR, the court held that apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense. 26. The record reveals that PW1 was consistently described as twelve (12) years old. The Appellant did not contest this fact, and no contradictory evidence was presented. Although a birth certificate was not produced, oral testimony that is consistent and unchallenged is sufficient where age is not disputed. 27. I therefore find as did the trial court that the PW1’s age was proved to the required standard. Whether Penetration Was Proved Beyond Reasonable Doubt 28. Penetration is the central element of the offence of defilement and must be proved beyond reasonable doubt. The Court of Appeal in JO v Republic [2019] eKLR held that a ruptured hymen alone is not conclusive proof of penetration in the context of a specific incident. 29. PW3, a Clinical Officer, testified that although he observed that the PW1’s hymen was broken, he could not determine when the rupture occurred. He also noted the absence of fresh tears, bruising, or inflammation, and that all laboratory tests were negative. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 4

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30. PW1 stated that she repeatedly sought treatment at Eronge Dispensary, a claim supported by PW2. However, the prosecution produced no treatment notes, no clinic records, no P3 follow-up entries, and called no witness from the dispensary to confirm the alleged visits. 31. Under the Bukenya & Others v Uganda principles, the unexplained failure to present such material evidence permits the inference that the missing evidence would likely have been adverse to the prosecution’s case. 32. In view of the allegation that the offence occurred on diverse dates between 01st November 2022 and 20th February 2023, it was incumbent upon the prosecution to lead medical or factual evidence capable of situating the PW1’s injuries within that timeframe. PW3, however, was unable to indicate when the hymenal rupture occurred, and his findings disclosed no fresh tears, bruising, inflammation, or any biological markers suggestive of recent penetration within the charged period. 33. Coupled with the absence of treatment notes, clinic records or testimony from any medical personnel at Eronge Dispensary to corroborate the PW1’s alleged repeated visits, the medical evidence remained entirely unconnected to the period in question. 34. Consequently, while the clinical examination may point to penetration at some unknown point in the past, the prosecution failed to demonstrate that it occurred during the charged period or that it was attributable to the Appellant. Whether the prosecution evidence contained material contradictions 35. The inconsistencies in PW1’s and PW2’s accounts largely concerned the circumstances of disclosure and the sequence of events leading to the report. Given PW1’s age, these variations were not unexpected and did not go to the substance of the alleged offence. They therefore did not materially weaken the prosecution’s case on that basis alone. Failure to call crucial witnesses 36. The Appellant argued that the prosecution failed to call crucial witnesses, particularly the medical personnel from Eronge Dispensary and the teachers to whom PW1 allegedly made her initial disclosure. Section 143 of the Evidence Act makes clear that no particular number of witnesses is required to prove a fact. What matters is whether the witnesses called are sufficient to establish the prosecution case beyond reasonable doubt. 37. In Donald Majiwa Achilwa & Others v R (2009) eKLR, the Court affirmed that the prosecution must call all witnesses necessary to present the whole truth, even where some evidence may be adverse. The Court further held that where the evidence adduced is barely sufficient and the prosecution withholds a material witness, an adverse inference may be drawn in appropriate circumstances, applying the principle in Bukenya & Others v Uganda [1972] EA 549. 38. Similarly, in Keter v Republic [2007] 1 EA 135, the Court emphasised that the prosecution is not obliged to call a superfluity of witnesses, but only those whose testimony is necessary to prove the charge beyond reasonable doubt. 39. In this case, the medical personnel and records from Eronge Dispensary were plainly material, given PW1’s claim of repeated visits for treatment after the alleged incidents. These were the very witnesses and records capable of providing contemporaneous evidence of injury or complaint during the charged period. No explanation was offered for their absence, and the omission left a critical evidentiary gap on a central element of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 5

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40. Although the teachers did not witness the alleged acts, their testimony would have clarified the circumstances under which the complaint was first made. Their absence, while not as central as the missing medical evidence, contributed to the incompleteness of the prosecution narrative. Whether section 124 of the evidence act was properly applied 41. The proviso to section 124 of the Evidence Act allows a court to base a conviction on the evidence of a child complainant in a sexual offence without requiring corroboration, but only if the court records the reasons that satisfy it of the truthfulness of that evidence. 42. The Court of Appeal in Stephen Nguli Mulili v Republic [2014] eKLR affirmed that this requirement is mandatory and must be expressly complied with. 43. In this case, the trial court accepted PW1’s account and proceeded to convict, yet it did not set out any reasons explaining why it believed her evidence as required by the proviso. The failure to do so, in the circumstances of this case where evidence against the Appellant was not overwhelming amounted to a misdirection. Whether the defence was properly considered 44. The Appellant raised the issue of a monetary dispute of KES. 5,000 between himself and PW2, a fact confirmed by the area Chief’s letter. This was a relevant aspect of the defence that warranted consideration. The trial court, however, did not address it in its judgment, contrary to the requirement in Okale v Republic (supra) that an accused person’s defence be weighed alongside the prosecution evidence before reaching a conclusion. Whether the Conviction Was Safe 45. As earlier stated in this judgment, the medical evidence was inconclusive and did not establish when the hymenal injury occurred or link it to the Appellant. 46. In addition, the trial court failed to consider the Appellant’s defence, including the existence of a monetary dispute between him and PW2 that was confirmed by the area Chief’s letter. This omission was a material misdirection for the reason that the defence raised a relevant issue that required proper evaluation alongside the prosecution evidence. This, together with the trial court’s reliance on untested allegations in the presentence report, rendered the conviction unsafe. Whether the Sentence Was Lawful 47. In view of this Court’s findings on the conviction, the question of sentence is effectively spent. For completeness, however, PW1 was twelve years old, bringing the case within section 8(3) of the Sexual Offences Act, which prescribes a minimum sentence of twenty years’ imprisonment. The trial court imposed that statutory sentence, and had the conviction been upheld, the sentence would have been lawful. 48. From the foregoing analysis, I make the following orders: 1. The appeal succeeds. 2. The conviction is quashed. 3. The sentence is set aside. 4. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 6

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Orders accordingly. DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For the Appellant - Mr. Anyoka For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18364/eng@2025-11-20 7

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