Nicholas Owuor Yamo v Republic

6. The prosecution case was founded on the evidence of five witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted on the principal count and subsequently sentenced to serve fifteen years imprisonment. 7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 30th January, 2025 in which he raised the following grounds of appeal: a. That the learned trial Magistrate erred in both law and fact in holding that the prosecution proved against the Appellant all the ingredients of the offence of defilement. b. That the learned trial Magistrate erred in both law and fact in failing to properly analyze and/ or evaluate the evidence tendered by the prosecution witnesses. c. That the learned trial Magistrate erred in both law and fact in relying on circumstantial evidence by the prosecution witnesses that was full of contradictions and inconsistencies. 8. On the strength of these grounds, the Appellant urged this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment for 15 years. 9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.) 10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence. 11. The first prosecution witness was the survivor YA. (PW1), who told the court that she was 16 years old and a form 2 learner. She stated that she was residing with her grandmother. She identified her birth certificate that bore her date of birth as 8th September, 2008 (produced as PExh4). 12. PW1 explained to the trial court that on 9th May, 2024, she was at home at her grandmother’s place. Her grandmother gave her Ksh.200/- to keep for her, which PW1 kept inside a book. When she tried to find the money later, it was not in the book where she had kept it and her grandmother told her to keep away from her home until she had found the money. 13. The survivor told the trial court that she walked up to [Particulars Withheld] School and sat on a stone outside the school. Moments later, she saw a man, whom she described as being tall, walking towards her. He donned a grey jacket. The man inquired from the survivor what she was doing at the site and the latter narrated to her that she had been chased away from home by her grandmother, after losing Ksh.200/-. The man then asked PW1 to accompany her so that she would go to his home to stay with his child and the latter obliged. The two arrived at the man’s home – a one roomed house – where the survivor met the man’s daughter whose name she said was C. (name withheld), a grade 5 learner. The witness told the trial court that she got to learn that the man’s name was Nicholas, and pointed out the Appellant as that man. 14. In her further testimony, PW1 stated that the man left the home and returned that evening from work and gave PW1 and C. Ksh.200/- to go and buy flour and other food items, which the two girls did, and returned home. The accused person then asked PW1 to cook the food – ugali and fish – and the complainant did so and they all had dinner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 2

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15. The witness told the trial court that when it was time to retire to bed, the Appellant showed her a twoseater sofa set and told her that she would sleep there, as there was no other available sleeping space in the house or where his daughter had gone to spend the night. He gave her his grey jacket to use to cover herself, which she identified in court (PExh1). The Appellant’s daughter left the house and went to sleep elsewhere. 16. PW1 told the trial court that at about midnight, the Appellant told her to join him in his bed so that she would avoid mosquitos as the same had a mosquito net but the survivor declined. He then went to the seat where PW1 was sleeping and started fondling her breasts. When she told him to stop it and attempted to resist, the Appellant covered her eyes and mouth with a black piece of cloth and undressed her by taking off her skirt and underpants. He then proceeded to forcefully insert and penetrate his penis into her vagina. That night, he defiled her thrice, an ordeal that rendered a lot of pain in the survivor’s vagina, abdomen and made her bleed from her genitalia. 17. The survivor told the court that the next morning at about 5.00am, the Appellant told her that he was leaving to see his sister-in-law, one N. (name withheld). When he returned at about 6.00am, he told her that N. wanted to see her and took the survivor to N.’s house, where N. gave the survivor water and told her to take a bath, which she did. She then gave PW1 tea and mandazi and asked her if she had a cell phone number of anyone from her home. The survivor gave N. her cousin’s cell phone number, one R., and the he called the number. 18. She further stated that N. called the village elder and informed him of the survivor’s presence. Moments later, R. and one Rem arrived at N.’s house. The village elder also arrived shortly thereafter. The elder, R. and Rem then took the survivor to the area chief’s place, who directed that the witness be taken to the police and a formal report be made. 19. The survivor told the trial court that she was escorted to Ahero Police Station where the matter was reported. She was then taken to hospital by a police officer where she was examined and treated. 20. PW1 identified photographs depicting the two-seater sofa set where she slept (produced as PExh2), her medical examination and post rape care forms (popularly known as P3 and PRC forms, respectively) and which were completed by the medical personnel who examined and treated her, and the treatment notes that were issued to her (produced as PExh3a, PExh3c and PExh3c). 21. Upon being cross examined by the Appellant, the survivor told the trial court that she was born in the year 2008 and was 16 years old. She told the court that her clothes were not examined at the hospital where she was treated and that she did not surrender them to the police. She stated that the Appellant covered her eyes and mouth with a piece of black cloth before proceeding to forcefully sexually violate her. She stated that although the Appellant was prior to the incident not known to her, she knew N. well, as she worked at the survivor’s school. 22. The second prosecution witness (PW2) was EAO (name withheld) who told the trial court that her nickname was N. 23. The witness told the trial court that on 10th May, 2024 at about 5.30am, the Appellant, who was her brother-in-law, went to her house and told her that he wanted to talk to his sister H.A. using PW2’s cell phone. PW2 allowed the Appellant to use her phone. 24. It was PW2’s further testimony that the Appellant told her that he had on the previous evening picked up a young girl who was stranded outside [Particulars Withheld] School and that he had taken her to his home, where she spent the night. Concerned why the Appellant had not reported to the police or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 3

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other authority, PW2 immediately asked the Appellant to take the girl – the survivor – to PW2’s home, and the Appellant obliged. 25. PW2 told the trial court that she questioned the survivor, who told her that she had slept on a couch in the Appellant’s house. He inquired to know from the survivor why she did not accompany the Appellant’s daughter to where she slept, and the survivor told her that the Appellant had informed him that there was no available sleeping space there. 26. PW2 stated further that the survivor requested to use her phone to call his brother. The survivor gave PW2 her brother’s cell phone number and PW2 called R. and asked him to go to her home to pick up his sister. PW2 went out to search for the village elder and on returning with the elder, found that the survivor had taken a bath. By then, R. and Rem, had already arrived at PW2’s home. PW2 gave the survivor tea and mandazi after which the elder, R. and Rem took away the survivor. 27. The prosecution called Erick Ongera as the third witness (PW3), who told the trial court that he was a farmer and village elder, Kakola village. The witness recalled the events of 10th May, 2024 and told the trial court that he was at his home on that day when at about 10.00am he received a phone call from EAO. (PW2) whom she also knew by the name N., who informed him that there was a lost girl who was at her home and requested for the administrator’s intervention. 28. The witness proceeded to PW2’s home and upon arrival met the survivor, EAO, R. and Rem. EAO told PW3 that the survivor had on the previous night slept in the Appellant’s house. PW3’s attempts to get information from the survivor were not fruitful and he decided to report the matter to the area chief and took the survivor to the chief, accompanied by R. and Rem. He stated that the chief advised him to take the survivor to the police, which he did. A formal report was made at Ahero Police Station. 29. Upon being cross examined by the Appellant, PW3 stated that he did not accompany the survivor to hospital. He further stated that the survivor did not tell him that the Appellant had slept with her. 30. Benson Juma, a medic at Ahero Subcounty Hospital testified as PW4 and produced as PExh3a, PExh3b and PExh 3c the survivor’s PRC form, P3 form and treatment notes that were prepared and/or completed at Ahero Subcounty Hospital, following the survivor’s examination and treatment at the facility on 15th May, 2024. 31. The witness told the trial court that the survivor, who was 16 years old, presented history of having been gagged and severally defiled by a person known to her. 32. The witness told the court that on examination, the survivor was traumatized and walked with an “abnormal gait”. She had scratch marks and multiple bruises on the forearm. Laboratory examination conducted revealed epithelial cells, indicative of trauma to the vagina. Although she was not bleeding, her hymen was freshly broken, about 12 hours earlier. Her labia minora and majora had multiple bruises and she had a foul-smelling discharge. Her vaginal swab showed absence of spermatozoa as the assailant had used a condom. 33. Upon being cross examined by the Appellant, PW4 told the trial court that the Appellant was not presented at the hospital for examination. He stated that the bruises on the survivor’s upper limb were indicative of a struggle in resistance. 34. The last witness that the prosecution called was Police Constable Monica Anyango Onyango, the investigating officer, who testified as PW5. 35. In her evidence, PW5 told the trial court that the matter was reported to Ahero police Station by PW3, who presented the survivor to the station. The witness then took the survivor to Ahero Subcounty https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 4

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Hospital where she was examined and treated. The medical personnel at the hospital confirmed that the survivor had been sexually violated. 36. PW5 recorded witness statements, investigated the matter, visited the scene and took photos of the couch where the survivor was defiled and caused the Appellant to be charged after his arrest, which was on 19th May, 2024. 37. The Appellant cross-examined PW5, who told the trial court that he was arrested on 19th May, 2024 by other police officers. 38. The prosecution closed its case at that stage and in its considered ruling that was rendered on 23rd September, 2024, the trial Court found that a prima facie case had been established against the Appellant and he was placed on his defence. 39. The learned trial Magistrate complied with the provisions of Section 211 of the Criminal Procedure Code and the Appellant elected to tender a sworn testimony. 40. The Appellant testified and told the trial court that he hailed from Kochogo village and worked as a jua kali artisan. 41. In his defence, the Appellant told the trial court that he was arrested on 19th May, 2024, after midnight, for reasons that were not disclosed to him and taken to Ahero Police Station. The next day, he was taken to K. Secondary School (particulars withheld) and was left outside as a female officer ingressed the school. Later, a man that the female officer had called arrived and asked the Appellant if he had seen an officer by the name Monica (PW5). That moments later, PW5 emerged from the school with the survivor and they all then proceeded to the Appellant’s house, which had been wrecked by floods. At the Appellant’s house, PW5 took photographs. That the Appellant, as instructed by PW5, removed his jacket (PExh1) and handed it over to the officer. 42. The Appellant stated that the survivor was returned to her school where she remained with PW2, whom the Appellant said was his sister-in-law. The Appellant was then taken back to the police station and placed in custody. He was then processed and taken to court and charged the next day. 43. On being cross examined, the Appellant told the trial court that the survivor was known to her and that he had last seen her on 17th May, 2024, but again added that he had her leaving her school on 18th May, 2024. He stated that PW2 was his sister-in-law and worked at the survivor’s school and that he had a bad relationship with her as they had a land dispute. He then added that he did not know the survivor before the incident. 44. The Appellant did not call any witness and closed the defence case at that stage. 45. In her judgement rendered on 20th January, 2025, the learned trial Magistrate reached the finding that the prosecution had proved the principal charge against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. He subsequently sentenced him to serve 15 years imprisonment. 46. The instant appeal proceeded by way of written submissions. I have perused and carefully considered the grounds raised in the petition of appeal, the submissions by the two sides and the record in its entirety. From the grounds of appeal, the record and the submissions, the following issues arise for determination: 1. Whether the prosecution proved the ingredients of the offence of defilement under Sections 8(1) and 8(4) of the Sexual Offences Act, i.e. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 5

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a. proof of the age of the complainant; b. proof of penetration; and, c. proof of the identity of the perpetrator. 2. Whether the learned trial Magistrate properly analysed and evaluated the evidence on record. 3. Whether the learned trial Magistrate properly considered the Appellant’s defence. 4. Whether the medical evidence was reliable and whether the trial court erred in relying on it. 5. Whether there were material contradictions and inconsistencies that vitiated the prosecution case. 6. Whether the sentence imposed upon the Appellant was lawful and appropriate. 47. This court has carefully reconsidered the entire record, the grounds of appeal, and the rival submissions. As I stated earlier above, this court is enjoined to undertake a thorough re‑analysis, re‑evaluation and re‑assessment of the entire record of proceedings before the trial court, giving due regard to the fact that this court did not see or hear the witnesses first hand. 48. The duty of an appellate court in criminal matters, particularly in sexual offence cases, is to scrutinise the evidence in detail, determine whether the trial court properly evaluated the testimony of the witnesses, and whether it applied the correct legal principles in arriving at its conclusions on both conviction and sentence. 49. I will therefore sequentially and in detail, proceed to address and determine the issues that I have listed above. 50. The first issue for determination is whether the prosecution proved the ingredients of defilement under Sections 8(1) and 8(4) of the Sexual Offences Act. 51. The essential elements are proof of the complainant’s age, proof of penetration and proof of the identity of the perpetrator. The law is trite that the prosecution bears the burden of establishing all essential elements beyond reasonable doubt. 52. In the matter before the trial court, PW1 testified that she was sixteen years old and tendered her birth certificate (PExh4), which was not challenged. The document showed the survivor’s date of birth as 8th September, 2008. 53. In EK alias E v Republic [2024] eKLR, it was held that a birth certificate constitutes competent proof of age and once tendered and unchallenged, it satisfies the evidential requirement. Accordingly, the prosecution discharged the burden of proving that the survivor was a child within the meaning of the Act. 54. Proof of penetration is another essential element. PW1 gave a detailed and consistent account of being forcibly penetrated on multiple occasions, describing how the Appellant removed her clothing, gagged her and covered her eyes. 55. The survivor’s account was corroborated by medical evidence tendered as PExh3a–c, which recorded a freshly broken hymen, epithelial cells indicative of recent trauma, multiple bruises on the labia majora and minora and a foul-smelling discharge consistent with sexual assault. While the absence of spermatozoa was noted due to condom use, the overall medical findings aligned with PW1’s testimony. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 6

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56. In Otieno v Republic [2012] eKLR, the court held that while medical evidence is not indispensable, it is highly persuasive when corroborating the survivor’s testimony. The evidence adduced for the prosecution thus establishes the element of penetration beyond reasonable doubt. 57. Identity of the perpetrator is the third critical ingredient. PW1 positively identified the Appellant as the man who took her to his home and committed the act. She provided details of his appearance, his grey jacket (PExh1) and his interactions with her prior to the assault. 58. In the case of Kevogo v Republic [2016] eKLR, the court held that positive identification by a single credible witness is sufficient to establish identity, provided the witness had adequate opportunity to observe the accused. In this case, PW1’s identification was clear, credible and unshaken under crossexamination, satisfying the requirement of proof of identity. 59. On the question of whether the trial magistrate properly analysed and evaluated the evidence, which is the second issue for determination, a careful review of the record indicates that the prosecution’s case was coherent and internally consistent. 60. PW1’s testimony was corroborated by PW2, PW3, the investigating officer (PW5) and medical evidence. Minor discrepancies in peripheral details, such as exact times or trivial actions, do not go to the heart of the case and do not undermine the core evidence. 61. It is settled law, as was held in BGW v Republic [2017] eKLR, that minor contradictions in collateral matters do not vitiate the prosecution case if the essential elements are proved. Accordingly, the trial court properly evaluated and weighed the evidence before it. 62. The third issue for determination is whether the learned trial Magistrate properly considered the Appellant’s defence. It is evident that the Appellant relied solely on a bare denial and procedural complaints regarding his arrest and interaction with the police. He did not present any credible alibi, witnesses or evidence to counter the prosecution’s case. 63. In Gitau v Republic [2018] eKLR, it was held that a mere denial of allegations unsupported by evidence is insufficient to dislodge a cogent and credible prosecution case. The Appellant’s failure to produce corroborating evidence or credible witnesses meant that the trial court correctly rejected his defence as implausible as the same did not dislodge the prosecution evidence. 64. The fourth issue for me to address is whether the medical evidence was reliable and whether the trial court erred in relying on it. The medical evidence tendered by PW4 was in my view reliable, objective and consistent with the survivor’s testimony. The examination recorded trauma to the vagina and signs of physical struggle, including bruises on the upper limbs and confirmed that sexual violation had occurred. The absence of spermatozoa did not undermine the findings, as the assailant had used a condom. 65. In the case of Wanjiru v Republic [2019] eKLR, the court emphasized that medical evidence that aligns with the survivor’s testimony provides significant corroboration and strengthens the prosecution’s case. The trial court was, therefore, correct in placing weight on the unshaken medical evidence in evaluating the case. 66. In his submissions, the Appellant contended that material contradictions and inconsistencies in the prosecution witnesses’ accounts vitiated the case, which is the fifth issue for me to determine. A close examination of the record, however, reveals that the discrepancies cited were minor and related to peripheral matters such as exact times, movements or actions not central to the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 7

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67. In the case of Kihara v Republic [2020] eKLR, it was held that only contradictions affecting the essential elements of the offence – age, penetration and identity of the perpetrator – can render the prosecution case doubtful. No such material contradictions exist in the present record. Therefore, the prosecution case remains credible and unshaken. 68. On sentence, which is the last issue for determination, the trial court properly applied the provisions of Section 8(4) of the Sexual Offences Act, which prescribes custodial sentences for defilement offences. The provision states that a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 69. The fifteen-year term imposed reflects the minimum sentence provided for under the law. The sentence is therefore both lawful and proportionate. 70. In conclusion, the learned trial magistrate correctly evaluated the evidence, properly rejected the Appellant’s defence and imposed an appropriate sentence. There is therefore no merit in the appeal. 71. The result I then reach is that the appeal on both conviction and sentence lacks merit and is dismissed. The conviction and sentence imposed by the trial court are hereby confirmed. 72. This file is hereby closed. DELIVERED, SIGNED & DATED THIS 9TH DAY OF FEBRUARY, 2026. JOE M. OMIDO JUDGE Appellant: Present, virtually. For Respondent: Ms. Muema. Court Assistant: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1985/eng@2026-02-09 8

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