Martin Kioko Juma v Republic

4. PW3, JM, a minor, gave unsworn evidence and stated that the Appellant asked him for a knife, after which he saw him take the Complainant into his house and close the door. He stated that he peeped and saw the Complainant inside. 5. The Appellant gave a sworn defence in which he denied the charge. He stated that he had been employed at the Complainant’s home and contended that he had been falsely implicated following a disagreement with PW2. 6. PW4, Erick Kasiamani, a clinical officer at Kilungu Sub-County Hospital, testified that the Complainant was examined and medical findings were recorded. He produced the P3 form, PRC form and treatment notes. The findings indicated injuries to the Complainant’s genital area consistent with penetration. He also made reference to laboratory findings recorded in respect of both the complainant and the Appellant. 7. PW5, CPL Richard Rotich, the investigating officer attached to Salama Police Station, testified that the complainant was reported at the station by PW2. He recorded statements, issued a P3 form and facilitated the Complainant’s medical examination. He further testified that he visited the scene and caused photographs to be taken, and that the Appellant was subsequently arrested. 8. The Appellant was placed on his defence and gave a sworn statement. He denied the charge and stated that he had been employed by PW2 and her husband for a short period. He contended that he had a disagreement with PW2 prior to his arrest and suggested that he had been falsely implicated. He further stated that he did not commit the offence and challenged the circumstances leading to his arrest. 9. Upon considering the evidence, the trial Court found that the prosecution had proved the charge beyond reasonable doubt. The Court was satisfied that there was penetration, that the Complainant was a minor, and that the Appellant was the perpetrator. The Appellant was accordingly convicted of the offence of defilement and sentenced to life imprisonment pursuant to Section 8 (2) of the Sexual Offences Act. The judgment was delivered on 7ᵗʰ February, 2020. 10. Aggrieved by both conviction and sentence, the Appellant filed a Memorandum of Appeal raising the following grounds: 11. a) That the learned trial magistrate erred in law and fact in failing to find that penetration was not conclusively established, thereby rendering the conviction unsafe. b) That the learned trial magistrate erred in law and fact in failing to find that section 31 of the Sexual Offences Act was not complied with in the manner evidence was received, thereby prejudicing the Appellant’s right to a fair trial. c) That the learned trial magistrate erred in law and fact in failing to find that the prosecution’s case was riddled with material inconsistencies and contradictions which vitiated the burden of proof. d) That the learned trial magistrate erred in law and fact in failing to find that section 77 of the Evidence Act was violated in the production of photographic evidence. e) That the learned trial magistrate erred in law and fact in failing to properly consider the Appellant’s defence, which reasonably exonerated him. The Appellant therefore prayed that the appeal be allowed, the conviction quashed, and the sentence set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 2

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Submissions: 12. The Appellant filed his written submissions (undated) in which he challenged both the conviction and the sentence. He submitted that the prosecution failed to prove the charge beyond reasonable doubt, particularly regarding identification. He argued that the evidence of PW1 was unreliable and materially contradicted that of PW2 on key aspects, including the number of children in the family, the time PW2 left home, and when the alleged incident was reported. He contended that these were not minor discrepancies but went to the root of the prosecution’s case and undermined the credibility of the witnesses. 13. On the issue of penetration, the Appellant submitted that although medical evidence suggested injury to the Complainant, there was no cogent evidence linking him to the alleged act. He argued that the medical evidence was deficient, pointing out that PW4 did not personally examine the Complainant when filling the P3 form, that no proper medical examination report was produced in respect of him, and that the alleged findings were not properly authenticated. He relied on NMM v Republic [2018] eKLR and LMV v Republic [2020] eKLR to submit that failure to properly adduce and authenticate medical evidence is fatal to the prosecution case. 14. The Appellant further submitted that the complainant’s evidence required careful scrutiny under Section 124 of the Evidence Act. He argued that the trial court failed to properly apply the proviso to that section, in light of the inconsistencies in the complainant’s testimony. He relied on Ndungu Kimanyi v Republic [1980] KLR 282 and John Mutua Munyoki v Republic [2017] eKLR for the proposition that where a witness is not straightforward or where doubt exists, such doubt ought to be resolved in favour of the accused. 15. On alleged contradictions, the Appellant relied on Erick Onyango Ondeng’ v Republic [2014] eKLR and the Ugandan case of Twehangane Alfred v Uganda Crim. App. No. 139 of 2001 [2003] UGCA, submitting that the contradictions in the present case were grave and went to the substance of the charge, thereby rendering the conviction unsafe. He also relied on James Mbugua Muraguri v Republic [2017] eKLR and Kenga Hisa v Republic [2020] eKLR to argue that inconsistencies in a Complainant’s account may create reasonable doubt as to whether the offence was committed as alleged and whether the accused was the perpetrator. 16. The Appellant further submitted that there was no proper corroboration linking him to the offence. He relied on Stephen Mungai Maina v Republic [2020] eKLR and Igbine v State (1997) 9 NWLR (Pt. 519) 101 to argue that corroborative evidence must independently connect the accused to the offence, which was not the case herein. 17. He also faulted the manner in which investigations were conducted, submitting that no sign language interpreter was used in recording the complainant’s evidence, and that the investigation was generally shoddy. He relied on GMW v Republic [2019] eKLR to emphasize the need for proper forensic and investigative standards in sexual offences. 18. On his defence, the Appellant submitted that the trial Court failed to properly consider it. He argued that his defence raised a plausible explanation and introduced reasonable doubt, which was not rebutted by the prosecution. He relied on Ezekiel Murungai Murwa v Republic [2016] eKLR and David Mwingirwa v Republic (supra) to submit that a trial Court is under a duty to comprehensively evaluate the defence and not dismiss it perfunctorily. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 3

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19. In conclusion, the Appellant urged the Court to find that the prosecution failed to discharge the burden of proof, and prayed that the appeal be allowed, the conviction quashed, and the sentence set aside. 20. The Respondent, on its part, filed written submissions dated 21ˢᵗ August, 2024 opposing the appeal and urging the Court to uphold both conviction and sentence. 21. The Respondent submitted that the prosecution proved all the ingredients of the offence of defilement. On penetration, reliance was placed on the evidence of PW1 and PW4. It was submitted that PW1 gave a clear account of the incident, while PW4, the clinical officer, confirmed that the Complainant’s hymen was perforated, the labia majora swollen, and that there were blood and pus cells, which findings were consistent with penetration. The Respondent relied on Joseph Mwangi v Republic [2015] eKLR to submit that medical evidence need only corroborate the fact of defilement. 22. It was further submitted that corroboration was not a legal requirement in sexual offences where the court believes the complainant to be truthful. Reliance was placed on the proviso to Section 124 of the Evidence Act and the decision in GOA v Republic [2018] eKLR, where it was held that a court may convict on the sole evidence of the complainant provided reasons are recorded for believing the complainant. 23. On identification, the Respondent submitted that the Appellant was positively identified. It was argued that the complainant knew the Appellant prior to the incident, as he worked within their homestead as a herdsboy, and therefore, this was a case of recognition rather than identification of a stranger. 24. Regarding alleged inconsistencies, the Respondent submitted that the same were minor and did not affect the substance of the prosecution’s case. Reliance was placed on Ali Mohamed Ibrahim v Republic and Erick Onyango Ondeng’ v Republic [2014] eKLR, as well as Twehangane Alfred v Uganda Crim. App. No. 139 of 2001 [2003] UGCA, for the proposition that minor inconsistencies which do not go to the root of the case ought to be disregarded. 25. On the ingredients of the offence, the Respondent relied on Lukas Muli Nzioka v Republic [2019] eKLR and submitted that penetration, age of the complainant, and identification of the perpetrator were all proved. 26. On sentence, it was submitted that the same was lawful and mandatory under Section 8 (2) of the Sexual Offences Act, given that the complainant was aged 10 years. The Respondent relied on Jacob Ntoiti v Republic [2021] eKLR to submit that life imprisonment is the prescribed sentence for defilement of a child aged eleven years or less. 27. Further, it was submitted that sentencing is within the discretion of the trial court and should not be interfered with unless it is illegal or based on wrong principles. Reliance was placed on SKM v Republic [2021] eKLR. 28. In conclusion, the Respondent submitted that the prosecution proved its case beyond reasonable doubt, that the conviction was safe, and that the sentence was lawful. The Court was urged to dismiss the appeal in its entirety. Analysis & Determination: 29. This being a first appeal, this Court is enjoined to re-evaluate, re-analyse and reconsider the evidence on record and arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 4

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30. In David Mwingirwa v Republic (2019) eKLR, the Court of Appeal stated: “ The job of the first appellate court is not merely to agree with the trial court; it is to freshly, exhaustively, comprehensively and deliberately analyse, weigh, consider and independently arrive at its own conclusions…” 31. Guided by the foregoing, and upon consideration of the record, the grounds of appeal, and the rival submissions, the issues that arise for determination are: a) Whether the elements of the offence of defilement were established; c) Whether the alleged inconsistencies and contradictions were material; d) Whether the Appellant’s defence was properly considered; e) Whether the sentence was lawful. Whether the offence of defilement was established; 32. The ingredients of the offence of defilement are settled. In Lukas Muli Nzioka v Republic [2019] eKLR, the Court held: “ It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant's genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.” 33. On the age of the complainant, PW1 testified that she was 10 years old. This was supported by the birth certificate produced in evidence which showed that she was born on 27ᵗʰ December, 2007. The trial Court also had the opportunity to observe the complainant and was satisfied that she was a child of tender years. The Appellant did not contest this aspect. This Court is therefore satisfied that the age of the complainant was proved. 34. On penetration, PW1 testified as follows: “ He then had sex with me in the house. We were only the two of us.” 35. Her account was supported by the medical evidence of PW4, Erick Kasiamani, who testified that: “ the labia majora was swollen and hymen was perforated… urine test showed a lot of blood and a few pus cells.” 36. PW4 further produced the P3 form, PRC form and treatment notes in support of those findings. 37. Although PW4 indicated in cross-examination that he did not personally examine the complainant when filling the P3 form, the medical documents produced, together with the testimony of PW1, pointed to the occurrence of penetration. 38. The Appellant, however, challenged the medical evidence on record and submitted that it was unreliable and did not link him to the alleged act. He referred to PW4’s evidence indicating that he did not personally examine the complainant, that he did not complete a separate P3 form, and that the alleged findings associated with him were not properly authenticated. It was further contended https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 5

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that the delay in examination and the inconsistencies in the medical evidence rendered the evidence inconclusive. 39. This Court has considered those concerns. While it is correct that PW4 did not personally conduct the examination and that certain aspects of the medical evidence were not ideally presented, the totality of the medical documents produced, together with the Complainant’s direct evidence, pointed to the existence of penetration. 40. Further, and as correctly submitted by the Respondent, corroboration is not a legal requirement in sexual offences if the court believes the complainant. The proviso to Section 124 of the Evidence Act states that; “ Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim… the court shall receive the evidence… if… it is satisfied that the alleged victim is telling the truth.” 41. The trial Court observed as follows; “ I am persuaded that the complainant was telling the truth and being duly guided by section 124 of the Evidence Act I believed her testimony.” 42. This Court has independently re-evaluated the evidence of PW1 and finds that her account of the occurrence of the offence was clear and consistent on the material aspect of penetration. 43. Accordingly, this Court is satisfied that the elements of age and penetration were proved to the required standard. Whether the Appellant was properly identified 44. The Appellant’s principal contention in this regard was that he was not positively identified as the person who committed the offence. He contended that the complainant’s evidence was unreliable, in light of the inconsistencies between PW1 and PW2, and further argued that the circumstances under which the Complainant’s evidence was received, given her condition, rendered it unsafe to rely on. 45. This Court has carefully re-evaluated the evidence on identification. PW1 was categorical that she knew the Appellant prior to the incident. She testified: “ I know Martin Kioko… I can see Martin Kioko in court today. He is the one in the dock.” 46. She further stated that it was the Appellant who took her into his house and committed the offence. This was therefore a case of recognition as opposed to identification of a stranger. The evidence of PW1 was supported by that of PW3, JM, who testified that: “ Kioko asked me for a knife… He took her to his house. He then locked… I peeped from the door.” 47. The trial Court, in its judgment, evaluated this evidence and found as follows: “ I find the testimony of PW 1 and PW 3 to be consistent and they both identify the accused person as the assailant. These two are children of tender age and I do not find any basis why they would frame the accused person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 6

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48. The Appellant raised concerns regarding the manner in which the complainant’s evidence was obtained, noting that she was deaf and dumb and that communication at various stages involved her mother. This Court has considered that argument. The record, however, shows that the Complainant testified in Court through a sign language interpreter, and that the trial Court conducted a voire dire examination and found: “ the minor is intelligent and understand the meaning of telling the truth.” 49. Further, the Complainant’s account was consistent on the central issue that the Appellant took her into his house and committed the offence. The fact that she knew the Appellant and her positive identification of him in Court show no possibility of error. Additionally, the Appellant himself admitted that he worked within the complainant’s homestead. His presence at the scene was not in dispute. 50. Upon independent evaluation, this Court is satisfied that the identification of the Appellant was by way of recognition and was free from error. The Appellant was properly identified as the perpetrator. Whether the alleged inconsistencies and contradictions were material 51. The Appellant’s main contention under this limb was that the prosecution’s case was riddled with material contradictions, particularly between the evidence of PW1 and PW2, which, in his view, went to the root of the case and rendered the conviction unsafe. 52. He pointed to inconsistencies relating to, inter alia, the number of children in the family, the time PW2 left home, the persons who accompanied her, and when the complainant disclosed the alleged incident. It was his submission that these contradictions cast doubt on the credibility of the witnesses and ought to have been resolved in his favour. 53. This Court has carefully re-evaluated the record on this issue. The law is settled that not every inconsistency or contradiction will vitiate a conviction. In Erick Onyango Ondeng’ v Republic [2014] eKLR, the Court, citing Twehangane Alfred v Uganda Crim. App. No. 139 of 2001 [2003] UGCA, held: “ With regard to contradictions in the prosecution's case… 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… they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 54. Similarly, in Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1992 (Nairobi), the Court of Appeal observed: “ In any trial there are bound to be discrepancies… An appellate court… must be guided… whether such discrepancies are so fundamental as to cause prejudice to the appellant or whether they are minor and do not affect the main substance of the case.” 55. Going by the foregoing, it is evident that the inconsistencies cited by the Appellant relate largely to peripheral matters. For instance, the discrepancy as to the number of children in the family, or the precise time PW2 left home, does not go to the central question of whether the Complainant was defiled and by whom. The core of the prosecution’s case remained consistent, namely: that the Complainant was left at home; that the Appellant was present within the homestead; that the Complainant was taken into the Appellant’s house; and that the offence occurred therein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 7

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56. On the issue of disclosure, while there were differences as to whether the Complainant reported the incident on the same day or the following day, the evidence consistently showed that the disclosure was made to PW2 and that it led to immediate reporting to the authorities and subsequent medical examination. 57. The trial Court expressly addressed these discrepancies and held: “ There could have been discrepancies and inconsistencies as to the number of siblings she has and for how long she had known the accused person. I however opine that the said discrepancies and inconsistencies are immaterial…” 58. This Court finds no reason to fault that finding. The inconsistencies identified do not point to deliberate untruthfulness, nor do they affect the substance of the prosecution’s case. Further, as was stated in Ndungu Kimanyi v Republic [1980] KLR 282: “ The witness upon whose evidence it is proposed to rely should not create an impression… that he is not a straightforward person…” 59. In my view, therefore, despite the inconsistencies highlighted, the Complainant’s evidence on the central issue remained firm and consistent. There is nothing on record to suggest that she was not a truthful witness. 60. Accordingly, this Court finds that the inconsistencies and contradictions relied upon by the Appellant were not material and did not render the conviction unsafe. Whether the Appellant’s defence was properly considered 61. The Appellant contended that the trial Court failed to properly consider his defence and instead dismissed it as a mere denial. He argued that his defence raised a plausible explanation, including the existence of a disagreement between himself and PW2, which ought to have been weighed against the prosecution’s case. 62. This Court has re-evaluated the defence alongside the entire evidence on record. In his sworn statement, the Appellant denied committing the offence and asserted that he had been falsely implicated following a disagreement with PW2. He suggested that PW2 had developed ill will towards him, which formed the basis of the allegations against him. 63. The law is clear that a trial Court is under a duty to consider the defence and weigh it against the prosecution’s case. In David Mwingirwa v Republic [2019] eKLR, the Court of Appeal emphasised that a court must “freshly, exhaustively, comprehensively and deliberately analyse, weigh, consider” all the evidence, including the defence. The Court aptly stated: “ We are equally concerned that the learned judge seems to have accepted the prosecution case wholesale without giving any or sufficient consideration to the appellant’s defence. Indeed, she gave his defence short shrift in a single, peremptory sentence; “Whether the defence was considered; I find the court did consider the defence and found it to be false and a mere denial.” With the greatest respect, that is no way to treat the defence of an appellant in a first appeal. The job of the first appellate court is not merely to agree with the trial court; it is to freshly, exhaustively, comprehensively and deliberately analyze, weigh, consider and independently https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5205/eng@2026-04-14 8

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arrive at its own conclusions on the matter, in this case the defence of the appellant had tendered. Evidently, that did not occur in the instant case.” 64. Going by the record before me, the trial court expressly addressed the Appellant’s defence and stated: “ though the accused person was duly represented by counsel the said alleged differences… were not raised to Pw 2 in cross examination. Hence I find the defence… to be an afterthought.” 65. This finding is supported by the record. The alleged grudge between the Appellant and PW2 was not put to PW2 during cross-examination. As a result, the assertion remained untested and denied PW2 the opportunity to respond. 66. It is trite that where a party intends to rely on a particular line of defence, especially one imputing motive or bias, the same ought to be put to the relevant witness in cross-examination. Failure to do so renders such a defence of little probative value. 67. Further, the Appellant’s defence did not displace the evidence placing him at the scene and identifying him as the perpetrator. His presence at the homestead was admitted. 68. Upon independent evaluation, this Court finds that the trial Court properly considered the defence and correctly rejected it. The defence did not raise any reasonable doubt. 69. The record shows that the Appellant’s mitigation was properly taken into account. The offence of which the Appellant was convicted is indeed grave, particularly given the victim’s tender age and her status as a child with special needs. Under Section 8 (2) of the Sexual Offences Act, the penalty for defilement of a child aged 10 years (classified as eleven years or less) is mandatory life imprisonment upon conviction. Disposition: 70. 71. In the end, the Appellant’s appeal therefore fails in its entirety. Accordingly, the Court makes the following orders: a. The appeal is dismissed; b. The conviction and sentence of life imprisonment imposed by the trial court is hereby affirmed. 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/2026/5205/eng@2026-04-14 9

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