Lawrence Mwanzia Patrick v Republic

bhang, and had sexual intercourse with her, including at his house and later outside after she attempted to leave. She further testified that she later went to her friend’s place. 5. PW2, a clinical officer, produced the P3 form, treatment notes and post rape care form. He testified that the complainant’s hymen was perforated, though not fresh, and that there was evidence of penetration, but no spermatozoa was detected. 6. PW3, a minor and friend of the complainant, testified that they met the Appellant on the material day, that he expressed interest in the Complainant, bought them alcohol, and later left with the Complainant. She stated that she went to the Appellant’s house the following day and found the Complainant there. 7. PW4, the Complainant’s grandmother, testified that the Complainant left home on 4ᵗʰ March, 2023 and did not return for two days. She later found her at Itangini market, took her to school, and upon advice, reported the matter to the police and took her to the hospital. 8. PW5, the investigating officer, testified on the report made, the investigations conducted, the escort of the Complainant to the hospital, and the subsequent arrest of the Appellant. 9. At the close of the prosecution case, the trial Court found that a prima facie case had been established and placed the Appellant on his defence. 10. In his defence, the Appellant gave sworn evidence and stated that on the material date he was in Mbooni. He testified that he had been engaged in his usual motorcycle duties, and thereafter proceeded to pick his mother and sister, whom he took to Kikima before returning home. It was his evidence that he spent the night at home and did not travel to Wote or Kaumoni as alleged. He denied committing the offence and maintained that he was innocent. 11. In support of his defence, DW2, his mother, testified that on 4ᵗʰ March, 2023 at about 11.25 a.m., the Appellant picked her and his sister and took them to Kikima, after which they returned home at about 3.00 p.m., and that the Appellant spent the night at home. 12. DW3, his sister, similarly testified that on the material day the Appellant took them to Kikima and thereafter returned home, where he spent the night. 13. Upon considering the evidence, the trial Court rejected the Appellant’s defence of alibi, found that the prosecution had proved the main charge, convicted the Appellant, and sentenced him to twenty (20) years’ imprisonment. 14. Aggrieved by the conviction and sentence, the Appellant preferred the present appeal on the following grounds: a) That, I pleaded not guilty to the charges during trial. b) That, the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted acquittal verdict. c) That, the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence d) That, I can't recall all that transpired during trial hence plead to this Hon. Court to furnish me with lower court proceedings and judgment transcripts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 2

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e) That, upon receipt of the transcripts do hereby pray that if need be I would be accorded leave to file additional, supplementary, substituted or either amended grounds of appeal pursuant to section 350(v) of the C.P.C Submissions: 15. The Appellant filed detailed written submissions dated 2ⁿᵈ October, 2024, challenging both conviction and sentence. He advanced four broad grounds being: contradictions and inconsistencies in the prosecution case, lack of credibility of witnesses, failure to prove the ingredients of the offence, and improper rejection of his defence. 16. On contradictions and inconsistencies, the Appellant undertook a detailed comparison of the record and argued that the prosecution case was fundamentally inconsistent on material facts. In particular, he pointed to discrepancies as to where the Complainant spent the night of 4ᵗʰ March, 2023, noting that both the Complainant and the trial court indicated that she slept at her friend’s place, which he argued was incompatible with the particulars in the charge sheet. 17. He further highlighted inconsistencies in the Complainant’s own testimony, including her statements that the Appellant was the first person she had sexual intercourse with, contrasted with her admission that she had previously engaged with other men. He also pointed to inconsistencies in dates and narration of events, contending that these were not minor discrepancies but went to the root of the prosecution case. He relied on MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) and submitted that the contradictions were material and rendered the evidence unreliable. 18. On credibility, the Appellant attacked the reliability of the Complainant and prosecution witnesses at length. He argued that the Complainant’s conduct, including her own account of seeking out men and consuming alcohol and drugs, undermined her credibility and reliability as a witness. He submitted that her testimony was internally inconsistent and incapable of belief. 19. He further argued that the surrounding circumstances showed that the Complainant could not be relied upon as a truthful witness. In support of this argument, he cited Kimani Ndung’u v Republic [1979] KLR 282 on the requirement that a witness must be straightforward and trustworthy, and Henry & Manning v Republic (Criminal Appeal No. 59 of 2011) on the caution required in relying on the uncorroborated evidence of a Complainant in sexual offences. 20. Regarding the essential ingredients of the offence, the Appellant addressed penetration and identification in detail. While conceding that the medical evidence suggested penetration, he argued that such evidence did not link him to the alleged act and therefore did not prove the charge against him. He maintained that the clinician did not examine him and no scientific nexus was established between him and the offence. 21. On identification, he submitted that the circumstances were unsafe for a positive identification, pointing to the Complainant’s admitted intoxication and the lack of inquiry into conditions such as lighting and observation. He further argued that the identification amounted to dock identification, which is of little probative value. In this regard, he relied on authorities including Maitanyi v Republic (1986) KLR 198, Njoroge v Republic (1987) KLR 19, Roria v Republic (1967) EA 583, and Mohammed Elibite Hibuya & Another v Republic (Criminal Appeal No. 22 of 1996). 22. On his defence, the Appellant submitted at length that he had raised a credible alibi placing him in Mbooni on the material date, which was corroborated by his witnesses. He argued that the trial court erred in dismissing the alibi on the basis that it had not been raised at the earliest opportunity, contending that as a lay person he raised it at the appropriate stage of the defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 3

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23. He maintained that the prosecution bore the burden of disproving the alibi and had failed to do so. He relied on Ouma v Republic (1986) KLR 619, Uganda v Sebyala (1969) EA 204, Wangombe v Republic (1980) KLR 149, and Pius Arap Maina v Republic [2013] eKLR to argue that once a defence raises reasonable doubt, it must be resolved in favour of the accused. 24. He also invoked Section 111(1) of the Evidence Act and cited Philip Muiruri v Republic (Criminal Appeal No. 76 of 2012) to emphasise that even a single circumstance creating doubt is sufficient to entitle an accused person to an acquittal. 25. In conclusion, the Appellant submitted that the prosecution case was riddled with material inconsistencies, that the evidence did not meet the threshold of proof beyond reasonable doubt, and that his defence raised reasonable doubt which was not displaced. He therefore urged the court to allow the appeal in its entirety, quash the conviction, set aside the sentence, and set him at liberty, or in the alternative, to interfere with the sentence and consider the period already served. 26. The Respondent did not file submissions to the appeal. Analysis & Determination: 27. This being a first appeal this court has a duty to re- evaluate and re-consider the evidence afresh and arrive at its own decision while bearing in mind that it did not see nor hear the witnesses. In Kiilu & another V Republic [2005] 1 KLR the Court of Appeal held: “ (i)The appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellant court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.(ii)It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence so support the lower courts’ 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 trial court has had the advantage of hearing and seeing the witnesses.” 28. I have carefully considered the evidence on record, the memorandum of appeal, submissions and the law. The issues I find falling for determination are as follows: a) Whether the prosecution proved the charge beyond reasonable doubt b) Whether there were material contradictions and inconsistencies in the prosecution case sufficient to vitiate the conviction c) Whether the identification of the Appellant was free from error d) Whether the Appellant’s defence of alibi was properly considered and weighed against the prosecution case Whether the charge of defflement was proved 29. Section 107(1) of the Evidence Act provides: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…. When a person https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 4

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is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 30. The accused was charged with defilement contrary to Section 8 (3) of the Sexual Offences Act. Section 8 (1) of the Act defines defilement as follows: “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 31. The ingredients for the offence were set out by the Court of Appeal in Charles Wamukoya Karani v Republic [2010] eKLR as follows: “ The ingredients of the offence of defilement are three: the age of the complainant; proof of penetration; and positive identification of the assailant.” 32. As regards the victims age, the evidence on record shows that the complainant was a student in standard seven, and her age was assessed during medical examination and found to be between 13 to 14 years. The P3 form and the testimony of the clinical officer placed her age within that bracket. 33. There was no protestation as to age by the Appellant. In the circumstances, I am satisfied that the prosecution sufficiently proved that the complainant was a minor aged 13 years. 34. On penetration, Section 2 of the Sexual Offences Act provides as follows: “ penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 35. The Complainant (PW1) testified that the Appellant removed her clothes and that they had sexual intercourse. She further stated that the Appellant used his penis to penetrate her vagina. She maintained this position both in her examination-in-chief and under cross-examination. 36. PW2, the clinical officer, testified that upon examination of the Complainant, the hymen was perforated, though not fresh, and that there was evidence of penile penetration. He produced the P3 form, treatment notes and post rape care form in support of that finding. He however confirmed that no spermatozoa was seen and that other tests were negative. 37. The evidence on record therefore consists of the direct testimony of PW1 and the medical findings of PW2. The Appellant, on his part, denied the allegation in toto and did not admit to any act of sexual intercourse with the Complainant. 38. The trial Court, in its judgment, found that PW1 and PW3 were consistent that the Appellant had sexual intercourse with the Complainant, and that the medical evidence confirmed penetration. On that basis, the trial Court was satisfied that penetration had been proved. Identiffcation: 39. Regarding identification of the Appellant, PW1 testified that she first met the Appellant at about 8.00 a.m. at Itangini market in the presence of PW3. The two thereafter spent a considerable part of the day together, moving from Itangini to Kaumoni and later to Wote. According to PW3, she was dropped at about 8.00 p.m., leaving PW1 in the company of the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 5

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40. The evidence on record therefore discloses an initial encounter in broad daylight, followed by continued interaction into the evening and night. The law on identification is of course, well settled. In Maitanyi v Republic (1986) KLR 198, the Court of Appeal held that: “ ..the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of light available. What sort of light, its size and its position relative to the suspect are all important matters helping to test the evidence with greatest care.” 41. Similarly, in Roria v Republic (1967) EA 583, the Court of Appeal cautioned that: “ A conviction resting entirely on identity invariably causes a degree of uneasiness… a witness may be honest but mistaken.” 42. PW3 corroborated that they met the Appellant, that he expressed interest in PW1, and that he left with her. She further testified that she went to the Appellant’s house the following day and found PW1 there. PW5, the investigating officer, testified that the Appellant was named by the complainant as the person involved and was subsequently arrested. 43. On his part, the Appellant denied the allegation and raised an alibi, stating that he was in Mbooni on the material date. The trial court found that PW1 and PW3 were consistent in their account and was satisfied that the Appellant was properly identified as the person who committed the offence. 44. In the circumstances of this matter, this was not a case of a fleeting encounter or identification under difficult conditions. The complainant was in the company of the Appellant for an extended period of time, including within the confines of his house. There is no suggestion, either from the prosecution or the defence, that there was any other person involved. 45. Therefore, the possibility of mistaken identity does not arise. In the premises, I agree with the learned trial magistrate that the Appellant was properly and positively identified. 46. It did not escape my notice that the record shows the Complainant also interacted with the 2ⁿᵈ accused person on the following day. The trial Court, upon evaluating the evidence, found that the main charge against the 2ⁿᵈ accused had not been proved for want of proper particulars of penetration, but nevertheless convicted him on the alternative charge. 47. Further, the Complainant’s own evidence shows that her interaction with the 2ⁿᵈ accused occurred on the following day, when she sought him out at Kilala stage and they proceeded to his house, where she stated that they got into bed and had sexual intercourse. That account stands in contrast with her evidence regarding the Appellant, whom she testified had met her earlier and remained in her company over a prolonged period, including at his house on the material night of 4th March, 2023. 48. Therefore, insofar as the Appellant is concerned, the Complainant’s evidence placed him in her company for a prolonged period, including at his house, and that evidence was corroborated by PW3. There was no suggestion that she was mistaken about the person she was with, nor was there any evidence of the involvement of any other person. Issue of inconsistencies: 49. On the issue of inconsistencies, Appellant contended that the prosecution’s case was marked by contradictions and inconsistencies which ought to have led to an acquittal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 6

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50. The applicable principle is that only contradictions that go to the root of the prosecution case will vitiate a conviction. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR), the Court held: “ Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial.” 51. Further the Court of Appeal in Khisa v Republic (Criminal Appeal 262 of 2019) [2025] KECA 486 (KLR) (13 March 2025) (Judgment held equally; “ Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. Having evaluated the evidence tendered by the parties and applying the tests discussed above, we are persuaded the cited discrepancies/ contradictions viewed in totality of the evidence and the appellant’s defence did not affect the credibility of the prosecution witnesses. As was held in Phillip Nzaka Watu vs. Republic (supra), when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail” 52. I have re-evaluated the record. The Appellant has made heavy weather of where the Complainant spent the night of 4ᵗʰ March, 2023. In her testimony, the Complainant stated: “ He left me there and I went to sleep at Nduku’s place.” 53. The trial Court, in its judgment, also stated that: “ The complainant slept in her friend’s place.” 54. That evidence must however be read alongside the Complainant’s further testimony that she had gone to the Appellant’s house and spent time there, and the evidence of PW3, who testified that she went to the Appellant’s house the following morning and found the Complainant there. 55. The record therefore contains two strands of evidence to wit; one suggesting that the Complainant slept at her friend’s place, and another placing her at the Appellant’s house. The Appellant also pointed to the Complainant’s testimony under cross-examination, where she stated; “ You are the first man I slept with,” 56. And later in the same testimony stated: “ I had slept with other men.” 57. There is therefore an apparent inconsistency within the Complainant’s own evidence on that aspect. Can they then be said to have affected the prosecution’s case? I think not. 58. In so far as the statements relating to her prior sexual history are concerned, those are plainly inconsistent. However, that inconsistency does not bear on the identity of the person she was with on the material date. As regards where the complainant spent the night, the evidence, taken as a whole, shows that she was in the company of the Appellant for the most part, went to his house, and was found there the following morning by PW3. The reference to having slept at her friend’s place does not displace that sequence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 7

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59. In the circumstances, I am not persuaded that the inconsistencies pointed out are of such a nature as to create doubt as to the Appellant’s involvement. I therefore find that the contradictions identified do not go to the root of the prosecution case and do not vitiate the conviction. 60. As regards the sentence meted out by the trial Court, whereas in the Memorandum of Appeal the Appellant expressed dissatisfaction with both conviction and sentence, he did not advance any specific ground challenging the sentence imposed. Similarly, in his written submissions, no distinct argument was made in respect of sentence, save for a general prayer that the appeal be allowed. 61. In the circumstances, there is no substantive basis laid before this Court upon which to interfere with the sentence. In any event, the complainant was aged 13 years, thus falling within the ambit of Section 8 (3) of the Sexual Offences Act, which prescribes a minimum sentence of twenty (20) years’ imprisonment. Disposition: 62. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety. The conviction and sentence imposed by the trial court is hereby upheld. 63. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 14TH DAY OF APRIL, 2026. ............................ HON. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Appellant – present Ms. Musango, ODPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5136/eng@2026-04-14 8

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