Stephen Munyasya v Republic

d. That, the learned trial magistrate erred in law in relying on the testimony of PW I without complying with the provision to Section 124 of the Evidence Act, by failing to record any reasons for believing that PW1 was telling the truth. e. That, the learned trial magistrate erred in law by improperly detaining the complainant, a minor, contrary to law, and thereby compromised the voluntariness, reliability, and credibility of her testimony. f. That, the learned trial magistrate erred in law and fact by unlawfully detaining the complainant, a minor, after she gave an unfavourable testimony, thereby exerting coercive pressure which rendered her subsequent testimony unreliable and inadmissible. g. That, the learned trial magistrate erred in law and fact by failing to find that the complainant had become a hostile witness, and instead unlawfully detained her without an application by the prosecution under Section 161 and 163 of the Evidence Act. h. That, the learned trial magistrate erred in law by acting outside the scope of a neutral adjudicator and descending into the arena of conflict by directing the incarceration of a minor witness, thus compromising the fairness of the trial. i. That, the learned trial magistrate erred in law and in fact by relying on medical evidence (PW4) which clearly showed that there were no recent signs of trauma or injury to the complainant's genitalia, and thus failed to corroborate the allegation of recent penetration. j. That, the learned trial magistrate erred both in law and fact by disregarding the clinical officer's evidence that the hymen had an "old tear," which failed to support the prosecution's claim of recent sexual activity. k. That, the learned trial magistrate erred in law and fact by relying solely on circumstantial evidence of presence or opportunity (i.e. the complainant being in the appellant's house), without proving the crucial element of defilement. i. That, the learned trial magistrate erred in law by shifting the burden of proof to the appellant, particularly with respect to the age of the complainant, contrary to Article 50(2)(a) of the Constitution. m. That, the learned trial magistrate erred in law and fact by convicting the appellant without considering the material inconsistency between the complainant's initial statement that she did not know the appellant and her later contradictory claim after unlawful detention. n. That, the learned Trial magistrate erred in law by failing to consider that the complainant, being under detention, may have been coerced or induced into altering her testimony, thereby rendering such evidence inadmissible or unreliable. o. That, the learned trial magistrate erred in both law and fact by failing to consider the psychological and constitutional implications of incarcerating a minor witness and the resultant impact on the fairness of the trial. p. That, the learned trial magistrate erred in both law and fact by convicting the appellant on the basis of speculative reasoning, rather than on proven facts supported by credible, admissible, and corroborated evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 2

page 2 of 9

q. That, the learned trial magistrate erred both in law and in fact by treating a non -refractory witness as if she were one, and invoking punitive powers which were neither applicable nor justifiable under Section 152 of the Criminal Procedure Code. r. That, the learned trial magistrate erred in law and in fact by disregarding or misapplying binding judicial precedents which underscore the importance of credible, corroborated, and voluntarily given testimony in sexual offence cases. s. That, the learned trial magistrate erred in both law and fact by basing the conviction on assumptions, misdirection, and extra-evidentiary considerations rather than on concrete, credible, and admissible evidence. 3. The appeal was canvassed by way of written submissions. 4. The Appellant submitted that the conviction was erroneous due to the prosecution's failure to meet the required standard of proof. He attacks the conviction and sentence on the grounds that the evidence presented was insufficient to support a conviction beyond a reasonable doubt. That the ingredients of the offence were not proved. 5. He placed reliance on the decision in Murithi v Republic (Criminal Appeal E054 of2023) [20251 KEIIC 4260 (KLR), and Julius Kioko Kivuva v Republic [20151 eKLR, which emphasized the need for complainants to give clear, sensory, and vivid details that prove beyond doubt that the act in question involved penetration. It is asserted that the standard was not met in the present case. 6. He cited the decision in Republic [20171 P M M v eKLR, where the court underlined the critical nature of such sensory testimony. 7. The Appellant submits that despite the allegation of multiple instances of sex, PW I did not provide a single concrete detail on how any of these instances occurred, when, or in what manner. She simply states "I had sex," without elaboration or context, leaving this Court to speculate on whether there was penetration, which the law does not allow. Reliance was placed on the case of Furaha Ngumbau Kagenge v Republic, Criminal Appeal No, 141 of 2016. He states that the evidence of the clinical officer, PW4 (Peter Nguiya), does not corroborate the element of penetration as he testified that on physical examination of genitalia it was normal, hymen was broken but an old one. 8. It urged that this was a critical finding. If, indeed, PW I had been subjected to repeated sexual encounters over a short period, the hymenal injury would be recent, with fresh signs of trauma. The fact that the hymenal tear was "an old one" indicates no recent penetrative act, further weakening the prosecution's case. 9. It is submitted that PW1’s evidence fails the test of credibility and reliability which as held in Jectons v I-IMA [2011] I-ICJAC SCL 927, is a distinct and essential component: “ A person who is credible is one who is believed. A person who is reliable is one upon whom trust and confidence can be placed... reliability may only be cäpable of being addressed having regard to the various traced record. " 10. The Appellant submits that Section 124 of the Evidence Act provides a statutory exception to the general rule requiring corroboration of the testimony of a victim in sexual offences. However, the safeguard built into the provision is that the trial court must record the reasons for believing the complainant to be telling the truth. The provision cannot be invoked mechanically or presumptively. It https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 3

page 3 of 9

requires that the trial court actively assesses the truthfulness of the complainant's testimony and states cogent reasons for accepting it as truthful. 11. It is urged that the trial court did not comply with the mandatory requirements of Section 124. There is no place in the record where the trial court recorded its independent reasons for believing PW l. This omission is fatal to the conviction, especially where PW I was the only witness giving direct evidence on the issue of penetration — a central ingredient of the offence of defilement. 12. Further, that the credibility of PW1 was highly compromised. On 26/07/2021, the complainant, after being duly sworn, the trial court stated that the complainant "declined to testify and answer any questions. " The trial court did not merely record this event but took the extraordinary step of ordering that the minor be remanded in custody until 29/07/2021. This is wholly irregular and prejudicial. 13. It is urged that the trial magistrate overstepped judicial neutrality and, descended into the arena. By ordering PW I 's detention, the court effectively acted as prosecutor and investigator simultaneously, The correct procedure in such circumstances, if the prosecution had concerns that PW I was hostile, was for the prosecution to apply for her to be declared a hostile witness under Section 161 and Section 163(1)(c) of the Evidence Act. 14. It is the Appellant’s case that this action raises profound constitutional questions. Several questions are posed; Was she coerced into changing her testimony after being unlawfully detained by the court? Was she intimidated by the court process to the extent that her evidence became unreliable? Was she influenced by fear of further detention when she reversed her earlier statement and called the appellant her boyfriend? Was she giving truthful evidence on 5/6/2021 when she said she did not know the appellant, or on 29/7/2021 after detention when she claimed he was her boyfriend? Was she, as a minor aged 15, psychologically affected by her incarceration, thereby impairing her ability to give free and voluntary evidence? Was she tailoring her testimony to avoid being detained again rather than telling the truth? Was she a credible witness in light of the contradictions in her testimony before and after detention? 15. It is submitted that the complainant’s initial evidence is that she did not know the Appellant only for her to return after incarceration and state she was found in her boyfriend’s place. 16. Emphasis is laid that as held by Lord Clarke in Jenctons v I-IMA [2011] HCJAC SCL 927, reliability is different from credibility. Even a seemingly believable witness may be unreliable if the surrounding circumstances impair the freedom and authenticity of their testimony. 17. It is further submitted that this Court in Murithi v Republic (supra) correctly appreciated the dangers of relying on the testimony of a witness who has been detained or otherwise subjected to undue pressure. As the court observed, once a complainant has been arrested and held in custody, particularly a minor, it becomes nearly impossible to discern whether her evidence is genuine or influenced by an understandable desire to regain her freedom. In this context, the credibility of such a witness is severely diminished. These concerns were also eloquently captured by Mativo J (as he then was) in Paul Ndogo Mwangi v Republic [2016] eKLR, where he warned that unexplained detention of a complainant — especially when not under any suspicion of wrongdoing—introduces an element of coercion that fatally undermines the credibility of their evidence, 18. Reliance was also place on the decision in the case of Luka Waithaka Ndegwa v Republic 12017] KEIIC 661 (1<LR) the court held that; “ 25. In the present appeal, it is my finding that the complainant's evidence is wholly unreliable. Firstly, it was apparent that she was not willing to tell the truth https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 4

page 4 of 9

because she did not want to implicate the appellant who was her boyfriend. Secondly, she was intimidated by the court when it wrongly ordered her incarceration. At age 15, she was a young person and being detained must have affected her negatively, It is impossible to say whether her evidence was intended to favour the appellant or she was simply saying what she thought the prosecution or court wanted to hear so that she was not detained again”. 19. The handling of PW1’s evidence is challenged in that the complainant did not qualify to be treated as a refractory witness under Section 152 of the Criminal Procedure Code. She was not refusing to be sworn, nor did she defy a lawful order of the court. Rather, she was merely unwilling to testify in line with her prior police statement. 20. That she was a hostile witness within the dictum in Coles v. Coles, (1866) L.R. IP. & D. 70, 71 cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [19961 eKLR in which it was stated that a hostile witness is one who "from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court'. In Alowo v. Republic [19721 EA at page 324 also cited in the same case the Court stated“ The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.' 21. For the state, it is submitted that the testimony of PW4 was beyond a shadow of a doubt, that the appellant defiled the complainant. He testified that he examined the victim and noted that her genitalia was normal, hymen was broken but an old one. There was numerous hyplito cells seen with no spermatozoa, the presence of epithelia cells ascertained the evidence of defilement. 22. It is urged that the medical evidence availed by the P3 form (PEXH 5), truly indicates that the victim was defiled beyond reasonable doubt. The main ingredient for defilement, penetration was proved appropriately by the Prosecution. 23. Further, that the age of the minor was proved by the birth certificate produced as (Pexh 2) by PW8. It indicated that the victim was born on 25th June, 2004 therefore 16 years, 11 months. 24. Counsel submits that the testimony of PW1 clearly establishes that the appellant was her boyfriend since the corona holiday. They had sexual intercourse several times. The victim clearly understood the meaning of sex. Furthermore, that PW2, PW3 & Pvv4 actually found the victim in the appellant's house listening to music. The appellant was also arrested returning to his house. 25. It is the Respondent’s case that trial court relied on S. 124 of the Evidence Act to ascertain that the victim was telling the truth. 26. On detention of the complainant, it is submitted that S. 152 (1) of the Criminal Procedure Code provides that whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence— a. refuses to be sworn; or b. having been sworn, refuses to answer any question put to him; or c. refuses or neglects to produce any document or thing which he is required to produce; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 5

page 5 of 9

27. d. refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him. (2) If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time, until the person consents to do what is so required of him. (3) Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it. It is submitted that the trial court was right to treat PWl as a refractory witness. She refused to answer any questions put to her after being sworn by the trial court. The three days detention (26th July, 2021 to 29th July, 2021) was valid, since it’s within the eight days provided by the law. S. 161 to S. 163 of the Evidence Act clearly does not apply in this case, since the victim's credibility was not challenged during the trial. 28. On the ground that the trial court erred in law and fact by relying on circumstantial evidence of the victim's presence in the appellant's house, counsel submits that PW2, PW3 & PW4 were all present when PW1 was found in the appellant's house and that the testimony of PW1 clearly show that, the appellant was her boyfriend since the corona holidays. 29. On the question of the shifting of the burden of proof, counsel denies this and asserts that the case was well proved by the Prosecution. The burden of proof in criminal cases is beyond reasonable doubt. In this matter, the prosecution proved its case beyond reasonable doubt as required by the law. He placed reliance on the case of Woolmington vs. DPP [19351 A.C 462 pp 481. 30. The complainant was aged 16 years at the material time. The complainant initially denied that the Appellant had defiled her and was reluctant to testify against him. It is not disputed that she was thereafter detained by order of court after being treated as a refractory witness. After such detention, she was presented as a witness and she now implicated the Appellant whom she said was her boyfriend. 31. Medical evidence adduced by the prosecution (PW4) showed no genital injuries, an intact hymen, and no medical findings consistent with penetration. 32. PW2, PW3 and PW5 were present when the complainant was found in the house of the Appellant. 33. On his part the Appellant, denied knowing the complainant and denied ever having defiled her. Issues for Determination 34. The issues that fall for determination are: 1. Whether the complainant’s evidence was lawfully and reliably obtained; 2. Whether penetration was proved beyond reasonable doubt; 3. Whether the Appellant was properly identified as the perpetrator. 4. Whether section 124 of the Evidence Act was properly invoked; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 6

page 6 of 9

5. Whether the conviction was safe. 35. The complainant was a child within the meaning of Article 53 of the Constitution and the Children Act. Article 53(1)(f) of the Constitution provides that a child shall not be detained except as a measure of last resort and, when detained, for the shortest appropriate period of time. 36. The record shows that the complainant was detained after the court formed the opinion that she was a refractory witness. To begin with, on the material before court, the witness was not a refractory witness. Though the court recorded that the witness having been sworn had declined to testify or answer questions, the record shows that she had as at that point given evidence that she did not know the Appellant and that she had been found at a friend’s house and the name of her friend was Asha. It is not clear what other questions were put to her and she declined to answer but the record shows that the court on its own motion placed her in custody for 3 days. The complainant who evidently was reluctant to implicate the appellant who was her boyfriend was in my respectful view, a hostile witness. 37. It was the duty of the court to make it clear on record the reason for the detention and the Section of the law upon which it was anchored. The basis of the detention remains blurred. In its judgement, the trial court introduces a further puzzle on the issue by stating “The complainant on the first day of her testimony turned almost hostile and reluctant to testify.” So was this witness hostile or refractory? The detention breached established legal procedure but also violated the complainant's rights and rendered any subsequent evidence suspect. 38. Based on the Criminal Procedure Code (Cap 75), the legal Procedure for declaring a witness refractory (unwilling to testify) and detaining them for a limited period-often up to eight days at a time, or until they comply must meet the following conditions.; The witness must be in court (either having attended in obedience to a summons or brought under a warrant) and refuse to be sworn, refuse to answer questions, or neglect to produce a document/thing without a sufficient excuse; The court holds a summary proceeding to determine if the refusal is willful and without “sufficient excuse”; if the court finds the witness is acting in a “refractory” manner, the Magistrate may issue an order to commit the witness to prison; The court may adjourn the case for any period not exceeding eight days; if, upon being brought back to court, the witness still refuses to testify, the court may again adjourn the case and order further detention for the same period, continuing this process until they comply. 39. I think it is opportune to draw a distinction between a Refractory Witness and a Hostile Witness: A refractory witness refuses to testify or be sworn. A hostile witness is one who testifies but is deemed to be acting in the interest of the opposing party requiring cross-examination by the party that called them. 40. It follows, therefore, that at all material times the court must be clear in its mind what kind of witness it is dealing with to be able to establish the correct applicable procedure. 41. The Court of Appeal in Edusei Asili Malema v Republic [2007] eKLR set the proper legal procedure for the prosecution to apply to have the witness declared hostile under Section 161 of the Evidence Act. Detain her not only breached established legal procedure but also violated the complainant's rights and rendered any subsequent evidence suspect. 42. The Court of Appeal has consistently held that evidence obtained through coercion, oppression, or inducement is unreliable and cannot sustain a conviction. In Tuwamoi v Uganda [1967] EA 84, the Court emphasized that a conviction must not be founded on evidence whose voluntariness is doubtful. 43. Similarly, in Paul Mwangi Murunga v Republic [2008] eKLR, the Court of Appeal warned against reliance on testimony obtained in circumstances that raise suspicion of pressure or influence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 7

page 7 of 9

44. The complainant’s change of version after detention gravely undermines the credibility of her testimony. The questions posed by the Appellant, viz; Was she coerced into changing her testimony after being unlawfully detained by the court? Was she intimidated by the court process to the extent that her evidence became unreliable? Was she influenced by fear of further detention when she reversed her earlier statement and called the appellant her boyfriend? Was she giving truthful evidence on 5/6/2021 when she said she did not know the appellant, or on 29/7/2021 after detention when she claimed he was her boyfriend? Was she, as a minor aged 16, psychologically affected by her incarceration, thereby impairing her ability to give free and voluntary evidence? Was she tailoring her testimony to avoid being detained again rather than telling the truth? Was she a credible witness in light of the contradictions in her testimony before and after detention? Beg for answers and the answers would have far reaching effects on the overall credibility of the evidence. 45. This Court in its decision in Murithi v Republic (supra) appreciated the dangers of relying on the testimony of a witness who has been detained or otherwise subjected to undue pressure. The court observed that once a complainant has been arrested and held in custody, particularly a minor, it becomes nearly impossible to discern whether her evidence is genuine or influenced by an understandable desire to regain her freedom. In this context, the credibility of such a witness is severely diminished. These concerns were also eloquently captured by Mativo J (as he then was) in Paul Ndogo Mwangi v Republic [2016] eKLR, where he warned that unexplained detention of a complainant — especially when not under any suspicion of wrongdoing—introduces an element of coercion that fatally undermines the credibility of their evidence. 46. This Court finds that the trial court failed to address the effect of the detention on the reliability of the evidence. 47. The law is settled that where a witness materially contradicts themselves or recants an earlier position, the court must exercise great caution. 48. In Ndungu Kimanyi v Republic [1979] KLR 282, the Court of Appeal held that a witness whose evidence is inconsistent and untruthful creates doubt which must be resolved in favour of the accused. 49. The complainant’s initial denial of sexual activity and subsequent implication of the Appellant, without a satisfactory explanation, created a material contradiction which the trial court failed to reconcile. 50. Penetration is a critical ingredient of the offence of defilement and must be proved beyond reasonable doubt (section 2 of the Sexual Offences Act). 51. The Court of Appeal in Kassim Ali v Republic [2006] eKLR stated that although medical evidence is not mandatory in sexual offences, where it is available and does not support penetration, a court must be cautious in convicting. 52. In Fappyton Mutuku Ngui v Republic [2012] eKLR, the Court of Appeal held that lack of medical evidence corroborating penetration, coupled with doubtful testimony, renders a conviction unsafe. 53. In the present case, the medical evidence did not show recent injuries. The hymen was broken old. 54. Section 124 of the Evidence Act allows a conviction to be based on the sole evidence of the complainant in sexual offences, provided the court believes the complainant and records reasons for such belief. 55. In Mohamed v Republic [2006] eKLR, the Court of Appeal held that the proviso to section 124 does not dispense with the need for careful evaluation of credibility and consistency. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 8

page 8 of 9

56. The High Court in JOO v Republic [2019] eKLR reiterated that section 124 cannot be invoked where the complainant’s evidence is tainted by contradictions or suspicion. 57. Further illumination on the matter is found in this court’s decision in Macharia v Republic (CriminalAppeal E021 of 2023) [2025] KEHC 358 (KLR) it was stated: “ 49. As it were, the evidence of penetration in this matter is of the victim only, It is good evidence within the latitude afforded by Section 124 of the Evidence Act. But that section requires full compliance before a conviction can be based on such evidence. " 58. The trial court in its finding that the complainant’s evidence was corroborated by that of the clinical officer. This was not factually correct. The court made not even a fleeting mention of the application of Section 124 of the evidence Act. The medical evidence made no positive findings on recent penetration and the only evidence remaining was that of the complainant and since the trial court did not base its finding on believing this single witness and giving reasons for believing her, the conviction must be vitiated. 59. On the whole, it is my finding that the conviction arrived at by the trial court was unsafe. In the circumstances, I find merit in the appeal. The same is allowed. The judgement by the trial court is hereby set aside, conviction quashed and sentence set aside. The Appellant shall be set at liberty unless otherwise lawfully held. DATED SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JANUARY 2026 A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/789/eng@2026-01-30 9

page 9 of 9