Moses Gichuke Lokoriondo v Republic

c. The trial magistrate erred in law and fact by failing to find that the prosecution's evidence was full of glaring contradictions and discrepancies that could not sustain the charge facing the accused. d. The trial magistrate erred in law and fact by failing to find that the prosecution had not medically connected the appellant to the offence. e. The trial magistrate erred in law and fact by finding that the prosecution had proved the charge of defilement beyond a reasonable doubt. f. The trial magistrate erred in law and fact in finding a conviction that was against the weight of evidence. g. The trial magistrate erred in law and fact by passing a harsh sentence under the circumstances and not considering that the appellant was a first offender and did not seek a presentence report. h. The sentence is too harsh, and I pray that it be quashed and set aside. 4. The respondent opposed the appeal through M/s Mwende Kavindu, learned counsel, who contended that it lacked merit. 5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, noting that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E. A 32 to guide my decision-making process. 6. Section 8(1) of the Sexual Offences Act defines defilement in the following terms: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator; and c. The victim must be below eighteen years old. These are the ingredients that the prosecution must prove against an accused person. 7. F.M.M. (PW3), the complainant’s mother, testified that the complainant was born on August 10, 2013. However, PC Dennis Barasa (PW5) produced a clinic card indicating a date of birth of February 8, 2013. The documented date is considered accurate. As of May 18, 2015, the complainant was 2 years and 3 months old. This confirmed the complainant’s age in accordance with the required standards. 8. Dr. Joseph Karimi Kinyua (PW4) testified that during his examination of the complainant, he observed bruising on the anus and noted that the sphincter muscles were loose. He concluded that the complainant had been sodomised. 9. The appellant was implicated by the evidence of P.K. (PW2), a five-year-old child, and F.M.M. (PW3), the complainant’s mother. 10. PW2 stated that their father went to buy goats and left him in the corridor with the complainant. He claimed that Moses beat him and locked him there, and when he was later released, he found the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2679/eng@2026-03-04 2

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complainant crying and bleeding from the mouth. There was also something on his buttocks that he couldn't see clearly. 11. The evidence of PW3, on the other hand, was that she took the complainant with her to the shop. They sat at the road. The appellant found her there. He appeared drunk. After about 5 minutes, PW2 found her at the roadside. He was from school. The complainant and PW2 followed the appellant. She proceeded to the shopping centre and returned home at about 5 p.m. This is when she discovered the complainant had a problem. 12. According to PW3, PW2 told her that the appellant accompanied the complainant to water the cows. PW2 also mentioned that he saw the appellant taking the complainant into his house. 13. Moses Gichuke Lokoriondo, the appellant, contended that he was falsely implicated due to unpaid wages. 14. The evidence of the two key witnesses contradicted each other on material aspects. The Court of Appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held: 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, raise 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. 15. The evidence from these two witnesses was unreliable, making it unsafe to base a conviction on it. 16. The upshot of the foregoing analysis of the evidence on record is that the conviction is quashed, and the sentence is set aside. The appellant is released unless otherwise lawfully held. DELIVERED AND SIGNED AT NYANDARUA, THIS 4TH DAY OF MARCH 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2679/eng@2026-03-04 3

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