Cyrus Muriithi Mwangi v Republic

2. The learned trial magistrate again erred in law and fact in failing to appreciate that the critical elements in defilement were not proved to the required standards in law occasioning a serious miscarriage of justice. 3. The learned trial magistrate further erred in law and fact in not considering that the whole prosecution case was riddled with material discrepancies which were capable of unsettling the verdict hence a prejudice. 4. The learned trial magistrate further erred in law and fact in failing to consider the plausible appellant’s statement in defence which was not contested and or unproved by the prosecution hence still stands clearly demonstrating that the instant matter was a framed up one to curtail my success for envious reasons. 5. The instant matters proof was below the required standards of proof and therefore capable of impeaching the whole substance of the matter. Duty of Appellant Court 5. The duty of this court as the first appellate court is to re-evaluate the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. (See Okeno v R (1972) EA 32). Evidence 6. PW1 M.W, gave unsworn testimony that, “I stay in Kiriko. I go to [Particulars Withheld] primary school. I am 9 years old. I live with my mother. I have come to give evidence how I was caught by Cyrus Mureithi. I used to see Cyrus in the village. I know where he lives. Like from here to the road. (Chambers to gate of the court). It was almost 7:00 pm. I was in the shamba with T.W. We were chasing birds from rice fields. On our way home at Joy centre Church Cyrus Mureithi accosted us made us lie down he did tell us he would buy us juice. He removed our clothes. He lifted my skirt. Removed my biker and panty I was lying down on the grass. He was holding T. by his hand then he did something (an act) tabia to me then to T. He had removed his trouser. I can’t explain what tabia is. At home I told mum I was in pain. I could not pupu my buttocks in pain and my vagina was in pain too. He used his private part (mahali pa kukojoa) (PW1 uses to biros to show the act by joining the tips). I shouted Cyrus strangled me on the neck. He was holding T. with the other hand. He then did 'Tabia' to T. then he gave us money which was not money it was a piece of a newspaper.He lifted T’s dress up removed her biker and panty then did 'tabia'. He was holding my hand. He did the same thing to T. What he did to me. He inserted the newspaper into my vagina. A motorcyclist came then Cyrus took off. Motorcyclist asked for the money we had been given we told him it was a newspaper. Motorcycle had lights on but I did not know the rider. I told mum that Cyrus had done tabia to me with T. We went to T’s home then hospital. I was stitched at the hospital it was the 1st time Cyrus was defiling me. Cyrus is that person (points at accused seated near the door).” 7. On cross examination, she stated that, “I am in Grade 3. We live in Kiriko. I love C.R. E at school. We were on our way home from my aunt’s shamba - SW. I was with T.W. We were the two of us. T. is my friend. SW is my cousin. It was almost 7:00 pm. It was at night/Dark. There is a road. Wide road. Vehicles use the road. There were no passers by. There were homes near the road. Shamba not far from the road. No shop near the church. There are houses near the church. Cyrus found us at the church. We found him at the church. He called us. I knew Cyrus before then. I knew him as Cyrus Muriuki. My aunt told me his name. My aunt SW. I had met Cyrus at Mwea Village. At their place and on the road. Mwea is in Kiriko. I knew a person who sells meat near Cyrus house. I have never been to Cyrus https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 2

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house. I saw Cyrus when I was with S and 2 other friends. Cyrus greeted us. Verbally. He 1st did to me: he removed my clothes and did 'Tabia.' He had removed his clothes. We shouted he struggled us. He threatened to throw us into the river. He gave us newspaper saying it was 20/= for each of us. I know Ksh.50/= 100/= 200/= 300/= 10/= 20/=, 5=. (Shown Ksh 50/=) that is Ksh.50/=. We met a motorcyclist he took us home on the motorbike. Cyrus had left already. Motorcyclist knew my mother. He gave us a ride. We removed the money to show him and we realised it has a newspaper. He took us near W’s house. Got W’s mother near the road. I told my aunt I had pain on my buttocks. Mum was at work. We went to W’s place and W’s mother took us to a doctor. Doctor said I had injury on the buttocks and I was stitched. Doctor took us to the chief then to the police. I was admitted at hospital. My aunt, W’s mum, my uncle took us to hospital. T. was admitted as well. We went to police before hospital. I did not shower/change clothes when I went to hospital. My aunt told me Cyrus’s name. He would sell arrow roots to my aunt. Thereafter he defiled us in December.” 8. In re-examination, she stated that, “Cyrus left before motorbike came.” 9. PW2 T.W gave unsworn testimony that, “I go to [Particulars Withheld [primary school class 3. I am 9 years old. 2020 I was 8 years old. I live in Kiriko with my mother and sister. I am here due to Cyrus. It was 1st December. Today is 23rd September (I don’t how the month). We were with M.W in the farm. We met Cyrus on the way. He blocked our way. He made us lie down. He tied us up. We were at the church. Cyrus held our hands and made us lied down on a place with an unfinished building. Cyrus did bad manners to M. first. He slept on us and did bad manners using ‘kitu ya kususu’. He used his penis on M. then he came to me. He hit me and strangled me. I shouted. I was feeling pain on my vagina (points at her vagina). He used his thing on my (points at vagina). Cyrus told their child to go for torch I was in a dress, biker, panty and he removed my clothes. Cyrus removed his trouser and short. At was about 7:00 pm. A motorbike van came with his lights of motorbike and Cyrus took off. He gave us newspaper saying it was money. Motorbike rider took us to a place in Kiriko and he left. I went home I told my mother I had been defiled by Cyrus. Mother told me to eat I could not. M. was unable to go for a long call and her aunt came told my mother we had been defiled. We went to headmen. We later went to-police station then Kimbimbi Hospital where we were admitted and treated. M. was stitched and admitted. I can’t recall how long we stayed in hospital. Case was then bought to court. I knew Cyrus he was a friend to my brother they would steal in the village and sleep with old women. Cyrus is the accused. (points at accused).” 10. On cross examination, she stated that, “I am in class 3. I am 9 years old. I can’t recall when I was born. 1st I was with M. We were the two of us. We had gone home. From the farm belonging to M’s aunt. It was about 7:00 pm. It was dark. We were on road where there is a church and a building under construction. Met the accused near the church. It was inside church compound. Outside church building. No lights were there. No other passers by but far there were people. There are homes near the church. We did not see anyone else Cyrus blocked our way. We were both held by Cyrus he did bad manners to M. then to me. He removed his penis and inserted. It inside us. He made us lie down on the ground he used banana fibres to tie us down. He tied our hands and legs. He removed my dress, biker. M. had a skirt, biker. I shouted he slapped me and chocked me. He slapped on my cheeks once. M. did not shout. I am the only one who shouted. Cyrus had removed his trouser, biker and a short. Cyrus did bad manners. I have siblings - 5. I don’t know age of my brother who sold my mother’s cows and took off. He is KW. Friend to accused. M. told me Cyrus defiled us. I knew Cyrus he was a friend to my brother. Way before the defilement. Cyrus used to eat my food together with my brother. I knew accused as Muriuki and Cyrus. It was dark. Rider took us to a club near kiriko. Left us alone. I went home M. also went home. I found mum home. I told her I had been defiled. We met with M’s Aunt on the road. She was with M. Reported to police then to hospital. Treated. Admitted at hospital. I don’t know how https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 3

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long. Went to hospital following date. I went to hospital first. Taken by many people. My mother was present. M. went with her mother. I did not know the other person.” 11. In re-examination, she stated that, “I knew it was Cyrus when the motor bike used lights. Went to hospital first.” 12. PW3 Omondi Francis Owino, a Clinician at Kimbimbi, produced the treatment notes, P3 and PRC forms for both M.W and T.W. He testified that, “On 1/1/2020 T.W.W aged 8 years was brought to hospital by mother with report of defilement by a person known to them. No physical injuries. Normal external genitalia. Laceration on the internal active Bleeding on vulva. Broken hymen. Vaginal swab: Red blood cells seen. No spermatozoa. Given medication. Post exposure prophylaxis. Seen by a colleague - Mbatia. Worked with him. On 2/11/2020 I filled P3 form. Under garments stained with blood. History: 1900 hrs defiled by a person known to her at Kiriko center. Physical: Stable fair general condition: was anxious. No outward physical injuries. Genitalia: Lacerations on the perennial area. No active bleeding both libia normal. No discharge/foreign bodies. Lab results: Red blood cells seen. No spermatozoa. Penetrative anal laceration with no vaginal discharge seen. PRC filled by Mbatia on 1/1/2020. Genitalia swab done. No spermatozoa. Red blood cells. Centre genitalia with perennial laceration torn hymen. No physical body injuries. On 1/1/2020 - M.W.N complaining of genitalia pain. Mother reports defilement 1900 hrs by a person known to her. No physical injuries. Genitalia: Perennial active bleeding. Vaginal fluid flowing from vulva. Hymen torn. Okay and genitalia swab seen. Spermatozoa, red blood cells numerous blood cells. Stitching done on perennial tear. Antibiotics and prophylaxis given. Admitted for counselling. PRC filled on 1/1/2020 by Daniel Mbatia. D.0.I -1/1/2020 examined same day. Defiled by person known to her. Vitals were stable. Inner garments had blood stains. Genitalia: tear between anal opening and vaginal area. Hymen not intact. Traumatic penetrative sexual intercourse. I filled P3 form on 2/1/2020. History: Inner garments not blood stained. Was very anxious. No physical injury.Perennial tear on anus. Cervix normal. Whitish vaginal fluid both active anus and vaginal bleeding. Vaginal swab: Spermatozoa seen. Traumatic genitalia tear active. Traumatic genital bruises.” 13. On cross examination, he stated that, “I examined the two minors when filling P3 forms. I only filled the P3 forms on 1/1/2020. I was present. T.W: Vulva pain. History of defilement. Minor knew the assailant. Assailant not brought to clinic for check-up. Clothing: inner garments shown to us but we never collected them. Minor had not showered. Physical: No injuries. Examination: External genitalia normal. Laceration perennial area – Fresh, Active bleeding, Hymen absent - Did not see it, Was torn, P3 - Exhibit 2: final remarks indicates hymen torn, No free flowing. No spermatozoa seen, No protection used by accused, Laceration between anal opening and vagina – externally, Internally there was valval bleeding caused by defilement, Genitalia was penetrated - Valval bleeding plus the tear, Lacerations also internal, P-Exhibit 5: referred to: spermatozoa was present. We take specimens keep one there Kimbimbi cannot do DNA. Specimen taken it is at the hospital. Not aware if DNA done. Can’t tell if it is from the accused. Accused never brought to hospital. We take 3 samples. We store 2 samples if requested police may be given. We store until they are requested. Samples are viable can stay for as long as they are there. M.W on my findings - had perennial tear – anus - vagina: there was defilement. I cannot determine if it was by the accused person.” 14. PW4 SW testified that, “I come from Kiriko - Gathigiriri. I do casual jobs. I live with my children - 2. The other child M.W. The mother is my sister called E. Our mother passed and I took one child. The other my sister took. On 1/1/2020 M. came to the house. She was 8 years old. She is age mate to my child born in 2012. M. went to the toilet. I asked her why she was smelling faeces. M. was from the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 4

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farm to chase birds in a rice field. M. kept quiet. I persisted as eh was sitting on water. She told me what had happened. I went to W’s place. W. was the other child and we went to hospital. Doctor said there was a problem. Doctor called Assistant Chief who told us to come to Wangúru Police Station. M. told me on their way home met Cyrus Muriithi she was with W. Cyrus grabbed them near a school and when a motorcycle appeared they ran way. M. said it was Mbiuki wa Ndonga - the child knew Cyrus by nickname. They told me where Mbiuki lives and we went there. He lived with the mother. We went to their home before reporting to the police. We found mother Mbiuki was not there. The mother told us to take action as Mbiuki no longer under her care. At police we were issued with P3 form and we went to Kimbimbi hospital. M. was admitted for 7 days. She was torn on the anus and vagina. She was discharged. We went to children office and police station. We were called to the children office. Children went to an office in court and they talked. I recorded my statement at the police station. Mbiuki was arrested on 3/1/2020. Thiba on the road. My cousin identified Mbiuki and villagers. Mbiuki is the accused (points at accused). Child also identified by accused. I knew accused we live in the same village and he is a relative. I have never had a fight with the accused before this case.” 15. On cross examination, she stated that, “SW 37 years old. M. is a daughter to my sister. I am not a mother to M. Incident was on 1/1/2020. Children were defiled. Children were involved. W’s mother’s sister. We are married in the same place. On 1/1/2020 I was in the house. I was informed around 6.00 - 7.00 pm by M. M. said they were from the farm. They met Mbiuki who slept with them. Incident was between 6.00 pm to 7.00 pm. It was outside a church and a school. Joy church. From court to N.I.B is the distance from Joy Church to our home. M. said Mbiuki defiled her. Mbiuki Wa Ndonga. She described clothes Mbiuki was wearing during the defilement. Child knew Mbiuki before the incident. Mbiuki would come to my home he would sell arrowroots to me. Mbiuki is the name known in the village. I recorded what I said today at Police Station. Cyrus Muriithi Mwangi are the names I reported Muriithi Gitari - Refers to her (PW4’s) statement. Towards the middle: Muriithi aka Mbiuki - defiled them. I never mentioned Cyrus or Ndonga in the statement. I knew him well. I did not know his full names. I got to know them at the police station. I know him very well. We went to children office. I did not state that in the statement. He was arrested on 3/1/2020. My cousin arrested him at Thiba; together with villagers who were assisting us. He was taken to the Chief’s office 1st as he alleged they stole from him. After discharge the children identified the accused at station. I was not present. I did not witness the defilement.” 16. In re-examination, she stated that, “Child said Mbiuki had defiled them. No one else known as Mbiuki. We went to their place. Later I got to know his name as Cyrus Muriithi Mwangi. The children met the accused before. They knew him well.” 17. PW5 MWT testified that, “I stay in Kiriko. I do casual jobs. I stay with my children - 3. On 1/1/2020 I was at the market buying vegetables. At 7.30 T. came took my hand. She is my daughter. She was born on 17/7/2012. I have her birth certificate - MFI-7. M’s aunt W came we went to the house. She told me to listen to what T.W and M. what had happened. W. said they met Mbiuki and he grabbed them took them to Joy centre, removed their panties and defiled them. He threatened to beat them up if they told anyone. W. shouted. She was slapped. Mbiuki defiled M. first them T. A motorcycle appeared upon seeing the light from the motorcycle. Mbiuki gave them a paper which he said was money then he took off. Motorcycle carried the children and the children were brought to the village. They came home. It was about 5.00 pm when the incident took place. It was getting dark. They came to my house at 7.30 pm. They knew Mbiuki’s home and they showed us. We found the mother. They told Mbiuki’s mother what Mbiuki had done. Mbiuki was not home. We took them to the doctor in the village who confirmed the two had been defiled. Doctor called the headmen and we went to headmen who instructed us to go report and go to hospital. The children were admitted for 7 days at the hospital. Discharged on the 8th day. Mbiuki arrested on 3rd day after the incidence at Thiba. He was taken to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 5

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chief then Wang’uru Police Station. I told police what happened. Mbiuki is the accused (points at him). I knew accused before the arrest. He is a villager in our village. We knew him as Mbiuki has a name Muriithi. Children knew him as Mbiuki within the village. I have no grudge with the accused.” 18. On cross examination, she stated that, “When the incident occurred I was home. About 5.00 pm - 6.00 pm. I got the report at 7.30 pm. They were from the farm. It is about half an hour to home. The scene near the rice field. W. came about 7.30 pm. I live near the market. W. said Mbiuki. In the village there are many people. Only one person called Mbiuki. Village has about 200 people. I know most of them. Mbiuki is the only one called as such. I know Mbiuki for 10 years. We go to casual jobs together. My child knew Mbiuki. He was a villager. He would work even within the village. I have nothing to state if the child said she does not know Mbiuki. It was after 5:00 pm-6:00 pm. It was a bit dark. Joy centre church not a busy route people were already in the village. There is a house near the church. M. was the 1st to be defiled. Mbiuki gave them a paper saying it was money. They threw away the paper. I do not know the motorcycle rider who gave them a ride. Accused was known to me I said his names when I recorded my statement with police. I do not see his name in the statement I recorded. He was arrested after 3 days. At Thiba by villagers: Mburu they were 3 people on a motorcycle. I did not go to the chief. We were at hospital with children. I was not at the station when children identified the accused. I did not go to identify the accused at the police station. T. did not identify accused at the police station. I do not know who identified accused at the police station. T. knew the accused Cyrus or Mbiuki. Mbiuki not a friend to us for defiling the children. Before then Mbiuki was a friend.” 19. In re-examination, she stated that, “Accused known as Mbiuki in the village. Children knew him as Mbiuki. At the church it is deserted there are houses and road. I do not know if children identified accused at station. They recorded their statement with the police.” 20. PW 6 CPL Solomon Mutuma was at Tebere police post, when the appellant was brought by Area Sub Chief Mr. Kago, Mburu and Justus Muthee on allegations of having defiled minors. They arrested and escorted him to Wang’uru police station where he was charged. 21. PW7 PC Faith Maloba, the investigation officer herein produced the birth certificate of T. and the age assessment report of M.W as exhibits. She then visited the scene, which was around 200 metres from the church nearby. 22. On cross examination, she stated that while there were residential houses and church nearby, the buildings were scattered and there was no light at the church, and the road/path where the incident happened was used by motor cycles. 23. In his unsworn defence, DW1 Cyrus Muriithi Mwangi, the appellant herein, testified that, “On 1/1/20 I went to look for work at Mahigaini I met a man who wanted people to assist him carry rice. I went with him and he showed us where to carry the rice from and where to drop. It was around 8:00 am we carried the rice upto 10:30 pm. I was with the driver and another person. We were 3 of us. The person who had given us the work asked one of his employees to give me a place to sleep since it was late. I heard the evidence of the witnesses. Johnstone Muthee and Mburu arrested me in town. I had leased my shamba to Johnstone Muthee and he paid me half the agreed amount. He was to pay the rest after harvesting rice in 2019 December. On going to his place on 29/12/2019 he didn’t have money. I told him I would get someone else to lease out to him. He told me to refund the money he deposited together with interest failure to such I would be jailed or dire. He came in motorcycles Johnstone and Mburu and arrested me and took me to chief Tebere. He made a call and said the person they were looking for they had gotten him. The child's mother is called E. The person who came to the station is not the mother. They came after being called by Johnstone. They said I had defiled their daughter. Only one lady came to the station and recorded a report of defilement. SW is not daughter to M. T. was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 6

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friends with Mburu. He was her husband. Faith Maloba issued the P3 form in 2019. I did not defile the children. It is not me I gave the children a newspaper cutting lying to them it was money. The P3 form is for M. says the incident happened on 1/1/20 at 7:00 pm and taken to hospital on 2/1/2019. I was arrested in 2020. The said M. was taken to hospital before the incident. The people who arrested me are cousin to SW. I was arrested on 3/1/20 at Ngurubani Town going home. I was not arrested while committing the offence.” Submissions 24. The appellant cited Ruwala v R (1957) EA 370 and Okeno v R (1972) EA 32, on the duty of the first appellate court. He faulted the prosecution for failing to prove its case beyond reasonable doubt as required by Woolmington v DPP (1935) AC 462 and Kaingu Elias Kasomo v R Malindi Court of Appeal Criminal Appeal No 504/201). He faulted the trial court for handing him the mandatory maximum sentence without regard to his mitigation, and cited Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment), Evan Wanjala Wanyonyi v Republic[2019] eKLR, Paul Ngei v Republic [2019] eKLR and Dennis Kibaara v Republic [2019] eKLR. According to him, the evidence by the prosecution witnesses was marred with contradictions and fatal unfounded allegations, and cited Bukenya & another v Uganda 1972 EA 549. 25. The respondent urged that the prosecution witnesses demonstrated and placed the appellant at the scene. Analysis and Determination 26. The twin issue for determination are whether the offences were proved beyond reasonable doubt and whether the appellant’s defence was considered. 27. The ingredients of this offence which the prosecution was required to prove beyond reasonable doubt are age, penetration and identity of the perpetrator. 28. PW7 produced PW1’s age assessment report, which was conclusive evidence that she was aged between 7 and 8 years, while PW2’s birth certificate indicated that she was born on 17/7/2012. 29. The evidence on penetration is overwhelming. PW3 testified that when PW1 was examined, there were lacerations on the internal, active bleeding on vulva, broken hymen, red blood cells, no spermatozoa, lacerations on the perennial area and penetrative anal laceration with no vaginal discharge. PW2 had perennial active bleeding, vaginal fluid flowing from vulva, torn hymen, spermatozoa, numerous blood cells and inner garments had blood stains. 30. The question is the identification of the perpetrator or whether the appellant was shown to be the perpetrator. PW4 told the court that PW1 informed her that the person who had defiled them was Mbiuki wa Ndonga, an alleged nickname of the Appellant herein. She stated that, “M. said it was Mbiuki wa Ndonga - the child knew Cyrus by nickname. They told me where Mbiuki lives and we went there.” On cross examination, she restated that, “M. said Mbiuki defiled her. Mbiuki Wa Ndonga. She described clothes Mbiuki was wearing during the defilement. Child knew Mbiuki before the incident. Mbiuki would come to my home he would sell arrowroots to me. Mbiuki is the name known in the village.” 31. However, when PW1 testified, she did not refer to the Appellant by the alleged nickname. She stated that, ““I was in the shamba with T.W. On our way home at Joy centre Church Cyrus Mureithi accosted us made us lie down he did tell us he would buy us juice. He removed our clothes. He lifted my skirt. Removed my biker and panty I was lying down on the grass. He was holding T. by his hand then he did https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 7

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something (an act) tabia to me then to T.” On cross examination, she reiterated that, “I knew Cyrus before then. I knew him as Cyrus Muriuki. We met a motorcyclist he took us home on the motorbike. Cyrus had left already.” In re-examination, she stated that, “Cyrus left before motorbike came.” 32. PW2 stated on cross examination, “M. told me Cyrus defiled us. I knew accused as Muriuki and Cyrus. It was dark. Rider took us to a club near kiriko. Left us alone. I went home M. also went home.” 33. She purported to have recognized the Appellant by the aid of the motor cycle lights when she stated in re-examination that, “I knew it was Cyrus when the motor bike used lights.” 34. The crucial identifying witness in this case was PW1, who initially informed both PW2 and PW4 that it was the Appellant who had defiled them. Nonetheless, on rigorous cross examination, she materially departed from that position, stating that the Appellant had already left by the time the motor cycle arrived. The fact that the incident occurred at night, in an unlit environment, as confirmed by the complainants and the investigating officer makes the purported identification one under difficult circumstances and the prevailing conditions for positive identification were manifestly unfavourable. 35. The court considers that in the light of the material contradictions in the evidence adduced by the key prosecution witnesses the Appellant’s conviction was unsafe. The court, of course, accepts that where several witnesses testify in a case, there may be contradictions or inconsistencies here and there. In this case however, the contradictions cannot be overlooked as they go to the root of identification of the perpetrator which is central to the prosecution’s case. 36. In Richard Munene v Republic [2018] eKLR, the Court of Appeal stated that: “ As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 37. This court finds that the irreconcilable inconsistencies in the prosecution’s case when considered together with the unfavourable conditions for positive identification, give rise to reasonable doubt, which must, in accordance with the settled principles of criminal law, be resolved in favour of the Appellant. 38. The Appellant’s defence of alibi was properly analyzed by the trial court and properly found to be an afterthought, as it was belatedly raised during defence, when the prosecution witnesses were no longer available to respond. Orders 39. Accordingly, for the reasons set out above, the Court finds that the appeal is merited and it is allowed. 40. The Appellant’s conviction for the offences of defilement contrary to section 8(1) (2) of the Sexual Offences Act is quashed and the sentences set aside, and there shall be an order for his release forthwith, unless otherwise lawfully held. Order accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 8

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DATED AND DELIVERED THIS 20TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Mr. Mwangi for the DPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2632/eng@2026-02-20 9

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