James Karanja Wairire v Republic

d. The learned trial magistrate erred in law and fact in disregarding the appellant's defence and failing to give it due weight as required in law. e. The learned trial magistrate erred in law and fact in shifting the burden of proof to the appellant, contrary to the provisions of the Constitution and the Evidence Act. f. The learned trial magistrate erred in law and fact by failing to give the appellant the benefit of doubt where the evidence presented was circumstantial and not conclusive. g. The learned trial magistrate erred in law and fact in imposing a sentence of 20 years' imprisonment, which, in the circumstances of this case, was harsh, excessive, and failed to consider the appellant's mitigation and personal circumstances. h. The learned trial magistrate erred in law and fact in failing to consider the period already spent in custody as required under Section 333(2) of the Criminal Procedure Code. i. The conviction was against the weight of the evidence adduced and the law applicable 4. The state opposed the appeal through M/s Odero Vena, the prosecution counsel. She argued that the offence had been proven to the required standard and that the sentence was appropriate. 5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have drawn my conclusions, having neither seen nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator and c. The victim must be below eighteen years old. This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said: Going by this definition of defilement… the issues which the court needs to determine…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. 7. I will determine if the prosecution proved these ingredients to the required standards. 8. A copy of the certificate of birth of E.M.N. was produced. It indicates that she was born on the 27th day of October 2008. As of the 20th day of December 2021, she was 13 years and 2 months old. Her age was therefore proven. 9. EMN (PW1) testified that on January 17, 2022, at about 6:30 p.m., she arrived home from school and went to buy a pencil. After the purchase, probably on her way home, she encountered the appellant, whom she said she had never seen before. He grabbed her hand and led her to an unfinished house, where he assaulted her. He threatened to kill her if she cried out. She did not tell anyone, but the next day, her father asked where she was. She told him she had gone to a friend's house, called Diana, to get a book. The appellant then took her again to the same house and assaulted her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5325/eng@2026-04-28 2

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10. Dr Patrick Kariuki (PW4) adduced the medical evidence. On examination, the complainant was found to have a foul-smelling discharge from the vagina, and the hymen was broken. She had human bite marks on the right thigh. 11. Curiously, the prosecution charged the appellant with the offence of committing an indecent offence with a child contrary to section 11 (1) of the Sexual Offences Act. There was no application to amend the charge. Section 11 (1) of the Sexual Offences Act provides: 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. 12. On the other hand, section 8 (2) of the Sexual Offences Act provides: A person who commits an offence of defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. 13. Section 179 of the Criminal Procedure Code provides for instances when an accused person may be convicted for an offence other than the one he was charged with. It states: 1. When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. 2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. 14. If the learned magistrate was of the opinion that the offense revealed by the evidence was more serious than the charge the appellant faced, the prudent action would have been to advise the prosecution to amend the charge accordingly. However, she proceeded to convict the appellant for a more serious offence. This was not only prejudiced the appellant but also violated the law. As a result, the case was declared a mistrial. 15. The appellant's defence stated that he encountered a man, a woman, and a child who asked him about Karis. He was told to wait for someone else, but when he did, he was arrested. When questioned, the complainant stated she did not know him. 16. The doctor who examined the complainant noticed healing human bite marks on her right thigh, but she did not mention this in her testimony. This suggests a lack of candour. 17. MW (PW2) is the complainant’s mother. Her evidence was that when they laid a trap to get the defiler, the complainant pointed to the appellant, who was seated near the abandoned building, as the man who had defiled her. This was at about 9 p.m. and was aided by the electricity light from a nearby shop. However, the complainant’s version was that they found the appellant standing while smoking a cigarette. According to her, the source of light was a torch hanging from the roof. The Court of appeal in the case of Ndungu Kimanyi vs Republic [1979] KLR 283(Madan, Miller and Potter JJA) held: The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5325/eng@2026-04-28 3

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person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 18. The complainant’s evidence regarding the culprit’s identity needed corroboration, as she did not appear to be a reliable witness. 19. There is no doubt that the complainant was defiled, but there is insufficient evidence on record to identify the culprit. It would be futile for me to order a retrial. 20. The conviction is therefore quashed, and the sentence is set aside. The appellant is free unless otherwise lawfully detained. DELIVERED AND SIGNED AT NYANDARUA ON THIS 28TH DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5325/eng@2026-04-28 4

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