Wilber Njema Mwandago v Republic

5. i. That the learned trial magistrate erred in law and fact by convicting the appellant based on evidence that was not properly evaluated and was insufficient to support a conviction beyond reasonable doubt. ii. The trial court failed to observe and assess the credibility of the complainant as the presiding magistrate did not witness her testify. iii. The court failed to consider the absence of CCTV footage from the school, which was material to the case and could have corroborated or disproved the allegations. iv. The learned magistrate erred by disregarding the alibi defense and the testimonies of the defense witnesses without sufficient justification. v. The prosecution failed to prove the case to the required standard, particularly on the issue of positive identification and opportunity. vi. The learned magistrate misdirected himself by placing undue weight on the complainant’s testimony while discrediting defense evidence without adequate legal basis. vii. The sentence of life imprisonment was excessive and harsh in the circumstances and fails to reflect a fair consideration of mitigating factors. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: “ ….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424.” Prosecution’s case 6. On 21/3/2022 PW1 the Complainant testified before Hon Orora that she was born on 7/11/2009. She is in class 7 at [Particulars Withheld] School. She knows the accused because he was a conductor at her school bus. That on 16/7/2021 at around 3pm she went to the PP1 toilet as she was pressed, and saw a guy called Alex a driver to the small school bus. When she was leaving the toilet someone pushed her, she saw Alex then the accused held her. She was wearing a skirt and a blouse. The accused pushed her to the wall and removed her clothes. He put his penis which he uses to urinate and put it in her vagina (which she uses to urinate) and anus while she was standing. He warned her not to tell anyone. 7. She stated that she was in pain and went home and her mother noticed she was unwell. She told her mother what has happened after 3 days. She was taken to the hospital. She further stated that the accused had defiled her before and she was with her friend N. That previously, he had inserted his penis into her vagina and anus. She tried to scream for help. The 2nd time she went again with N to the same toilet and the accused inserted his penis into her vagina and anus. The matter was then reported to the police. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 2

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8. On cross examination she stated that the accused was working as a conductor. She was defiled in the toilets. She was walking in pain and even her brother noticed. Her mouth was covered that is why she could not scream. She went home after the incident. The CCTV were put after the incident. Showing that the accused has defiled her thrice. The 2 times she told her friend N. The incidents happened in the toilet in 2021 in term three. That she was not defiled by the tuktuk driver. 9. PW2 the Complainant’s mother MM testified that the victim is 12 years old. The birth certificate (Produces PEXH4) shows 7/11/2009. 10. That on 16/7/2021 it was prize giving day at her children’s school. When they came home, she realized her daughter was not well. On the 2nd day she woke her daughter up at midnight and asked her what was her problem. She told her that her friend N took her to the toilet, the accused was with the driver went to the toilet and bent her and defiled her using his penis. The complainant says it was the 2nd time the offence was happening. 11. On cross examination she stated that on prize giving day she wanted to leave with the children but the matron told her that the children should remain and eat with the rest. She gave the minor anti biotic because she was not okay. She never imagined that the minor could have been defiled. The child was defiled twice but she doesn’t know when it happened. That the tuktuk driver did not defile her because the minor identified the accused. 12. On 30/5/2023 the minor was recalled and cross examined again by the defence advocate. She narrated the ordeal in the same manner as she had done earlier in her first testimony. She only added that on 5/8/2021 is the date she physically recognized the accused and he was arrested. 13. The mother also testified and she narrated the ordeal in the same manner as she had explained earlier. 14. On 6/7/2022 PW3 Dr Abdulaziz testified but was stood down because the author of the P3 and PRC forms is available hence he should produce the same. 15. PW3 Dr Gabriel Muholu testied on 28/8/2024 before Hon Orora and stated that he has P3 form and PRC form of Haula Rashid. They were filled by Dr Said Mwinyi The PRC form was filled by Dr Said Mwinyi 26/7/2021. It was stamped on 5/8/2021. Her hymen was broken with an old scar. Her anus had healed lacerations. She was given STI treatment. The doctor produced PRC form as Pehx- 1. 16. He stated that the P3 form was filled by Dr Mohamed on 5/8/2021. The said Doctor is on educational leave. He knows his signature. He produced the P3 form as PEXH 3. He produced laboratory results as Pexh2. On cross examination he stated that they did not take any samples from the accused person and there is no specific time the child should be taken to hospital after defilement. 17. Hon Orora was transferred and Hon G. Odera took over the matter from her. On 5/2/2025 the matter came up for mention. The record indicates: “ 5/2/2025 Before Hon. G. Odera –RM Court Prosecutor: Musembi Court Assistant: George Accused present Interpretation: English/Kiswahili Mr Musembi: Matter is for directions under section 200 CPC. Accussed: I wish to proceed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 3

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Court: Hearing on 20/3/2025. Prosecutor to avail all witnesses.” 18. On 20/3/2025 PW4 Francis Nzioki testified before Hon G. Odera and stated that on 6/8/2021 he was at the school accountant’s office. He was called to meet police officers from Makupa Police Station who sought to see Alex Chalo and Wilber Mwandago as a conductor. The girl identified the two who then arrested and taken to Makupa Police Station. 19. PW5 Cop Makorani testified that on 24/7/2021 he noted a case of defilement. The victim was a grade six [Particulars Withheld]. The victim was H.R who upon interrogation disclosed that on 15/7/2021 around 1500hrs she was going to releave herself in PP1 toilet. She was followed behind by the conductor and driver, while coming out of the toilet, the conductor (the accused) grabbed her, restraining her on the wall, he then pushed her skirt upwards and defiled the victim through her anus. The victim was 11 years. 20. He obtained a PRC form and upon positive identification by the victim, he arrested the accused person upon positive identification by the victim. That was not the first incident however the other incidents were not reported. 21. On cross examination he stated that the accused was arrested on 6/8/2021. The accused is the one that defiled the victim. He did not see any CCTV around the scene. Defence case 22. In his defense the accused stated that he was a conductor at [Particulars Withheld] Primary Catholic. He produced a copy of his contract as Dexh-1. On 16/7/2021 it was school closing day. That his responsibility for the day was to help at the kitchen. Event was taking place in another compound. Everybody went to that compound. After the meeting ended workers left. The school has CCTV cameras and watchman on patrol. He did not commit the offence. 23. The complainant was not known to him and that he saw her for the first time when she came with the police. He was arrested together with Alex Musyoka and no evidence links him to the charge. 24. On cross examination he stated that at the time of the incident he was an employee at the school. The complainant and her mother are not known to him. He suspects that the school wanted to fire him. 25. DW2 Scholastica Atieno testified that on 16/7/2021 she was an employee of the school and it was prize giving day. The event took place at pastol hall centre. All employees and students were at the venue. The accused was with him serving drinks to the parents. she stated that there were security guards and CCTV. She produced her evidence of employement as DEX2. 26. On cross examination she stated that she knows the charges facing the accused and she believes he did not commit the offence. She knows the victim and her mother. 27. DW3 Jenta Mwambori testified that she knows the accused for over 6 years. He is a decent person. On cross examination she stated that she knows the charges he is facing. The charges are false. The accused during the period was living in Tudor and he had a wife with 2 kids. He is a good man. Analysis and Determination 28. I have carefully considered the record of appeal, the written submissions on record and the authorities cited and the law. The issues for determination are whether https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 4

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I. Section 200 of the CPC was complied with. II. The offence of defilement was proved beyond reasonable doubt as is intertwined with whether the appellant’s alibi defence was considered. III. And whether the life imprisonment was excessive and harsh in the circumstances. I. Whether Section 200 of the CPC was complied with 29. The appellant contended that the requirements of Section 200 were not complied with as the trial court failed to observe and assess the credibility of the complainant as the presiding magistrate did not witness her testify. Section 200 provides: '200. (1) 30. Subject to sub-section (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may— a. Deliver a judgment that has been written and signed but not delivered by his predecessor; or b. Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial. (2) . (3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right. (4) .' It is the duty of the trial court to inform the accused person of his right under Section 200 of the CPC. The Court of Appeal in addressing itself on the import of Section 200 (3) in John Bell Kinengeni vs Republic (2015) eKLR held; “ The duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and failure to comply with that requirement would in an appropriate case render the trial a nullity as Section 200(3) requires in a mandatory tone that the succeeding magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate.' 31. In the instant case, the record indicates that on 5/2/2025 directions on Section 200 were taken and the appellant chose to proceed with the case from where the matter had reached. 32. No evidence on record to show that the appellant at any given time during the trial demanded that the complainant be recalled or that the matter proceed de novo and that request was declined. No demonstration to show that the failure to hear the victim testify before Hon G. Odera prejudiced the accused case in any way or, violated any rule of evidence or natural justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 5

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33. Be that as it may, a succeeding Magistrate is not obliged by Section 200(3) of the CPC to start a trial de novo just because the accused person demands. In the case of Joseph Kamau Gichuki vs Republic [2013] eKLR the Court stated that: 'This Court has previously held that Section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking Section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.' 34. In consideration of the circumstances of the instant matter, the trial court in applying the provisions of Section 200 ensured that the accused person was not prejudiced in the trial. I find no reason to fault the finding of the court, Section 200 was complied with. II. Whether the offence of defilement was proved beyond reasonable doubt as is intertwined with whether the appellant’s alibi defence was considered. 35. The crucial elements that need to be proved for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; i. The age of the victim (must be a child) ii. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs) iii. Positive identification of the accused as the person who committed the act. The age of the victim 36. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:“ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 37. In this case, I have perused the certificate of birth on record which indicates that the child was born on 7/11/2009 hence she was 12 years old when the incident occurred (16/7/2021) and not 11 years as alleged by the victim or his mother. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs) 38. Section 2 (1) of the Sexual Offences Act defines penetration as follows: “ penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 6

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39. Instantly, PW3 Dr Gabriel Muholu’s evidence and the PRC and P3 form on record shows that the incident occurred on 16/7/2021 and the victim was examined on 26/7/2021. PW3 stated that the hymen was broken with an old scar. Her anus had healed lacerations. 40. The complainant testified that on 16/7/2021 she was pressed and went to relieve herself to the toilet. When she was leaving the accused pushed her to the wall and removed her clothes and defiled her in the vagina and anus. That he has done it several times. He warned her not to tell anyone. On 30/5/2023 PW1 was re-examined and she testified that the incident happened on 10/7/2021. On further questioning, she also stated that she could not remember the exact date the offence occurred. She stated that she told her mother about it after 2-3 days. She was taken to the hospital on 17/7/2021. 41. On 30/5/2023 her mother testified that the complainant was in boarding school. when she visited her in school she looked fined. She came to know of the incident after 2-3 days. She stated that her statement shows that she reported the matter to the police on 28/7/2021. 42. From the record, the PRC form shows that the victim was examined on 26/7/2021 and the incident occurred on 16/7/2021. The P3 form shows that the matter was reported on 24/7/2021 at 12.40hrs. This court is not persuaded by the victim and her mother’s testimony on the occurrence of the incident. The evidence on record shows that the minor acted normal even after the alleged incident. Despite the mother knowing after 2-3 days the matter was reported to the police on the 8th day and the victim was examined 10 days after the incident. I therefore doubt the testimony of PW1 and PW2 on the occurrence of the incident. 43. On the evidence of PW3 Dr Gabriel, the Court of Appeal in the case of P.KW vs Republic [2012] KECA 103 (KLR) stated that: “ 15 . They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse? 16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769. 16. In this case the doctor who examined the complainant child was not asked whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. As we have pointed out the complainant child aged only six behaved normally after the alleged defilement. That together with her mother’s behavior, issues that the two lower courts do not seem to have addressed their minds to, has raised doubt in our minds as to the guilt of the appellant.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 7

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44. In light of the above, I find that the absence of hymen does not necessarily prove penetration by the accused person. The prosecution has a duty to ensure prove that element beyond reasonable doubt 45. In this case,the victim’s own evidence it appears to be point at a repeat sexual encounter with someone. She states that she was with N; the first time and the second time. This N was not called as a witness. The other driver was said to be present was not called to testify. The defence case from other witnesses also state there was CCTV evidence which was not produced. Find that the failure to call critical witnesses who were known was a red flag. 46. This failure invites an adverse interference under Section 119 of the evidence act as articulated in Bukenya and others vs Uganda, (19720 EA 549. 47. Further the medical evidence did not show any injury yet the victim said the encounter was repeated and forceful. It also beats logic how if indeed it was forceful and repeated why she would repeatedly go back together with a friend for such a painful encounter. The failure to do so invites an adverse interference under Section 119 7 the evidence act as articulated in Bukenya and others vs Uganda, (19720 EA 549. 48. The court is persuaded that the applicant proved the grades 7 appeal. i. That the learned trial magistrate erred in law and fact by convicting the appellant based on evidence that was not properly evaluated and was insufficient to support a conviction beyond reasonable doubt. ii. The trial court failed to observe and assess the credibility of the complainant as the presiding magistrate did not witness her testify. iii. The court failed to consider the absence of CCTV footage from the school, which was material to the case and could have corroborated or disproved the allegations. iv. The learned magistrate erred by disregarding the alibi defense and the testimonies of the defense witnesses without sufficient justification. v. The prosecution failed to prove the case to the required standard, particularly on the issue of positive identification and opportunity. vi. The learned magistrate misdirected himself by placing undue weight on the complainant’s testimony while discrediting defense evidence without adequate legal basis. 49. I do not find it necessary to delve into whether the accused person was positively identified as the person who committed the act. 50. Upon my independent evaluation of the evidence adduced in support of the charge, I find that the conviction of the appellant was not safe. 51. I allow the appeal, quash the conviction and set aside the sentence issued by the lower court. Unless he is otherwise lawfully held, the appellant shall be released from custody forthwith. 52. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF FEBRUARY 2026. WENDY KAGENDO JUDGE In The Presence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 8

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The Appellant in Person Mr Ngiri for the State Bebora Court Assistant SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI THE JUDICIARY OF KENYA. MOMBASA HIGH COURT HIGH COURT CRIMINAL DATE: 2026-02-12 16:02:06 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1545/eng@2026-02-12 9

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