Elijah Ondimu Nyang’au v Director of Public Prosecutions

4. 4. That the medical evidence did not link the Appellant to the alleged ofience 5. That the investigations were inadequate and failed to establish a nexus between the Appellant and the injuries sustained by the complainant 6. That the trial court erred in convicting the Appellant on both the main count and the alternative count, contrary to law 7. That the sentence imposed was illegal, harsh and excessive 8. That the trial court failed to properly consider the Appellant’s defence. As a first appellate court, I am bound to re-evaluate and reconsider the evidence afresh while bearing in mind that I neither saw nor heard the witnesses, as stated in Okeno v Republic [1972] EA 32. Submissions of the Parties Appellant’s Submissions 5. The Appellant contended that the prosecution failed to establish his identity as the perpetrator. The Appellant argued that the trial court improperly relied on hearsay associated with a child of approximately one and a half years, an age at which reliable identification is impossible. The Appellant further maintained that the investigations were deficient and the prosecution evidence inconsistent and untrustworthy. 6. The Appellant relied on Okeno v Republic [1972] EA 32, urging that a proper re-evaluation of the evidence will show that the prosecution did not place him at the scene or otherwise connect him to the ofience. 7. The Appellant submitted that the identification evidence was unreliable. Citing Kiarie v Republic [1984] KLR 739 and Wamunga v Republic [1989] KLR 424, the Appellant argued that the circumstances did not exclude the possibility of error and that no witness actually saw the assailant. 8. The Appellant further contended, on the authority of Johnson Muiruri v Republic [1983] KLR 95, that the complainant’s tender age required a voire dire examination, and its omission weakened the foundation of the prosecution’s case. 9. The Appellant relied on Musoke v R [1958] EA 715 and Ndungu Kimanyi v Republic [1979] KLR 283, arguing that the circumstantial evidence did not exclude other reasonable hypotheses and that the prosecution’s case lacked the credibility necessary to sustain a conviction. 10. The Appellant also cited Joseph Maina Mwangi v Republic [2000] eKLR, asserting that the contradictions in the prosecution evidence were material. 11. Finally, the Appellant contended that convicting him on both the main and the alternative count was a grave error of law, and further contends that the sentence imposed under section 11(1) exceeded the statutory maximum sentence. Respondent’s Submissions 12. The Respondent maintained that the prosecution proved its case to the required standard. It was submitted that the complainant’s age was established, the medical evidence confirmed penetration, and that PW1 and PW2 stated the child mentioned the Appellant as the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18545/eng@2025-11-20 2

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13. The Respondent relied on Okeno v Republic (supra), urging the Court to uphold the conviction upon a fresh evaluation of the record, and on Kiarie v Republic (supra), asserting that the identification was by recognition as the Appellant was well known to the family. The Respondent did not address the legality of convicting on both the main and alternative counts, nor the alleged sentencing irregularities. Issues for Determination 14. I have considered the grounds of appeal in light of the evidence on record and submissions by both parties and the issues arising for determination are: 1. Whether the age of the complainant was proved. 2. Whether penetration was proved. 3. Whether the trial court erred in relying on evidence attributed to a child of tender years in the absence of a voire dire examination. 4. Whether the trial court properly evaluated the Appellant’s defence. 5. Whether the conviction on both the main and the alternative count was lawful. 6. Whether the sentence imposed was lawful. Whether the age of the complainant was proved 15. The prosecution was required to establish the complainant’s age, as it forms an essential element in ofiences under the Sexual Offences Act. The evidence on record shows that the complainant was approximately 1½ years old at the material time. The mother (PW1) stated the child’s age, and this was not challenged in cross-examination. The medical evidence adduced by PW5 was also consistent with a very young child. 16. Courts have consistently held that a parent’s testimony on a child’s age is admissible and sufficient unless specifically challenged. In this case, the age was stated by the mother and was not disputed by the defence. I am therefore satisfied that the age of the minor was proved. Whether penetration was proved 17. PW5, the medical officer, examined the complainant shortly after the incident. The findings revealed severe genital injuries, fresh tears, and trauma consistent with penetration. The degree of injury was inconsistent with accidental harm and pointed to sexual assault. 18. Although the trial court later appeared uncertain whether complete penetration had been established, the standard under the Sexual Offences Act is that even the slightest penetration, partial or transient penetration suffices. Additionally, the injuries documented were not compatible with a mere indecent act. Whether Appellant was identified as the perpetrator 19. The complainant was approximately 1½ years old at the material time. The trial Court treated her as a vulnerable witness and she therefore did not testify, and the court had no opportunity to assess her capacity to perceive, recall or communicate events. Owing to her extremely tender age, any information alleged to have come from her required careful scrutiny before it could influence the determination of identity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18545/eng@2025-11-20 3

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20. In Johnson Muiruri v Republic (supra), the Court stressed that evidence attributed to very young children must be approached with exceptional caution. Statements said to originate from a child of such age cannot be treated as substantive evidence unless properly tested, admitted, or brought within an established evidentiary exception. In the absence of the child’s testimony, the reliability, context, and accuracy of the alleged utterance were not assessed. 21. PW1, PW2 and PW4 indicated that the complainant allegedly “named” the Appellant. Since the child did not testify, these assertions were hearsay. They were not subjected to any test of spontaneity, coherence, or reliability. Moreover, neither PW1, PW2 and PW4 witnessed the incident. PW1 merely stated that the child was found not far from the Appellant’s home, a fact that, standing alone, does not establish authorship of the act. 22. The Court of Appeal in Sawe v Republic [2003] KLR 364 held that suspicion, however strong, cannot form the basis of a conviction. The fact that the child was found near the Appellant’s home, combined with an untested hearsay assertion attributed to a toddler, amounted at best to suspicion and fell short of the legal threshold for proof of identity. 23. Consequently, I find that the trial court erred in treating the untested hearsay attributed to a 1½-yearold child as substantive evidence and in relying on suspicion to find that Appellant had been positively identified as the perpetrator. Whether the defence was adequately evaluated 24. The Appellant gave a sworn defence. He stated that he is a mason from Boisanga II and that on 19th June, 2023 he was at work in Kerumbe from 8.00 a.m. to 6.00 p.m. He testified that after work he went to the home of complainant’s mother of EM who was her friend. Upon arrival, E asked him to wait for her as she went to the shop. While waiting, three people arrived, accused him of defiling the complainant, and assaulted him. He said he attempted to reason with them and denied knowing the complainant, RK. He stated that they tied him, took him from the road, and delivered him to Magwagwa Police Station, from where he was later transferred to Ekerenyo and charged. He maintained his innocence. 25. The Appellant’s defence therefore presented an alibi, a complete denial of involvement, and an explanation of how he came to be arrested. The trial court was required to set out the defence and weigh it against the prosecution evidence. 26. Under Okeno v Republic (supra), this Court must re-evaluate how the defence was treated and determine whether the trial court properly analysed it. The duty to examine the defence is heightened where the prosecution case is weak or dependent on hearsay, as was the case here. 27. The Appellant also relied on Ndungu Kimanyi v Republic (supra), which underscores that a conviction can only stand where the prosecution case is built on credible and trustworthy evidence. Where the prosecution evidence is doubtful, inconsistent, or unreliable, the defence, even if brief, must be accorded full and fair evaluation. 28. The record shows that the trial court dismissed the Appellant’s defence without analysing its material components. The defence raised matters that directly challenged the prosecution’s case, including his denial of knowing the complainant and the absence of any direct or circumstantial evidence placing him at the scene. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18545/eng@2025-11-20 4

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29. These were critical factors that required specific assessment, especially in light of the prosecution’s reliance on hearsay statements attributed to a child of tender years who did not testify, and the absence of any witness who saw the Appellant with the complainant. 30. In view of the foregoing analysis, I find that the trial court’s failure to examine the defence in accordance with laid down principles constituted a misdirection. Whether the dual conviction was lawful 31. As earlier demonstrated, the prosecution presented no direct, eyewitness, or circumstantial evidence connecting the Appellant to the ofience. The alleged identification was hearsay from a child who did not testify. With identity unproved, the conviction on the main count could not stand. 32. The conviction on the alternative count was similarly untenable. A finding of penetration excluded the possibility of an indecent act, and in any event, the central element of identity was still lacking. 33. The trial court nevertheless entered convictions on both the main and the alternative counts. An alternative count is only considered where the main count fails. Entering convictions on both counts was a clear misdirection, rendering the entire outcome unlawful. Whether the sentence was lawful 34. The conviction on the main count having already been found unsafe for lack of proof of identity, the resulting sentence of 40 years’ imprisonment had no lawful basis. 35. The conviction on the alternative count was equally unsustainable. A finding of penetration was inconsistent with an indecent act, and identity remained unproved. The 10-year sentence imposed on that count was therefore also without foundation. 36. The trial court further erred in entering convictions on both the main and the alternative counts, yet an alternative count only arises where the main count is not proved. The dual conviction was a misdirection and rendered the sentences a nullity. Disposition 37. From the foregoing analysis, I make the following orders: 1. The appeal succeeds in its entirety 2. The conviction in both the main and alternative counts is hereby quashed 3. The sentences imposed on both counts is set aside 4. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18545/eng@2025-11-20 5

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