Michael Okinyi Kombe v Republic

Appellant guilty of the offence of gang rape and convicted him. The Appellant was also sentenced to 15 years' imprisonment. 6. The Appellant, aggrieved, lodged this Appeal. The Petition of Appeal dated 21.3.2024 raised the following Grounds: a. The learned trial magistrate erred in law and fact in convicting the Appellant when the offence was not proved beyond reasonable doubt. b. The learned trial magistrate erred in law and fact by failing to comply with Article 50(2) (g) (h) of the Constitution. Evidence 7. At trial, PW1, was SAO. The minor was her daughter. On 3.12.2022, the minor attended a funeral in the neighboring town at around 9 p.m. Someone grabbed her, cut her with a panga, and raped her. She received the information in the morning. The reported at Migori Police Station. She identified the assailant as Brian. The police arrived at the scene and recovered the minor's socks. The minor was born on 4.7.2006. On cross-examination, she testified that the Appellant was known as both Brian and Michael. The minor had never talked to him, and the minor passed at the barber shop where the Appellant worked. 8. PW2 was the Minor. She was in form 2. On 3.12.2022, she left home for a funeral within the neighborhood at 9 p.m. She was with her brother B. Later, she left for the funeral with 4 other girls. On their way, they met 3 boys. One of them was Allan. They stopped. She was talking to Allan. Three people suddenly emerged and grabbed her. One of them cut her on the shoulder with a panga. They pulled her into a maize plantation. They told her to remove her clothes, and she refused. One of them pushed her and removed her clothes. She was in long trousers, a grey T-shirt, and a grey hoodie. They removed all her clothes and had sex with her. 9. She stated that the first man was very harsh, ‘alikaza’. It was dark, but she recognized his voice. They were wearing Marvins. There was moonlight. She recognized the appellant's voice because he was a barber at Rayudhi market and had once shaved her head. The Appellant raped her first. He then demanded 4 million to have her released. She told them she had lost her phone and asked them to help her look for her socks, which were also lost. When they were all searching around, she ran away and escaped from them. The next morning, she told her parents. She was taken to Migori Hospital. 10. On cross-examination, it was her case that she knew the Appellant by the name Budaa. That she recognized his voice and saw his face, nose, and mouth. She did not know a person known as Brian. She did not know why her mother said Brian. 11. PW3 was Daniel Oluoch Owino., the Nursing Officer from Lela Dispensary. She was working at the Migori County Hospital on the material day, relieving a friend. On examination, PW2 was bleeding from the vagina. She was on her menses. She saw a cut on the shoulder. The vagina had slight bruises. On cross examination, the labia minora had bruises. 12. PW4 was No. 10xxx PC Tambach Philemon. He was the investigating officer. On 4.12.2022, 4 suspects were being interrogated at the Migori Police Station for unrelated offences, and the Appellant was among them. He was informed that the suspects were involved in another minuted case. PW2 identified one of the 4 suspects as the Appellant. He investigated the matter and had reasonable suspicion that the Appellant had committed the offence herein, hence the charges. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 2

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13. DW1 was the Appellant. He testified that he worked as a barber. On 3.12.2022, he was at Ndong Hospital with his wife, who was to give birth. She gave birth at 12 p.m. He was going home to bring her clothes around 6 am in the morning when he saw 3 boys kneeling and who were being beaten. The chief said he was looking for him for playing loud music at the barbershop. He was arrested and taken to the police station on 4.12.2023. Later, PW2 came with a police officer and said the Appellant had raped her. He did not know PW2, and he never shaved her. 14. On cross-examination, he testified that the charges were false. He was away in the hospital at the material time and could not have committed the offence. 15. DW2 was Irene Gakea, the wife of the Appellant. She testified that on 3rd December 2022, she went to the hospital while in labour. At about 5.00 p.m., she called the Appellant and informed him that she was about to deliver. He arrived at the hospital at around 6.00 p.m., and they remained together until 11.00 p.m., when she delivered. Her testimony was that the Appellant stayed at the hospital until about 6.00 a.m. Thereafter, she sent him to collect clothes for her and the baby. It was during that errand that he was arrested. He produced a notification of birth for her child, who was delivered on 3.12.2022. Submissions 16. The Appellant filed undated submissions by which it was submitted that there were contradiction in the witness of the Respondent which showed that the offence was framed against him. 17. Only PW4 named him as Michael, as PW1 and PW2 referred to him as Brian or Buda. He submitted that as it was night, voice identification scrutiny ought to have been done. Reliance was placed on Libambula v Republic (2000) KLR 683, that the court ought to have ruled out the possibility of mistake in identification. Analysis 18. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. This was settled by the former Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 19. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. This court, dealing with the instant appeal, is entitled to consider the evidence in the trial court as a whole, as submitted fresh, and to subject it to exhaustive https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 3

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examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings 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 the witnesses. 20. The issue for this court’s determination is whether the prosecution proved the offence of gang rape as against the Appellant beyond reasonable doubt. 21. The offence of gang rape is created under Section 10 of the Sexual Offences Act as follows: Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life. The offence of gang rape is an offence in which part of the ingredients or elements are set out in section 3 of the Sexual Offences Act. The said section provides as follows: A person commits the offence termed rape if— he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; the other person does not consent to the penetration; or The consent is obtained by force or by means of threats or intimidation of any kind. In this section, the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act. (3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 22. Section 43 referred to above provides as follows: (1) (2) An act is intentional and unlawful if it is committed— (a) In any coercive circumstance; (b) Under false pretences or by fraudulent means; or (c) In respect of a person who is incapable of appreciating the nature of an act which causes the offence. The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is(a) use of force against the complainant or another person or against the property of the complainant or that of any other person; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 4

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(3) 23. (b) threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or (c) abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act. False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a persona. In respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person; b. In respect of whom an act is being committed, is led to believe that such an act is something other than that act; or c. Intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by hiv or any other life-threatening sexually transmissible disease. Having set out the parameters for the case, it is then important that the question of the standard and burden of proof is addressed. Proof beyond a reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: “ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 24. This court is entitled to consider the evidence in the trial court as a whole as being submitted fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 5

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allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 25. The issue for this court’s determination is whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. 26. During the trial, PW2, the complainant minor, testified that at about 9.00 p.m., she was in the company of four other girls when three men approached them. There was moonlight at the time, which enabled her to see her assailants. The three men, who were wearing marvins, grabbed her and dragged her into a maize plantation. She stated that she recognized the voice of the Appellant, as he had previously shaved her at his barber shop. According to her evidence, the Appellant was the first to rape her, and thereafter all three men slapped her. She described the Appellant as being particularly harsh during the ordeal. 27. PW2 further testified that the Appellant demanded Kshs. 4 million for her release and instructed her to call her mother. However, she informed him that she did not have a phone. 28. The medical evidence and the minor's evidence show that the offence of gang rape did occur. Her evidence was cogent, and I thus agree with the court below that penetration and the defilement by a gang. The only question for this court, which is raised is whether the appellant was properly identified. The complainant stated that he recognized the appellant's voice and nothing else. There is no doubt that whether or not all three defiled her, it is immaterial so long as they were a group doing so. In the case of Francis Matonda Ogeto v Republic [2019] KEHC 10896 (KLR), GV Odunga, J, as he then was, posited as follows: Under section 10 of the Sexual Offences Act, the ingredients of gang rape are: rape or defilement under the Act; committed in association with others; or committed in the company of another or others who commit the offence of rape or defilement with common intention. It is therefore clear that defilement which is committed in association with others or with common intention notwithstanding the fact that the accused may not have defiled the victim amounts to gang rape according to the said section. It therefore matters not whether the offence was rape or defilement as long as the conditions under section 10 are found to exist. 26. In this case, there was overwhelming evidence both oral and documentary that the complainant was 17 years old hence a child under the Children Act. Accordingly, the offence ingredient would be that of defilement. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 where it was stated that: The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 27. 29. In this case there is no doubt about the age of the complainant which was proved both by oral and documentary evidence to have been 17 years at the time of the offence. The question, therefore, is whether the voice identification of the appellant met the threshold of proof required. On voice identification, the court in Simon Kiptum arap Choge & 3 others v Republic [1984] KECA 4 (KLR), the court of appeal [Hancox, Nyarangi JJA & Platt Ag JA] held as follows: There can be no doubt that evidence of voice identification is receivable and admissible in evidence and that it can, depending on the circumstances, carry as much weight as visual identification, since it would be identification by recognition rather than at first sight. In https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 6

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Rosemary Njeri v Republic [1977] Crim App 27, a victim of the offence of grievous harm testified she heard the appellant say ‘break her legs’. The reception of this evidence was upheld in the High Court on the first appeal and also on the second appeal, in which this court said: ‘Mr. Otieno has submitted that identification by voice is less satisfactory than visual identification. In our view it can be equally safe and free from error, more so if the identification takes place at night. We agree with the two lower courts that in the particular circumstances of this case, the appellant and the complainant being familiar with each other for many years, the possibility of error was excluded.’ More recently in Simon Mbelle v Republic, in which Mr. Etyang was quick to point out that only two words ‘Ni mimi’ (‘it is me’) sufficed as regards voice identification, we said ( 1 KAR 578 at 583): In relation to the identification by voice, care would obviously be necessary to ensure (a) that it was the accused person’s voice (b) that the witness was familiar with it and recognised it and (c) that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it. In the instant case we are satisfied, on our own evaluation, as we have indicated, that the reception of the evidence as to the voice identification and the dying declaration was correct and safe.’ 30. The court has to be certain that there were no mistakes in the voice identification. In Mbelle v. Republic (1984) KLR 626 the court said this about voice identification: “ In relation to the identification by voice, care would obviously be necessary to ensure (a) that it was the accused person’s voice (b) that the witness was familiar with it and recognized it and (c) that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it. In the instant case, we are satisfied, on our own evaluation, as we have indicated, that the reception of the evidence as to the voice identification and the dying declaration was correct and safe. 31. The totality of this court’s consideration of the grounds of appeal and the Judgment of the trial court reveals that the Respondent did not prove its case beyond reasonable doubt. The visual identification of the Appellant by PW 2 using moonlight was not free from error, and the intensity and brightness of the moonlight was never interrogated; the voice identification did not meet the legal criteria, where the language and exact words uttered by the accused person should be stated. The words uttered in PW2’s reference to the conduct of the Appellant as harsh were not clearly stated. The Appellant was described to be one of the 3 men all of who made PW2 to lie on the ground before each of them defiled her. 32. The Appellant was also described to have been the one who demanded 4 million before releasing PW2, or they would kill her if the amount was not produced. The demand was said to be in dholuo language. However, the exact words and the familiarity of PW2 with the Appellant’s voice were not tested. The time span during which the Appellant was described to have shaved PW1 was not investigated, and it was doubtful whether the Appellant had shaved PW1 at all. The Court of Appeal in Joseph Muchangi Nyaga & another v Republic [2013] KECA 88 (KLR) stated as follows: 19. The complainant, PW 1, testified that he recognized the voice of the 1st appellant as he was his customer in the timber business. PW 2 testified that there were between 9 and 10 intruders who entered the house. The Judgment of the High Court does not contain the exact words spoken by the 1st appellant which words led the complainant to recognize his voice. It is also not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 7

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clear in what language the words were spoken. Failure to subject the voice identification to test and analysis casts some doubt as to the veracity of voice identification. In addition, the fear and shock as stated by PW 1 make the prevailing conditions at the scene of crime unfavourable for safe voice identification. It is our considered view that the Honourable Judges erred in giving undue weight to the testimony on voice recognition.. 33. The evidence of PW2 as the single identifying witness also ought to have been scrutinized with circumspection. In the case of Abdulla Bin Wendo & Another vs Republic [1953] 20 EACA166, the Court there addressed the manner in which the evidence of a single identifying witness should be treated and stated thus: “ Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favoring a correct identification were difficult. 34. PW2 described 3 boys who were with her at the time of the incidence. She was also in the company of 4 other girls. Could all these people fail to corroborate her case on identification if they were called; especially noting that the Appellant was well known as barber in Kakrao? I think not. The court had to get the clearest view that the Appellant had committed the offence before curtailing his liberty for more than 15 years noting that the sentence could be enhanced to life imprisonment under Section 10 of the Sexual Offences Act. It was mischievous not to call them to testify. 35. It was in Kiilu & Another V. Republic [2005] 1 KLR 174 that the Court of Appeal held “ Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error. 36. The identification in this case was not by recognition. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, a decision generally accepted and widely used in our judicial system, the Court considered the factors to be considered when the only evidence turns on identification by a single witness. The Court stated doth: The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 8

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37. Further, one Yuban, whom PW2 testified that he informed the chief that he had recognized the Appellant, was not called to testify. According to PW4, the Appellant was also arrested at the police station when PW2 came to check on the case. The reason the Appellant was at the police station was alluded to allegations of committing an unrelated offence that was never disclosed. It was suspicious that the police singled out the Appellant in relation to this offence. 38. It was not proved beyond reasonable doubt that the Appellant was the offender. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder: “ To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 1. 40. Considering the glaring laws in the voice identification of the Appellant, and the failure to call corroborating evidence, which was described as being available, I find it crucial to evaluate the rather plausible and unshaken defence of the Appellant. The one issue that the court failed to consider was the Appellant’s defence. The duty to prove the falsity of an alibi still remained with the prosecution. The appellant as an accused had no duty to help the state carry out its case. If evidence was tendered that was surprising to the state, they had a chance under section 212 of the Criminal Procedure Code to call for rebuttal evidence. The section provides as follows: If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 41. The question of the rights of the prosecution to receive in advance defence evidence as addressed in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows: So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 9

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The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. … That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: “If you rattle a snake, you must be prepared to be bitten by it.” …. We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers. They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court: “ to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” – see section 3A. There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate. But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 42. The appellant was not under duty to disclose his defence before being put on the defence. In any case, the State has a chance to call rebuttal witnesses. The case for the appellant, as presented during crossexamination, was that he was not there. It used to be the position that an alibi had to be disclosed in advance. However, non-disclosure is not fatal. In this case, the appellant did not say he was elsewhere. Therefore, this is not an alibi per se. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 10

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43. The Appellant called his wife, who produced a birth notification that confirmed that indeed they had a child born on the material day. The burden did not shift the burden to the Appellant. In the case of Wachera v Republic [2025] KEHC 11843 (KLR), this court posited as follows: 43. The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home. 44. The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus: “In considering an alibi, we observe that: a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view. b. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial. c. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court. d. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. 45. The first aspect was the alibi defence set out. The state did not find it fit to challenge any of the statements made by the Appellant in relation to the alibi. The state, in its cross examination confirmed the consistence of the defence evidence. The appellant was in their home from 5 pm up to 10 pm when the parties took dinner. This piece of evidence was not impeached at all. The Appellant’s evidence remained unrebutted. In the case of Erick Otieno Meda v Republic [2019] eKLR, the Court of Appeal [Asike Makhandia, Kiage & Otieno-Odek JJA] posited as follows regarding an alibi: -In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...” 46. In the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence:i.There is no burden of proof on the accused to prove his alibi.ii.If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.iii.An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word."iv.If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar").v.The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 11

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47. The burden of proving the falsity of an alibi was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: -“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution....” 48. In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. 44. The appellant’s evidence was rock solid. No one connected the appellant to the offence. The voice had nothing peculiar. It is sad that the complainant was raped, but the aggressor has not been found. The names were not known to the complainant. It is not clear how Brian ended up being Michael. All these cause doubt in the case. I do not find the case proved. 45. For avoidance of doubt, the complainant was gang raped. It is not that this did not happen. The rapists are out there. There is a need to have them arrested to give the complainant closure. However, the voice, especially in such difficult circumstances, is unsafe. The parties were not in the habit of dealing with each other. 46. The Appellant ought to have been acquitted in the first place. Consequently, I set aside the conviction. 47. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 10 of the Sexual Offences Act provides for a minimum sentence of 15 years. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 12

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48. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows: Paragraphs 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act , or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 49. The appellant was charged with an offence whose minimum sentence was 15 years. The minor was 15 years old. Therefore, a 15-year sentence was very lenient. In normal circumstances, 20 years to life would have sufficed. Had the appeal on conviction been allowed, the sentence could have been increased. 50. I set the Appellant free. My findings are that this appeal succeeds. I quash the conviction, set aside the sentence, and order that the Appellant be and hereby set free unless lawfully held. Determination 51. I make the following final Orders: i. This Appeal is allowed. The conviction and sentence is set aside and the Appellant is set free unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 13

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ii. The appellant shall be removed from the sexual offenders register. iii. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI, VIRTUALLY ON THIS 2ND DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Kihara for the Respondent Pro Se Appellant Court Assistant - Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2634/eng@2026-03-02 14

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