Justine Keboga Nyakundi v Director of Public Prosecutions

5. The trial court ignored material inconsistencies in the testimonies. 6. The sentence of 20 years was excessive and unlawful. Appellant’s Submissions 5. In his written submissions, the Appellant contends that the prosecution evidence was inconsistent, noting that PW1 (V.M.M.) first stated she was alone in the house but later said her mother was asleep in the next room, and that while PW2 gave the date of the offence as 13th June 2023, PW1 mentioned 22nd June 2023, with PW4 indicating the incident was reported on 23rd June 2023, thereby casting doubt on the reliability of the testimony. 6. The Appellant faults the prosecution for failing to call teacher Frida, the first adult allegedly informed by the complainant, and for omitting DNA analysis of the blood-stained bedsheet recovered. The Appellant also questions the credibility of the medical officer (PW3), noting the time of examination was not recorded. The Appellant urges that the contradictions and weak investigation created reasonable doubt which ought to have been resolved in his favour. Respondent’s Submissions 7. The appeal was opposed by way of submissions dated 14th August 2025. It was the Respondent’s submission that the prosecution proved all the essential elements of the offence of defilement beyond reasonable doubt. The Respondent contended that the complainant’s age was conclusively established by birth certificate (P. Exh 1), confirming that she was a child aged 13 years at the time of the incident. 8. Additionally, it was submitted that the element of penetration was duly proved through the complainant’s consistent testimony, corroborated by the medical evidence contained in the P3 Form, PRC Form and treatment notes (P. Exh 2–4), which indicated a torn hymen and recent genital injuries. Further, it is argued that the medical report (Exh 5) showed that the Appellant was found to be HIV positive, consistent with the complainant’s medical findings. 9. On the question of identification, the Respondent contended that the complainant positively recognized the Appellant, who was well known to her as her mother’s boyfriend, and that the case was therefore one of recognition rather than identification of a stranger. It was submitted that those minor inconsistencies did not go to the root of the charge and relies on Anjononi & Others v Republic [1980] KLR 59. 10. Respondent also contends that the DNA test is discretionary, citing Fappyton Mutuku Ngui v Republic [2012] eKLR, and that the statutory minimum sentence of 20 years was lawful under section 8(3). Analysis and Determination 11. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated: “ The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18517/eng@2025-11-13 2

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considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. 12. In the case of Charles Wamukoya Karani vs. Republic [2015] eKLR), the court stated that: “ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 13. In this case, the evidence of age was proved by way of the birth certificate produced by PW4 showing that the complainant was 13 years old. Age was therefore firmly established. 14. Concerning penetration, PW1, the complainant gave a vivid account of sexual assault by the Appellant. Her narration of pain, bleeding and subsequent medical treatment was supported by PW3’s medical findings showing torn hymen and inflamed genitalia. 15. The Appellant argued that the absence of a DNA test on the blood-stained bedsheet was fatal to the prosecution’s case under section 36(1) of the Sexual Offences Act. That section, however, only empowers the court to order such a test where necessary and does not render DNA evidence mandatory. The Court of Appeal in Fappyton Mutuku Ngui v Republic [2012] eKLR, Kassim Ali v Republic [2006] KECA 156 (KLR), and Evans Wamalwa Simiyu v Republic [2016] KECA 571 (KLR) held that the absence of DNA or other scientific testing is not fatal where there is credible medical or oral evidence proving penetration and linking the accused to the act. 16. In the present case, the complainant’s consistent testimony, corroborated by PW3’s medical findings of a freshly broken hymen and genital injuries, proved penetration beyond reasonable doubt notwithstanding the absence of DNA analysis. 17. Concerning the Appellant’s culpability, I have considered the case of Stephen Nguli Mulili v Republic [2014] eKLR where the Court of Appeal had this to say regarding reliance on Section 124 of the Evidence Act to convict: “ as a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows: “ Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 18. The evidence on record establishes that the Appellant was well known to both PW1 and PW2 (complainant’s mother), being the latter’s boyfriend. PW1’s testimony that the Appellant was present in the house on the morning of the incident, taken together with PW2’s confirmation of their relationship, eliminates any doubt as to the question of identity. This was therefore a case of recognition rather than identification of a stranger, and it is well settled that recognition evidence is by far the most reliable form of identification (See Anjononi & Others v Republic [1980] eKLR 59). 19. The Appellant placed considerable weight on the inconsistencies in the evidence, particularly the different dates mentioned by the witnesses, 13th, 22nd and 23rd June 2023 and the varying sequence of events on how and when the matter was reported. Having re-evaluated the record, I find that these https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18517/eng@2025-11-13 3

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variations, while present, were peripheral and did not go to the substance of the charge. The central narrative of the complainant that she was sexually assaulted by the Appellant within the material period remained consistent and was corroborated by medical. 20. It is a settled principle that minor contradictions or discrepancies are inevitable where witnesses recount events from memory, and such differences, unless they create doubt on the commission of the offence itself, do not vitiate an otherwise sound conviction. The Court of Appeal in Joseph Maina Mwangi v Republic [2000] eKLR held that only material contradictions which cast doubt on the prosecution case are fatal, a position reaffirmed in Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 (CA) [2003] UGCA 6. In this case, the inconsistencies concerned peripheral details and did not affect proof of the essential ingredients—age of the complainant, penetration, and identification of the perpetrator. I therefore find that the discrepancies cited by the appellant did not occasion any miscarriage of justice. 21. The Appellant also criticized the prosecution for failing to call teacher Frida, the person to whom the complainant first allegedly reported the assault. I have considered that contention. Section 143 of the Evidence Act (Cap 80) provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. The prosecution therefore bears no obligation to call every possible witness, provided the evidence adduced is sufficient to establish the charge. The Court of Appeal in Bukenya & Others v Uganda [1972] EA 549 and subsequently in Joseph Kiptum Keter v Republic [2007] eKLR emphasised that failure to call a witness is only fatal where the uncalled evidence is shown to be essential to the just determination of the case or where its absence raises a reasonable doubt as to the accused’s guilt. In the present case, although the mother (PW2) did not witness the act itself, her testimony, coupled with the complainant’s consistent account and the medical findings of PW3 confirming penetration, provided sufficient proof of the offence. The evidence of teacher Frida would have been merely corroborative of the complainant’s report, and not indispensable to proving the elements of the charge. The omission to call her, therefore, did not create any evidential gap or prejudice to the Appellant. 22. The Appellant alleged that investigations were shoddy and incomplete, pointing to the lack of DNA testing, non-analysis of the blood-stained bedsheet and the non-production of certain witnesses. While investigative diligence is important, criminal trials are decided on the evidence actually adduced, not on speculation about what further inquiries might have yielded. 23. As the Court of Appeal held in Keter v Republic (2007) 1 E.A. 135, “ The prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 24. Conversely, where the evidence called is barely adequate an adverse inference may be drawn as stated in Bukenya & Others v Uganda [1972] E.A. 549. 25. Applying these principles to the present record, I find as did the trial court that the prosecution adduced cogent evidence comprising the complainant’s consistent account, the medical findings of recent penetration and evidence placing the Appellant at the scene, such that the omission to conduct further tests or to call additional cumulative witnesses did not occasion a miscarriage of justice. Sentence 26. Section 8(3) of the Sexual Offences Act prescribes a minimum of twenty years imprisonment where the child is aged between twelve and fifteen years. The complainant was proved to be 13 years old. The Court of Appeal in Dismas Wafula Kilwake v Republic [2019] KECA 5 (KLR) affirmed that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18517/eng@2025-11-13 4

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the minimum sentences prescribed under section 8 of the Act are lawful and binding unless declared unconstitutional. The Supreme Court in Republic v Joshua Gichuki Mwangi Petition No. E018 of 2023 [2024] KESC 42 (KLR) reaffirmed that trial courts have no discretion to impose a sentence below the statutory minimum set by Parliament. 27. The sentence imposed was therefore lawful and mandatory and there being nothing to demonstrate that the trial court acted on wrong principles, I find no reasonable cause to interfere with it. Conclusion 28. After re-evaluating the entire record, I am satisfied that the the conviction was safe, and the sentence lawful. Accordingly: 1. The appeal is dismissed in its entirety 2. The conviction for defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act is upheld 3. The sentence of twenty (20) years’ imprisonment is affirmed. DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER, 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18517/eng@2025-11-13 5

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