Newton Alias Kamai Tonny v Republic

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify. 6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7. Having looked at the Appellant’s Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:- 8. a. Whether or not the Prosecution proved its case beyond reasonable doubt; and b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. The court therefore dealt with the said issues under the following distinct and separate heads. I. Proof of Prosecution’s Case 9. Amended Ground of Appeal Nos (1), (2) and (3) were dealt with under this head. 10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement. 11. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 12. The Appellant placed reliance on the case of Hadson Ali Mwachongo vs Republic [2016]eKLR where it was held that there was doubt as to the age of the victim. He argued that a Birth Certificate was produced showing that the Complainant, LM (hereinafter referred to as “PW 2”) was born on 21st February 2009 and that the date of the alleged offence was on 31st May 2024 which meant that she was fifteen (15) years and three (3) months. He asserted that the said age should be rounded off to the nearest sixteen (16) years and that this matter be resolved in his favour. 13. On the other hand, the Respondent submitted that the Charge Sheet indicated that PW 2 was fifteen (15) years of age at the time of the commission of the offence. It relied on the case of Musyoki Mwakavi vs Republic [2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. 14. It pointed out that PW 2 testified that she was fifteen (15) years old and that No 12xxx0 PC June Silma (hereinafter referred to as “PW 4” (sic) produced her Birth Certificate which indicated that she was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 2

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born on 21st February 2009 and, therefore, a minor at the time of the commission of the offence. It added that as the Appellant did not rebut that evidence, it had proved the ingredient of age beyond reasonable doubt. 15. Notably, PW 4 produced the said Birth Certificate as evidence in this case. A perusal of the same showed PW 1 was born on 21st February 2009. The incident took place on diverse dates between 31st May 2024 and 5th June 2024. This meant that she was about fifteen (15) years three (3) months old at the material time of the incident. 16. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times. His assertions that PW 2’s age should be rounded off to sixteen (16) years old therefore fell on the wayside. B. Identiffcation 17. The Appellant did not submit on this issue. On its part, the Respondent averred that PW 1 testified that she had sexual intercourse with the Appellant who was her friend. It argued that, therefore, there was no contention that the Appellant was well known to her and she could not have been mistaken as to his identity. 18. It submitted that that was the evidence of recognition which was held by courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others vs Republic (1976-80) 1 KLR 1566, 1568. 19. It further contended that there was proper identification as there was prior knowledge of the Appellant. 20. A perusal of the proceedings showed that PW 2 testified that on 31st May 2024 at around 7.00p.m she left home after a disagreement with her parents and went to her friend’s home where she stayed for three (3) days. She said that her friend was one Yvonne and that she left for Nairobi on 2nd June 2024. She further stated that she left Yvonne’s home on the same date and on the way, she met the Appellant. 21. It was her further testimony that she told the Appellant that she had no place to stay and that she went with him to his place at Chango. She said that she stayed there for three (3) days and that the Appellant would leave for work and come back. On the third night, the Sub-Chief knocked on the door and arrested them. She testified that she had sexual intercourse twice with the Appellant on 2nd June 2024. 22. This court noted that PW 2 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. 23. Notably, the proviso of Section 124 of the Evidence Act states that:“ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 3

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recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).” 24. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful. 25. PW 2 positively identified the Appellant as the perpetrator of the offence. She was emphatic that it was him who defiled her as she stayed in his house for the material diverse dates. She testified that the Appellant was her friend. The Assistant Chief, Ruth Ambogo (hereinafter referred to as “PW 4”) confirmed that they found PW 2 in the Appellant’s house. 26. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This court thus came to the firm conclusion that the Prosecution proved the ingredient of identification which was by recognition. B. Penetration 27. The Appellant questioned why PW 2 was defiled for three (3) days, and had no recent sign of penetration such as bruises, lacerations, fresh torn hymen and epithelial cells indicating that there was friction. He added that PW 2 had also informed the Clinical Officer, Boaz Aludenyu Aliona (hereinafter referred to as “PW 1”) that she had sexual intercourse previously with another boyfriend who was in Nairobi. He questioned who the said boyfriend was, who broke her hymen and whether or not he should be answerable for this case. 28. He placed reliance on the case of Martin Charo vs Republic [2016]eKLR where it was held that the offence of defilement should not be limited to age and penetration and that the conduct of the complainant should play a fundamental role. 29. He argued that several questions arose as to the conduct of PW 2 whom he alleged had changed her moral behavior from that of a child to an adult. He added that she was a child who went from house to house to look for sex. In this regard, he relied on the case of Gillicks vs West Norfolk and Wis Beach Area Authority (1985) 3 ACK ER 402 where it was held that it was unrealistic to assume that teenagers and maturing adults did not often engage in sexual activity. 30. He further submitted that PW 2’s testimony on penetration was flawed and contradicted by that of PW 1 who relied on missing hymen as proof of penetration. He noted that a missing hymen was not conclusive proof of penetration. He relied on the cases of P. K. W vs Republic[2012]eKLR and the Canadian Case of Queen vs Manual Vincent Quintalla 190 ABQB 769 where the common thread was that there were other ways where a female could lose her hymen such as horse riding and vigorous sports. 31. He further relied on the case of Collins Kariuki vs Republic CRC No 676 (2013) (eKLR citation not given) where it was directed that the appellant’s sentence be reviewed as the complainant had admitted that she was the girlfriend of the offender. 32. He contended that the Trial Court erred in failing to observe the conflicting evidence among the witnesses. In this regard, he placed reliance on the case of Ndingu Kimanyi vs Republic (1979) KLR 283, where it was held that the witnesses in a criminal case upon whose evidence its proposed to rely should not create an impression in the mind of the court that he is not a straightforward person. He submitted that the evidence of the Prosecution witnesses did not corroborate each other in that it was impossible to tell who was telling the truth and who was telling lies. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 4

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33. To buttress his point, he relied on the case of Richard Aspella vs Republic Appeal No 45 of 1981 (eKLR citation not given) where it was held that two (2) contradictory statements could not be admitted in a court of law as evidence of truth. 34. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 corroborated that of PW 2 and that penetration was, therefore, proved. 35. It asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offense as was held in the case of S.O.O vs Republic[2018]eKLR which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another vs The Republic Criminal App No 92 of 2007. 36. It contended that pursuant to Section 211 of the Criminal Procedure Code, the Appellant chose to give a sworn statement and gave an alibi defence without calling any witness to support him. It argued that the governing principle on alibi defence was that a failure to disclose an alibi at a sufficiently early opportunity to permit it to be investigated by the police was a factor which may be considered in determining the weight given to it as was held in the case of Charles Kasena Chogo vs Republic [2019]eKLR. 37. It further pointed out that the Trial Court observed the demeanor of PW 2 and believed that she was telling the truth. It was its contention that the Appellant did not rebut the Prosecution’s evidence and, therefore, his claim that the Trial Court did not consider his defence was without merit. 38. Notably, PW 1 testified that on examination of PW 2, she admitted that she had been sexually active with a person known to her and had a missing hymen. He classified the injury as harm and that the object used was a body organ being the penis. He opined that she had been defiled. He produced the P3 Form, Post Rape Care (PRC) Form and treatment notes as exhibits during trial. 39. In his defence, the Appellant testified that he was working and was not home on the material date of 2nd June 2024 as alleged by PW 2. In ascertaining whether the Appellant’s defence of alibi had value, this court had due regard to the definition of “alibi” in the Black’s Law Dictionary, 10th Edition. It was defined as:“ A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time”. 40. It was also trite law that once a respondent raised an alibi defence, the onus shifted to the prosecution to displace the same as was held by the Court of Appeal in the case of Victor Mwendwa Mulinge vs Republic [2014] eKLR. 41. In this case, the defence of alibi was raised at the defence hearing and not at the beginning of the trial. The Prosecution did not rebut the same despite having the option of doing so as provided in Section 309 of the Criminal Procedure Code Cap 75 (Laws of Kenya) that provides that:“ If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 5

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42. Be that as it may, weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the Appellant’s alibi evidence to have been watertight enough to have weakened the inference of guilt on his part. This is because the Prosecution had demonstrated the elements of the offence of defilement. 43. Notably, PW 2’s evidence was corroborated by the scientific evidence of PW 1. As had been stated hereinabove, any contradictions or inconsistencies were insignificant and did not affect the inference of guilt on his part. The witnesses who were called by Prosecution adduced sufficient evidence to establish the charge. 44. In the premises foregoing, this court found and held that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW 2 on the material diverse dates as there was proof of defilement as PW 1 testified. 45. In the premises foregoing, Amended Ground of Appeal No (1), (2) and (3) were, therefore, not merited and the same be and are hereby dismissed. II. Sentence 46. Amended Ground of Appeal No (4) was dealt with under this head. 47. The Appellant placed reliance on the case of 88 Prisoners vs The DPP, AG and the Prison Home Made Petition (eKLR citation not given) where it was held that it should be borne in mind that even though an accused person had been sentenced to certain number of years the accused person’s liberty was lost once arrested and, therefore, the sentence is deemed to start when liberty was lost. 48. He submitted that he was arrested on 5th June 2022 and was sentenced on 5th December 2024, thus, prayed that the said period he spent in custody during trial be taken into account while computing his sentence. In this regard, he relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where it was held that courts were obliged to take into account the period the accused spent in custody during trial before they were sentenced. 49. On its part, the Respondent invoked Section 8(3) of the Sexual Offences Act and Section 329 of the Criminal Procedure Code and placed reliance on the case of Supreme Court Petition No E018 of 2023 Republic vs Joshua Gichuki Mwangi (eKLR citation not given) where it was held that it was parliament and not judiciary that set the parameters of sentencing for each crime. 50. It argued that the Trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at appropriate sentence. It added that the Appellant’s sentence was lawful. 51. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: “ A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 52. This court could not therefore fault the Trial Court for having sentenced him to twenty (20) years imprisonment as that was lawful. 53. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 6

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that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 54. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. 55. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. 56. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 57. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:“ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody(emphasis court).” 58. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… Time already spent in prison by the convict…” 59. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic(Supra). 60. A perusal of the Trial Court’s record showed that it took into consideration the period the Appellant spent in custody during trial. 61. In the premises, Amended Ground of Appeal No (4) on the Appellant’s prayer under Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) was not merited and the same be and is hereby dismissed. Disposition 62. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Amended Grounds of Appeal dated 27th March 2025 and filed on 1st April 2025 were not merited and the same be and are hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe. 63. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 25TH DAY OF FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 7

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J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2357/eng@2026-02-25 8

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