Job Sichei v Republic

5. The complainant’s mother, LO (Pw3), was informed that her daughter was pregnant, and she told her husband. She took Pw1 to the hospital, and the pregnancy was confirmed. A.O. (Pw4) testified that his wife informed him of his daughter’s pregnancy. 6. The investigating officer, No. 238549 PC Kevin Lumbwa (Pw5), testified that the complainant was defiled by a person known to her, resulting in pregnancy. He recorded statements and issued the P3 form. 7. In his defence, the appellant testified that on 10/10/2022 he was in Nairobi and did not impregnate the complainant. He further testified that he travelled back home in December. He also stated that no DNA test was conducted and that the charges against him were fabricated. 8. Oscar Chemasire (Dw2) testified that the appellant is his brother. He was a student at Kipsoma Technical Institute. However, before joining the institute, he was in Nairobi between August and December, residing with the appellant and working as a mason. They travelled from Nairobi in December. In January 2023, the appellant worked at the Kapkara Secondary School canteen until August, when he was arrested. On cross-examination, he testified that on October 10, 2022, the appellant was working at the school and that he was not always with him at all times. The Appeal 9. The appellant has filed an appeal with 17 grounds of appeal that can be summarised as follows: the prosecution failed to prove their case beyond reasonable doubt by proving all elements of the ofience of defilement (age of the complainant, penetration and identification); that the trial magistrate erred in shifting the burden of proof to the appellant; that the trial magistrate misapplied section 124 of the Evidence Act; his defence was not considered and that the prosecution case was marred with contradictions, discrepancies and inconsistencies. Submissions By Parties 10. In his submissions, the appellant argues that the P3 Form contradicts the charge sheet regarding the date of the alleged ofience, as it states 10/11/2022, while the charge sheet states 10/10/2022. The P3 Form further confirms that the complainant delivered on 23rd July 2023, placing the date outside the nine-month conception period. The appellant was identified solely by Pw1. There was no DNA evidence linking the appellant to the crime. No birth certificate was produced. The charge sheet and Pw3’s evidence indicate that she was 17, whereas the complainant’s father and the P3 Form indicate she was 16. Therefore, given the uncertainty surrounding her age and the lack of credibility of the witnesses, it is possible that the complainant was 18 years old. There was also no proof of penetration or identification of the appellant as the perpetrator. The prosecution's evidence did not rebut the appellant’s alibi defence. The trial court erred in rejecting the appellant’s alibi defence. The prosecution failed to prove its case, and the conviction and sentence should be set aside. 11. The prosecution submitted that the birth certificate showed the complainant was a minor aged 17. Pw1 testified that she had sex with the appellant on 10/10/2022 and only realised she was pregnant on 8/11/2022. She had known the appellant for 2 years and had engaged in sex on multiple occasions. Therefore, identification was by recognition. The trial court rejected the appellant’s alibi defence on the ground that it was raised only at the defence stage and failed to dislodge the prosecution’s evidence. There were no material contradictions among the prosecution witnesses. It was submitted that the prosecution proved its case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18884/eng@2025-11-24 2

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Analysis And Determination 12. I have carefully considered the appeal and the rival submissions. The only issue raised in the appeal is whether the prosecution proved its case to the required standard. 13. The prosecution was required to prove that the complainant was under 18 years of age, that he was positively identified as the perpetrator, and that there was penetration. 14. According to the birth certificate, the complainant was born on 15th December 2005, making her 17 at the time of the ofience. Her parents (Pw3 and Pw4) both confirmed this date of birth. The P3 form also records her age as 17, and a dental formula-based age assessment reached the same conclusion. The treatment notes likewise reflect the same date of birth. Therefore, there were no contradictions or inconsistencies regarding the complainant’s age, and the prosecution proved beyond reasonable doubt that she was 17. 15. Regarding identification, Pw1 testified that she had known the appellant for 2 years before the incident. She further testified that on 10/10/2022, she went to his house at 5:30 p.m. The incident occurred during the day, and there is no doubt that the complainant positively identified the appellant. Pw1 told her father that it was the appellant who had impregnated her, and her evidence remained unshaken on cross-examination. The trial magistrate, in compliance with section 124 of the Evidence Act, found that Pw1 was telling the truth, as she was firm about who had impregnated her. 16. The appellant faulted the judgment of the trial magistrate on the basis that Pw1 was the sole identification witness and that her testimony was uncorroborated. However, the proviso to section 124 of the Evidence Act provides that corroboration is not required if the court believes the minor told the truth and records its reasons. In the case of PMG v. Republic [2022] eKLR, the court referred to the Court of Appeal case of Stephen Nguli Mulili v. Republic [2014] eKLR and stated thus: “ 40. There is no dispute that under Section 124 of the evidence Act, a court can convict based on the evidence of the victim alone in sexual ofiences. In this regard am guided by the case of Stephen Nguli Mulili v Republic (supra) where the court held; “with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.” 17. Therefore, the trial magistrate correctly applied section 124 of the Evidence Act in this case. The prosecution's evidence was that the appellant was well known to the complainant and that the incident occurred in broad daylight. The appellant was therefore positively identified as the perpetrator of the crime. 18. I now turn to consider whether the respondent proved penetration. Pw1 testified that the appellant took his penis and inserted it into her vagina. The clinical officer, Pw2, testified that a pregnancy test was carried out 3 months after the complainant had sex with the appellant, and it revealed that she was pregnant. Pw1 gave birth on 23/7/2023. Although the appellant faulted the prosecution for failing to produce a DNA report, it is now settled that the ofience of defilement is not proved by a DNA test but by evidence. The court in Aml v Republic [2012] eKLR held that the fact of rape or defilement is https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18884/eng@2025-11-24 3

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not proved by a DNA test but by evidence. This was further affirmed by the same court in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa), where the court stated: “ … [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” 19. Pw1 gave clear evidence of how the ofience was committed by the appellant. From her evidence, it is without doubt that there was penetration. 20. The appellant’s defence through Dw1 and Dw2 was that he was working in Nairobi at the time of the incident. However, there was no evidence that he was indeed in Nairobi at that time. 21. Consequently, I find no merit in his appeal. The appeal is hereby dismissed. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 24TH DAY OF NOVEMBER 2025 R.E. OUGO JUDGE In the presence of: Mr Mukhooli -For the Appellant Job Sichei/ Appellant Miss Matere -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18884/eng@2025-11-24 4

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