Samuel Maina Muriithi v Republic

5. The appellant appealed and set forth the following grounds of appeal that. a. The learned trial magistrate erred in points of law and facts by failing to find that the elements of the charges were not proved beyond reasonable doubt. b. The learned trial magistrate erred in points of law and facts by failing to find that the complainant acted and adduced evidence through coercion, threat and intimidation. c. The learned trial magistrate erred in points of law and facts by failing to find that the prosecution’s evidence was tainted with material contradictions, inconsistencies, and discrepancies. d. The learned trial magistrate erred in points of law and facts in failing to find that there existed a parent’s displeasure and the probable reason for implication with this offence. e. The learned trial magistrate erred in points of law and facts in failing to find that my sworn defence statement was plausible as the prosecution was unable to disprove it. f. The learned trial magistrate erred in points of law and facts by failing to consider that my mitigation in line and also in accordance with Section 329 and 216 of the CPC. The appellant’s Submissions 6. The appellant filed submissions that the count related to harbouring or concealing was misplaced as there was no evidence that the complainant was committed to an institute and that she escaped. 7. He submitted further that there was no evidence linking him to penile penetration of the minor. It was his submissions that the conduct of the complainant was not consistent with the truth. He could not relate to the factual matrix of the offence and the evidence. He highlighted the three dates in this matter. The first one was that the minor testified that the appellant brought her breakfast on 28.08.2023. This meant that they were not together. She further stated that on 1.1.2023, she heard that the mother was looking for her. This was not clear from whom she heard this and where she was. 8. He submitted that the minor stated that the other friend had gone away, then they had sex at 10.00 am. This meant that she was at the alleged friend's house. However, she did not mention the impugned friend at all. 9. The other contradiction pointed out was that she alleged that the appellant was a boyfriend of three years, but on cross-examination by the court, she stated this was the first sexual encounter. He submitted that this was not borne out by the evidence, as the hymen was not freshly broken. He submitted that the event occurred from 29th December 2022 to 1st January 2023. However, the court most misdirected itself to the facts and created its own facts. The court will address the specific facts. 10. The appellant filed further submissions through his advocates. No leave was granted to file the submissions. The same shall be disregarded. They raise issues not in the pleadings and intended to obscure the determination of the matter. The issues raised in the petition of appeal are cogent and have been sufficiently covered by the appellant. 11. The state filed submissions dated 26.01.2026. They submitted that the case was provided beyond a reasonable doubt. They indicated that giving a peaceful place to live in was evidence of harbouring. On defilement, they submitted that the age of the complainant and there was proof of penetration. This was said to be corroborated by PW5's evidence. Of course, this aspect is not true. They submitted that the appellant was a boyfriend for three years and knew him well. On sentence, they submitted that the 15-year term was the minimum. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 2

page 2 of 19

Impugned Judgment 12. The court analysed the evidence and delivered a very short judgment that proceeded from the point of view that the case was proven. There was no analysis of any single submission, evidence, or contradictions. The court eschewed completely every evidence tendered by the appellant. It proceeded as if there was some kind of formal proof or sentencing. It is unknown whether any of the witnesses was believed. To make matters worse, some of the findings were untrue. 13. They were products of conjecture and surmise, not a faithful reading of the record. Some facts were introduced in vacuo, meaning the court had a separate source other than the proceedings. The court found the appellant guilty of defilement and convicted him on both the first and second count. The court did not bother to peruse the court file and the law to familiarise itself with the charges the appellant faced. 14. The court committed three fatal errors that make the conviction unsafe. The court, however, has analysed the entire gamut of evidence since it is not the last court. Analysis 15. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 16. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 3

page 3 of 19

trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 17. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 18. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction… Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 19. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 20. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 4

page 4 of 19

proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 21. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55: ‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization. The Law 22. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder: 8. 9. 23. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows: (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. (2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 5

page 5 of 19

commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years. 24. (3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant. (4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141) (5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. The second count was based on a different act, that is the Section 164 of the Children’s Act as follows: Any person who willfully and knowingly(a) (b) aids or induces a child (i) to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed by a charitable children’s institution, children remand home or a rehabilitation institution or an approved authorised officer under or by virtue of this Act or any regulations made under the Act; (ii) to do any of the things specified in section 163(2); harbours or conceals a child who has escaped under any of the circumstances, or done any of the things, referred to in paragraph (a); or prevents such a child from returning, or induces such a child not to return, to the care of the person to whom the child has been committed, or to any place in which the child is placed, commits an offence and is liable on conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding two hundred thousand shillings, or to both. 25. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are; a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. d. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 6

page 6 of 19

26. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. 27. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement: ... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 28. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows: Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim. 29. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. 30. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows: In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. 31. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that: In cases of defilement, medical evidence is paramount in determining the victim's age. The doctor is the only person who could professionally determine the age of the victim in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 7

page 7 of 19

absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 32. The appellant stated that the complainant was a student in form four. The prosecution produced a birth certificate. Though procured late, it does not appear to be doubtful. The question of the complainant’s age is not in doubt. 33. The foregoing leaves 4 questions: a. Whether there was defilement. b. Whether it is the appellant who defiled. c. Whether the proceedings are a nullity and d. Whether there was concealment. 34. The safest place to start, at the appeal level, is the defence evidence. The said evidence was not considered at all. This makes the court a biased court and the findings unsustainable. 35. First, the court did not hear the witnesses. The preceding court did not make any notes on the witnesses' demeanor. The court herein, in a rather bizarre manner, departed from the norms required in analyzing evidence already recorded and proceeded as if it had recorded the same. This resulted in the court subsuming the evidence and proceeding as if the prosecution's evidence was true in fact. The court did not bother at all to look at the defence evidence. 36. Further, the court proceeded on a rather strange talent as follows: The evidence of identification was not contradicted by any of the prosecution witnesses, and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home. There was a bar next to his place where he bought her breakfast. Then they went to another room in Mûkûrwe’inî, where they spent the night, and the next day they returned to Gitwe. Now it was already the new year. The accused took her to his friend's place, though she didn’t know him, and it was 1.1.2023. She heard her mother looking for her and referred to the appellant as her boyfriend of three years. The mother’s evidence,- when there was a crusade which the complainant attended and did not return home. It was the neighbour, Monica, who informed her that she had been left at the centre, so she began looking for her. The appellant was charged. I find that indeed the prosecution has proved its case. (sic) 37. This forms what the court below called an analysis. First, there was no analysis of the issues the court was dealing with, except for age. The court was regurgitating the evidence of the prosecution's witness. Secondly, there were two factual misstatements. The first one is, “The evidence of identification was not contradicted by any of the prosecution witnesses. This statement had no basis in criminal proceedings. Even if we take it that it meant contradictions on the part of the appellant, he bore no duty to prove or raise any contradictions. 38. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 8

page 8 of 19

vs. DPP [1935] A.C 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows: As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution. 39. Secondly, the state had no duty to create contradictions. The duty of the prosecution is a positive one. The court misdirected itself in that connection. 40. Further, the following statement appears to be demonstrably inaccurate: “and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home…” The court did not hear this evidence. The matter was heard by Hon. E.M. Nyaga. There is nothing interesting in a solemn hearing of a defilement matter. 41. There were myriad contradictions apparent in the trail. The same relates to the occurrence of the offence. The appellant was busy working, according to the complaint. She went to get her phone, and there was no reason she did not pick it up and go away. The complaint was brought food the following day. This gives accord to the appellant’s evidence that he gave her a safe place to hide. The complainant related that the incident occurred on 1.1.2023. The medical evidence, P3, did not bear this. Either there was no examination, or there was no defilement. The medical report indicates as follows: Both labia majora and minora are intact, the external genitalia are intact, the hymen is broken, no bleeding areas, and there are no lacerations. Vaginal discharge was noted in the vagina. 42. There was no conclusion on the type of injury or weapon used. It only indicates “days”. This rules out the one day that the sex is alleged to have occurred. 43. The PRC form shows no injuries, normal, no lacerations, no bleeding. Indeed, this is partly born out of the complainant’s evidence and partly by the appellant. She said they had sex. It is not known which type or kind. There was no testimony on penile penetration. This was a 17-year-old girl. She should have been able to say whether it was oral sex, anal sex, vaginal sex, or purely caressing. Her own evidence does not show that the appellant’s penis penetrated the complainant’s vagina. The court cannot presume that this was penile entry. Further, the court helped to clarify the situation. The complainant testified that this was her first sexual relationship. The sex is said to have occurred on 1.1.2023, and she was examined on 2.1.2023. 44. I do not find that the Respondent proved their case beyond a reasonable doubt that the Appellant penetrated the vagina with his penis. The medical evidence did not support the version of evidence tendered by the prosecution. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that: “ The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 9

page 9 of 19

However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 45. The next question is corroboration. Corroboration is required in all cases, including sex offences, except those that fit into the proviso to section 124 of the Evidence Act. In this case, the complainant was not the only witness; there was a mystery man, whom the complainant refused to disclose, and the prosecution failed to call. Secondly, the case appears to be instigated. It does not make sense for PW2 and PW1 to testify that they found the appellant when the appellant did not testify to this. The truth appears that, having found that the appellant did commit the offence, the case was left to lie until someone woke it up in June. 46. PW1 and PW2, who are the complainant and her mother, ended their story on 3.1.2023. Evidence from PW2 raises questions about the veracity of the P3, which was allegedly filed on 2.1.2023, while the respondent went home on 3.1.2023. The evidence of PW3 and PW4 was thus bogus. It relates to a period when the appellant was not with the complainant. The difficulty with the evidence of PW4 is that it contains evidence that was not tendered by the complainant. He must have been testifying on a different case. 47. The next question is the break between 3/1/2023 and the date of charging; it has not been explained by any witness. PW5 did not testify on any definition, but arrested and found the appellant with a minor VK. It is unknown whether VK and VMK are related. 48. Why corroboration? The failure of the prosecution on this ground is related to failures under section 200 of the Criminal Procedure Code. The court did not hear the prosecution's witnesses. She thus did not have the same capacity as the trial court. In the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) (17 February 2023) (Judgment) Neutral citation: [2023] KECA 202 (KLR) Kiage JA stated as doth: I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual fndings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 10

page 10 of 19

49. The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually, but not necessarily, lead to the rejection of a witness's evidence. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: “ With regard to contradictions in the prosecution’s case, the law, as set out in numerous authorities, is that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 50. The medical evidence showed that there was an old, broken hymen. It does not of itself show penetration. However, there were no epithelial cells, indicating no evidence of injury. Thus, the court must examine the surrounding circumstances to determine whether there was indeed defilement. 51. The next question is whether there was evidence to prove the appellant’s guilt. It is settled that circumstantial evidence must be inconsistent with an accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. Kihara Kariuki, PCA, M’Inoti & Murgor, JJ.A] Court had this to say on circumstantial evidence: However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. 52. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude coexisting circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that: In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other coexisting circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused. 53. Before proceeding, it is noted that there are certain aspects of the judgment that are indefensible. The first is failing to consider any of the defence evidence at all. 54. The court further placed the burden of proof on the appellant to disprove the disparities. The court did not consider the defence at all. By so doing, the court meant that nothing the appellant said was worth its time. By failing to consider the defence evidence and blatantly disregarding the defence evidence, the court fell into an irreversible error. The danger with such errors is that potentially guilty people may be released due to mistakes not expected from a court handling such delicate matters. A court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 11

page 11 of 19

cannot disregard evidence or submissions. It has to analyze it before dismissing it or finding that it does not affect the guilty or otherwise. This is the essence of the right enshrined under Article 25 of the constitution, as follows: Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) Freedom from slavery or servitude; (c) The right to a fair trial; and (d) The right to an order of habeas corpus. 55. Therefore, a hearing before a court that does not even hide its bias is anathema to a good conscience and the values that underlie an open and democratic society based on human dignity, equality, equity and freedom justice shall be administered without undue regard to procedural technicalities; and offends the purpose and principles of this Constitution, which Article 159 of the constitution places on the judiciary to protect and promote. 56. The last part is failure to comply with section 200 of the Criminal Procedure Code. The matter was heard before E.M Nyaga until the prosecution's case was closed. There is nothing on record showing that section 200(3) was complied with. The court did not inform the appellant of this right. The court failed to at least give deference to section 200(3) of the Criminal Procedure Code: (3) 57. Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard, and the succeeding magistrate shall inform the accused person of that right. What is the effect of failure to comply with section 200(3)? The consequences are set out in section 200(4) of the Criminal Procedure Code as follows: Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial 58. In the case of Henry Kailutha Nkarichia & another v Republic [2015] KECA 111 (KLR), the court of appeal[ Nambuye, Kiage & Sichale JJ.A] addressed the failure to address section 200 as follows: As to the contested consequence of the learned Judge’s failure to inform the appellants of their right to call any or all of the witnesses who had testified before his predecessor, we cannot agree that the need to comply with Section 200 (3) is lessened by the fact that all the witnesses had already testified by the time the case was taken over by Emukule J. If anything, we would opine that the more the witnesses who had testified, the greater the possibility of prejudice and therefore the more the need for the accused person to be informed and availed of the right of recall. At any rate, the provision applies to all cases of take over of a partly or fully heard case by a succeeding judicial officer; because whether such officer acts on the evidence of his predecessor or recommences the trial de novo, it is always subject to the accused person’s right of recall. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 12

page 12 of 19

The requirement that the court inform the accused of the right to recall witnesses is plain, admitting to no obscurity. The duty on the court is mandatory and a failure to comply with it wholly vitiates the trial since it goes to the very heart of an accused person’s right to a fair trial. We need do no more than reiterate what we recently stated in DAVID KIMANI NJUGUNA –VS- REPUBLIC, NAKURU CRIMINAL APPEAL NO. 294 OF 2010 after a review of several decisions of this Court on the subject; All of these decisions declare that the provisions of Section 200 (3) [of the Criminal Procedure Code] are mandatory and a succeeding Judge or Magistrate must inform the accused person directly and personally of his right to recall witnesses. It is a right exercisable by the accused person himself and not through an advocate and a Judge or magistrate complies with it out of statutory duty requiring no application on the part of an accused person. Further, failure to comply by the court always renders the trial a nullity. 59. The court of appeal posited that section 200 does not place any burden on an accused. It is on the court to inform the accused. In the case of John Bell Kinengeni v Republic [2015] KECA 89 (KLR), the court of appeal[Nambuye, Kiage & Sichale, JJA], posited as follows: This Court has on numerous occasions pronounced itself on the proper interpretation and application of these two provisions. We cite a few by way of illustration. In Richard Charo Mole NRB Criminal Appeal No. 135 of 2004 this Court approved the principles set in Ndegwa versus Republic [1985] KLR 534 and stressed that the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and that failure to comply with that requirement would in an appropriate case render the trial a nullity as section 200(3) requires in a mandatory tone that the succeeding magistrate ( read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate. In Cyrus Muriithi Kamau and another versus Republic Nyeri Criminal Appeal No. 87 & 88 of 2006 the Court added that the use of the words “shall inform the accused person of that right” in section 200 (3) (supra) was clearly meant to protect the rights of an accused person and the duty to see that the right is protected is placed on the trial magistrate and the burden to inform an accused person of the right to have the previous witnesses re-summoned and reheard is placed on the magistrate in mandatory terms. In BOB AYUB Alias Edward Gabriel Mbwana Alias Robert Mandiga (supra) the court ruled that the mere mention in the judgment that section 200 (3) was complied with is hollow without any evidence from the record that it was actually complied with in accordance with the law. This court stressed in Ndegwa versus Republic [1985] KLR 534 thus: No rule of natural justice, no rule of statutory protection, no Rule of evidence, and no rule of common sense is to be sacrificed; violated or abandoned when it comes to protecting the liberty of the subject as he is the most sacrosanct individual in the system of our legal administration. In the light of the above principles the learned succeeding judge’s failure to inform the appellant of his rights under section 200 (3) of the Criminal Procedure Code as was mandatorily required of him vitiated the appellant’s trial as well. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 13

page 13 of 19

60. In the case of Peter Karobia Ndegwa v Republic [1985] KECA 50 (KLR), the court of appeal [Madan, Kneller & Nyarangi JJA] addressed the effect of ignoring section 200 of the Criminal Procedure Code: Section 200 is not to be invoked where, as seemingly in the instant case, such a halfheard trial is a short one, it could be conveniently started de novo because the prosecution witnesses are still available locally, and passage of time when the trial first commenced and another magistrate taking over almost midway, is so short so as not to cause or produce any accountable loss of memory on their part, whether actual, presumed or pretended, to the prejudice of either the prosecution or the accused. No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration. It could be also argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in the other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully “observed” the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case, in our opinion. The succeeding magistrate was as helpful as he could possible make himself. He acted in an attempt to dispatch justice speedily. We appreciate his motive very much. The sweetness of justice lies in the swift conclusion of litigation. 61. The trial was therefore a nullity. The next question is, what then is the best order to give? The court has already found that the court made a fatal error by failing to consider the defence. Secondly, the evidence was not sufficient to establish the appellant as a perpetrator of the offense. 62. The second count was not proved as there was no single allegation that the complainant was committed to KMR. The medical evidence does not show the defilement. There are no allegations of penile penetration. The medical evidence was provided by experts. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in…Shah and Another vs. Shah and Others [2003] 1 EA 290: The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so. 63. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: … such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 14

page 14 of 19

64. Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eklr; [19951998] 1 EA 29, it was held that: It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts: The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say: Because this is the evidence of an expert, I believe. 65. The offence is alleged to have occurred four years ago. Given the weakness of evidence a retrial is a waste of the court’s time. 66. Consequently, it was the primary duty of the trial court, which it failed to do, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that: “ The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 67. The appellant testified and was not cross-examined that the appellant came to his house where he ran away. She had known the complainant for three years, but they had never met. It is instructive that the complainant herself admitted that she went to pick up her phone and got stuck at the appellant’s place, as the appellant was busy working. She decided not to live as it was 10.00 pm. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 15

page 15 of 19

68. The complainant confirmed that there was no penetration or touching on the said date. nothing happened on the second day, that is 30.12.2022, and the other day, 31.12.2022. She then alleges that she was taken to a friend whom she did not know. The friend is not described, nor is his name known. Such evidence is bogus and cannot be believable. The alleged friend went away, and they then had sex at 10.00 am. This could have been important had it been corroborated. 69. Why corroboration, when the court could have easily used section 124 of the Evidence Act? This is borne out of the law. Corroboration is necessary unless the elements of the proviso to section 124 of the Evidence Act are met. In this case, not all were met. There has always been an understanding that all three conditions of the proviso to section 124 have to be met. for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs Rep (1952) 19 EACA 259, the importance of the first report was appreciated, where the court posited as follows: Their importance can scarcely be exaggerated, for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often come out in the first statement made by a witness, when recollection is very fresh and there has been no opportunity for consultation with others. 70. Section 124 of the Evidence Act provides as follows in regard to corroboration: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 71. First, the court did not hear the witnesses. The preceding court did not make any notes on the witnesses' demeanor. The court herein, in a rather bizarre manner, departed from the norms required in analyzing evidence already recorded and proceeded as if it had recorded the same. This resulted in the court subsuming the evidence and proceeding as if the prosecution's evidence was true in fact. The court did not bother at all to look at the defence evidence. 72. The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually, but not necessarily, lead to the rejection of a witness's evidence. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: “ With regard to contradictions in the prosecution’s case, the law, as set out in numerous authorities, is that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 73. Turning to the second count, I find that the appeal on this aspect is merited. Section 2 of the Children’s Home states that a children’s remand home" means a place of safety where children in conflict with the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 16

page 16 of 19

law may be committed under an order of the Court until their matters are finalized. In other words, the word committal is equivalent to imprisonment or remanded in custody when it relates to an adult. The latter works cannot be used with respect to a child; hence, committal. The bottom line is that the freedom or liberty of the child has, by dint of a court order, been curtailed. A child at her home is not committed. A child is entitled to run away from a toxic home environment and seek protection. The problem arises if they fall into predators' hands. 74. Committed means commital for children who are in need of care and protection. The minor was in her home and had not been committed, and there was no order committing her to Mr. and Mrs. MRK. Consequently, the charge was untenable from the word go. Without an order committing her to a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed by a charitable children’s institution, children remand home or a rehabilitation institution or an approved authorised officer, under the children’s act or any other act, the charge was defective. 75. No evidence was presented to this extent. Surprisingly, the court, without addressing the act, simply found the appellant guilty and sentenced him to the maximum penalty. This was a clear misdirection. 76. The second aspect relates to the complaint herein. She was not held against her wishes. She testified that she left home and waited for the appellant, who was busy at work. She does not say that the appellant lured her in. She started by taking a phone call to judge and used that as an excuse to say that she was late. The appellant did not ask for anything until 1.1.2023. She went home when she found out she was being sought for. There was therefore no harbouring or concealing. The second count is untenable. The appeal is consequently allowed. 77. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (4) of the Sexual Offences Act provides for a mandatory sentence of 15 years. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 17

page 17 of 19

create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 78. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows: Paragraphs 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act , or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 79. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 80. However, having allowed an appeal on conviction, the issue of sentence is moot. However, had I found the appellant guilty of the second count, I will not have meted out the maximum sentence. Two months imprisonment will have sufficed since the appellant does not have any criminal record and no aggravating circumstances were tendered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 18

page 18 of 19

DIVISION - Order 81. In the circumstances, I make the following orders: a. The Appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held. b. The appellant’s name be removed from the register of sexual offenders. c. Right of appeal 14 days. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 13TH DAY OF APRIL, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Ms. Mwakio for the State Respondent Appellant Pro Se Police Constable Robert Kinyua Court Assistant – Michael/Martin M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4751/eng@2026-04-13 19

page 19 of 19