Pmw v Republic

6. The trial court considered the case and rendered Judgment on 29.11.2023. The Court found the Appellant guilty on the main charge and convicted him of the offence. The Appellant was also sentenced to a term of 7 years imprisonment. 7. Aggrieved by the judgment of the trial court, the Appellant lodged the present appeal against both conviction and sentence. The appeal is premised on the grounds that the trial court erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt, and further erred by failing to adequately consider the Appellant’s mitigation before imposing a sentence that is alleged to be excessive. Evidence 8. At trial, PW1 was the minor. She was in PP1. She could not tell her age or when she was born. According to her, the Appellant was the father. He used to live with them. She was not going to school before. Her father would put his hands in her. L was in school. Her father could put hands and touch her vagina and anus. The Appellant took her to sleep on her mother’s bed. She lay facing down. The Appellant lay on top of her. The Appellant picked cooking oil and applied it to her anus. She felt pain when he put his hand inside her private part. This was the first time. She told her mother, who called the police. 9. On cross-examination, it was her case that she was urinating on herself because she was feeling pain. She was feeling pain because the Appellant was putting hands inside her. On further cross-examination on 27.7.2023, she testified that she was not going to school when the Appellant inserted his fingers in her private part. Her sister was at school. The Appellant inserted fingers in her buttocks. 10. PW2 was CNG, the mother of the minor. According to her, on 17.4.2023, she got home around 8 p.m. Her firstborn daughter told her that the minor’s teacher had sent information that the minor should not return to school until they knew what was happening to her. 11. According to the said teacher, the minor was not eating lunch, was just sleeping in class, and had a fever. She was also not playing with others. It was her further testimony that the Appellant was not the biological father of the minor. The minor was born on 3.1.2018. She lost the minor’s birth certificate while moving houses. It was her stated case that the minor told her that when she returned from school, the Appellant gave her tea. The Appellant took her to bed and covered her mouth. He applied cooking oil to her private parts. He took off his clothes, but all he had on were green shorts. 12. Further, she testified that on the material day, the Appellant, who was a night guard, was going out for duty. He came back the next morning, and she questioned him. He denied and said it could be a neighbor. She took the minor to the hospital. She had started wetting herself and coming from school with soiled clothes. The minor could not tell the exact date it happened. She had started wetting herself 7 days before she reported this incident. She gave birth in November 2021. She was admitted for 3 months, during which the minor was with the Appellant. 13. On cross-examination, it was her case that she told the Appellant to leave the house on 17.4.2023. On further cross-examination on 27.7.2023, it was her case that in September 2021, the minor had reported to her that the Appellant would cover her and insert his fingers in her private parts. She did not believe this. 14. PW3 was No. 102113 PC Risper Njeru of Nyeri Police Station. According to her, on 25.4.2023 PW2 came to her office at around 9 a.m. She came with the minor. She reported the incident. She recorded the minor’s statement. She went to the scene of crime and the Appellant ran away. Upon investigations, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 2

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she came to the logical conclusion that the Appellant was the culprit following which he was arrested and charged. 15. On cross-examination, it was her stated case that the minor was treated at Nyeri Provincial Hospital and identified the accused as the perpetrator. She arrested the Appellant on 26.4.2023. 16. PW4 was Dr. William Muriuki. The minor was sent to hospital on 18.4.2023. He produced the P3 Form and PRC. They were prepared by Dr. Kariithi who was away on leave. The minor had no external injuries. The hymen was torn and fresh looking, on examination. The P3 form was filled out on 24.4.2023. PRC was filled on 17.4.2023. The defilement was inflicted using fingers. On crossexamination, it was his case that the hymen could be broken by inserting objects in the vagina, penetration, or through accidents. He could not tell the cause of the torn hymen except based on the minor’s explanation. 17. The appellant was placed on his defence and opted to give sworn testimony. He testified as DW1. According to him, he had conflicts with PW2. Earlier on 3.3.2023, he went to his house in [Particulars Withheld] and found another man’s clothes. He inquired from PW2 why these clothes were there. PW2 warned him not to control her movements. On 1.4.2023, he secured a job as a night guard. He would return home in the morning. PW2 informed him on 11.4.2023 that she would accuse him of sleeping with his daughter. PW2 also wrote a message asking him to return the TV and the bed. On 13.4.2023, he reported this threat to the Ruringu Police Station and was issued with an OB Number. PW2 later came on a boda boda. She took his phone and left. Minutes later, police came and arrested him. On cross examination, it was his case that he lived with PW2 and their 3 children from 2021 to 2023. 18. DW2 was Daniel Ndumia Wathutha. The Appellant was his brother. According to him, the Appellant fell out with PW2. He asked him to go pick up his things from his house. He collected 2 blankets, 2 beds, 1 TV, 1 Radio, and 2 mattresses. The Appellant directed him to take the things to their village, as PW2 had refused to relocate. 19. DW3 was Mary Wangechi. The Appellant was her brother-in-law. On cross-examination, she testified that the Appellant informed her that PW2 had threatened him. 20. The court found the appellant guilty and sentenced him to 7 years' imprisonment. Submissions 21. The Appellant filed submissions dated 2.10.2025. It was submitted that the court did not consider crucial evidence of the defence. He relied on Article 50 (2) (k) of the Constitution and Section 169 (1) of the Criminal Procedure Code. 22. It was also submitted that the trial court convicted the Appellant without adequate corroborative evidence. The Appellant cited Section 107 of the Evidence Act and the English case of Woolmington v DPP to submit that the prosecution did not prove the case against him beyond reasonable doubt. 23. The Appellant further submitted that the prosecution failed to call crucial witnesses. He cited Bukenya & Others v Uganda (1972) EA 549 to support the submission that such failure meant the evidence would have been adverse to the Respondent’s case. It was also his submission that the sentence was excessive and harsh. He relied on Francis Karioko Muruatetu v Republic (2017) eKLR. 24. The Respondent did not file submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 3

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Analysis 25. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 26. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 27. The issue in this case is whether the prosecution proved its case to the required standard. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that; Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 28. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. according to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 4

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29. The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 30. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 31. Section 5(1)(a) (1) and (2) of the Sexual Offences Act under which the appellant was convicted provides as follows: (1) (2) 32. Any person who unlawfully(a) penetrates the genital organs of another person with- (i) any part of the body of another or that person; or (ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; (b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault. A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years, but which may be enhanced to imprisonment for life. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 5

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or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 33. Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant faced imprisonment for life or 10 years under section 5(2) of the Sexual Offences Act, even though the court imposed a 7-year imprisonment. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 34. This court has to establish whether the ingredients of the offense were proved to the required standard. The key ingredients of the offence of sexual assault are: a. Penetration of the genital organs of another person. b. Penetration is unlawful. c. Penetration other than by a penis or genital organs of the perpetrator with:i. Any part of the body of another or that person; or ii. An object manipulated by another or that person d. Except where such penetration is carried out for proper and professional hygienic or medical purposes; e. manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, f. Proof that the appellant was the perpetrator of the offence. 35. It is noted that age is not an ingredient of this offence. However, the same applies when age is taken into account, whether the act is unlawful. Furthermore, it is considered when a consent defence is tendered. Ex facie penetration of a child is unlawful, except where such penetration is carried out for proper and professional hygienic or medical purposes. 36. This then brings us to the case at hand. The Penetration was alleged to be by finger. In the case of John Irungu vs Republic (2016) eKLR, the Court of Appeal expressed itself as hereunder: Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose. 37. The age of the minor was not in dispute, and any penetration will thus be unlawful. The appellant was the father and such was well aware of the age of the minor. 38. On penetration, the minor testified that the Appellant took her to PW2’s bed and lay her head down. He applied cooking oil to her private parts and inserted his hands into her private parts. She pointed in the trial court at her anus and the vagina as the private parts she alluded to. This was the first and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 6

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most crucial report to the court. The importance of the first report was appreciated in Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 where it was held that: Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others. 39. PW4, the medical doctor’s report and testimony indicated that there were no injuries observed. However, the hymen was freshly broken. It was his case on cross-examination that the hymen could be broken through accident, penetration, or insertion of an object. 40. The court has perused the PRC Form. It is dated 17.4.2023 and was the first document to be generated in relation to the complaint. It revealed that there were no physical injuries. The external genitalia were normal. The vagina was normal. The anus was normal. The Hymen was freshly broken. Unfortunately, the incidents are said to have occurred over time. The question in my mind is twofold. The charge covers the period from September 2021 to 17th April 2023. This raises the first question. How could the hymen be broken for the first time two years after the offence? The last date is 17.4.2023. The examination was conducted on 17.4.2023. However, there were no injuries, both internally and externally. The appellant is said to have covered himself with a piece of cloth on his face. It is unfathomable that the minor will know who had covered himself on the face when there was no other identifying features. 41. The incident is said to have occurred when only the minor and the Appellant were around. The minor testified that her sister was at school. PW2 was at work. Therefore, the prosecution proved the case against the Appellant based on circumstantial evidence. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that: In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused. 1. 43. The testimony of the minor on penetration was contradictory, and I do not advert to the reasoning of the court that she was credible. I say this because the minor testified that the incident occurred when she was not going to school. PW2, on the other hand, testified that the minor had come from school, and the Appellant gave her tea before the alleged sexual assault. The minor also testified that the Appellant inserted his hands in her anus and buttocks, but on crossexamination stated that the Appellant inserted his finger in her buttocks. Further, her testimony was that the incident of 17.4.2023 was the first time the Appellant had done. Yet, PW2 alluded to minor wetting of her clothes for 7 days prior to 17.4.2023, which she suspected was caused by the criminal acts of the Appellant. PW2 also struggled to relate that the Appellant also sexually assaulted the minor in 2021 when PW2 left the Appellant with the 3 children as she went to the hospital for maternity. The medical evidence did not support her version of evidence. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 7

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The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 44. Whereas a child of tender years, like a 5-year-old, was not expected to remember what happened with precision, the court had the duty to establish credibility and rule out the possibility of the minor giving a fabricated story. 45. The particulars of the offence were not proved, and the attempt by PW2 to relate the alleged sexual assault or defilement back to September 2021 was a clear afterthought to try and cover up the inconsistency by the minor as to whether the allegations were committed when the minor had started going to school. The trial court failed in not holding that such magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 46. Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that: “ The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS Republic (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 8

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demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law." 47. The court, in my view, wrongly proceeded in believing the minor, as if Section 124 of the Evidence Act made superfluous Article 50 of the Constitution. Section 124 is a rule of evidence and not a standard of proof. It is not automatic that the court must just believe the complainant. The rule is set as follows: 124. Notwithstanding the provisions of section 19 of the oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: 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. 48. All the three conditions must be present for a conviction to occur. I add that penetration must be proved against the Appellant. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows: “ Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others." 49. The charge against the Appellant was not proved to the required standard. The cause of the broken hymen was not established. The minor testified that she had lain on her head and the Appellant could apply cooking oil to her. PW2 used to wash the minor as testified. She did not reveal in observation that the minor had an oil smear or dirt in any other alleged private parts. Traces of oil ought to have been conspicuous, as oil does not mix with water and would ordinarily be revealed when it comes into contact with it. 50. Again, if the Appellant lay on the back of the 5-year-old minor who was facing head down, as testified by the minor and PW2, then it was doubtful how there were no injuries other than the alleged broken hymen. The PRC was also filed on the same day of the alleged incident. I am not convinced that the prosecution proved its case as found by the learned magistrate. These inconsistencies ought to have been interpreted in favour of the Appellant. On this, this court has to establish whether the alleged discrepancies and contradictions were fundamental as to cause prejudice to the Appellant. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence." https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 9

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51. The court had to live up to the reality that the Appellant and PW2 had fallen apart. The clear testimony of the Appellant, PW2, and DW2 was that the duo had in fact separated and shared the household items. That is part of the reason the Appellant reported to the police station on 12.4.2023, in an attempt to prevent a possible criminal report by PW2 alleging that he had stolen the household items. Coupled with PW2’s testimony that the Appellant was not the biological father of the minor, there was doubt as to whether the charges were not fabricated to cajole the Appellant, and the court ought to have interrogated this aspect further. 52. Further, some witnesses were mentioned but not called. For instance, Loise, who was the sister of the minor, was not called to testify, yet she is the one said to have been sent from school to report the changes the teacher had observed in the minor. The Respondent was not obliged to call a myriad of witnesses, but as proved here, by circumstantial evidence, all impending circumstances ought to have been examined. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:"No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact." 53. 54. The alleged teacher, too, was not called. These raised doubts about whether the school was the first to suspect the child’s conduct was sickly, and whether, in fact, Loise would have confirmed this. In any event, the evidence of the duo who were left out would have made or unmade the prosecution's case, with far-reaching consequences for the Appellant's guilt or otherwise. The court can only infer that, had they testified, their evidence could have been adverse to the prosecution. In the case of Awii V Republic [2025] KEHC 5626 (KLR), Wakiaga J, underscored the question of adverse inference as follows: “ 33. I have also noted that one very important witness was not called to testify leading to an adverse inference that had he been called it would have adverse to the prosecution case this being John kilonzi who was on duty with the appellant and the complainant and whom the complainant first made a report to. 34. In convicting the appellant, the trail court based the same on speculation which was not supported with evidence on record to wit that the accused had not envisaged that any other person would be within the compound whereas the evidence on record was that there was ongoing construction and that there were three guards on duty in the compound all the time." Leaving the said witnesses out left an inference that the evidence they would have given could have negated the case of the prosecution. In Donald Maiiwa Achilwa and & others v R (2009) eKLR it was held as follows: “ The law as it presently stands, is that the prosecution is obliged to call all witnesses necessary to establish the truth in a case even though some of those witnesses' evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution’s case." https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 10

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55. Whereas it was the case of PW3 that she visited the scene, she did not reveal anything she established. She only stated that the Appellant ran away on seeing her. Anyone would run away from the house of the Appellant and PW2, which was chaotic with accusations and animosity. Running away would not per se justify commission of the offence before court. The Appellant was arrested at his usual workplace and therefore cannot be said to have escaped, given the allegations against him before the trial court. If the Appellant had earlier carried households, including the beds he claimed were his, what beds were still available that the Appellant laid the minor on 17.4.2023? What was the structure, rooms, and size of this house? These were important aspects that PW3 failed to reveal through her alleged investigations. 56. Looking at the circumstances surrounding this case, and in the context of criminal law, the criminal intent or mind is crucial to establish before meting out a conviction that is safe. None was established against the Appellant. The Appellant was stout and turgid that he was father of the 3 children. PW2 was only fixing him due to the disagreements they had in marriage. Indeed, PW2 herself confirmed that she left the Appellant with the children for an aggregate period of 3 months in 2021 while she was admitted to hospital for maternity. The appellant gave rock-solid evidence. The appellant was simply suspected. The court forgot that; suspicion cannot be evidence. In the case of Faith Lucas V Republic [2008] KECA 267 (KLR), the Court of Appeal stated as follows: “ It has not been shown that the appellant’s explanation was not plausible. There was evidence of bad blood between the appellant’s family and Konde’s family. It is to be observed that indeed Konde and his sons were arrested and charged (jointly with the appellant) in respect of the death of the deceased. It would appear that the appellant was arrested, charged, convicted and sentenced purely on mere suspicion. We must point out that suspicion, however strong, cannot be used as evidence in a criminal case of this nature. It was upon the prosecution to prove its case against the appellant beyond reasonable doubt. In this case, the members of Konde family and or their agents are not excluded from being persons who might have been involved in the death of the deceased. In Sawe V. Republic [2003] KLR 364 at pp. 375-6 this Court said:In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of R v Kipkering arap Koske & Another 16 EACA 135 where it held, inter alia, that; ‘In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt’. In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku v Republic (Criminal Appeal No. 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 11

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guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt." 57. The case was based on suspicions arising from a prior suspected crime. When faced with a case where there is bad blood, the prosecution had a duty to produce evidence and not suspicion. In the case of Republic v Denis Wamaye Kimemia & another [2019] KEHC 11092 (KLR), Wakiaga J, posited as follows: Whereas there is strong suspicion that the accused persons were involved in the unlawful killing of the deceased, the said suspicion is based on hearsay evidence which is uncorroborated and the court has said over and over again that mere suspicion however strong cannot be a ground for sustaining a conviction in a criminal case as was Stated by the Court of Appeal in Mary Wanjiku V Republic, Criminal appeal no 17 OF 1988 that:“ Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused freedom and at times life." 58. In my mind, upon scrutiny of the evidence and testimonies in the lower court, I think the Prosecution ought to have done more to prove sexual assault on the 5-year-old. Given the uncertainties in the medical evidence, I find that the prosecution did not prove its case to the required standard to warrant a conviction. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice." 59. On identification, there is no doubt that the minor knew the Appellant as his father. The Respondent, however, failed to place the Appellant at the scene of the crime. There was no connection between the offence and the capability of the Appellant. Even if the offence had been proved to be committed, the Respondent could still not succeed without linking the Appellant to the offence and proving that the Appellant was the perpetrator. 60. Having found that the conviction was not proper, I do not think it will serve any purpose to delve into the issues on sentence. I set the conviction and sentence aside. 61. In the circumstances, the appeal is allowed and the conviction and sentence set aside. The Appellant is set free unless otherwise lawfully withheld. Determination 62. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is merited and allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 12

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b. The conviction and sentence in Nyeri CMSO No. E016 of 2023 is set aside. c. The appellant is removed from the sexual offenders register. d. The Appellant shall be set free forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 4TH DAY OF FEBRUARY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Ms. Kaniu for the State Appellant – present Court Assistant – Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1068/eng@2026-02-04 13

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