Paul Kavula v Republic

3. That, the learned trial magistrate failed to adequately consider my defence. 4. That, the learned trial magistrate I law and fact by shifting the burden of proof to I the appellant contrary to the laid down rule that the burden of proof is on the prosecution thought the trial. 5. That, the learned trial magistrate failed to observe the evidence adduced could not support the charge thus the prosecution resorted to building up their case on trial. 6. That, learned trial magistrate relied heavily on circumstantial evidence and titled section 124 of the evidence act in favour of the complainant while blatantly dismissing my defence thus rendering an opinioned judgment. 7. That, the learned trial magistrate failed to consider the period that he had spent in remand prison while awaiting the final determination of his case pursuant to the provisions of section 333(2) of the Criminal Procedure Code. The case for the prosecution was presented by five witnesses. 5. PW1, the Complainant, a minor, proceeded with sworn evidence after requisite Voire Dire examination was conducted and the court found her to be competent to testify under oath. She told the court that she lived with her aunt J as her mother disappeared when she was a baby and that she constantly alternated between living with her aunt and her grandmother J. 6. The case for the prosecution was that J who is the accused person’s cousin is like a grandfather to the complainant . They lived in same compound with the accused who had a separate 3 roomed house. She testified that she had started living with J around 2017 when she was in Grade 2. J’s house was two roomed and she slept on the same room and same bed with her while J’s children slept in the other room when they were around. 7. It was her testimony that she knew the accused person as a bhang peddler and that he would often send her to get it for him. 8. That one day in 2017 J went to Nairobi and left her with Paul in the compound. That slept alone that night. That in the morning, she woke up and found Paul had had removed her sleeping gown as well as her underpants and put them aside and inserted his penis inside her vagina and that he was defiling her. That the door to the room was open. 9. That when she said she would report the matter to J, and to her aunt accused told her that J would not believe. He threatened to burn J’s house and stab the complainant to death. She never told anyone what had happened to her or J when she came back 3 days later. 10. She testified that from then on, every Saturday when J was away at her shop, she would go to pick things from the accused’s house, the accused person would defile her. 11. Around September 2021, she told J that she wanted to move to her aunt’s place and that when the accused found out about that, he beat her up and asked why she wanted to leave. Apparently, J did nothing about it and she sent her cousin to tell her aunt to come pick her from J’s house. 12. That her aunt came to J’s that night. That in the presence of the aunt she told J what had been happening and J went to ask the accused who denied. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 2

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13. That she left with her aunt J that September, 2021 and it is then she realized that she had missed her period for September and October. That her aunt took her for a pregnancy at Mbuvo Health Center in January 2022 and it tested positive. She identified a letter from Mbuvo Health Center indicating that she had attended the facility on 10/1/22. From there they went to the Assistant Chief’s office and were referred to Kathonzweni Police Station from where they were sent to Makueni County Referral Hospital where she was examined and several tests conducted. 14. She testified that the accused had last defiled her in September, 2021 and she could not tell when she got pregnant. She testified that she had never had sexual intercourse with another person and that the accused made her pregnant. 15. On cross examination by the accused person, the complainant testified that on the material day in 2017 when J had gone to Nairobi, she had locked the door using a nail and that the accused had forced it open by pushing it. That she did not speak up because the accused person had threatened to burn her aunt and also stab her 16. On re-examination she reiterated that she did not speak up because of the threats and that her grandmother did not believe her. 17. PW2 JKN was the aunt as the complainant was her niece by virtue of being her sister’s child. That she had lived with her since September, 2021 when she sent her daughter to tell her to go and get her from J’s as she was suffering there. 18. After a month of staying at her place, she noticed the minor was exhibiting signs of pregnancy and told her daughter to ask her if she was getting her period and she told her daughter that she had missed her period. JKN took her to Mbuvo Health Center where a pregnancy test was positive. The doctor issued them with a letter confirming attendance as well as treatment notes which she identified as PMFI 1 and 4 respectively. They later went to the Assistant Chief’s office where they were referred to Mbuvo Police Post, from where they were sent to Kathonzweni Police Station where the DCI took over the matter. They were also referred to MCRH where the minor was examined and tests carried out. An ultra sound test was conducted as well as the age assessment. She told the court that complainant told her that the accused person would defile her every weekend. 19. On cross examination, she indicated that she took the minor away immediately when she told her what had been happening 20. On re-examination, she testified that she had stayed with the minor for about a month before realizing something was amiss with her and that she opened up about having missed her periods in January, 2022. 21. PW3 Elizabeth Ndunda, the Assistant Chief Kituluni Sub-location told the court that on 10/1/22 at around 2pm, JKN went to her office and reported the matter. 22. She told the court that she knew the accused person as he lived in her area of jurisdiction. PW3 indicated that the accused person lived alone in a house next to J’s. 23. PW4, J testified that she had lived with the complainant since she was in grade two and that they stayed together until she went to live in Kibwezi. That she left in November, 2021 to go and stay with her aunt and shortly thereafter she discovered she was pregnant. 24. At this point the prosecution applied to have this witness stood down. The accused person did not object to the same and the application was allowed Later, PW4 testified that the complainant had left https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 3

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her place in August of 2020 to go stay at Kibwezi. That during that period the schools had closed due to the Covid pandemic and then went back to JKN’s in December 2020. 25. When schools reopened in May 2021, the complainant went back to her place where she stayed until November 2021 when her aunt JKN came to pick her. She said the complainant left because she was pregnant. That she found out about the pregnancy the day the complainant was leaving her house. She told the court that she lived with the complainant in the house as her other children lived away. 26. PW4 indicated told the court that the accused person, who is a brother to her father in law, lived in his own compound near her own. That she once found her watching TV there in the house of accused. 27. PW5 Catherine Muneni, a nurse at Mbuvo Health Center told the court that on 19/1/22, a DCI officer had visited the hospital inquiring whether the complainant had been examined at the hospital. That she confirmed from the records that indeed the complainant had visited the facility and that she had undertaken a pregnancy test. PW4 then wrote a letter to the officer confirming the same. She produced the letter as PEXH 1 and the pregnancy test result as PEXH 2. 28. Upon cross examination she testified that the complainant had been tested for pregnancy at the laboratory and stated that she did not conduct the test as she was not on duty. That she relied on the records from the hospital. She said that the test indicated that the complainant was pregnant though they could not ascertain who had impregnated her. 29. PW6 Joseph Biwott , Chief Medical Officer at MCRH told the court that he examined the complainant on 21/1/22 who had been sent from Kathonzweni Police Station. He testified that on examination, the complainant had a perforated hymen with normal genitalia. Blood work was done and a test for pregnancy was positive. An ultrasound test showed an intrauterine fetus estimated to be about 15 weeks at the time. He concluded that there was evidence of sexual penetration and produced the P3 as PEXH 2. An age assessment test was also conducted on 20/1/22 which indicated the age to be 16 years. The same was produced as PEXH 3. He produced an Ultrasound Report and the PRC form which bore similar findings as the P3 as PEXH 5 & 6 respectively. 30. PW7 no. 73200 PC Bernard Mageto , a DCI officer based at Kathonzweni was the investigating officer. He testified that on 10/1/22, JKN came to the station accompanied by the complainant and reported a case of between 2017-2021. He found that the mother to the complainant disappeared in 2015 and the aunt took her. That the grandmother J tool her in 2017 and the accused person started defiling her each time, she went to pick utensils from his house. That he did so until November, 2021 when she became overwhelmed and sent for her aunt to come and get her from the homestead. Shortly thereafter, she started showing signs of pregnancy and tested positive after a test was conducted at Mbuvo Health Center where her aunt took her . That he took her to MCRH where an array of tests were conducted and a P3 form was filled. 31. The I.O testified that he visited the scene, and noted that J’s and the accused persons houses were about 20 meters apart though they lived separately with the accused person living alone. He identified the accused person as being present in court and confirmed that he is the same person he had arrested. He indicated that he did not know him prior to the arrest. 32. Upon cross examination by the accused person, The I.O testified that he made the decision to arrest the accused person on his investigations and evidence presented by the witnesses. He also testified that he had done his investigations to ascertain the allegations and that he had concluded that the complainant did not speak up or make any reports due to threat of violence by the accused. 33. On re-examination by the prosecutor, PW7 told the court that his investigations showed that the accused person had been threatening to stab the minor and burn her aunt’s house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 4

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34. The prosecution closed their case at this point. 35. The trial court in its ruling delivered on 23 rd March,2022, found on this evidence that the prosecution had established a prima facie case against the accused person and placed him on his defence. 36. At the Defence hearing, the accused told the court of how he was arrested on 16th January,2022 and that the arresting officers had demanded a bribe from him. He also stated that the prosecution witnesses had given false testimony. 37. Upon cross examination by the prosecutor, he confirmed that he knew the complainant as a relative and that she was living with J, his sister in law between 2017 to 2021; that she once went to his house to watch TV but PW4, J, forbade her from going there again. He testified that sometimes meals were shared J and the complainant but not utensils. He further told the court that indeed the minor became pregnant eventually. On his claim of demands for bribery by police officers, he indicated that he had not shown the court evidence of the same. 38. The accused person further testified that he believed that the aunt of the complainant had a grudge against him because he had withdrawn his support. He however indicated that he did not have any evidence of the support he used to give. He closed the defense case. 39. The trial court in its Judgement found that the prosecution had proved its case beyond a reasonable doubt, found him guilty, convicted and sentenced him to 15 years’ imprisonment. This is the basis for this appeal. The parties opted to proceed with the appeal by way of written submissions. 40. On ground 1 the appellant submitted that the failure by the trial court and DPP to see that the matter was not investigated, the same was not reported in time amounted to a miscarriage of justice. He relied on a case without citation Joseph Kioko V Republic where he claimed the judge allowed the appeal because the alleged defilement was not reported in good time. He argued that the court ought to have waited for the child to be born for a DNA test to be conducted to confirm that the pregnancy was his. He relied on another case without citation Titus Mutiso Ngumbi V- Republic where he claimed that Dulu J allowed an appeal where the court did not wait for the child to be born for DNA to be conducted. He submitted that he was convicted on allegations, assumptions and suspicions. He submitted that he was denied the chance of an impartial arbiter when the court took sides with the prosecution. He relied on Article 159 (2) of the Constitution. He pointed out at the proceedings where the complainant told the court that the appellant was a bhang pedlar who would send her to get it for him. That in September 2021 she found she was pregnant - that her own aunt said she did not know how she got pregnant, that the medic said she did not carry out the pregnancy test - that she was not on duty. That it was not ascertained as to who impregnated her. 41. On grounds 2,3, and 4 he argued that the prosecution did not prove penetration. He relied on Gorden Omondi Ochieng V Republic [2021] eKLR. 42. On the ingredients of rape (sic); Relying on Section 2 of the Sexual Offences Act on the definition of penetration, he submitted that the prosecution relied on the evidence of PW1 and the Doctor .which all related to the events of 2021 yet the diverse dates of 2017 - 2021 were not stated except that she came to find herself pregnant in September 2021. He argued that the pregnancy was the sole proof of his guilt and it was upon the prosecution to make the connection. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 5

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43. That without the DNA evidence the penetration was not proved beyond a reasonable doubt. He relied on Philip Nzaka Watu v Republic [2006] eKLR, Stephen Nguli Mulili V Republic [2014] eKLR, Festus Mukati Murwa V republic [2013] eKLR on the duty of the prosecution to prove their case beyond a reasonable doubt. 44. He cited Philip Arap Maina v Republic [2013] eKLR that any evidential gaps in the case for the prosecution raising material doubts must be resolved in favour of the appellant. The appellant appreciated the fact that the court can convict the accused if it believes the victim is telling the truth. He however submitted that the absence of the conclusive DNA evidence of the connection between the complainant, the accused and the baby which would establish pregnancy and penetration means that the evidence of the complainant would not be said to be truthful did not see the submissions by the respondent. The only issue for determination is whether the prosecution proved their case beyond a reasonable doubt. The following questions arise from the submissions; a. Whether the prosecution established penetration. b. Whether the prosecution shifted the burden of proof to the appellant. c. Whether the trial magistrate relied heavily on circumstantial evidence under section 124 of the Evidence Act. d. Whenever the trial court did not take into consideration the period the appellant had spent in custody before the sentence 45. These questions will be answered together. 46. The duty of the 1st appellate court is to review the evidence and draw its own conclusions without losing sight of the fact that it neither heard nor saw the witness testifying. 47. The case for the prosecution is that the defilement became known when the complainant turned out pregnant. Her testimony was that she began to live with her aunt JKN , was handed to grandmother J, who lived in the same compound with the appellant who was like grandfather to the complainant. 48. That between 2017-2021 the appellant defiled her on diverse dates. That J had children. These children would sleep in the sitting room, while she, the complainant would sleep in the bedroom in the same bed with the J. She said that it started in 2017 on a date/month/period that was not disclosed, recorded, not known, not investigated. 49. The complainant said that on that night J had gone to be with her daughter who had given birth. That she left the complainant in the home. It is not clear where J’s children were at that time and whether or not the I.O did find out , and whether he spoke to them. 50. The record shows that this first alleged incident was not investigated at all. For instance, how old were J’s children , where were they that night or when the appellant entered their mother’s bedroom before 6:00am, where were they? Did he pass through the sitting room where they slept to enter their mother’s bedroom? Did they hear anything? These were basic questions that ought to have been verified through investigations to determine what really happened on this alleged first incident 51. The case for the prosecution was specific. That J had gone to Nairobi because her daughter had a baby. This date and time would have been easy to establish and the prosecution would have established the date of the first alleged act of defilement and all the surrounding circumstances. This is because if the age assessment as at 2022 is to go by then the complainant would have been 11 years old in 2017. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 6

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52. This prosecution by not filling in the other gaps surrounding this date left that incident unsupported by any other evidence and it would be difficult to establish its occurrence without J’s testimony as to where she was on that day. 53. The complainant also testified that the appellant defiled her every Saturday when J would be at her shop. Again, the I.O did not investigate this averment . There is no evidence as to where J’s children were during that time. Did J have a shop where she was on Saturdays? Where did she leave her children? Was the appellant home every Saturday since 2017? The I.O and the Prosecution did not give answers to these glaring questions that arose from the testimonies of the witnesses. 54. She testified that it is in 2021 September that she decided to tell the aunt about it - by sending her cousin to tell the Aunt JKN to come for her. That it was on this day that she told her aunt about what had happened, and that she was leaving the grandmother’s home , the appellant beat her up. 55. Grandmother J testified that the complainant left her home in during Covid in August 2020 and appears to have stayed with JKN, when schools were closed and returned to J’s in May 2021 only to leave in September 2021. 56. Clearly, she did not stay the whole time with J. That throws some doubt to the averment that the appellant defiled her every Saturday since 2017 yet there were long periods she was not at home. The prosecution did not explain why the alleged defilement was blot reported when the complainant lived with JKN during the pandemic. 57. The alleged beating was also not reported by either the aunt or the neither was that issue reported to the police/or the chief or any authority that the appellant had assaulted the complainant yet it was crucial, because according to the Prosecution it was related to the alleged defilement. 58. The prosecution did not also explain the discrepancy in the dated in the testimony of grandma J and aunt JKN. The aunt made no mention of the time the complainant lived with her during Covid, or that she returned to J’s in May 2021. JKN said she let in September and the pregnancy only became known shortly thereafter. J said she left in November 2021 and when she was leaving, she spoke about the pregnancy. Her testimony creates some conflict: meaning that as at the time the complainant left, she knew she was pregnant and JKN also knew. 59. That contradicts the testimony of JKN on how the reason the complainant left J’s home and how the pregnancy was discovered because according to J when the complainant was leaving in November 2021, she was pregnant and both knew. She did not tell them that the appellant had defiled her, and if indeed the appellant beat her up at the time, she was leaving it could not have escaped J and JKN. 60. The officer who conducted the first pregnancy test at Mbuvo Health Centre, was unknown . 61. The examination by the Chief Medical Officer Makindu is the one that indicated that she was 15 weeks pregnant as at 22/1/2022. According to JKN she lived with the complainant for one month before she realised something was wrong and that the complainant opened up in January 2022, yet J testified she told them about the pregnancy in November 2021. However, she never told them that she was defiled by the appellant. J did not corroborate the complainant’s testimony that she told her JKN about the defilement when she came for her. Neither did she say that she confronted the appellant about the alleged defilement. 62. From the record of the subordinate court there is nowhere that the complainant told the grandmother or the aunt that the appellant had defiled her before the ‘discovery’ of the pregnancy in January 2022 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 7

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63. Hence the testimony of the PW3, the area chief EN testimony that JKN reported on 10/1/2022 her niece had been defiled by the appellant is not supported by the testimony of the complainant or her grandmother. There was no evidence that any specific date was mentioned of alleged defilement in September 2021. 64. PW5 did not conduct any pregnancy test on the complainant, but simply wrote a letter confirming that it had been done at Mbuvo Health Centre. PW5 produced the P3, the ultra sound report showing that the complainant was 16 years old, and 15weeks pregnant. 65. The investigating officer relied on the medical reports and the complainant’s testimony to charge the appellant - to him that was sufficient evidence. He said appellant was brother-in-law of J and each lived alone. 66. The appellant denied the offence and testified on how he was arrested. 67. The investigating officer did not conduct investigations. It is not clear why the children of J who were at home in 2017, 2018 did not testify yet they were said to be present at all material times. The court can only draw the presumption that their testimony may not have supported the case for the prosecution. 68. J did not notice anything until she learnt that the girl was pregnant. Is the prosecution saying that she was covering up? The she ought to have been held responsible as the person who had the care and control of the complainant. 69. The prosecution set a time frame , during the beginning, the middle or the end of between 2017 and 2021. The investigator left a lot of questions unanswered . 70. The trial court’s reliance on the pregnancy as proof of penetration then begged the question; was the pregnancy that of the accused person? 71. In this case, according to the prosecution, the proof of penetration was the complainant’s pregnancy. The complaint testified that the appellant was the only person she ever had sexual intercourse with , and it was out of that incident that she became pregnant. 72. The alleged incident of defilement of 2017 was shrouded in doubt as it was not investigated , neither were the Saturday ones. 73. From the record had it not been for the pregnancy, the defilement would not have come up. The prosecution was working with the pregnancy to establish penetration and the identity of the perpetrator it had been denied. 74. This is where I found fault with the conclusion drawn by the learned trial court that the complainant’s testimony was corroborated by the medical evidence, and that the medical evidence was proof of penetration. This is because the medical evidence was only conclusive that there was penetration but it was not conclusive that the appellant was the one who had caused the penetration that led to the pregnancy. 75. In the circumstances of this case as set herein above, it was necessary, based on the totality of the evidence given by the prosecution witnesses, to confirm the paternity of the child and that the appellant was indeed caused the penetration. 76. In the circumstances - I found that the prosecution could have waited for the child to be born for a DNA report on the paternity of the child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 8

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77. Even with the proviso to s. 124 of the Evidence Act ,the nature of these matters full investigations before charges are preferred. Any evidence that could support the charge ought not to be left out. Cases should be brought to court on sound concrete evidence that should be presented to court. 78. It is necessary to draw a reminder on the issue of poor/no investigations was dealt with in CK (A Child) through Ripples International as her Guardian and Next Friend) & 11 others v Commissioner of Police/InspectorGeneral of the National Police Service & 2 others; Kenya National Commission on Human Rights (Amicus Curiae) [2013] KEHC 3114 (KLR) where the court made the following declarations 1. 2. A declaration be and is hereby made to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners’ complaints of defilement violates the first eleven petitioner’s fundamental rights and freedomsa. to special protection as members of a vulnerable group, b. to equal protection and benefit of the law; c. not to be discriminated against, d. to inherent dignity and the right to have the dignity protected; e. to security of the person, f. not to be subjected to any form of violence either from public or private sources or torture or cruel or degrading treatment; and g. to access to justice as respectively set out in Articles 21(1), 21(3), 27,28,29,48,50(1) and 53(1) (c) of the Constitution of Kenya. A declaration be and is hereby made to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners’ respective complaints violates the first eleven petitioners’ fundamental rights and freedoms undera. Articles 1 to 8 (inclusive) and 10 of the Universal Declaration of Human Rights, b. Articles 2, 4, 19, 34 and 39 of the United Nations Convention on the rights of the child; c. Articles 1, 3, 4,16 and 27 of the African Charter on the Rights and welfare of the child, and (d) Articles 2 to 7(inclusive) and 18 of the African Charter on Human and people’s rights. 79. When a victim is taken through a trial when the investigations have not been completed and when the case for the prosecution is till begging so many questions, that in view amounts to a violation of that victim’s right to dignity. 80. It has been held that failure to investigate a sexual offence complaint is a violation of the victim’s fundamental rights and freedoms. When a victim brings a complaint, the prosecution is obliged to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 9

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ensure they have everything before they charge. The failure to investigate gives room for a victim’s story to be invalidated by the criminal justice system which requires the charge before the court has to meet the test of beyond a reasonable doubt 81. So many questions were left unanswered yet the duty of the prosecution is to prove the charge beyond a reasonable doubt keeping in mind that the circumstances surrounding the alleged commission of an offence are crucial as indicated by s. 33 of the Sexual Offences Act which states : 33. Evidence of surrounding circumstances and impact of sexual offence Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove a. b. whether a sexual offence is likely to have been committed i. towards or in connection with the person concerned; ii. under coercive circumstances referred to in section 43; and for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned. 82. Hence, I find that the prosecution did not establish the charge against the appellant to the required standard to warrant the conviction. The period set out was wide and no single incident was established, the witnesses gave conflicting evidence and the most important evidence was not availed. 83. From the foregoing I find that the conviction was unsafe. 84. I have noted that when sentencing the trial court did not remember to take into account the time the appellant has spent in custody. Sexual offence trials in many instances the suspects remain in custody during trial. Even with the mandatory minimum sentences, the court is still bound to apply the provisions of s. 333(2) of the Criminal Procedure Code. 85. All said the appeal is merited the conviction is quashed . The sentence herein is set aside .The appellant is to be set at liberty unless otherwise legally held. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH MARCH 2026. MUMBUA T MATHEKA JUDGE CA Chrispol /Daniel Appellant present Mr. Musyoki for that state Signed By/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA. MAKUENI HIGH COURT HIGH COURT DIV https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 10

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DATE: 2026-03-05 17:32:41 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4324/eng@2026-03-04 11

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