Zacharia Mwangi Karuri v Republic

c. The learned trial magistrate erred in fact and in law in disregarding the evidence and defence of the appellant herein. d. The learned trial magistrate erred in fact and in law in disregarding, ignoring and/or failing to answer the appellant's defence, which was dismissed without being properly analysed and/or appreciated. e. The learned trial magistrate erred in fact and in law in being engrossed and/or concerned with the truth of the appellant's defence, contrary to the principles of criminal law that lay emphasis on the reasonableness of the defence. f. The learned trial magistrate, in the process of ascertaining the truth, ended up shifting and placing the burden of proof upon the appellant contrary to the principles of criminal law and practice. g. The learned trial magistrate erred in fact and in law in failing to correctly evaluate the evidence on record. The judgment herein has occasioned a miscarriage of justice. 4. The respondent, represented by M/s Vena Odero, opposed the appeal. She argued that the prosecution met the required evidentiary standards and that the sentence was appropriate for the ofience. 5. This is a first appellate court. As expected, I have analysed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 6. H.W.J. (PW1), the complainant, stated she was twelve years old when she gave her testimony. Her evidence was that the appellant is her uncle. Her grandmother used to send her to his house to deliver food for him. He would use the opportunity to undress her and finger her genitalia. She used to cry in pain, but he warned her not to disclose it to anybody. This happened on several occasions, and the last one was on the 3rd day of April 2025. She reported to her grandmother, who promised to talk to him but did not act. She denied that Waithera had used her to implicate him falsely. 7. The medical evidence was adduced by Doctor Karanja Newton (PW4) on behalf of Doctor Mita Ochieng, who examined the complainant on the 28th day of April 2025. The external genitalia were normal, and the hymen was intact. There was nothing physical to support the allegation of fingering. The only positive findings were epithelial and pus cells. 8. Zacharia Mwangi Karuri, the appellant, claimed that his sister falsely accused him of selling their family land. His witnesses provided testimony related to domestic issues between him and his sister, Waithera. 9. Margaret Waithera Karuru (PW3) stated that the appellant was not falsely accused due to a land dispute. She also denied that the appellant had lived in [Particulars Withheld] for approximately 7 months. 10. In his defence, the appellant stated that he returned to [Particulars Withheld] in January 2025. This was backed by Margaret Wangui Karuri (DW2), his mother. She denied knowing anything about the issue, despite PW1's contention that she was aware of it. 11. The complainant's evidence was contradicted by her sister M.N.J. (PW2), who stated that on April 24, 2025, the complainant left home around 6 p.m. without indicating her destination. They searched for her and found her later, when she claimed she had been taken to the hospital because her uncle allegedly used to insert his fingers in her vagina. She also reported that their aunt, Waithera, had devised https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5329/eng@2026-04-28 2

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a plan to falsely accuse the appellant. At the time of her testimony, she was pregnant, and her aunt Waithera had asked her to implicate the appellant. 12. The learned trial magistrate’s conclusion that PW2's evidence supported the complainant’s case is not backed by the evidence which is on record. These contradicting versions were not reconciled. The Court of Appeal in the 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 person of doubtful integrity, and therefore an unreliable witness, which makes it unsafe to accept his evidence. 13. It was not clear which of these two witnesses was telling the truth. 14. The grandmother of the complainant was not called by the prosecution to testify. Her evidence was material, given the complainant's testimony that she had complained to her about the appellant. The Court of Appeal for East Africa in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held: The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. 1. Failing to call the complainant’s grandmother as a witness deprived the trial court of the chance to hear her perspective and make an informed decision. When the defence called her, she said she was not aware of the incident. I conclude that the prosecution was aware that her evidence would not have favoured the prosecution. 2. After reviewing all the evidence on record, I determine that it is unsafe to rely on the prosecution’s evidence for a conviction. Therefore, the conviction is quashed, and the sentence is vacated. The appellant is to be released unless they are lawfully held for other reasons. DELIVERED AND SIGNED AT NYANDARUA, THIS 28TH DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5329/eng@2026-04-28 3

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