Republic v Andrew Nyongesa

c. 4. That the Hon trial magistrate misdirected himself in law by acquitting the respondent on the basis of alibi evidence that was misapplied at a late stage in the trial by the respondent. The appellant seeks that the judgment and order of acquittal of the respondent be set aside and that the court order a retrial or convict the respondent of the offence. Analysis and Determination 5. As the first appellate court, my duty is well spelt out, namely to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis to reach an independent conclusion as to whether or not to uphold the decision of the trial court. (See Okeno v Republic [1972] EA 32). 6. RNS (Pw1) testified that on 1/10/2022 at 7:00 p.m., she was escorting her friend A to the posho mill. On the way back, she met the respondent on the road leading to Shine Academy. The respondent led her to the bush next to her home, removed all her clothes, and put his urinating thing in hers. The respondent is a boda boda rider, and Pw1 recognised him because of his beard and how he shaves. After the incident, she went to the respondent’s home and wanted to tell his wife what had transpired, but she was scared. She sat at the respondent’s house before her mother came. She told her mother what had transpired. She was taken to Lugulu Hospital, where she was admitted for 2 days. On crossexamination, she testified that she did not scream because the respondent had threatened her. 7. The complainant’s mother, MKT (Pw2), testified that between 7:30 p.m. and 8:30 p.m., she went to her house and did not find Pw1. She looked for her in the market, and Pw2 was told that the complainant was seen with A. She went to A’s, who informed her that Pw1 had escorted her to the mill, but they had parted on the way back. While she was there, she received a call informing her that Pw1 was at the respondent’s. She went to the respondent’s home but did not find the respondent. The wife and the sister were in the house. She went home with the child, and the child told her that the respondent had raped her. She took the child to the hospital and reported the matter to the police station. 8. The clinical officer, JB (Pw3), testified that he completed the P3 form 5 days after the incident. Pw1 had been treated at Lugulu Hospital, where the post-rape card was filed. According to the post-rape care form, the hymen was torn and the vulval skin bruised. Pw3 noted that her clothes and panties had blood stains. According to the medical evidence, Pw1 had been defiled. On cross-examination, she testified that Pw1 had no physical injury, but her pants had blood stains as a result of the broken hymen. 9. No xxxx PC Scholastica Kinyer (Pw4) testified that she was the investigating officer. On 2/10/2022, Pw2 reported that her child had been defiled by a person known to her. She was taken to Lugulu Mission Hospital, where she received treatment. Pw4 issued a P3 form, and the respondent was arrested. 10. When placed on his defence, the respondent testified as Dw1. On 1/10/2022, he developed a headache and went home to rest. He lived with Linnet Nyongesa (Dw3) and Juma Elizabeth (Dw4). After resting for 30 minutes, there was a knock at the door. Dw1, Dw3 and Dw4 testified that Pw1 introduced herself and explained that she was escorting her friend. She explained that she could not go home because her mother was harsh. Dw1 told the complainant that she couldn't sleep in their house as she was a student. Dw1 informed the landlord. The complainant’s mother was called, and she sent 3 boys to pick the girl. 11. Abel Wanyonyi (Dw2) testified that he attends the same school as the complainant. On the material day, at 9:00 p.m., Pw2 came to their home to look for the complainant. They went to look for her before retreating to Pw2’s house. After a short while, they were told that the complainant was at the respondent’s house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18804/eng@2025-11-25 2

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12. In her judgment, the trial magistrate held that the prosecution had proved that Pw1 was 11 years old on the date of the incident. She further held that the prosecution had proved penetration. The evidence of the complainant, Pw3, and the medical documents confirm that the hymen was torn and the vaginal skin bruised, all of which confirmed penetration. However, regarding the identification of the perpetrator, the trial magistrate held that the prosecution did not lead evidence to establish how the complainant was able to identify the perpetrator as having a beard and as the accused person who committed the offence. 13. The appellant argues that the respondent’s identification was by recognition. She recognised his beard and the way he shaves. The respondent also spoke to her and threatened to kill the complainant. Immediately after, she went to the respondent’s house. Pw4 testified that it was the complainant who led them to the appellant’s house so that they could make the arrest. They called in aid the case of Karani v Republic [1985], where it was held that identification by voice nearly always amounts to identification by recognition. 14. The appellant also faulted the trial court for giving undue weight to the respondent’s alibi defence. The defence witnesses did not provide any evidence of when the respondent arrived home. They were not specific in their evidence and did not indicate the date and time of the incident. In addition, the respondent was required to raise the defence of alibi at the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the alibi. (See R v Sukha Singh s/ o Wazir Singh & Others (1939) 6EACA 145). 15. The respondent submitted that the measure of punishment for an offence is not determined by the level to which that offence bears. The gravity of the offence furnishes the guidelines for punishment, and one cannot determine how grave the offence is without having regard to the circumstances in which it was allegedly committed, its motives and its repercussions. The respondent submitted that, based on the appellant’s prayers, the court should order a fresh trial. 16. The respondent seeks a retrial, thereby conceding the appeal. However, the court in Odhiambo v Republic [2008] KLR 565 held that: “ the court is not under any obligation to allow an appeal simply because the state is opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and redress it and reach its own determination based on evidence.” 17. The Court must therefore examine the evidence presented before the trial magistrate to determine whether she erred in reaching her decision. 18. In this case, the main issue raised by the appeal is the identification of the perpetrator. Pw1 testified that her assailant threatened to kill her if she screamed. According to her testimony, the assailant spoke to the complainant. However, Pw1 identified the appellant visually by his beard and shaving style. 19. The trial court was therefore required to inquire into the presence and nature of light, the intensity of that light, the location of the light source in relation to the accused, and the time taken by the witness to observe the accused, in order to identify him subsequently. (see Court of Appeal decision in Joseph Muchangi Nyaga & another v Republic [2013] eKLR). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18804/eng@2025-11-25 3

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20. The prosecution argued that the respondent was well known to Pw1, as he was a boda boda rider. The difference in approach between identification and recognition was expressed by Madan JA in Anjononi and Others vs The Republic [1980] KLR as follows: “ …………………This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 21. However, courts remain obligated to scrutinise such evidence with great care. In the case of Paul Etole & Another vs Republic [2001] eKLR, the Court of Appeal stated: “ Evidence of visual identification can bring about a miscarriage of justice. But such miscarriage of justice occurring can be much reduced if whenever the case against an accused depends wholly or substantially on the correctness on one or more identifications of the accused, the court should warn itself of the need for caution before convicting the accused.” 22. The prosecution’s evidence was that at 7:00 p.m., the complainant escorted her friend to the posho mill. Pw1 testified that she recognised the respondent by his beard; however, there was no evidence as to the source of light. The prosecution relied on visual identification. Therefore, it was required to present evidence of the source of light and its intensity. This was not done. The trial magistrate cannot be faulted for finding that the prosecution failed to establish how the complainant saw the assailant’s beard, yet it was dark. 23. The respondent’s defence was that on the material night he was with Dw3 and Dw4 in his house and therefore could not have assaulted the complainant. Neither Dw3 nor Dw4 specified the time at which the appellant arrived home. However, the burden of proof lay with the appellant to prove that the respondent was the perpetrator of the offence. The appellant failed to prove that the respondent was positively identified as the perpetrator. 24. Consequently, the appeal is without merit and is hereby dismissed. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 25TH DAY OF NOVEMBER 2025 R.E. OUGO JUDGE In the presence of: Andrew Nyongesa / Appellant Miss Kibet -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18804/eng@2025-11-25 4

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