Sak v Republic

2022 at around 1600 hrs in Athi River East sub-county within Machakos County, being a male adult, caused his penis to penetrate the vagina and anus of JNA a female person who was to his knowledge his daughter aged 10 years. In the alternative, he was charged with the offence of committing an indecent act with a child aged 10 years contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one JNA a child aged 10 years. 4. In Count 2, he was charged with the offence of attempted incest contrary to Section 20 (2) of the Sexual Offences Act. The particulars of the offence were that on 20th day of September 2022 at around 1600 hrs in Athi River East sub-county within Machakos County, being a male adult attempted to cause his penis to penetrate the vagina and anus of PKA, a female person who was to his knowledge his daughter, a child aged 8 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 No. 3 of 2006. The particulars of the offence were that, on 20th day of September 2022 in Athi River East sub-county within Machakos County, he intentionally and unlawfully committed an indecent act by touching the female genital organ vagina and anus of one PKA a child aged 8years. 5. The Appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 5 witnesses. The court found a prima facie case had been made against him and placed him on his defence where he gave sworn evidence. He was ultimately found guilty of the two alternative charges of the offences of indecent act with children, contrary to Section 11 (1) of the Sexual Offences Act and sentenced to five (5) years imprisonment on each count. Sentence was to run consecutively. C. The Prosecution’s case 6. After a voire dire examination, the court directed that both victims give unsworn testimonies. 7. PW1, JNA, testified that on the material day she was at home with P and their younger sibling S while their mother had gone to the market where she sells maize. She stated that their father, whom she identified as the accused was initially asleep in the bedroom while the children were in the sitting room. PW1 testified that the accused later did what she described as “tabia mbaya” to both her and P. She explained that the accused used his “dudu,” which she described as the organ he uses to urinate, and inserted it into her private parts. She stated that he first did this to her and thereafter to P. According to PW1, the act caused her pain and both P and herself started crying. 8. PW1 further testified that during the incident, a friend of the accused who sells water came to the house. She stated that the accused sent her to collect water and thereafter sent her to buy bread, milk and tea leaves. According to PW1, they later prepared tea and drank it. She testified that the accused then took her with him, allegedly to pick fish, but left her at her mother’s stall. She stated that the accused later returned for her and took her back home. 9. PW1 stated that upon returning home the accused took her to his bedroom, removed her pants and placed her on the bed. She testified that it was at that point that her mother returned home and found her on the bed in the bedroom with the accused. She stated that her mother asked the accused what had happened and became very angry. PW1 testified that when her mother asked them what had happened, she disclosed the incident to her. 10. According to PW1, their mother thereafter took them to their aunt’s place and the following day took them to hospital where a doctor examined them and later called the police. She testified that the police came to the hospital and collected them in a vehicle. PW1 stated that this was the first time the accused had subjected her and P to what she had described as “tabia mbaya,” which he did using his “dudu,” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 2

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the organ he uses to urinate. She further testified that when the accused had earlier sent her to fetch water, he remained in the house with P while their younger sibling S was asleep. 11. PW2, PKA, testified that she recalled an incident when her sister J and herself were sleeping on a couch at home while their younger brother S was also present in the house. She stated that their father, whom she identified in court as the accused, called them to the bedroom and instructed them not to disclose what he intended to do. He allegedly threatened them that if they reported the matter to anyone he would cane and kill them and even said he would kill all of them and himself. PW2 stated that the accused ordered them to undress and close their eyes. She testified that he removed his trousers and proceeded to engage in what she described as “tabia mbaya” with J using his “dudu,” which she explained was the organ he uses to urinate. She stated that J cried and complained of pain during the incident. PW2 further told the court that the accused took out a knife and threatened to kill them if they did not remain quiet. She stated that he continued with the act until J passed out feaces. 12. PW2 testified that the accused thereafter turned to her and inserted his “dudu” into her buttocks, causing her pain. She stated that at some point he sent J to fetch water, leaving PW2 alone with him in the bedroom where he again assaulted her. She further testified that after finishing, he ordered her to turn around and again inserted his “dudu” into her private parts, while warning them that he would kill them if they cried or reported the matter. She further testified that during the incident a friend of the accused came to the house, prompting the accused to stop and instruct the children to pretend that they were asleep as he spoke to the visitor at the door. Thereafter, he gave J some money to go and buy bread, milk and tea leaves. PW2 stated that her friends later came and they went out to play. 13. She stated that when J returned, they prepared tea. That the accused later told her he intended to do “tabia mbaya” again and sent her to the bedroom where he instructed her to undress. She stated that she obeyed and he again inserted his “dudu” into her buttocks while warning her that if she cried, he would kill her. PW2 further testified that the accused later left the house with J ostensibly to buy fish but left her along the road and went away. 14. According to PW2, when he later returned, he asked whether they had reported the matter to anyone. She stated that their mother later came home and was very angry. Their mother questioned them about what had happened while the accused maintained that nothing had occurred. PW2 testified that their mother then took them to their aunt’s house while crying and saying that their father had spoilt them. 15. PW2 stated that neighbours assisted in taking them to hospital where they were examined and given medication after which they were taken to the police and subsequently placed in a children’s home where they have been living. She also testified that on another occasion the accused had similarly instructed them to undress but their mother arrived and found him with them. PW2 pointed out the accused in court as her father. 16. PW3, Carolyne Nzisa, testified that she was a Clinical Officer working at Athi River Level 4 Hospital. She informed the court that she was testifying on behalf of her colleague, F Mutua, who had since been transferred to Kinanie Health Centre. PW3 stated that she had worked with F Mutua for about two years and was familiar with her handwriting and signature and was therefore able to read and interpret the medical records prepared by her. PW3 testified that before the court she had several documents prepared by F Mutua relating to the examination of the minors in question. She referred to an age assessment report dated 23rd September 2022 which assessed PKA to be 8 years old. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022 relating to the same child. PW3 further produced a P3 Form for PKA filled on 23rd September 2022. According to the findings recorded in that form, the child’s external genitalia were reddened though the hymen was intact and there was no discharge or other abnormality noted, but the clinical officer concluded that the child had https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 3

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been defiled. She also produced a PRC form for the same child filled at Mama Lucy Hospital which similarly indicated that there was no abnormality noted on the hymen or vagina. 17. PW3 further testified that she had an age assessment report for JNA dated 23rd September 2022, which assessed the child to be 10 years old and which had also been prepared by F Mutua. She also produced a medical summary from Mama Lucy Hospital dated 21st September 2022. PW3 produced aP3 Form for JNA filled at Athi River Level 4 Hospital on 23rd September 2022. According to the observations recorded in that form, the child had fresh tears in the anal region while the vagina and hymen were intact, leading to the conclusion that the child had been defiled. PW3 also referred to the PRC form which similarly recorded injuries in the anal region. PW3 produced the documents as exhibits. 18. PW3 stated that the findings recorded by the Clinical Officer indicated that the injuries, particularly the fresh lacerations in the anal region of one of the children, were consistent with defilement and could not have been caused by a fall or any other accidental means. 19. PW3 was recalled on 3rd October 2023 for cross-examination. She clarified that she was not the one who filled the P3 forms for the minors but was referring to the records made by the Clinical Officer. Referring to the P3 form for PKA., she stated that the Clinical Officer recorded that the minor’s vaginal opening and hymen were intact but that the anal opening had a tear. She stated that the child had been physically examined and had complained that she had been defiled several times. That according to the recorded observations, the outer vulva or labia were reddened. PW3 stated that similar observations were recorded in respect of the minor JNA. She explained that although the hymen was intact, this did not necessarily mean that there had been no penetration, as there could have been partial penetration. 20. She further testified that in the case of PKA the anal opening had tears at the 12 o’clock and 6 o’clock positions. She explained that tears in the anal opening can be caused by several factors such as hardened stool, but noted that worms could not cause such tears. She also explained that the female genitalia may appear dry in the presence of infection and that infection can also cause wetness. 21. In re-examination, PW3 stated that the victims did not complain of constipation or hardened stool. She further explained that the hymen can remain intact if penetration is not complete or extensive. She added that the normal presentation of a vagina is a purplish colour, whereas the genitalia of the children in this case were observed to be reddened, which was suggestive of possible defilement. 22. PW4, MKS, testified that she resided in Utawala and was a mother of four children namely F, J, P and SA. She recalled that on 20th September 2022 she left her home at about 4.00 p.m. to go to her workplace where she sells roasted maize. She stated that she left the three younger children, J, P and S at home under the care of their father, the accused, who at the time was drunk and asleep. PW4 testified that while at her place of work she saw the accused pass by and he informed her that he was going to see a friend. She stated that about fifteen minutes later he returned and asked what they would have for dinner. She told him to buy fish and he left, returning after about thirty minutes with the fish. According to PW4, upon his return he kicked her stall and caused a scene while shouting until members of the public intervened and pulled him away. She stated that he then walked away towards the house while still shouting and she decided to follow him home. 23. PW4 told the court that when she arrived home she found the children seated quietly on the sofa and they appeared frightened. She stated that she took them to a nearby shop to buy yoghurt so as to calm them down. While walking to the shop, P informed her that their father had shown them his “chuchu”. PW4 stated that this alarmed her and she suspected that the children had been defiled. She testified that the girls further told her that their father had inserted his “chuchu” into their “chuchu” while on the bed. PW4 stated that she called a neighbour to listen to what the children were saying and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 4

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children repeated the same account to the neighbour. PW4 testified that she felt disturbed and unsafe and therefore spent the night at a friend’s house together with the children. 24. The following day she took the children to a hospital at AP Utawala Camp where the doctor examined them and arranged for them to be taken to Mama Lucy Hospital for further examination. She stated that the children underwent tests and that the doctor informed her that the matter was a police case. PW4 testified that they were escorted by a policewoman to Muungano Police Station where a report was made and the case booked as defilement. She further stated that the police later traced the accused at a drinking den and arrested him. PW4 added that after statements were recorded, the two children were taken to a children’s home. 25. During cross-examination, PW4 stated that she had left the children under the accused’s care on the material day. She also stated that the doctor at Mama Lucy Hospital informed her that there was no evidence of defilement at that time. When recalled for further cross-examination on 20th November 2023, she confirmed that the accused was her estranged husband and that they had lived together since 2011 and had four children aged approximately 15, 11, 8 and 3 years, with the second and third born being the complainants in the case. She stated that the accused works as a foreman and that he is hottempered, particularly when drunk. 26. PW4 also confirmed that there had been a physical altercation between them the night before the incident but denied that she had provoked or fought the accused at her place of work. She maintained that it was the accused who hit the jiko at her stall and caused the disturbance. She denied coaching the children or fabricating the allegations against the accused and stated that the children themselves reported the incident to her. She also denied delaying the report in order to coach the children or making the report as an act of revenge against the accused. She stated that she took the children to hospital where a member of the hospital staff contacted the police and the matter was thereafter reported. 27. PW5, No. xxxxxx PC(W) Ruth Njeri, attached to the Gender Desk at Muungano Police Station, testified that on 21st September 2022 at about 6.00 p.m. she was at the station when an ambulance from G7 Council arrived carrying two minors, their mother and a medical officer from an MSF clinic. She stated that the children had been taken to hospital by their mother after they reported that their father had defiled them. The medical officer informed her that the matter had not yet been reported to the police and referred them to the station. PW5 then booked the report vide OB No. xx21/9/2022. 28. PW5 testified that she took custody of the children and placed them at a rescue centre as the alleged perpetrator, who was their father, was still at home. She stated that the children were aged 12 years and 8 years respectively and that they informed her that on 20th September 2022 their mother had left them at their rented house while she went to sell roasted maize, leaving them in the care of their father who was drunk and asleep. According to PW5, the children reported that their father later called them to his sleeping area, told them that he wanted to do a secret thing with them, undressed them and asked them to climb onto the bed. She stated that the children alleged that the accused defiled them in turns, the older child being defiled through the anal opening while the younger child had reddened outer genitalia. PW5 testified that the children were examined by doctors who confirmed that they had sustained fresh injuries on their genitalia. 29. PW5 further stated that after compiling the case she requested the children’s mother to assist in locating the accused and he was eventually arrested at a drinking den on the night of 21st September 2022. She testified that she also received items of clothing from the MSF clinical officer, namely a purple trouser and a flowered blouse and a pink panty with yellow trim, which she produced as exhibits. She also produced the hospital documents relating to the children including their medical reports and P3 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 5

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forms, which confirmed that the children had fresh genital injuries consistent with penetration. She testified that the children did not have birth certificates and were therefore taken for age assessment at Athi River Health Centre. PW5 further stated that the children were later placed in a children’s home pending the hearing of the case as she suspected that the parents were attempting to interfere with them and cover up the matter. 30. During cross-examination, PW5 stated that she arrested the accused at a drinking joint with the assistance of two other officers. PW5 further confirmed that she escorted the children to Mama Lucy Hospital for further examination and the completion of P3 forms. She stated that the children were later placed at Moyote Children’s Home and subsequently transferred to Bondeni Children’s Home. She stated that after the children were released to their mother, the mother initially refused to make them available to testify. The doctors at Mama Lucy Hospital had recovered the children’s clothing, which were produced as exhibits, although they were not subjected to forensic analysis. She stated that at some point, the mother had hidden the children, but PW5 was able to locate them and took them to Bondeni Children’s Home. She relied primarily on the children’s statements, as they were the victims and had not reported the incidents to any neighbor. She noted that the mother had spent the night at a friend’s house but refused to disclose the friend’s identity. 31. She further stated that she visited the house where the incident occurred and observed that other children were present but did not record statements from them. She testified that the mother had sent someone to the house on the day of the incident, but she did not establish the identity of that person. The mother reported the matter to police only after taking the children to the hospital. 32. PW5 added that another child in the house, aged five, could not give a statement. She reiterated that the mother reported the matter to police after being escorted by MSF Clinic personnel. 33. On 16th January 2024, upon appraisal of the prosecution’s evidence, the accused was put to his defence. D. Defence Case 34. DW1, Jared Otieno Oloo, a Clinical Officer at Nazareth Hospital, Ruiru, gave expert testimony regarding the P3 forms and medical reports for the minors. He explained that he is trained in clinical medicine and surgery and is conversant with medical examinations and reports, though he was not involved in examining the children in this case. He observed that the P3 forms in question (PExh3) were incompletely filled: Sections A and B were blank, and Section C was only partially completed. Based on the information recorded, he concluded there was no evidence of penetration, and that the minor was therefore a virgin. DW1 noted that anal tears in children can result from causes such as chronic diarrhoea, constipation with hard stools, or anal fissures, and that an intact hymen indicates no penetration. He emphasized that a proper assessment of a sexually abused child requires a full headto-toe examination, which he found lacking in the P3 forms. He also stated that partial completion of the forms could indicate that the examining officer did not attend to the patient or did not conduct a proper examination. The redness noted on the outer genitalia, in his opinion, did not indicate defilement. 35. On cross-examination, DW1 acknowledged that under the Act, penetration includes both partial and full penetration but maintained that there was no indication from the forms that penetration occurred. He observed that the P3 forms did not record whether the victims had constipation or hard stool and that the forms did not provide evidence to support a finding of attempted defilement. He concluded that, based on the P3 forms, there was no conclusive evidence that JNA’s anal opening was torn by a male organ, and that the medical documentation did not confirm defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 6

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36. The appellant, DW2, gave sworn evidence and denied all charges. He recounted the events of 18th and 20th September 2022, noting that he had a physical disagreement with his wife on the 18th and described a public altercation on 20th September while his wife was roasting maize. He explained that a friend, Dan, visited briefly and that his wife took the children away shortly after returning home. He claimed he was at home, awake and sober and that he had no contact with his wife or children that evening after she left. He denied ever attempting or committing any act of defilement against his children, stating that the allegations were untrue and “wild.” 37. During cross-examination, DW2 admitted the marriage had been with prior physical confrontations but maintained that the children did not frame him. He alleged that his wife had influenced the children to fabricate the allegations as part of a vendetta against him. He consistently denied the charges, describing them as fabricated. In re-examination, he reiterated that the children were coerced by their mother to lie and that the charges were false. 38. The trial court evaluated the entire evidence on record and in a judgment delivered on 9th April 2024 found that the prosecution had failed to prove the charges in the two substantive counts of incest and attempted incest and acquitted the appellant of these charges. It however found that the prosecution had proved the alternative charges of committing indecent acts with the two minor victims. He was thus convicted and sentenced to serve five (5) years imprisonment on each count to run consecutively.It is this trial court’s decision that aggrieved the appellant and he lodged this appeal. E. The Appeal 39. The appeal is as set out in the earlier paragraphs of this judgment. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 20th May 2025 while the respondent’s submissions are dated 29th July 2025. a. Appellant’s Submissions 40. The appellant challenges both conviction and sentence. 41. He first contends that the trial court erred in imposing a ten years sentence without accounting for the period the appellant had already spent in remand custody. While citing Section 333(2) of the Criminal Procedure Code and the High Court decision in Misc. Application No. E009 of 2025, Boniface Mburu George v Republic, he urges that he had spent one year, seven months, and eight days in custody before sentencing and this period ought to have been credited. 42. Secondly, the appellant argues that the trial magistrate erred by convicting him despite the prosecution failing to prove the elements of the offence beyond reasonable doubt. That the prosecution case was marred with contradictions and inconsistencies, in particular, that: PW2 claimed a prior incident of defilement, whereas PW1 said the alleged acts occurred for the first time and PW4, the mother, denied knowledge of any prior defilement. The minors’ testimonies claimed repeated defilement and penetration of their private parts, yet medical reports confirmed their hymens were intact. The appellant urges that both prosecution and defence medical experts, including DW1, testified that the alleged anal injuries could be caused by other factors, such as constipation, hard stool, or diarrhea. He submits that PW5, the investigating officer, aligned the minors’ statements with the medical report after it was issued, and that inconsistencies existed regarding who witnessed the statements being taken and whether the accused physically harmed the minors. The appellant argues that these contradictions cast serious doubt on the minors’ credibility and that the trial court’s reliance on their evidence for conviction was unsafe. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 7

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43. The appellant further submits that the trial court erred by ignoring the defence case, which was uncontroverted and detailed. He testified about the tumultuous nature of his marriage, a physical scuffle with PW4 and claimed that PW4 coached the children to fabricate the allegations. PW4 corroborated aspects of this account. DW1, a defence medical expert, testified that the minors were not penetrated, and that the P3 forms did not support attempted defilement. The appellant argues that this unchallenged defence evidence was ignored without reasons, leading to prejudice. He also contends that the magistrate relied on inference and conjecture rather than credible evidence. That the trial court misinterpreted events, such as the timing of the scuffle between him and PW4, and incorrectly summarized DW1’s testimony regarding medical evidence. 44. The appellant emphasizes that crucial witnesses were neither called nor investigated, including the minors’ mother’s friend, Josephine Kamau who accompanied PW4 to the police and a boda boda who visited the house. He relies on Criminal Appeal No. 7 of 2014, Suleiman Otieno Aziz v Republic, to argue that withholding such witnesses permits the inference that their evidence would have been adverse to the prosecution. Further, he argues that the trial court failed to consider the mandatory minimum sentence requirements, as observed in Moses Mutahi Mugo v R, Criminal Appeal No. E033 of 2021 and Bakari & Another v R [1987] KLR, where each ingredient of the offence must be clearly proved. He emphasizes that there was no evidence of exposure to pornographic material, and that the magistrate did not provide reasons supporting the conviction. 45. In conclusion, the appellant submits that the trial court delivered a judgment that did not comply with the statutory requirements for a valid judgment under Section 169 of the Criminal Procedure Code and Order 21(4) and (5). The judgment lacked properly framed issues for determination and did not provide reasons for its decisions. He also points out internal inconsistencies in the judgment, including contradictions regarding the establishment of the relationship between the appellant and the minors, which is a key element for alternative counts. The appellant prays that given the inconsistencies, contradictions, lack of credible evidence, failure to call crucial witnesses, disregard of uncontroverted defence evidence, and failure to comply with statutory requirements for a proper judgment, this Court allows the appeal and set aside the trial court’s entire judgement. b. The Respondent’s Submissions 46. Outrightly, the respondent underscores the role of the appellate court on a first appeal as being to reevaluate the evidence and draw independent conclusions, citing Okeno v Republic [1972] EA 32. The respondent submits that the cardinal issue on appeal is whether the prosecution proved its case to the required standard, including whether the witnesses’ evidence was credible, reliable and cogent. 47. On the merits of the case, the respondent submits that the trial court acquitted the appellant on the main counts of incest, reasoning that documentary proof of the father-daughter relationship was lacking, although the fact that he was the biological father was undisputed. The respondent argues this was an error, as proof need not always be documentary. On the alternative counts, while the trial court found the minors’ unsworn evidence persuasive, the respondent contends that no one else witnessed the acts and under Section 124 of the Evidence Act, uncorroborated evidence of a sexual offence must be carefully considered, with reasons recorded if accepted. 48. The respondent highlights contradictions in the minors’ accounts, including discrepancies on whether prior defilement occurred, whether the children were instructed to close their eyes yet allegedly saw the acts and inconsistencies between PW1 and PW2’s narratives. That PW4 denied observing the appellant with the children in a compromising position and confirmed the children’s accounts were inconsistent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 8

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The medical evidence was inconclusive, and that the prosecution failed to call the initial treating doctor or independent witnesses, such as the neighbour PW4 referred to. 49. The respondent also urges that the appellant’s defence of vendetta and a tumultuous marital relationship was plausible, yet the trial court failed to consider it adequately. The respondent notes that while medical proof is not always required for indecent acts with a child, the contradictions and lack of corroboration materially cast doubt on the prosecution case. 50. In conclusion, the respondent submits that the prosecution’s case was materially contradictory, lacking independent corroboration, and that the defence raised credible explanations. In light of the inconsistencies and inadequacies in the prosecution’s case, the respondent concedes to the appeal. F. Analysis and Determination 51. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen 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 where the Court of Appeal held that: “ the duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’ 52. Before delving into the merit determination of this appeal, there is a matter that needs to be disposed off in limine. The respondent has conceded to the appeal and urges that the trial court’s conviction and sentence be set aside. What is the role of this Court where an appeal is conceded? 53. An appeal calls upon the appellate court to re-examine the decision of the trial court, which is a competent court. Unless and until such a decision is reviewed and set aside, it ordinarily has the full force of law. The legality of that decision imposes a duty on the appellate court to clearly set out sufficient reasons why it thinks the trial court erred, if it is inclined to allow an appeal and set it aside. A decision of the trial court cannot be overturned by an appeal court on whim or without due course. Parties cannot therefore collude and/or enter into consent, to set aside a judgment of a competent court. It is on this basis that a concession to an appeal by the respondent, like in this matter, does not automatically lead to the appeal being allowed. In Godfrey Ngotho Mutiso V Republic [2010] KECA 487 (KLR), the Court of Appeal stated that: “ For our part, we think the Attorney General is at liberty to exercise his right to be heard or not to be heard as counsel before any court. It is also within his province to concede the appeal before us if he is so persuaded. Such concession will be taken into account, but that will not preclude the court from considering the matter on merits and on the material placed before it.”(Emphasis added) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 9

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54. In Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR, it was held: “ It is trite that the appellate court in a criminal appeal is still required to consider the merits of an appeal even where the Respondent concedes to the appeal. This is the position that was stated in the case of Odhiambo vs. Republic (2008) KLR 565, where it was held that: “The court is not under any obligation to allow an appeal simply because the state is not opposed to the appeal. The court has a duty to ensure it subjects the entire evidence tendered before the trial court to a clear and fresh scrutiny and re-assess it and reach its own determination based on evidence.” 55. Consequently, the respondent’s concession in this matter does not preclude this Court from considering the appeal on its merit. I hasten to add however that a respondent’s concession should ordinarily be limited to the appeal as filed by an appellant. Where a respondent wants the Court to reverse the trial court decision on its own unique grounds, the pragmatic procedure is to file its own appeal or a cross appeal. The respondent has not done that in this matter. Consequently, its submissions that the trial court erred in finding that incest was not proved since no documentary evidence of the father-daughter relationship was not provided, yet the relationship was proved by the oral evidence on record, while accurate, is of no help to this Court in the absence of an appeal from the respondent. The appellant having been convicted of the offences of committing indecent acts with children, that is the matter that is before this Court on appeal. 56. Having thus considered the record of appeal as well as the submissions by parties, I delimit the following issues for determination: a. Whether the offences of committing an indecent act with a child were proved beyond reasonable doubt; b. Whether the appellant’s defence was considered; and c. Whether the sentence imposed by the trial court was lawful, including whether the period spent in custody ought to have been considered. (a) Whether the offences of committing an indecent act with a child were proved beyond reasonable doubt All these issues will be determined together as they interlock and fiow into each other. 57. The appellant was convicted of the offences of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. In determining whether the prosecution proved the offence, the court must consider whether the essential ingredients of the offence were established. These include; a. Proof that the complainant was a child in law; b. Proof that there was intentional contact between any part of the body of the accused person and the genital organs, breasts or buttocks of the child without penetration, or exposure of pornographic material to the child; c. Proof that the act(s) in (b) was/were intentional; and d. There should be no legal justification in the act(s) complained of. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 10

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58. As a first appellate court, this court is under a duty to re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify, as stated in Okeno v Republic. 59. With regard to the first ingredient, the evidence on record is clear and unrebutted that the complainants were minors at the time of the alleged incident. That issue is not subject of appeal before this Court. 60. The second ingredient relates to proof that there was contact between a body part of the accused person and the genital organs, breasts or buttocks of the child. The prosecution relied principally on the testimonies of the minor complainants. The record shows that the trial court conducted a voir dire examination and ultimately received their evidence as unsworn testimony. The minors alleged that the appellant engaged in inappropriate conduct towards them. Medical evidence was also produced through P3 forms which indicated that one of the minors had tears in the anal opening at the 6 o’clock and 12 o’clock positions and that the genitalia appeared reddened. PW3 testified that such findings could be suggestive of sexual activity and that the hymen being intact did not necessarily rule out sexual abuse. 61. However, PW3 acknowledged that she did not personally examine the minors and that tears in the anal region could arise from other causes such as hardened stool. Further, it emerged that certain sections of the P3 forms had not been fully completed. While the medical findings were not inconsistent with the allegations made, they did not conclusively establish the cause of the injuries or directly link them to the appellant. The medical evidence therefore remained inconclusive. 62. The appellant has alleged inconsistencies and contradictions in the prosecution’s evidence. He also argues that the trial court negated his defence that his relationship with the mother of the victims was strained he she framed him. In examining whether there are inconsistencies in the prosecution case, the Court is cognizant that the burden of proof is on the prosecution and the standard is beyond reasonable doubt. The prosecution case should answer all possible questions and leave the court with the evitable conclusion that the accused is guilty. Indeed, any doubt is to be interpreted to the advantage of the accused. 63. Having thoroughly re-evaluated the evidence this Court notes that there are several questions that are left unanswered. PW1 stated that after being abused, the appellant took her to her mother when he went to buy fish and briefly left her with the mother. The mother, PW4 never corroborated this. Further, PW1 stated that when they came back with the appellant, he took her to bed and again assaulted her and that the mother found her in bed with the appellant. In her testimony, the mother PW4 stated that she found the children on the sofa and they appeared frightened. Further, in her testimony, PW2 stated that PW1 passed feaces when she was being defiled by the appellant. I have examined the record, PW1 herself did not state passing any feaces and PW4, the mother, who apparently found the children either in bed with the appellant, as per the testimony of PW1, or on the sofa terrified as per her testimony, did not witness any feaces. This is a material inconsistency. 64. These inconsistencies are further compounded by the medical testimony which having been examined so soon after the incident, its finding did not mirror the narrations of the victims. From the testimony of the minors, the ordeals were grave to the extent of PW1 passing out as stated by PW2. That the sexual assaults were both in the vagina and anus. However, the medical evidence did not corroborate this. While the medical evidence to an extend showed some “activity” around the anus, the same was thrown in doubt by the rebuttal testimony of DW1 and the fact that the P3 form was not conclusively filled. These inconsistencies throw doubt in the prosecution case and these doubts have to be interpreted to the advantage of the accused. In this case, the advantage to the accused is more profound given the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 11

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unrebutted testimony that the relationship between the appellant and PW4 was strained and they had just had a disagreement before the alleged incident. 65. This Court has further noted the fact that some witnesses were not called. In his testimony, PW4, the mother stated that she questioned the children before a neighbour and the children disclosed the incident in the neighbour’s presence. This was a very crucial witness. Given the allegations of wrangles between PW4 and the appellant, the alleged neighbour would have been a crucial independent witness. Secondly, PW4 stated that she took the children and spent at a friend’s place. Unfortunately, this friend did not testify. The investigation officer, PW5 testified that PW4 refused to disclose the identity of the alleged friend. While the prosecution has the latitude to call the witnesses it desires to prove a case, it is trite law that crucial witnesses must be called, even if their testimony may prejudice the prosecution case. I find that failure to call these two witnesses prejudiced the appellant and cast doubt on the veracity of the prosecution’s case. 66. In light of the foregoing finding that the prosecution failed to prove the offences beyond reasonable doubt and the conviction cannot stand as it was not safe. The same cannot be left to stand and must be set aside. 67. Although the respondent conceded to the appeal, this court has nonetheless independently reviewed the record and is satisfied that the appeal is merited. 68. In the circumstances, the conviction entered against the appellant by the trial court is unsafe and cannot stand. The appeal is therefore allowed. The conviction is hereby quashed and the sentence set aside. 69. The appellant shall be set at liberty forthwith unless otherwise lawfully held. 70. Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 9TH DAY OF APRIL, 2026 RHODA RUTTO JUDGE In the presence of; ……………………………………………..for Appellant ……………………………………………for Respondent Selina Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4632/eng@2026-04-09 12

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