David Kiplagat Kiprotich v Republic

5. A few days later, they went to Court and the victim said that she had gone to visit her friend after school. The Appellant found her there and told that he would take her to sleep at his mother’s house but instead he took her to his house, told her to lie on the bed and removed her clothes. The child screamed and was rescued by the Appellant’s in law. 6. In cross examination he clarified that he went to weigh tea on 13th March, 2020 and got the information on 14th March, 2020 while the incident took place on 13th March 2020. That the victim had left home without permission to visit a friend in the homestead of PM. That he met a Komuti on 14th who told him that a child was almost defiled. He denied knowledge of a dispute with PM or whether the Appellant had sold land to PM. He denied bringing false charges in collusion with PM and Mamiti. 7. PW2, SC, the victim, testified that on 13th March, 2020 she had gone to school in the morning for athletics competitions and later accompanied her friend Chelangat to her uncle’s house, where they had supper. The Appellant also came and had supper. He told her that he would take her to her grandmother’s place. She accompanied him, but instead he took her to his house, which was dark. He put her on the bed, removed her clothes, and attempted to rape her. She screamed, and when he opened the door she ran away. Her aunt came and asked what had happened, and she told her that the Appellant had attempted to do bad manners to her. She was then taken to her grandmother’s house where she spent the night. 8. The following morning her father came and was informed of what had transpired. She was taken to the police station, the Appellant was arrested, and she was taken to the hospital. She further testified that at the accused person’s house, he did bad manners to her at her thing of urinating and put it in his thing of urinating. 9. In cross examination, she stated that a man had come and said he would take her to her grandmother’s place. The Appellant claimed she was his child and asked her to go with him to her grandmother’s place, but she knew who her parents were and said that was the first time she had seen the Appellant. She added that her father had earlier introduced her to him while they were picking tea and told her that he and the Appellant were agemates. 10. She added that although her witness statement recorded that one woman called Joan went all the way inside the house and rescued her, and that the accused had closed and left the house, the truth was that Joan found her after she had already left the Appellant’s house and was on her way home. She clarified that her witness statement was written for her at the police station and she did not read it. She added that what she had said in the witness statement was true, and that Joan’s brother also went to the scene. 11. In re‑examination, she stated that what she had testified was true. 12. PW3, CPL Stephen King’ori recalled that on 14th March, 2020 young girl was brought to the police station by Nyumba Kumi elders. The Appellant was also brought in on allegations of defiling the girl. The child was accompanied by her clinic card, P Exhibit 1, which showed her date of birth. They also obtained a letter from the school confirming that she was a pupil in Grade 3, P Exhibit 2. She was taken to the hospital where the doctor confirmed that she had been defiled. He thereafter charged the Appellant with the offence. He added that Corporal Njorori was the initial investigating officer but was transferred and handed the file over to him. 13. In cross‑examination, he stated that the investigations were conducted at the police station and added that he did not know Komuti. He further stated that the Appellant had not been taken to the hospital. 14. The Appellant referred PW3 to the complainant’s statement, where it was recorded that when the Appellant defiled the child, she screamed and Joan heard her screams and rescued her from the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 2

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Appellant’s house. It was further noted that the child recorded her statement indicating that the person who came to ask for supper was unknown to her and that it was only upon the Appellant telling her that he had been circumcised at the same time as her father that she believed him. 15. PW3 stated that PM was the uncle to the complainant and stated that he was not aware of any land dispute between PM and the Appellant nor did he investigate any such dispute. That the offence was committed between and 8 and 9 pm and that the father knew about the incident from neighbours and his brother. That the Appellant was arrested the next day after the offence while cutting grass for the cows. 16. PW4, Jackline Kirui clinical officer produced the P3 form on behalf of Joel Mukamba who examined her and filled the P3 form P Exhibit 3. She stated that the hymen was broken, there was no abnormal discharge, urine was tested but no spermatozoa were spotted. Epithelial cells were noted. Based on the broken hymen, it was concluded that the child had been defiled. She also produced the treatment notes P Exhibit 4, which contained the same findings as those recorded in the P3 form. 17. In cross‑examination, she confirmed that it was not indicated whether the hymen was freshly broken. She added that apart from sperm, a man releases seminal fluids and that epithelial cells can appear any time a foreign object enters the vagina. She explained that penetration, even without the release of sperm, can lead to the presence of epithelial cells. 18. She confirmed that the hymen can be broken by other things for example a finger or physical activity. That sperms can stay up to 72 hours in the body but it was also possible for hymen to be broken and the offender not release sperms. She added that Epithelial cells are noted when the victim is examined shortly after the incident and when the victim is examined 2 or 3 days later pus cells are noted. No blood was noted and the state of her clothing was not indicated. 19. DW1, the Appellant, testified that in July 2019 he agreed with his family to sell land. In August 2019, he found a buyer, PM, the victim’s uncle, and in the presence of the chief and a surveyor, they signed an agreement for Kshs. 120,000. PM paid Kshs. 100,000 and promised to clear the balance on 28th December 2019 but failed. He later promised to pay on 25th January 2020 but again defaulted. 20. On 26th January 2020, the Appellant went to PM’s home to demand payment. PM asked him to be patient but the Appellant became angry and threatened to sell the land to someone else. PM then promised to pay on 2nd March 2020. 21. On 2nd March 2020 while on his way to work, the Appellant reminded PM he would collect the money but PM said he was unsure he would have it. Later that day, PM told him he had already paid enough. The Appellant became angry and began looking for another buyer. 22. On 10th March 2020 he found one who agreed to pay Kshs. 100,000 by 20th March 2020 with the intention of refunding PM. However, when the buyer met PM, PM said the land could not be sold unless he was dead. That evening, PM went to the Appellant’s fence and warned him he would regret trying to sell the land. 23. On 14th March 2020, the buyer was to finalize the transaction, but while at the shamba, two men approached the Appellant saying they had been sent by the chief because PM had reported him for selling the land to another person. The men told him the chief had left instructions that he be taken to the station. One of them, Robert Towet, made a call and upon arrival at the station, the police questioned the Appellant about selling the same land to two different buyers. He was put in the cells and no one came to complain about him. He was arrested for a land dispute and not defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 3

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24. After the trial, the Court found the Appellant guilty of the offence as charged and imposed a sentence of life imprisonment. The Appeal 25. 26. Aggrieved with the decision, the Appellant preferred the instant appeal on the following grounds: i. That the Learned Trial Magistrate erred in law and in fact by failing to note that the complainant and the accused person weren’t familiar to each other and thus there was no connection between the Appellant and the offence. ii. That the Learned Trial Magistrate erred in law and in fact by concluding that there was penetration which at the time was not proved beyond reasonable doubt by the clinical officers. iii. That the learned Trial Magistrate erred in law and in fact in shifting the burden of proof on accused person contrary to the law. iv. That the Learned Trial Magistrate erred in law and in fact in not taking cognizance of the fact that the accused person was detained for more that 24 hours before he was arraigned in Court which is clearly a violation of his fundamental rights clearly established in the Kenyan constitution. v. That the Learned Trial Magistrate erred in law and in fact by convicting the Appellant while relying on contradictory and uncorroborated evidence of the clinical officer, the complainant and the P3 form. vi. That the Learned Trial Magistrate erred in law and in fact by convicting the Appellant on the prosecution case which was heard by another magistrate without compliance to the provisions of Section 200 (3) of the Criminal Procedure Code Cap 75 Laws of Kenya. vii. That the Learned Magistrate erred in law and in fact by convicting the Appellant on the prosecution case which was not proved beyond reasonable doubt as the ingredients of defilement was not proved by law. viii. That the Learned Trial Magistrate erred in law and in fact by convicting the Appellant on hearsay evidence of PW2 who testified in Court and was not proved beyond reasonable doubt as required by the law. ix. That the Learned Trial Magistrate erred in law and in fact by convicting the Appellant and by imposing as harsh improper and excessive sentence. x. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the nature of the Appellant’s arrest was confident with innocence. xi. That the Learned Trial Magistrate erred in law and in fact by failing to consider the Appellant defence yet the same was cogent. xii. That the Learned Trial Magistrate erred in law and in fact by failing to accord the Appellant a fair hearing. xiii. That the Learned Trial Magistrate erred in law and in fact by convicting the Appellant on the basis of insufficient, contradictory, utterly false uncorroborated and insufficient evidence. The Appellant thus prays that the appeal be allowed, the conviction quashed and sentence set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 4

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27. The Appeal was heard by way of written submissions. However, while the Appellant indicated that he had filed both submissions and supplementary submissions, the record does not contain them. Only the Respondent’s submissions are on record. Respondent’s Submissions 28. In opposing the appeal, the Respondent while relying on the case of Okeno v Republic [1972] EA 32 the Respondent underscored the duty of the first appellate Court. 29. The Respondent contended that the prosecution had discharged its burden of proof beyond reasonable doubt. In reliance on George Opondo Olunga v Republic [2016] eKLR to the essential ingredients of the offence of defilement, the age of the complainant was duly established through the testimonies of PW1 and PW2, and further corroborated by the production of the clinic card. 30. Secondly, the Respondent argued that the element of penetration was duly proved through the testimony of PW2. Reference was made to Mugunga Chilenjo Saha v Republic [2017] eKLR where the Court of Appeal acknowledged the use euphemisms by children who are victims of sexual offence. 31. It is further submitted that the testimony of PW2 was in addition, corroborated by the medical report tendered by PW4. Reliance was placed in the case of Njuguna v Republic [2001] KLR where the Court held that penetration was a matter of fact and that the law does not require a degree of penetration. 32. On the ingredient of identification, the Respondent submits that this was a case of recognition rather than mere identification. It was emphasized that the Appellant was not a stranger to the complainant. That the circumstances surrounding the incident, including the fact that the Appellant shared a meal at the residence of PW2’s uncle and spent a considerable period in the company of PW2, afforded her sufficient opportunity for positive recognition of the Appellant. 33. On the ground that the Learned Trial Magistrate relying on the contradictory evidence, it is submitted that the prosecution witnesses were consisted and at no point did they contradict each other. 34. On the issue of life imprisonment sentence, the Respondent submitted that the punishment imposed was neither harsh nor excessive. It was argued that the sentence was proper, lawful, and in conformity with the provisions of Section 8(2) of the Sexual Offences Act. Reliance was placed on the pronouncement of the Supreme Court in R v Joshua Gichuki Mwangi [2024] KESC 3 (KLR), which affirmed the legality of such sentencing. 35. Pertaining his defence not being considered, the Appellant opted to give unsworn evidence and which did not dislodge the strong prosecution’s case. Analysis and Determination 36. I have considered the record of appeal and this being a first Appellate Court, its duty is to analyse and re-evaluate the evidence afresh with a view to making its own independent decision bearing in mind the fact that it did not have the benefit of observing and hearing the witnesses as they gave evidence. See Okeno v. Republic [1972] EA. 37. The following issues arise for determination: i. Whether the Trial Magistrate failed to apply Section 200 (2) of the Criminal Procedure Code. ii. Whether the charge of defilement was proved beyond reasonable doubt. iii. Whether the burden of proof shifted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 5

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iv. Whether the sentence was unlawful excessive or harsh in the circumstances. 38. Before delving on the issues herein, the Appellant has raised a few issues relating to the arrest, arraignment and trial being unconstitutional. Having considered the record of appeal, there is nothing on record to demonstrate that the Appellant was denied a fair trial under Article 50 the Constitution. 39. The Appellant also contended that his arraignment was unconstitutional, having been arraigned 24 hours after the arrest. Article 49(1)(f) of the Constitution requires that an arrested person be brought before a Court as soon as reasonably possible, but not later than twenty-four hours after arrest or if the twenty-four hours expire outside ordinary Court hours, on the next available sitting of the Court. 40. The record shows the Appellant was arrested on Saturday 14th March 2020 and presented before Court on 16th March 2020. In those circumstances, arraignment on Monday, 16th March 2020 was the next available sitting of the Court. The delay was therefore not unconstitutional. 41. Regarding the first issue, Section 200 (2) of the Criminal Procedure Code requires that where a succeeding magistrate takes over proceedings partly heard by another, the accused must be informed of his right to have witnesses recalled or to have the trial commence afresh. The question therefore is whether this safeguard was observed in the present case. 42. The record shows that on 3rd March, 2022, following reallocation of the case, the Court explained the provisions of Section 200 of the Criminal Procedure Code to the Appellant. The Appellant exercised his right under that section and prayed that the case commences de novo. Consequently, all the witnesses were recalled and testified afresh before A. Mukenga (PM) the one who ultimately wrote and delivered the judgment. In the circumstances, the ground of appeal cannot stand. 43. Pertaining the second issue, the offence of defilement is anchored on three core ingredients which must be proved beyond reasonable doubt. First, the prosecution must establish the age of the victim as being a child within the legal definition. Second, there must be proof of penetration and third, the element of identification has to be satisfied. Age 44. The offence took place on 13th March, 2020. The clinic card proved the child was born on 7th March, 2009. This evidence established that the complainant was 11 years and 6 days old at the time of the offence thereby satisfying the requirement of age. Recognition 45. This evidence demonstrates that the complainant had prior knowledge of the Appellant’s identity not as a stranger but as someone previously introduced to her by her father as someone who had undergone initiation with him. Further to that there was the fact that he fact that they had shared a meal at her uncle PM’s place prior to the incident which strengthens the reliability of her recognition. Penetration 46. Section 2 of the Sexual Offence Act defines indecent cat to mean a. any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 6

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47. It further defines penetration as penetration as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person;” 48. The take away is that penetration does not require complete insertion but any degree of intrusion into the genital organs. Now therefore was therefore penetration? 49. In the present case, the learned trial magistrate made a finding of penetration on two bases. First, he relied on medical evidence that the complainant’s hymen was missing. PW4 clarified that a hymen can be broken by other causes such as physical activity or insertion of a finger. The Court still proceeded to make that finding. 50. With respect, that finding was a misdirection in law. The mere absence of a hymen is not conclusive proof of defilement. The Court of appeal in PKW v Republic [2012] KECA 103 (KLR) underscored this principle and held:“ (16) 51. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, Courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen v Manual Vincent Quintanilla, 1999 ABQB 769” The second limb, the Trial Magistrate relied on the testimony of PW2. The testimony contained two strands which was noted by the Court and reflected in the judgment. On one hand PW2 stated that the Appellant: “ …attempted to rape me. I screamed he opened the door and I ran away. My aunt came and I told her someone wanted to do bad manners to me...” 52. That phrase alone suggests an incomplete act which may suggest an entirely different offence that may that had been interrupted by PW2’s resistance and escape. She then proceeds to say: “ ..he did bad manners to me with his thing of urinating and put it in my thing of urinating…” 53. That latter description points to intrusion of genital organs. The extent or nature of intrusion is what is being questioned. In the circumstances does the above amount to contradictions or inconsistencies and whether that contradiction or inconsistency goes to the core of the prosecution’s case or whether they are minor discrepancies that do not affect the substance of the evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 7

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54. In Paul Muturi Muchiri v Republic [2016] KEHC 7090 (KLR) the Court was of the view that: “ (16) Where the Court is confronted by minor contradictions, such contradictions can be ignored. A case in point us Twehangane Alfred v Uganda (supra) where the Court stated: “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.” 55. In sexual offence cases involving children, Courts have long recognized that young victims may struggle to articulate events consistently due to age, fear, embarrassment, trauma, or limited vocabulary or even understanding the nature of the act itself. 56. In the same breadth, penetration is the central ingredient of defilement under Section 8 of the Sexual Offences Act. Where the evidence of penetration is inconsistent, equivocal, or contradicted by other testimony the Court must be slow to uphold a conviction for defilement 57. Turning on the medical evidence produced by PW4, it is noted that the hymen was broken and epithelial cells were present but there were no bruises and the genitalia appeared normal. No spermatozoa also. There is no indication if the broken hymen was fresh or old. PW4 clarified that that epithelial cells can appear whenever a foreign object enters the vagina. 58. In Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that: “ The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” 59. The above dictum applies equally to defilement cases. The absence of fresh injury does not negate the fact of intrusion, since penetration does not require ejaculation or visible trauma. Further Section 124 of the Evidence Act provides that in sexual offence cases, the Court may convict on the sole testimony of the victim if the Court believes the victim to be truthful and records the reasons for that belief. I have perused the judgment of the learned magistrate and he was satisfied that the victim was truthful. 60. Against this backdrop, while the medical evidence showed no bruising or fresh injury, what is clear is that there was contact of a sexual nature. PW2 explained in detail how she was undressed placed on a bed, and subjected to inappropriate contact. She then ran outside and told her aunt how someone wanted to do bad manners to her. PW1 testified that he was told by Nyumba Kumi that someone had attempted to rape his daughter. 61. This Court takes note of the reasoning in Wachira v Republic [2024] KEHC 5972 (KLR), where Ndung’u J. highlighted the unique challenges presented by child testimony in sexual offence cases. The Judge observed that children often resort to euphemisms or indirect language when describing acts they cannot articulate in precise terms and that such evidence must be understood in light of the trauma experienced and the child’s stage of development. It was emphasized that the Court must exercise heightened care placing the child’s account in its proper context. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 8

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62. In this Court’s assessment, PW2 may have lacked the vocabulary to describe sexual acts and instead employed euphemisms such as “he put his thing of ruinating in my thing of urinating”. Such childlike expressions convey the occurrence of unwarranted sexual contact with the use of genitalia. However, given the inconsistencies and absence of corroborative medical evidence of penetration I am not convinced that the prosecution proved the element of penetration beyond reasonable doubt. 63. The law is clear that where there is a doubt as to occurrence of an offence, then the doubt must be interpreted to the benefit of an accused person. 64. In the present case, although there is doubt as to penetration, it does not mean the Appellant’s conduct was innocent. The victim’s testimony was detailed and the Court is convinced the testimony established unlawful sexual contact. 65. The proper course therefore is to set aside the conviction for defilement and substitute it with a conviction for committing an indecent act with a child. 66. The Appellant did fault the Trial Court for failing to consider his defence. I have perused the judgment and the same was considered and the Court was of the view it was weak to shake the consistency of the prosecution’s case. 67. This Court in also considering the Appellant’s defence, the defence took the form of a denial asserting that the charge was a product of a land dispute with the complainant’s uncle, PM. He narrated the chronology of the land sale, the partial payments, PM’s default and subsequent threats contending that his arrest arose from this quarrel rather than any sexual offence. In essence, defence remained speculative and of limited probative value, insufficient to displace the victim’s testimony. 68. The Appellant contended that the Trial Court erred by shifting the burden of proof. The burden of proof rests upon the prosecution and does not shift to the accused. Presumption of innocent is a rule of evidence, procedure and decisions. 69. The Court of Appeal in Stephen Nguli Mulili v Republic KECA 408 (KLR) held that:“ On the issue of whether the prosecution discharged its burden of proof, it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington, (1935) UKHL 1 where the Court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R (2013) eKLR. The standard of proof required is “proof beyond reasonable doubt”. In reference to this Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 stated: “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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 9

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70. While the overall duty remains with the State, Section 111(1) of the Evidence Act stipulates that where a fact is especially within the knowledge of the accused, the burden of proving such fact lies upon him. 71. In the present case, the Appellant asserted that there existed an agreement signed in the presence of the chief and the surveyor which he claimed formed the basis of the charges. He argued that the charges were fabricated and arose from a failed land transaction. 72. Turning to the application and acceptance of sections 111 (1) of the Evidence Act which provides that: “ 111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the accused person shall be entitled to be acquitted of the offence with which he is charged if the Court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.” 73. The dispute remained bare allegations that could not suffice to raise a reasonable doubt on the prosecution’s case or establish a reasonable hypothesis of innocence. The prosecution had already discharged its burden of proof beyond doubt. If indeed the defence was premised on the existence of such a dispute, to demonstrate that the land dispute existed does not in itself shift the burden. 74. Further the Trial Magistrate’s observation that the Appellant ought to have produced the agreement did not amount to shifting the burden of proof. Rather, it was a proper application of Section 111(1) which requires an accused to prove facts peculiarly within his knowledge. 75. Finally on the issue of Sentence, the age of a child is a critical element in determining liability. Section 11(1) of the Sexual Offences Act provides as follows:“ 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 not less than 10 years.” 76. In the premises, the Appeal hereby partially succeeds. The conviction of defilement is hereby set aside and substituted with a conviction for committing an indecent act with a child under Section 11(1). 77. The life imprisonment sentence is also set aside and substituted with a sentence of ten (10) years imprisonment. 78. In line with Section 333(2) of the Criminal Procedure Code, the period the appellant has spent in custody since his arrest on 14th March 2020 shall be taken into account in computing the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 10

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DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 20TH DAY OF APRIL, 2026 MOHOCHI SM JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5081/eng@2026-04-20 11

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