Abdulrasul Yaro Achu v Republic

Case for Prosecution 3. The case for the prosecution was that the complainant was at the material time aged 17 years and in secondary school. She was living with her parents, her father, PW2 and her mother PW3. 4. It was the evidence of the complainant (PW1) that she in the month of March 2022 started a love affair with the Appellant and she had sexual intercourse with him at his house on several occasions. Later, the Appellant gave her a phone for ease of communication between them. She was later seen with the phone by her parents who took it from her. The complainant got annoyed and left their home. Her neighbour called Mwende PW4 took her to her friend called Diana PW6. When the parents of the complainant returned home in the evening they found the complainant missing. They reported to the police. Mwende then took them to the house of Diana where the complainant was found. She was taken to the police station. She was interrogated and she said that the phone had been given to her by her boyfriend, the Appellant. She said that they had engaged in sex severally. She was taken to hospital on 15/4/2022 where she was examined by a clinical officer PW4 who found her with anormal genitalia with a missing hymen. 5. The case was investigated by PC Otieno PW7 of Kaloleni police station. He recorded a statement from the complainant who told him that the Appellant had seduced her and they had had sexual intercourse in his house on several occasions. She led him to the house of the Appellant and he arrested him. He charged him with the offence. 6. During the hearing of the case in court, the complainant produced her birth certificate as exhibit, P.Exh.1. It indicated that she was born on 14/12/2004. The clinical officer PW 4 produced the complainant`s treatment notes, the P3 form and the laboratory request form as exhibits, P.Exh.1 – 3 respectively. Defence Case 7. When placed to his defence the Appellant stated in an unsworn statement that he was at the time a student at Bright Star Secondary School at Kaloleni. That he was aged 20 years. That he sold a phone to the complainant for Ksh.3,000/=. She paid him Ksh.2,000/ =. That when her mother saw her with it she was questioned and they said that he was defiling her. It was his evidence that the complainant was known to him as they had attended the same primary school. Submissions 8. The appeal was canvassed by way of written submissions. The appellant submitted that the complainant never made any complaint but was only made to complain due to her age. He submitted that the sentence imposed on him was harsh. 9. The Respondent on the other hand submitted that the ingredients of the offence of defilement were proved beyond reasonable doubt. That the age of the complainant was proved by production of a birth certificate. That the evidence of the complainant on penetration by the Appellant was corroborated by the evidence of the clinical officer PW4. That the Appellant was identified by the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2515/eng@2026-02-27 2

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Analysis and determination 10. This being a first appeal, this court is mandated to analyze and re-evaluate afresh the evidence adduced before the trial court in line with the holding in the case of Odhiambo v Republic Cr. App No. 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”. 11. The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proof of identity of the perpetrator, see George Opondo Olunga v Republic [2016] eKLR. 12. The trial court found that the age of the complainant was proved by the birth certificate at 17 years. The age of the complainant as contained in the birth certificate was not challenged. The document indicated that the complainant was born on 14/12/2004. This placed her age in March 2022 at 17 years. The age of the complainant was therefore proved at 17 years. 13. On the issues of penetration and identification of the Appellant, the trial magistrate held that the penetration on the complainant was confirmed by the clinical officer who found that there was penetration on the complainant. That the Appellant and the complainant were well known to each other and they bore no grudges on each other. That the complainant told her friend Mwende PW5, her parents and the police that the Appellant was her boyfriend and that he had given her the phone. That having been in the same primary school he must have known that she was a minor and he never took any steps to ascertain her age. That there was no reason for the complainant to lie against him. 14. Starting with the evidence of the clinical officer, PW4, the witness did not make any adverse finding that connected the appellant with the offence. His finding was that the complaint had a normal genitalia. There was then no medical evidence to support the evidence of the complainant that she was defilement by the Appellant. 15. The only evidence that tended to connect the Appellant with the offence is that the parents of the complainant found her with a mobile phone and when they made inquiries, she said that it was given to her by the Appellant who was her boyfriend. That she had engaged in sexual activity with him on several occasions. 16. The complainant was the only witness to state that the Appellant defiled her. The question is whether the trial court was right in finding that she was telling the truth. 17. The proviso to Section 124 of the Evidence Act allows a court in sexual offence cases involving children to convict an accused on the sole evidence of the child victim if the court is satisfied that the child is telling the truth. The court is required to record down the reasons for believing that the child is truthful. The section provides as follows: 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. 18. Upon careful consideration of the evidence adduced before the trial court, it is clear that the complainant did not come out clearly where she had gotten the phone from when she was asked about https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2515/eng@2026-02-27 3

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it. She at first lied to her mother PW3 that it belonged to Mwende PW4. When Mwende denied that allegation, she said that she had bought it from a certain person whom she owed Ksh.2,000/=. Diana PW6 told the trial court that the complainant told her that she had bought the phone but that her parents were suspecting that it had been given to her by a boyfriend. According to the complainant`s mother PW3, it is only after the complainant was taken to hospital for examination and the doctor confirmed that there was penetration that the complainant said that it is the appellant who had given her the phone and that they were in a sexual relationship. 19. If the complainant lied that the phone belonged to Mwende and then told Diana that she had bought it, was she telling the truth that it had ben given to her by the Appellant because she was in a sexual relationship with him? 20. For the court to rely on the evidence of a child under section 124 of the Evidence Act to convict a person, the court must be absolutely satisfied that the child is a truthful witness. A witness who is shown to be unreliable or a liar and who says one thing and says another thing on the same subject matter cannot be said to be a truthful witness. The Court of Appeal in the case of Ndungu Kimani versus Republic [1979] KLR 282 stated the following on credibility of a witness:“ The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise a suspicion about his trustworthiness; or do (or say) something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence.” 21. The trial court in this matter did not consider the fact that the complainant had lied about the phone that it belonged to Mwende. The court did not consider the evidence of Diana that the complainant told her that she had bought the phone. Why would she lie to Diana who was not even her friend that she had bought the phone? 22. In view of the foregoing, I am not convinced that the complainant was a credible witness and as such it was not safe to rely on her evidence to hold that she was defiled by the Appellant. The Appellant was entitled to the benefit of doubt. The conviction by the trial court is thereby quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 27TH DAY OF FEBRUARY, 2026 J. N. NJAGI JUDGE In the presence of: Mr. Oluoch for Respondent Appellant – present virtually at Manyani G.K. Prison Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2515/eng@2026-02-27 4

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