Kennedy Barasa v Republic

accordingly directed that she gives sworn evidence. PW1 thus testified that she was sixteen years old and a Form 3 student at [Particulars Withheld] Secondary School. She recalled that in November 2022, the Appellant, whom she was meeting for the first time, picked her from her homestead in Kibomet at around 11:00 AM on a motorcycle. The Appellant confessed his love for her, and she agreed to accompany him to his friend’s house in Kibomet, where he took her to bed and had sexual intercourse with her. She described sexual intercourse as the interaction between the penis and vagina. She added that her and the appellant were all alone and that he returned her home at about 5:00 PM. 5. PW1 further testified that on other occasions in the same month, the Appellant picked her and took her to different locations, in another friend’s house, where they once more had sexual intercourse. The two then visited Quickmart supermarket in Kitale Town, although no purchases were made. Later, the Appellant arranged to exchange her phone for another device, and she complied. On a third incident, he called her to meet him at Yes Plaza, and they proceeded to his sister’s residence in Kamukuywa, where they stayed from November 2022 until January 2023, during which period they had unprotected sexual intercourse. 6. PW1 added that in January 2023, she and the appellant moved to the Appellant’s residence at [Particulars Withheld], staying there until 15.02.2023, after which he traveled to Kiminini to look for employment. She followed him on foot and stayed at a friend’s place until March 2023. All the while she was out of school. The Appellant allegedly prevented her from returning home, threatened her family, and at times left her without sufficient food, forcing neighbors to provide for her. In May 2023, when she expressed a desire to return home, the Appellant assaulted her with blows, kicks, and slaps. A week later, after the landlord closed the house, she was provided temporary shelter before seeking employment at a hotel. In June 2023, police officers located her at Kiminini Market, in the presence of the Appellant, and she was escorted to Kitale, where she reunited with her parents. At Kitale County Hospital, it was discovered that she was pregnant. 7. On cross-examination, PW1 admitted that she had lied to the police about being 18 years old. She further stated that although she miscarried, she did not seek medical treatment. 8. PW2, the victim’s mother, testified that on 4th December 2022, her daughter went missing at about 8:00 PM. Upon inquiry with a neighbor, she was informed that her daughter usually walked with the Appellant at night. On 10th December 2022, the Appellant was seen on a motorcycle, and the husband to the witness pursued him. The Appellant fled the scene, leaving the motorcycle behind, which was taken to Naisambu Police Station. On 29th January 2023, she received a call from a man identifying himself as Kennedy, claiming he was with her daughter, demanding Kshs. 5,000/- to release her, and threatening her family if the sum was not paid. Subsequently, PW2 traced the Appellant’s location through the appellant’s mother and the village elder, who intervened and secured the release of the complainant. PW2 confirmed that upon reunion, she learned that the complainant was pregnant and had stayed with the Appellant in various locations, including Kiminini, Endebess, Kamukuywa, Sikhendu, and Potwe. She also stated that the complainant had miscarried in September 2023 adding that the district hospital conducted an age assessment, confirming the complainant was sixteen years old. 9. On cross-examination, PW2 clarified that she could not ascertain her daughter’s age personally, as it had been assessed by a doctor. 10. PW3, the investigating officer, testified that on 04.05.2023 she received a report from PW2 regarding her missing daughter, aged sixteen, and that she suspected that she was with one Kennedy Barasa. She recounted that the Appellant had been calling PW2 from different numbers demanding Kshs. 5,000/for the release of the complainant. The Appellant was eventually traced and arrested in Rafiki area with https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 2

page 2 of 7

the assistance of the public and an informer. Following interrogation, PW3 and her team located the complainant in Kiminini and took her to the hospital, where her pregnancy was confirmed. 11. On cross-examination, PW3 confirmed that although PW1 had initially stated she was eighteen, the age assessment report conducted by the doctor established that she was sixteen years old. 12. PW4, a doctor at Kitale County Hospital, testified that on 05.06.2023 she examined PW1, accompanied by her mother and a police officer. She observed that the complainant’s hymen was torn and old looking, and that her last menstrual period indicated a pregnancy of 19 weeks. She diagnosed that PW1 had been defiled and was pregnant, and she received counselling. PW4 produced the P3 form, treatment notes, and ultrasound report as PEXH 1, 2, and 4, respectively. 13. On cross-examination, PW4 confirmed that although the complainant did not present a birth certificate, her age was ascertained through an age assessment report. 14. PW5, a dental officer at Kitale County Hospital, produced an age assessment report as PEXH 3. He examined the complainant’s dental development and placed her age at approximately sixteen years based on the eruption of the second and third molars and radiographic findings. 15. The evidence of PW5 marked the close of the prosecution’s case. The court ruled that a prima facie case had been established, and accordingly, the Appellant was called upon to present his defence. 16. The appellant testified on oath and called one independent to buttress the defense. In his defense testified as DW1 and gave sworn evidence in which he denied the charges levelled against him. He stated that he was a juakali artisan and a boda-boda rider residing in Shanty area. He further testified that he was married and had two children. According to him, on 04.06.2023 he had transported a passenger from Shanty to Rafiki on a motorcycle when he was accosted by four individuals who assaulted him and forcefully took him to Kitale Police Station without informing him of the reason for his arrest. He further stated that during the proceedings the complainant alleged that she had been arrested together with one Lumonya in Kiminini, and not with him. He also asserted that the complainant had reported at the police station that she was married and aged 18 years and that she had used a different second name from the one she later used during the trial. 17. On cross-examination, the Appellant stated that he had been arrested on allegations of stealing a motorcycle and maintained that the police never interrogated him in relation to the offence of defilement. 18. The Appellant’s wife testified as DW2. She confirmed that she and the Appellant had two children together. She stated that she could not tell whether the Appellant had committed the offence with which he had been charged. Her testimony was that upon the arrest of the Appellant on 04.06.2023 on allegations of stealing a motorcycle, she took their children and returned to her parents’ home. 19. On cross-examination, DW2 stated that the Appellant had admitted to her that he had stolen the motorcycle. She further denied knowing the complainant. 20. The evidence of DW2 marked the close of the defence case. Thereafter, judgment was delivered on 29.01.2025, by which the Appellant was convicted and sentenced to fifteen (15) years’ imprisonment on the main count. 21. Aggrieved by the judgment of the trial court, the Appellant lodged the present appeal seeking to have both the conviction quashed and the sentence set aside. The appeal is premised on the grounds that: a. That the age of the alleged victim was not proved to the required standard; that the element of penetration was not established; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 3

page 3 of 7

22. b. That the prosecution failed to discharge the burden of proof beyond reasonable doubt; c. That the prosecution’s evidence was riddled with contradictions and inconsistencies; and d. That his defence was dismissed without cogent reasons. From the record, only the Appellant filed submissions in support of the appeal in accordance with the directions by the court. Appellant’s Submissions 23. On the ground that the age of the victim was not proved, the Appellant submits that the prosecution adduced contradictory evidence regarding the complainant’s age. He points out that the complainant initially stated that she was 18 years old. Although the complainant’s mother later testified that the complainant was 16 years old, she conceded on cross-examination that it was the doctor who confirmed the complainant’s age. The Appellant therefore questions whether the mother or the doctor was better placed to ascertain the complainant’s true age. He further contends that PW5 assessed the complainant’s age to be 15 years, thereby creating further doubt as to her actual age. In support of this argument, the Appellant relies on Hilary Nyongesa v R, Eldoret Criminal Appeal No. 129 of 2009, for the proposition that the age of a victim in a sexual offence case should not be treated as a matter of mere estimation, as this may occasion a miscarriage of justice. It is his further contention that the prosecution’s failure to produce a second age assessment report, as directed by the trial court, raises doubt as to the complainant’s true age. 24. On the ground that the element of penetration was not conclusively proved, the Appellant questions whether PW4, the doctor whose testimony was relied upon to establish penetration, was properly qualified, noting that she did not produce credentials to support her assertion that she was a senior medical officer. The Appellant contends that the evidence of PW4 that the complainant’s hymen was torn and appeared old was insufficient to establish penetration. According to him, the best evidence would have been the presence of epithelial cells. He further argues that PW4’s testimony that the complainant was 19 weeks pregnant at the time of examination does not in itself prove that penetration had occurred. He adds that despite his request during the trial, no documentary or medical evidence was tendered to substantiate the claim that the complainant was pregnant or that she later suffered a miscarriage. 25. On the ground that the prosecution failed to avail key witnesses, the Appellant submits that several individuals mentioned in the testimony of the prosecution witnesses were not called to testify. For instance, PW1 referred to staying at the Appellant’s sister’s house, his mother’s house, and at the houses of his friends, none of whom were called as witnesses. Similarly, PW1’s father, a police officer from Naisambu Police Station, the boda boda rider, and members of the public who allegedly participated in the Appellant’s arrest were not summoned to testify. The Appellant relies on Timayo Muneta v R, Criminal Appeal No. 58 of 2003, and John Kenga v R, Criminal Appeal No. 1126 of 1984, where the appellants were acquitted on account of the prosecution’s failure to call material witnesses necessary to clear existing doubts. 26. On the ground that the prosecution’s evidence was riddled with contradictions and inconsistencies, the Appellant reiterates that there were material inconsistencies regarding the complainant’s age and the alleged pregnancy. He further contends that there was no credible evidence to demonstrate that the complainant suffered a miscarriage as alleged. 27. On the ground that his defence was not properly considered, the Appellant contends that the trial court failed to give due regard to his explanation that he had been attacked and assaulted by four individuals https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 4

page 4 of 7

before being taken to the police station. He also asserts that his initial arrest was on allegations of stealing a motorcycle before the charge was later changed to defilement. The Appellant therefore urges this Court to re-evaluate the entire evidence on record and arrive at a different conclusion in his favour. Issues, Analysis, and Determination 28. Having carefully considered the grounds of appeal, the record of the trial court, and the submissions filed by the Appellant, this Court identifies the following issues for determination: a. Whether the prosecution proved the ingredients of the offence of defilement against the Appellant beyond reasonable doubt; b. Whether the evidence of the prosecution witnesses was fraught with contradictions and inconsistencies; c. Whether the prosecution failed to call essential witnesses; and d. Whether the Appellant’s defence was rejected without proper consideration. Whether the ingredients of the offence of defilement were proved beyond reasonable doubt 29. The offence of defilement is created under section 8(1) of the Sexual Offences Act which stipulates that a person who commits an act that causes penetration with a child is guilty of the offence termed defilement. 30. The essential elements that must be proved to sustain a conviction for the offence of defilement are now well settled the decision in George Opondo Olunga v Republic [2016] eKLR, where the Court held that the prosecution must establish; the age of the complainant, proof of penetration, and the positive identification of the perpetrator. 31. The requirement that these ingredients be proved flows from the words of the statute and the cardinal principle of criminal law that the burden of proof rests upon the prosecution. The principle affirms that throughout the trial the burden lies on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Woolmington v Director of Public Prosecutions [1935] AC 462. Proof of the age of the complainant 32. Proof of the complainant’s age is a critical component in sexual offences involving minors because the sentence prescribed under section 8 of the Sexual Offences Act depends on the age of the child. The Court of Appeal emphasized this requirement in Hadson Ali Mwachongo v Republic [2016] eKLR, where it held that the age of the complainant must be proved with certainty as it determines the applicable sentence upon conviction. 33. The law does not prescribe a singular mode of proving age. In Edwin Nyambogo Onsongo v Republic [2016] eKLR, the Court of Appeal observed that the age of a complainant may be proved by documentary evidence such as a birth certificate, baptismal card, or school records; by the testimony of a parent or guardian; by the evidence of the child if sufficiently intelligent; or by medical evidence in the form of an age assessment report. The Court emphasized that regardless of the mode adopted, the evidence must be credible and reliable. 34. In the present case, the trial court relied on the age assessment report produced as PEXH 3 by PW5. The witness testified that after examining the complainant’s dental development and conducting radiographic analysis, he formed the opinion that the complainant was sixteen years old. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 5

page 5 of 7

35. The Appellant, however, contests this finding. He argues that the complainant initially represented herself to the police, in a written statement, as being aged eighteen years old and married. Further, although PW2, the complainant’s mother, testified that the complainant was sixteen years old, she conceded on cross-examination that she relied on the doctor’s assessment in arriving at that conclusion. The Appellant therefore questions whether the mother or the doctor was better placed to determine the complainant’s age. 36. It is noteworthy that in many rural settings, parents may not always recall the exact date of birth of their children, particularly where births occur at home or where formal birth registration is delayed. In such circumstances, courts have accepted medical age assessment as a reliable means of determining age where documentary proof is unavailable. Consequently, the fact that PW2 relied on the doctor’s assessment does not, of itself, render the evidence unreliable. 37. The more significant issue arises from the proceedings of the trial court regarding the request for a second age assessment. The record reveals that following the testimony of PW5, the Appellant requested that the complainant undergo a second age assessment. The Appellant indicated that a document in his possession suggested that the complainant’s age was eighteen years and therefore sought an independent examination by another dentist at the dental clinic. 38. The request was not opposed by the Respondent, and the trial court allowed it, directing the investigating officer to present the complainant to the dental clinic for a further age assessment by another medical officer. 39. However, the record does not show that the order of the court was ever complied with. Neither does it reveal that the trial court sought an explanation as to why the second age assessment was not undertaken. 40. Where a court orders further inquiry on a matter as fundamental as the age of a complainant in a defilement case, it becomes imperative for the court to ensure that the order is complied with or that sufficient explanation is provided for any failure to comply. 41. Indeed, proof of age is not a peripheral issue in prosecutions under the Sexual Offences Act. It is the fundamental ingredient of the offence determining whether indeed there was an offense. 42. In the present case, the complainant initially represented herself as being eighteen years old. The medical evidence later placed her age at sixteen years, while the Appellant claimed to possess a document indicating that she was eighteen years old. These conflicting positions warranted further clarification, which the trial court itself acknowledged by ordering a second age assessment. 43. The failure to carry out that order, coupled with the absence of any explanation for the omission, leaves a significant gap in the prosecution’s case. 44. Criminal convictions must be founded upon evidence that establishes guilt beyond reasonable doubt. Where doubt arises regarding an essential element of the offence, that doubt must be resolved in favour of the accused. The principle was reiterated by the Court of Appeal in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) where the Court held that suspicion, however strong, cannot form the basis of a criminal conviction. 45. In the circumstances of this case, this Court finds that the age of the complainant was not proved with the degree of certainty required in criminal proceedings. The result is that the conviction of the Appellant is determined unsafe and cannot be left to stand. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 6

page 6 of 7

46. Accordingly, the appeal is allowed. The conviction is hereby quashed and the sentence set aside. The Appellant shall be released forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT LODWAR THIS 9TH DAY OF APRIL 2026 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4510/eng@2026-04-09 7

page 7 of 7