Republic v Peter Karuri Gichuru

2. The Learned trial Magistrate erred in law and fact by putting emphasis on the exact day of the week that the offence happened and failed to consider that the victim was a child of tender age of 8 years hence, the exact day of the week would have been a challenge for her to remember. 3. The Learned trial Magistrate erred in law and fact by failing to convict the Respondent and yet, she found that the victim was a believable witness. 4. The Learned trial Magistrate erred in law and fact by ignoring the evidence of the clinical officer, who testified that the victim had a smelly discharge on her private parts, her genitalia was swollen and reddish on the labia minora & HVS showed epithelial cells, showing that indeed there was defilement. 5. The Learned trial Magistrate erred in law and fact by failing to convict the Respondent despite the victim recognizing him properly and narrating truthfully how the scene looked like, i.e. the inside of the Respondent’s shop, where she was defiled from. 6. The Learned trial Magistrate erred in law and fact by ignoring the provisions of Section 124 of the Evidence Act Cap 80, which provides that; The Court can convict on the evidence of the victim if, for reasons recorded in writing, it is satisfied that the victim is telling the truth, which it did but still failed to convict the Respondent. 7. The Learned trial Magistrate erred in law and fact by holding that the Prosecution failed to call crucial witnesses and failed to appreciate the provisions of Section 63 of the Evidence Act which provides that; Oral evidence must in all cases be direct, therefore, there was no need to call witnesses to give hearsay evidence. 8. The Learned trial Magistrate erred in law and fact by wrongly quoting and relying on the case of Bukenya v Uganda which did not apply to this case as all crucial witnesses were called and testified. 9. The Learned trial Magistrate erred in Law and fact by holding that there were contradictions in how the information reached PW2 and finding it fatal the prosecution’s case and yet, there were no contradictions and even if there were, they were not fatal to the prosecution’s case. 10. The Learned trial Magistrate erred in law and fact by holding that the Prosecution did not prove its case beyond reasonable doubt and yet, that duty was discharged. 11. The Learned trial Magistrate erred in law and fact by failing to convict the accused person despite the overwhelming evidence adduced against him. Duty of Appellant Court 4. The duty of this court as the first appellate court is to re-evaluate the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. (See Okeno v R (1972) EA 32). Evidence 5. PW1 SWM gave unsworn testimony that, “I am 8 years. I go to school. I am in grade 4. We live in [Particulars Withheld]. I stay with my parents and 3 sisters. My father is BM. My mother is FW. My elder sister is P. My younger sister is in PP2. She is A. I am the 3rd born. My brother is E. He is in form 2. He is older than me. A and I are the ones that stay at home. Mum goes to work. I do dishes, wash my uniform and light fire to cook. Sometime in February 2023, I came from school. I went to kina https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 2

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E’ home. They are our neighbours. They are friends with A. They go to the same school in the same class. A was at their home. We do not live in the same compound. You get out of the gate and walk on the road to get there. Karuri has a shop near kina E’ home. It is opposite the road. As I was walking I saw him outside his shop. As I was about to take the turn to go to kina E, Karuri pulled at me. He pulled my arm. He took me to his shop. It had potatoes, fruits and charcoal. The fruits were outside. The potatoes were stored in shelves inside the shop. There were other timber stands where one stands on. The charcoal was down. I had a trouser, underwear, pull-neck-shirt and sweater on. He removed my trouser. I was standing up. He then removed my underwear. He then unzipped his trouser. He was also standing. He took out his thing for urinating. He put it in my thing I use to urinate. He lay me on the shelf where one stands on. He told me to put my legs apart. I was lying facing up. He lay on me and put his thing for urinating inside my thing I use to urinate. When he finished he stood up. He told me not to tell anyone anything. I put my underwear and trouser. I went and picked A. I was in pain. I had to tell mother. She took me to hospital. I did not go to school the following day Thursday and Friday. I went on Saturday. The incidence happened at about 6: 00 pm. It was getting dark. I was able to pick A. I could see well even when I picked A. When I got home l took a bath and changed my trouser. It had dirt at the buttocks area. I feared if mum saw it she would beat me. I bath myself mother does not unless I am late to go to school. I went to school the following day. When we were coming from school I was with my friends. I saw Karuri. I told them that that is the person that had raped me. My friend is Abby. She went and told her mother. Her mother told mama C. Mama C later came home to take tea. She told my mother. My mother sent V to come and call me I went. She questioned me and I told her. I had not told her before because Karuri had told me not to tell her. I was afraid. After I told mother, we went and reported to Kimunye. I had the trouser I had in the store. It was later washed. We found police in Kimunye. He called a woman police officer. She asked me questions. I told her everything. I then was taken to hospital. It was on a Wednesday when we reported. I went to hospital on Thursday. At the hospital, I told the doctor what had happened. He checked me where I urinate from. He then sent me to have my blood taken my urine was also taken. I put it in a container similar to one where petroleum jelly is put. We were given documents at the hospital. I recognize them. Karuri is in court PW1 Points at the accused in the dock. He comes from our area. He has a shop in town. His house is near [particulars withheld] Primary school. I do not go to his shop. I go to others for mama L, mama M, mama M, mama Macharia B. I had talked to Karuri before. He used to greet me but I would not speak back I know his name from how he used to be called by others from the neighbourhood. I do pass by the road where his shop is when sent to the shops. I see him when I pass by his shop. I have seen him since I was in grade 3.” 6. On cross examination, she stated that, “M is my father. When the incidence was happening, he was at Kiangwenyi. He has a shop there. He came back home after work even that day. I do not remember that date of incidence. It was in Feb 2023 that I am sure of I know how to read and write in English. I can write my name. I told the police what had transpired. She wrote it down. It was a female police officer. She did not read my statement back to me. I did not read my statement myself. I was told to do a finger print on the statement. I told her the truth. I bathe myself. I dress myself. I can wash my own clothes. Mother also washes my clothes. The incidence happened on a Wednesday. I had on a blue trouser, blue underwear, red pull-neck, white t shirt and sweater. On the day of incidence, I had been at school. I went there at about 6:00 am. I come home at about 5:00 pm. I had uniform at school. The school is in Munyaka. I came and changed clothes. I met my elder sister P at home. She is in college Mother was not there. P told me to go pick A at kina Lewis. It is not mother who told me to go pick her. I know Karuri. I do not know he is a village elder. There are more shops near Karuri’s shop. They are near the road. I do not know his age. The incidence happened at about 6:00 pm. The other shops were open. There was light. There were people walking and talking at the shops. I had not been at Karuri’s shop before. We had never had a conversation with him before then. He told me not to tell anyone https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 3

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after the incident. He unzipped his trouser. He did not remove it. I did not tell anyone as instructed. I know V. He schools in Nyagithuci. We are not in the same school. I did not tell him anything about the incidence. I know Abbey Wanjira. She is my classmate. I did not tell her what had happened. She was there when I said I had been raped by Karuri. She just heard. I knew mama C. I did not tell her anything about the incident. V was sent by Mama C to call me. I had not told even my father of the incidence. The incidence happened on a Monday. It was my first sexual encounter. I felt pain a lot. My underpart did not have blood when I removed it. I did not see blood when I was taking a bath. I hid both the pants and the trouser. Mother found them where I had hidden them. She washed them. I just found she had washed them she did not ask why I had hidden them. She found them the following day. I went to school on Tuesday. Our teacher is Lilian. I did not tell her anything. I did my classes and played as usual. I walk to and from school. My mother got to know of the incidence on Wednesday evening. She was told by mama C. I found them together when I was called. Mother asked me if I had been raped by Karuri. I told them yes. She did not check my private parts then. I did not tell her I was in pain. I know days of the week. Today is Thursday. I was defiled on a Wednesday. I am sure. I do not remember the date. I know months of a year. I do not remember the month I was defiled. A year has twelve months. I did not tell my mother the date or month I was defiled. I did tell her it was on a Wednesday.” 7. In re-examination, she stated that, “I did not tell anyone because Karuri had told me not to tell. I hid my underwear and trouser. I did not want mom to see them. They were dirty. Mum would have beaten me. I would not tell P. She would have told mum. My teacher would have also told mum. Mum would have questioned me. I found P at home not my mother. I did not tell V what had happened to me. The other shops near Karuri’s were open. No one saw or heard me being raped. I cannot remember the date or day it happened.” 8. PW2 Ferida Wangari testified that, “I live in Nyagithuci. I am a shop keeper at the town. I know PW1. She is my 4th born. I have Wilson, P, E, Sherlyne, A. She was born on 11/09/2016. On 8/03/2023 at about 6:00 pm PW1 came from school. She came at the shop. She told me she was feeling pain while urinating. I told her to go home and change. It is not far off. She then came back later and told me that Karuri had done tabia mbaya to her. I went and reported. When she met me at the shop I had customers I do not know why she thought someone had told me. I took her to the police. We went and checked her private parts. She had discharge and was in pain. She did not tell me when exactly the incident had happened. She said Karuri had told her not to tell me. PW1 bathes herself. I wash her clothes. I washed the clothes for the day. I suspected she was defiled. I was not sure then so I was not keen on them. I had not noticed much but I had noticed that she would not sit comfortably. I was not keen to inquire further. PWI informed me that Karuri had pulled her into his shop as she went to get A, placed her on the shelf of the shop and defiled her. She just says it was a Monday. She cannot recall the exact date. It was a school day. The discharge I saw was smelly. When she was put on the shelf she said accused had put his kitu ya kukojoa into her kitu ya kukojoa. She had felt wetness and that is how the trouser had got dirty. After the police station I was sent to the hospital. The doctor checked her. They confirmed that sex had happened. P3 form was filled. We went to the lab also. Karuri is in court. PW2 points at the accused. He is a Nyumba Kumi elder. He is also a shop keeper. He sells groceries. I know his kiosk. We both live in the same area. I went there in 2003 Karuri may know my family by seeing them. We do not interact much. Most of the time the children meet me at home. I also pick tea sometimes I get late. The younger child comes from school at 3:00 pm. She goes to her friend’s home. A comes from school at about 5:00 pm. I close my shop at about 8:00 pm or any other time. I do not have a specific time. I have since closed the shop down after the incidence. PW1 did not tell me what had happened to her. She had been warned against it by the accused. I would have taken action immediately.” 9. On cross examination, she stated that, “The police wrote the statements themselves. I did not read it after it was not read to me. It does not have a date. I recorded it on 8th March. My husband is Benson https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 4

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M Kaguoro. He is a shop keeper in Kiangwenyi. He comes home every day. I do not know the exact date when the defilement happened. I know it was February 2023 on a Monday. It is PW1 that told me. I did not tell the police that PW1 had told me of the month and year. I do not know a student called V. I know mama C. She is my customer PW1 did meet us at the shop with her. There were many other customers there. I did not ask PWI to tell me what had happened to her when I was with C’s mum. Mama C did not tell PW1 to tell us what happened to her when PW1 saw her. She just said that Karuri had done tabia mbaya to her on her own volition. It was on 8/3/2023. My statement does not indicate that PW1 said anything at the shop. It says she told me she was in pain after school. She did tell me that I did not check her private parts at home. We checked at the police station. I went with Gatei at the police station. He is a village elder. We are not friends. PW1 bathes herself sometimes I bath her she dresses herself. On 8/3/2023 it was a Wednesday. She had gone to school. She came at 5:00 am. From the school to home one uses about 15 minutes to walk. My husband is not a witness in this case. Mama C is not a witness in this case. PW1 class teacher is Lilian. She is not a witness. PW1 said she had been defiled on a Monday. Schools had opened. I checked the calendar. Schools opened on 24th January. She told me on 18th March. All Mondays therefore fell on February. I concluded it was in February that the incidence had happened. I cannot remember if PW1 failed to get me at home on any Monday in February. I have had a grudge with Gatei for many years. We did not take clothes to the police on 8/03/2023 or any day after that. PW1 is my daughter. She told me she was defiled on a Monday. I am certain. She did not tell me the exact date. She did not tell me the month it happened. PW1 knows days of the week.” 10. In re-examination, she stated that, “I do not know the date of the defilement. I deduced it was February because she told me it was on a Monday when schools were open. The Mondays fell in February and one in March. Mama C did not ask PW1 if she had been defiled. PW1 volunteered the information herself. Mama C did not record a statement. I did not check PW1 thoroughly. I just saw discharge and told her to put on back the pants. She was checked at the station. Gatei has a boda boda. It was the only motor cycle at the stage. I had no choice but to use his motorcycle. We had boundary issues from before. PWI leaves school at 4 something. She comes home at about 5:00 pm. She continued to go to school. We did not take any clothes at the police station. I had washed them already.” 11. PW3 Hezbon Macharia Maina, a Clinical Officer working at Kerugoya County Hospital produced the complainant’s treatment notes, P3 Form and PRC form as exhibits. He testified that, “On 9/03/2023 I examined one SWM aged 8 years...She had changed clothes. She was in fair general condition. She had no injuries on her body. On genitalia examination I found hymen was old torn external genitalia was swollen and reddish in the labia minora. She had no injuries both externally and internally. She went to the lab. HVS showed epithelial cells was seen. She had no HIV or STDs. She was not pregnant. I gave her medicine to prevent and treat bacterial infection. I also took her through counselling. We did not give her medicine to prevent pregnancy and HIV as it was over 72 hours since the offence allegedly happened. I also filled a P3 form on 10/03/2023. I relied on the treatment notes. She had come at 12:50 on 9/3/2023. I also filled a PRC form...I concluded defilement due to the swelling of the labia minora and the lab results. The hymen was torn. There was increase in epithelium cells showing there was friction in the vagina.” 12. On cross examination, he stated that, “I am a registered Clinical officer. I graduated on 28/11/2002 from KMTC Nairobi. I filled the treatment notes on 9/03/2023. The P3 form on 10/03/2023 the PRC on 9/03/2023. Urinalysis was done on 9/03/2023. The date is not captured on the lab request form. HIV and other tests were done on the same day. I did not conduct the lab tests. HVS was done on the same day. The treatment card is OP NO 22xxx-xx. There is a no 10xxx before the OP No. It is the hospital code no. The patient was 8 and ½ years old. The treatment notes read 8 years patient talked of a single episode of defilement. She talked of a Monday. She could not recall if it was the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 5

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20th or 27th February 2023. We checked the calendar for the date for recent Mondays. She stated the perpetrator was about 60 years. She gave his name. It is in the treatment card. I did physical exam. She had changed the original clothes. I gave her treatment as per PEXH 1. PW3 referred to PEXH 2 part 1. Age of the complainant is 8 years where police fill. Date of alleged offence 20-27th Feb. The year is not captured. Date of reporting is 8/03/2023. On part 3, medical officers No is 22xxx-xx. I did not capture the hospital code number. The form just has a stamp. The time is indicated as unknown between 20th – 27th Feb. On part B of the form; Approximate age of injuries is not filled. I did not see injuries of struggle. I did not fill the probable type of weapon used. I have indicated that the patient had not been to another hospital prior to coming to Kerugoya ospital. I indicated the degree of injury as harm. There was no sign of struggle. On the PRC form, it was filled by a CO. This is not indicated. Age of defiler is between 60-70 years. I have over 19 years experience. A normal PRC form has 3 pages. The one I have is one page. All information in the three hospital documents should tally.” 13. In re-examination, he stated that, “Patient just talked of a Monday either 20th or 27th. Age of perpetrator is an estimation 60 years plus. 60-70 years. The other 2 sheets of the PRC contains personal information. We only bring the one sheet in court.” 14. PW4 P.C Lydia Odongo of Kimunye Police Post produced the complainant’s birth certificate as an exhibit. She was at work on 8/3/2023 when this incident was reported by the complainant and her mother. He interrogated the complainant, recorded their statements and visited the scene on 11/3/2023. She was not given the clothes the complainant was wearing on the material days and the complainant identified the Appellant by his 2nd name, as they were well known to each other. 15. On cross examination, she stated that, “I visited scene on 11/03/2023 at about 4:30 pm. It is not indicated in my statement. I recorded statement for the mother and the child. The statements are not dated. I read the statement to the child after recording it in the presence of her mother. I did not read back the statement of the mother to her after recording it. I asked the minor to sign her statement. She could not fluently read and write. That is why I invited the mother to be present as I read the statement. She was able to write her name. I allowed her to put a finger print as it was more secure as it cannot be the same. Handwriting may be similar. I did not do the same for her mother. She could ably sign. It is not true that I did not read back the statement to the child. The child did not give me a specific date on when the defilement had happened. I was not told the day or the week that it happened. She could not remember. I saw the victim and the mother on 8/3/2023 at 8:00 pm. I was informed that the defilement had taken place in Feb 2023. It is about 5-6 km from the scene to the police post. I was not told the accused was a Nyumba Kumi elder. Victim was school going. She had come from school when the defilement happened. She had not reached home. I am not aware of an older sister in college. I did not establish what clothes she had been wearing. They had already been washed. I cannot tell who bathed or dressed the child that morning. I cannot tell who bathed and dresses the child on the day the matter was reported. No clothes were brought to me at the police post. I wrote the covering report. The statement by the mother was recorded PC Matii. From the covering report the statement by the mother was different from that of the child. The child had said the she did not tell anyone of the incident from the mother’s statement, it says that one Mama C had sent one V to call the complainant from the accused shop. The child denied this happened. I sought for further investigation due to the conflicting statements. They were not conducted. I forwarded the file to the OCS for further investigations. Mama C was known to complainants’ mother. V is also known. Their statements were not recorded. The victim went to school the following day. Nothing untold was detected by mother or the teacher. I did not establish the child's class teacher. I did not go to the school to confirm this. I examined the victim when she came to the post. The mother also examined her in my presence. She was wearing a pant. I cannot remember its colour. I did not retain it as an exhibit. Complainant was defiled just once. I am not aware how many times she was filed. Complainant did not tell me she had https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 6

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hid her clothes so that the mother could not see them. She did not tell me the pant had no blood stains. She did not tell me that she did not bleed herself. I did not find out that the file was brought to court pre-maturely. The victim had identified the perpetrator and the defilement had been confirmed. It was ripe to be brought to court. The contradiction in the statement were minor only on how the mother got the information.” 16. In re-examination, she stated that, “Victim could not give me the exact dates the defilement happened. It was between 20th and 26th February. She was specific on the Month. It was unique in that schools had opened in that month which is not ordinary. I could not establish the clothes she had worn that day. The complainant could bath herself. The mother could bath her too sometimes. The only difference in the statements was how the mother got the information about the defilement. V schools with the victim. Mama C is a neighbour. Both refused to record statements.” 17. DW1 Peter Karuri Gichuru, the Respondent herein testified on oath that, “I live in Nyagithuci. I am 60 years old. I have a family. I have 3 children all adults. I even have grandchildren. The charges are false. I did not defile the child have a kiosk at Nyagithuci. Between 20th to 26th February 2023, I was still having the shop. I would work there. I was also a member of the Nyumba Kumi. It consists of members of society who are of good standing. I close my kiosk at about 8:00 pm. The Kiosk is quite busy between 5:00 pm to 8:00pm. There are other many shops near my shop it is at the shopping centre. It is next to a road. A main-road and a murram road. I did not get the girl from the road, pull her to the kiosk and defile her. It was not possible. I do not know the girl. I know her mother. I heard the mother say that a child had been sent by Mama C. She was not a witness. I do not know V. He was not a witness. No clothes were produced as an exhibit in court. I was arrested on 08/03/2023. I was at Nyagithuci. I was brought to court on 13/03/2023. I was at home and continuing with my work all that time before l was arrested.” 18. On cross examination, he stated that, “I know the mother of the victim. She too has a shop. We have no grudge. I did not know the child personally. I would see her in the area. I do know she belonged to PW2. I know her because I am a Nyumba Kumi elder. I believe the girl was fed on what to come and say by her mother. I am not the only male person having a shop in the area. I do not understand why I was the only one implicated for the defilement. I know Mama C. We have no grudge. My shop was near the road and school. There were enough people in the area. People would have seen me take the girl inside the kiosk.” 19. In re-examination, he stated that, “I would not know if PW2 has a problem with me. No one has been called as a witness to say that they saw me pull the girl into the kiosk and close the door behind me. Mama C was not called as a witness.” Submissions 20. The Appellant urged that the findings of the clinical officer were that there was vaginal penetration with a penile shaft, and cited Miller v minister of pensions (1947) 2 All ER 372. It faulted the trial court for putting emphasis on the exact date of the week that the offence happened when it was clear that the victim was a child of tender age of 8 years, with a forgetful memory. The trial court was further faulted for failing to convict the Respondent despite having found the victim to be a believable witness. 21. The Respondent cited Peters v Sunday Post Ltd (1958) EA 424, Okeno v Republic (1972) EA 36 and Padya v Republic 1957 EA 336, on the duty of the first appellate court. He urged that the trial court considered the totality of the evidence tendered from both sides and arrived at a fair and irresistible legal finding. He submitted that the evidence of the victim and her mother together with the investigating officer were based on their previous statements to the police. He questioned why vital witnesses to wit https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 7

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V and Mama C were not called to testify and alluded to inconsistencies, gaps and contradictions in the prosecution’s case. Analysis and Determination 22. The issues for determination are whether the Appellant’s acquittal was supported by the evidence adduced and whether all the crucial witnesses were called to testify. 23. The ingredients of this offence which the prosecution was required to prove beyond reasonable doubt are age, penetration and identity of the perpetrator. 24. PW4 produced the complainant’s birth certificate as exhibit 4 which conclusively proved that she was aged 8 years having been born on 11/9/2014. 25. Undoubtedly, the prosecution proved penetration beyond reasonable doubt. When PW3 examined the complainant on 9/3/2023, a month after the alleged date of the offence, he noted that the hymen was old torn, external genitalia was swollen and reddish in the labia minora and epithelial cells were seen. 26. PW4 confirmed that the incident was reported on 8/3/2023. 27. The gravamen herein is whether the prosecution had established without any shred of doubt that the Appellant was the perpetrator. 28. PW1 and PW2’s testimonies were not only riddled with material contradictions, but also raised more questions than answers, ranging from the precise date and month when the offence was allegedly committed to the manner in which PW2 became aware of the incidence. This was compounded by the belated reporting to the police station, which in turn resulted in the belated examination of the complainant by PW4. 29. PW1 testified that, “Sometime in February 2023, I came from school. I went to kina E’ home. A was at their home. Karuri has a shop near kina E’ home. As I was walking I saw him outside his shop. As I was about to take the turn to go to kina E, Karuri pulled at me. He pulled my arm. He took me to his shop. I had a trouser, underwear, pull-neck-shirt and sweater on. He removed my trouser. I was standing up. He then removed my underwear. He then unzipped his trouser. He was also standing. He took out his thing for urinating. He put it in my thing I use to urinate. He lay me on the shelf where one stands on. He told me to put my legs apart. I was lying facing up. He lay on me and put his thing for urinating inside my thing I use to urinate. When he finished he stood up. I put my underwear and trouser. I went and picked A. I was in pain. The incidence happened at about 6: 00 pm. It was getting dark. I could see well even when I picked A. When I got home l took a bath and changed my trouser. It had dirt at the buttocks area. When we were coming from school I was with my friends. I saw Karuri. I told them that that is the person that had raped me. My friend is Abby. She went and told her mother. Her mother told mama C. Mama C later came home to take tea. She told my mother. My mother sent V to come and call me I went. She questioned me and I told her. I had not told her before because Karuri had told me not to tell her. I was afraid.” On cross examination, she stated that, “I do not remember that date of incidence. It was in Feb 2023 that I am sure of. The incidence happened on a Wednesday. I had on a blue trouser, blue underwear, red pull-neck, white t shirt and sweater. I know Abbey Wanjira. She is my classmate. I did not tell her what had happened. She was there when I said I had been raped by Karuri. She just heard. I knew mama C. I did not tell her anything about the incident. The incidence happened on a Monday. I hid both the pants and the trouser. Mother found them where I had hidden them. She washed them. My mother got to know of the incidence on Wednesday evening. She was told by mama C. I found them together when I was called. Mother asked me if I had been raped by Karuri. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 8

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I told them yes. She did not check my private parts then. I did not tell her I was in pain. I was defiled on a Wednesday. I am sure. I do not remember the date. I do not remember the month I was defiled. I did not tell my mother the date or month I was defiled.” In re-examination, she stated that, “I did not tell anyone because Karuri had told me not to tell. No one saw or heard me being raped. I cannot remember the date or day it happened.” 30. PW2 testified that, “On 8/03/2023 at about 6:00 pm PW1 came from school. She came at the shop. She told me she was feeling pain while urinating. I told her to go home and change. It is not far off. She then came back later and told me that Karuri had done tabia mbaya to her. We went and checked her private parts. She had discharge and was in pain.” On cross examination, she stated that, “I do not know the exact date when the defilement happened. I know it was February 2023 on a Monday. It is PW1 that told me. I did not ask PWI to tell me what had happened to her when I was with C’s mum. Mama C did not tell PW1 to tell us what happened to her when PW1 saw her. PW1 said she had been defiled on a Monday. She told me on 18th March. All Mondays therefore fell on February. I concluded it was in February that the incidence had happened. PW1 is my daughter. She told me she was defiled on a Monday. I am certain. She did not tell me the exact date. She did not tell me the month it happened.” In re-examination, she stated that, “I do not know the date of the defilement. I deduced it was February because she told me it was on a Monday when schools were open. The Mondays fell in February and one in March. Mama C did not ask PW1 if she had been defiled. PW1 volunteered the information herself. I just saw discharge and told her to put on back the pants. She was checked at the station. We did not take any clothes at the police station. I had washed them already.” 31. In his sworn defence, the Respondent denied either committing the offence or having any personal acquaintance with the complainant, although he admitted knowing her mother. He questioned why V and mama C were not called as witnesses and why no clothes were produced as exhibits. 32. It is urged that when Abby learnt about the incident, she informed mama C who subsequently reported it to PW2. It behooved the prosecution to call the said Abby and mama C as witnesses. 33. This court accepts that where several witnesses testify in a case, there are bound to be contradictions or inconsistencies here and there. In this case however, the pin pointed contradictions cannot be overlooked as they go to the root of the prosecution’s case. 34. In Richard Munene v Republic [2018] eKLR, the Court of Appeal stated that: “ As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 35. This court finds that the irreconcilable inconsistencies in the prosecution’s case coupled with the blatant failure to call crucial witnesses create a doubt in this court’s mind, which must resolved in favour of the Appellant. The court finds that the Appellant’s acquittal was founded on principle and the evidence on record. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 9

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Orders 36. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed. Order accordingly. DATED AND DELIVERED THIS 26TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mamba for the Appellant. Mr. Njuguna for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4476/eng@2026-02-26 10

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