Wambua Muia Kieti v Republic

B. Background 3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. The particulars of the offence were that on 30th May 2021 in Matungulu Sub County within Machakos County, he intentionally caused his penis to penetrate the vagina of GNM, a child aged 12 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 30th May 2021 in Matungulu Sub County within Machakos County, intentionally touched the vagina of GNM, a child aged 12 years with his penis. 4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called four 4 witnesses. C. Prosecution case 5. PW1, GN, the complainant stated that she was aged 12 years at the time of the incident. She was born on 11th June 2008. It was her evidence that on 30th May 2021 at about 9.00 a.m, she was on her way to church and had taken a shortcut path. While on the path, she met the accused person, whom she had not known prior to that day. She explained that the accused was walking in the opposite direction and that she paused to allow him to cross a small water puddle. Suddenly, the accused grabbed her by the throat, strangled her and pushed her. He held her hand and ordered her to accompany him. When she attempted to scream, he tightened his grip on her throat and instructed her to remain quiet. She pleaded with him to let her go and even offered him her church offering (sadaka), but he refused and forcefully led her into a nearby thicket. 6. According to PW1, once inside the thicket, the accused lifted her dress, lowered her undergarments, pushed her to the ground and removed his trousers. He then lay on top of her and penetrated her genitalia with his penis. She testified that the act was painful and that when she screamed, the accused covered her mouth to silence her. After the act, the accused threatened to kill her if she did not leave. PW1 stated that she collected her belongings, including her Bible, offering, and pant and went home. Upon reaching home, she informed her grandmother of what had happened. Her grandmother escorted her to Malaa Police Station, where a report was made. 7. PW1 was subsequently taken to hospital, examined by a doctor and treatment notes were prepared. She further testified that after the incident, she noticed blood on the pant she had been wearing. The bloodstained pant was taken to the police station. She confirmed that she did not know the accused before the incident but positively identified him in court as the person who assaulted her, stating that she clearly remembered his face. 8. During cross-examination, PW1 maintained that the incident occurred on 30th May 2021, which was a Sunday, and that the assault took place in a thicket. She stated that although people occasionally passed through the area to fetch firewood and cattle were grazing in the distance, no one was present near the scene at the time of the incident. She reiterated that she did not know the accused prior to that day. On re-examination, PW1 clarified that no person passed near the scene during the incident and that the cattle she had seen were grazing far away. She confirmed that the bloodstained pant was taken to the police station. 9. PW2, MNN testified that she is the grandmother and guardian of PW1. PW2 recalled that on Sunday, 30th May 2021, at about 10.00 a.m., her grandchildren went to Sunday school. She stated that the younger children went ahead while PW1, who was older, followed later. She testified that the children usually crossed a river on their way to church. PW2 stated that PW1 returned home later and informed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 2

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her that she had met a man who had defiled her. PW2 instructed PW1 not to bathe and immediately proceeded to Malaa Police Station to report the matter. She stated that she was advised to wait for transport to take PW1 to hospital because the child was injured. PW2 later took PW1 to hospital for treatment and medical examination. She explained that the formal police report was recorded the following day. PW2 further testified that she later went to the area near the thicket, she found many people gathered. She was informed that a man had defiled a girl, had snatched food from another child and also assaulted a woman in the same area. PW2 stated that she informed the people present that her daughter had also been defiled. She testified that she saw the accused person after he had been arrested by sand harvesters. PW2 stated that members of the public had beaten him and disarmed him of a panga and found in possession of items alleged to have been stolen, including a food dish. She explained that members of the public intended to lynch the accused but that she and others insisted that he be taken to the road instead. Police officers later arrived and took the accused to Malaa Police Station. 10. PW2 further testified that PW1 was called upon to identify the accused person, which she did. PW2 also stated that PW1 identified the clothes worn by the accused at the time of arrest. PW2 testified that PW1 later received further treatment in Nairobi. She stated that PW1 was 12 years old at the time of the incident. PW2 produced an application for late registration of birth and confirmed that PW1’s date of birth was 11th June 2008. She also confirmed that she recorded her witness statement at Malaa Police Station. 11. During cross-examination, PW2 stated that PW1 left for church at about 9.30 a.m. on the material day. She clarified that she did not witness the act but that PW1 narrated the incident to her. She maintained that PW1 was examined at hospital and that the doctor confirmed that she had been defiled. PW2 reiterated that PW1 returned home and found her and that she did not inform neighbours before proceeding to seek assistance from the police and medical services. 12. PW3, Milka Mwikali John testified that she is a clinical officer by profession. She stated that she holds a Diploma in Clinical Medicine and Surgery obtained in 2009 and a Degree from Mount Kenya University. She further testified that she had worked for about ten (10) years as a clinical officer, five (5) of which were with MSF. PW3 testified that she examined and treated PW1, the complainant in this case. She stated that PW1 was seen at the clinic on 30th May 2021 at about 5.50 p.m. PW3 filled the Post Rape Care (PRC) Form and the Medical Certificate (P3 Form) in respect of the complainant. She confirmed that the complainant’s date of birth was recorded as 11th June 2008. PW3 testified that the history given by the complainant was that on 30th May 2021 at about 9.00 a.m., while on her way to church in the Malaa area of Machakos County, she encountered a man near a water crossing. The complainant reported that she waited for the man to cross first, after which he grabbed her and pulled her into a thicket. She stated that the assailant was armed with a panga and a wooden stick, strangled her when she resisted, defiled her, and thereafter threatened to kill her if she did not leave. 13. Upon physical examination, PW3 testified that the complainant complained of neck pain consistent with strangulation. On genital examination, PW3 noted blood on the external genitalia and a fresh tear on the posterior fourchette. The internal genitalia appeared reddish and had dirt mixed with blood. The hymen was red and swollen, with active bleeding. PW3 stated that the anus was examined and found to be normal, with no injuries. 14. PW3 further testified that laboratory tests were conducted, including a HVS, pregnancy test, and HIV test. The pregnancy test was negative, and no spermatozoa were detected. PW3 stated that the complainant was treated accordingly. She confirmed that she filled and signed the PRC Form and Medical Certificate (P3 Form) on 30th May 2021, which she produced in court as Prosecution Exhibit 1 and Prosecution Exhibit 2 respectively. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 3

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15. During cross-examination, PW3 stated that she did not conduct a DNA analysis as her role was to examine and treat the complainant. She clarified that she did not know the accused person and did not examine or treat him. 16. PW4, Inspector Valentine Wanjiru, of No. 24xxx, currently attached to Thika Police Station and formerly stationed at KBC Police Station, Malaa. PW4 testified that on 30th May 2021, while on duty at KBC Police Station, Malaa, a female minor (PW1) reported to the station in the company of her grandmother, alleging defilement. PW4 stated that according to the report, PW1 had been on her way to church when, upon reaching Kware Bridge, she encountered a man known to her by physical appearance. The assailant was described as wearing a pink bag and carrying a black backpack and a panga. PW4 testified that it was reported that the assailant stopped the complainant, strangled her, threatened to kill her if she screamed and forcefully pulled her into a nearby thicket where he removed her inner clothing and defiled her. After the incident, the assailant threatened her with death if she disclosed the incident and ordered her to collect her belongings and leave. PW4 stated that the complainant returned home and informed her grandmother, who then escorted her to the police station. 17. PW4 testified that she was assigned the case to investigate. She advised that the complainant be taken for immediate medical attention and arranged for an ambulance from MSF. She confirmed that the complainant was treated and that the P3 Form and Post Rape Care (PRC) Form were filled and returned to the police station the same night. PW4 further testified that she recorded witness statements in respect of the case. 18. PW4 stated that on the following day, police officers received information that a person was being subjected to mob justice in the same area. PW4 testified that CPI Munungo and Mwita proceeded to the scene and found a suspect who had been arrested by members of the public. The suspect was rescued from the mob and taken to Kangundo Hospital for treatment before being escorted back to the police station. PW4 testified that the complainant and her grandmother were informed and invited to the police station to ascertain whether the suspect was the same person who had assaulted PW1. PW4 stated that the complainant positively identified the accused person by his facial appearance and the clothes he had been wearing. 19. PW4 further testified that investigations confirmed that the complainant was a minor. She stated that the complainant and her grandmother were referred to the Registrar of Births, where they obtained documentation confirming the complainant’s date of birth as 11th June 2008. PW4 testified that an application for late registration of birth was availed and produced as an exhibit. She confirmed that the complainant was 11 years old at the time of the incident. 20. During cross-examination, PW4 stated that she did not personally witness the incident but conducted investigations based on the complainant’s report and supporting evidence. She reiterated that the accused had been rescued from mob justice and upon seeing him at the police station, the complainant identified him by his clothes and facial appearance. PW4 further testified that the complainant and her grandmother went to the station after learning that a suspect had been arrested at the same location where the offence occurred. 21. With these 4 witnesses, the prosecution closed its case. Upon the closure of the prosecution case, the court found that the prosecution had establish a prima facie case and the appellant was placed on his defence. He chose to give a sworn statement and called two other witnesses. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 4

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D. Defence case 22. DW1, Wambua Muia Kieti testified that he resides in Joska, though at the time of testifying he was in remand custody. He stated that he is a casual labourer by occupation. DW1 testified that on 31st May 2021 at about 7.30 a.m., he was on his way to seek casual employment when he encountered a crowd assaulting a person alleged to be a thief. He stated that he was carrying a sack and had walked a long distance, which causing him to breathe heavily. According to DW1, members of the public stopped him, questioned why he was breathing heavily and began implicating him in theft together with another person known as “Rasta,” whom the crowd was also chasing. 23. DW1 testified that he was severely assaulted by members of the public before police officers from Malaa Police Station rescued him. He stated that he was taken to hospital for treatment following the assault. DW1 further testified that on 7th June 2021, he was arraigned in court and charged with three offences, including robbery with violence. He stated that those charges were later dismissed for lack of evidence after which he was released. DW1 testified that he was surprised to later learn that he was facing another charge in respect of this case. He maintained that he had not committed the offence before the court and stated that he had persevered throughout the trial, expressing confidence that the court would do justice. 24. During cross-examination, DW1 acknowledged that he was charged with the offence of defilement and that the complainant in this case was GN. He stated that on 31st May 2021, he did not meet the complainant, explaining that this was the day he was assaulted by a mob and subsequently taken to the police station. He reiterated that he did not defile the complainant and stated that although the complainant may have been defiled, he did not know by whom. DW1 further testified that he was taken to hospital following the mob assault but stated that he did not have medical documents to confirm the treatment, adding that such records would be at the hospital unless retrieved by his family. 25. DW2 Francisca Kiluu testified that she is a farmer by occupation and that she resides at Matetani. She stated that the accused person is her son. DW2 testified that on Sunday, 30th May 2021, the accused telephoned her and informed her that all was well and that he was preparing to go to church. She stated that on the following day, Monday, the accused again telephoned her and informed her that he was admitted in hospital, where he remained for about a week. DW2 further testified that a doctor later contacted her and informed her that the accused had a case and had been taken to Machakos. DW2 stated that what she knew regarding 30th May 2021 was that the accused had been accused of defiling a child. She testified that on that day, the accused was in the Bypass area and that he had called her while there, informing her that he was going to church. She further stated that she went to church that day. 26. During cross-examination, DW2 reiterated that on 30th May 2021, the accused telephoned her and stated that he was going to church. She clarified that she and the accused were in different places on that day and that she was not present at the scene where the offence was alleged to have occurred. 27. DW3, Anastacia Ngii Matheka testified that she resides in Tala, and that she works in a school. She stated that the accused person is her brother. DW3 testified that on 30th May 2021, the accused came home and that they went to church together as a family. She stated that they left for church at about 7.00 a.m. and remained in church until about 3.30 p.m., after which they returned to their mother’s house. According to DW3, they stayed at home until about 5.30 p.m., when the accused left to go to his place of work in Joska. DW3 further testified that on the following day, she received a telephone call from a police officer attached to KBC Police Station, Malaa, who inquired about the accused and informed her that he had been assaulted and was admitted in hospital. She stated that she went to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 5

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hospital, found the accused admitted, and that he remained hospitalized for about one week. DW3 testified that she later accompanied the accused to court in respect of his case. 28. During cross-examination, DW3 stated that the entire family including their mother and the accused, attended church together on the material day. She stated that her mother may have been mistaken in her testimony insisting that they were together throughout. DW3 maintained that they were in Kawethei on the material day and denied that the accused attended church in Malaa. She further stated that she found the accused badly beaten when she saw him in hospital. 29. After the close of the defence case, judgment was delivered on 7th September 2023 convicting the appellant on the first count of defilement. On sentencing the trial court heard the appellant’s mitigation and sentenced him to serve 17 years imprisonment as a deterrent. E. The Appeal 30. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 17 years imprisonment set aside. The appeal was canvassed by way of submissions The parties’ submissions are as follows: Appellant’s Submissions 31. The Appellant, Wambua Muia Kieti, submitted that he was convicted and sentenced to twenty (20) years’ imprisonment, less the period spent in custody during trial. Being dissatisfied with both the conviction and sentence, he lodged the present appeal. The Appellant argued that the prosecution failed to prove the offence of defilement beyond reasonable doubt. He relied on the case of Fappyton Mutuku versus Republic Criminal Appeal 296 of 2010 and the case of Charles Wamukoya versus Republic Criminal Appeal No. 72 of 2013 to submit that the essential ingredients of the offence are proof of the age of the complainant, proof of penetration, and positive identification of the assailant, all of which must be established beyond reasonable doubt. 32. On Ground One, the Appellant contended that his constitutional rights were violated. He argued that he was arrested on 31st May 2021 and arraigned in court on 8th June 2021, thereby being held in custody for about eight days without being brought before court as required under Article 49(1)(f) of the Constitution. He submitted that no explanation was offered for the delay and that this infringement prejudiced his right to a fair trial under Article 50 of the Constitution. 33. The Appellant further submitted that the complainant, being a child of tender years, was not subjected to a voir dire examination before testifying. He argued that this omission rendered the complainant’s evidence unsafe and incapable of sustaining a conviction. He relied on Patrick Kathurima versus Republic Criminal Appeal No. 131 of 2014 and Johnson Muiruri versus Republic [1983] KLR 445 which, according to him, have held that failure to conduct voir dire in respect of a child witness is fatal to a conviction. 34. On Ground two, the Appellant challenged the proof of penetration and identification. He submitted that although the complainant alleged defilement, there was no credible evidence linking him to the offence. He argued that the complainant stated she did not know the assailant prior to the incident and that she only referred to him as “a man.” He contended that the evidence on record showed that he was arrested on suspicion following allegations of other offences and that the case against him was founded on suspicion rather than proof. Referring to the case of Michael Mugo Musyoka versus Republic [2015] eKLR, the Appellant argued that the first report made to the police did not disclose his identity as the perpetrator and that the investigating officer did not explain how he was identified as the assailant. He submitted that the identification evidence was weak, unreliable and incapable of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 6

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supporting a conviction, particularly in the absence of prior acquaintance. The Appellant relied on the case of Akumu versus Republic (1954) 21 EACA and Weeder versus Republic Criminal App. No. 228 of 1980 (unreported). 35. The Appellant also contended that the trial court failed to properly consider his defence of alibi, as well as the testimonies of his defence witnesses. He argued that the defence evidence was not evaluated and was instead dismissed without analysis. 36. While making reference to the case of Mwangi versus Republic [1983] KLR 75 and the case of Suleiman Juma alias Tom versus Republic [2013] eKLR, the Appellant urged the court to find that the prosecution failed to prove its case beyond reasonable doubt, to quash the conviction, and to set aside the sentence. In the alternative, he prayed that the court consider the period already served in custody under section 333(2) of the Criminal Procedure Code as sufficient punishment. Respondent’s Submissions 37. The Respondent opposed the appeal only to the extent of addressing the two grounds argued by the Appellant in his written submissions. 38. On Ground one, relating to the alleged infringement of the Appellant’s right to a fair trial under Article 49(1)(f) of the Constitution, the Respondent conceded that, on the face of the charge sheet, the Appellant appeared to have been presented to court outside the constitutionally stipulated period. However, it was submitted that the trial record does not disclose whether a miscellaneous application seeking extension of custodial orders had been made. The Respondent further urged the Court to take judicial notice of the extraordinary circumstances prevailing in 2021 during the Covid-19 pandemic, which significantly disrupted the criminal justice system. On this basis, it was argued that the record does not provide sufficient material upon which the Court could make a definitive finding that the Appellant’s constitutional rights were violated. 39. With regard to the failure to conduct a voire dire examination, the Respondent acknowledged that no such examination was conducted on the complainant, who was a minor. Although the complainant was aged 13 years at the time of testifying, the Respondent conceded that the trial court ought to have conducted a voire dire examination to ascertain her understanding of the oath and duty to tell the truth. The Respondent submitted that while failure to conduct a voire dire examination does not automatically vitiate a trial, the evidence of such a witness cannot, in the absence of independent corroborative evidence linking the accused to the offence, form the basis of a safe conviction. Reliance was placed on the case of Athumani Ali Mwinyi versus Republic, Criminal Appeal No. 11 of 2015; Sammy Ngetich versus Republic [2018], Abdi Adbiraham & Another versus Republic [2013] eKLR and Samuel Warui Karimi versus Republic [2016] eKLR affirming that corroboration must connect or tend to connect the accused to the commission of the offence, and that medical evidence confirming the occurrence of defilement, without more, does not suffice to identify the perpetrator. 40. On Ground 2, concerning identification of the Appellant, the Respondent submitted that the complainant expressly stated that she did not know her assailant prior to the incident. It was contended that the identification of the Appellant was conducted in a highly suggestive manner, as no identification parade was mounted. Instead, the complainant was taken directly to the police station to view the suspect after his arrest and asked to confirm whether he was the assailant. The Respondent argued that such identification was unsafe and prone to error, and that the circumstances of the case clearly called for a properly conducted identification parade. In the absence of such a procedure, it was submitted that the prosecution failed to prove beyond reasonable doubt that the Appellant was the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 7

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41. In conclusion, the Respondent conceded the appeal on the basis that the conviction was unsafe, owing to the failure to conduct a voire dire examination and the lack of independent corroborative evidence linking the Appellant to the offence, coupled with unreliable identification. F. Analysis and Determination 42. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. However, in doing the court must remain mindful that it did not see or hear the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v Republic [2010] Eklr. 43. Having considered the record of appeal as well as the submissions by both parties, the following issues arise for determination: a. Whether the prosecution proved the offence of defilement beyond reasonable doubt. b. Whether the evidence of the complainant was properly received in the absence of a voire dire examination. c. Whether the Appellant’s defence was considered by the trial court. Whether the prosecution proved the offence of defilement beyond reasonable doubt 44. Under section 8(1) as read with section 8(3) of the Sexual Offences Act, the prosecution is required to prove three essential ingredients that is, age of the complainant, penetration, and positive identification of the perpetrator. 45. On the age of the complainant, the evidence on record show that PW1 was born on 11th June 2008. This was supported by her own testimony, the testimony of PW2 and the production of an application for late registration of birth. The trial court’s conclusion that she was a child within the legal definition was therefore sound and supported by documentary evidence, leaving no room for ambiguity. 46. On penetration, PW1 testified that the assailant penetrated her genitalia with his penis. This evidence was corroborated by PW3, the clinical officer, who observed fresh genital injuries, including a tear on the posterior fourchette and active bleeding. The medical evidence was consistent with recent sexual penetration. Accordingly, the court is satisfied that penetration was proved. 47. The central issue in this appeal is whether the Appellant was positively and reliably identified as the perpetrator of the offence. PW1 testified that she met the accused for the first time on the day of the incident. She had not known him previously but later identified him in court as the person who assaulted her, stating that she clearly remembered his face. However, she did not provide any description of the accused’s clothing or physical features at the time of the incident. This omission weakens the reliability of her identification, as no corroborative details were given to support her claim. 48. PW2 testified that she went to the area near the thicket a day after the incident and found a crowd gathered. She was informed that a man had defiled a girl, snatched food from another child, and assaulted a woman. PW2 then disclosed that her own daughter had also been defiled. She further stated that she saw the accused after he had been arrested by sand harvesters, who had beaten him, disarmed him of a panga, and found him in possession of stolen items, including a food dish. Notably, PW2 confirmed that she had not mentioned her daughter’s defilement before this moment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 8

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49. A critical inconsistency arises here, while the accused was arrested with a panga and other stolen items, PW1 never mentioned that her assailant was armed with one or stole anything from her. Moreover, the accused was arrested on 31st May 2021 a day after the alleged offence, which does not place him at the scene on the material day. This discrepancy undermines the connection between the accused’s arrest and the alleged offence against PW1. 50. It is clear from the record that PW1 did not know her assailant prior to the incident. Her identification of the Appellant occurred only after he had been arrested in an unrelated incident and placed in police custody. No identification parade was conducted. Instead, PW1 was taken to the police station and asked to confirm whether the person in custody was her assailant 51. The Court of Appeal has consistently warned against reliance on dock identification, particularly where the witness had no prior acquaintance with the suspect. In this case, the identification of the Appellant was highly suggestive as the complainant was presented with a suspect already in police custody, a scenario that carried a real risk of mistaken identification. The absence of an identification parade was fatal particularly given that identity was a central issue in dispute. 52. Proper identification procedures are not a mere formality; they are a safeguard against wrongful conviction. Where the complainant had no prior knowledge of the accused, the law requires that an identification parade to test the reliability of the witness’s recollection. The failure to conduct such a parade deprived the court of an objective basis upon which to assess the accuracy of PW1’s identification. 53. In the circumstances, the court finds that the prosecution failed to prove beyond reasonable doubt that the appellant was the person who defiled the complainant. The identification evidence was unsafe, uncorroborated, and incapable of sustaining a conviction. Whether the evidence of the minor complainant was properly received in the absence of a voire dire examination 54. The record shows that PW1 was a minor aged about 13 years at the time she testified. The trial court did not conduct a voire dire examination to ascertain her intelligence, understanding of the oath and duty to tell the truth. Section 19 of the Oaths and Statutory Declarations Act requires a court to conduct a voire dire examination before receiving sworn evidence from a child of tender years. Although the term “child of tender years” is not statutorily defined, courts have consistently treated children under 14 years as falling within that category. In the case of Kibageny -vs- Republic (1959) EA 92, the Court of Appeal rendered itself thus on the matter: “ there is no definition in the Oaths and Statutory Declarations Ordinance of the explanation “child of tender years” for the purposes of Section 19. But we take it to mean, in the absence of special circumstances, any child of an age, or an apparent age of under fourteen years.” 55. In a recent decision of the Court of Appeal sitting in Nyeri the case of; Karimi v Republic (Criminal Appeal 16 of 2014) [2016] KECA 812 (KLR) (3 February 2016) (Judgment); it was held: “ 18. The above decision supported the definition of a child of tender years to be 14 years and below and contextualized that definition within the Oaths and Statutory Act and under the Children’s Act. On our part, we have no good reason to depart from this well-trodden path, as we are in agreement the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. Where the witness as in this case was aged 12 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 9

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years and that essential step was not taken in a criminal trial, that trial becomes problematic. In the circumstances we find the evidence by the complainant was not properly received thus, the conviction of the appellant becomes unsafe to sustain as she was the complainant and not any other witness.’’. 56. It is therefore settled that where, in any proceedings before a court, a child of tender years is called to testify, the court is obligated to conduct a voire dire examination in order to determine whether the child understands the nature and significance of taking an oath. If satisfied, the child’s sworn testimony may be admitted. Where the court is not so satisfied, it may nonetheless receive the child’s unsworn evidence if it forms the opinion that the child possesses sufficient intelligence and appreciates the duty to speak the truth. However, in such circumstances, a conviction cannot be founded solely on that evidence unless it is corroborated by material evidence implicating the accused. 57. In the present case, while the medical evidence corroborated the fact of defilement, it did not in any way connect the appellant to the offence. The clinical officer examined only the complainant and did not examine the appellant. No forensic or DNA evidence was adduced, and no other independent evidence placed the appellant at the scene of crime. The medical findings, though consistent with penetration, merely established that defilement occurred; they did not establish the identity of the perpetrator. Whether the Appellant’s defence was adequately considered 58. The Appellant raised a defence of alibi asserting that he was elsewhere on the material day and called two witnesses in support. While the trial court summarised the defence evidence, it did not meaningfully analyse or weigh it against the prosecution case. It is trite law that a trial court is obligated to consider the defence and test it against the prosecution evidence. 59. Given the weaknesses in the prosecution’s case on identification, the Appellant’s defence, even if not conclusively established, ought to have raised reasonable doubt. 60. In light of the foregoing analysis, this court finds that although the age of the complainant and the fact of penetration were proved, the prosecution failed to prove beyond reasonable doubt that the Appellant was the perpetrator of the offence. The failure to conduct a voire dire examination, coupled with the absence of independent corroborative evidence and unreliable identification, rendered the conviction unsafe. 61. Accordingly, the appeal succeeds. The conviction is quashed and the sentence of seventeen (17) years’ imprisonment is set aside. The Appellant shall be released forthwith unless otherwise lawfully held. 62. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 19TH DAY OF MARCH, 2026 RHODA RUTTO JUDGE In the presence of; ……………………………..Appellant ……………………………….Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3908/eng@2026-03-19 10

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