Geoffrey Kibet Siele v Republic

i. That the trial court erred in law in not failing to find that the ingredients of the offence were not proved beyond reasonable doubt. ii. That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the appellant. iii. That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was inconsequential to conviction. iv. That the trial court erred in law and fact in not appreciating the appellant’s cogent defence that overwhelmed the prosecution case. 7. Though the parties stated in court that they had filed submissions, at the time of writing this judgment there were no submissions on record. In any case, this being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 8. Before the trial court, PW1, the complainant, having been declared a vulnerable witness testified through an intermediary, her mother, S.T. It was her testimony that the child was 2 years old having been born on the 20/6/2020. 9. PW2, S.T., the complainant’s mother testified that on the 31/7/2023 she woke up and went to get firewood. On her return, she saw the appellant weeding napier grass. That the appellant later came and took lunch in her house and when she returned from the road she found the appellant exiting the house. That she asked him why he had exited in such a hurry and the appellant stated that he had done nothing. 10. That the complainant also heard her voice and came out saying, “Mama pupu mtu” as she pointed towards her genitals. That as the child said so, the appellant informed her that the child of her in law had defecated in the house. That she asked the appellant why the complainant was pointing at her genitalia. That she lifted the complainant’s clothes and saw a whitish discharge on her genitals that looked like semen. That she saw that the child also had injury on her genitals with blood on the vaginal opening. 11. That she screamed but the appellant pushed her and asked her why she was screaming before he called her mad then ran away. People came and saw the child after which, she together with one Florida Cherotich took the child to the hospital and later to Girimori Police Station. It was her testimony that the child was 2 years old. That the appellant used to work for them as a casual labourer and had worked for them for a week prior to the incident. 12. In cross-examination, she reiterated that the appellant defiled her daughter; That she found the appellant holding his scrotal area and it looked like he was zipping the trouser whereas she had never seen him with unzipped trouser before. 13. PW3 H.K.T. testified that he is the complainant’s father. That on the material day, he was called by one F.C. who told him that his daughter had been defiled. That he met the child and her mother at Muhoroni sub-county Hospital where the child was examined and found with her genitals lacerated. That he made a report to the police of the incident on the 1/8/2023. That subsequently, the appellant was arrested. In cross-examination, he told the court that he did not witness the defilement. 14. PW4 Bonventure Oluoch Ogolla, a clinical officer at Muhoroni County Hospital testified that on the 31/7/2023, the complainant was brought by her parents on allegations that a casual labourer had grabbed the child and possibly defiled her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5392/eng@2026-04-24 2

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15. That he carried out a visual exam and found that there were no stains or frictions on the external genitalia. The hymen was swollen and vaginal opening was bruised. That the labia minora and majora were both intact and that there was extreme tenderness on the vaginal examination. 16. That a vaginal swab showed sperm cells and numerous epithelial cells, red blood cells and yeast cells whereas urinalysis revealed pus cells and red blood cells. It was his testimony that he filled both the PRC and P3 forms which he produced as PExh 2 & 3. 17. PW5 No. 234907 PC Leonard Omase testified that on the 1/8/2023 at about 1100hrs, he noted that he had been designated as the investigating officer in the instant defilement case. That his investigation led him to discover that the appellant had fled the scene but they managed to trace him at Kapchoria sub—location in Nandi County where they managed to arrest him. He produced the birth notification for the complainant as PExh 1. 18. When placed on his defence, the appellant denied defiling the complainant. He testified that the complainant’s mother lured him into having sex for money worth Kshs. 500/- and when he could not pay her, she asserted that she would charge him with something. That he dared her to do her worst and she screamed forcing him to run and hide. That he eventually went to his sister’s place to hide but she convinced him to surrender which he did. 19. In cross-examination, he told the court that he had worked for the complainant for 2 weeks. That he used to take lunch at the complainant’s house which he knew well. He denied defiling the complainant stating that the complainant was young and did not see him. That he had told one Hillary about the affair with PW2. 20. It is based on the foregoing evidence that the trial court convicted and subsequently sentenced the appellant to life imprisonment. 21. In the present case, the complainant was deemed to be a vulnerable witness due to her tender age. Her mother, PW2 testified on her behalf. In cases like this, where the victim is too young to give evidence, section 33 of the Sexual Offences Act allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both. 22. With the foregoing in mind, the Court proposes to analyze the evidence presented before the trial court. Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act establishes the offence of defilement as follows: “8 23. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) 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.” The specific elements of the offence defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; b. Proof of penetration in accordance with Section 2(1) of the Sexual Offences Act; c. Positive identification of the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5392/eng@2026-04-24 3

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24. The age of the victim is not in doubt. PW2 testified that she was 2 years old having been born on the 20/6/2021. This was corroborated by PExh 1, a birth notification produced by PW5. Accordingly, the victim was 2 years and a few days at the time the offence was allegedly committed. 25. Penetration is also not in doubt. PW2 testified that after finding the victim at home, she lifted her cloth and saw whitish discharge on her vaginal part. This testimony was corroborated by the medical evidence presented by PW4, the Clinical Officer who examined the complainant following the incident. 26. The above medical evidence and witness testimonies all prove that there was penetration. However, the question is by who? 27. The appellant submitted that he was framed by the complainant’s mother who had lured him to have sex for a fee and upon failure to pay her, she proceeded to manufacture the charges against him. In other words, the appellant offered up an alibi defence that he was set up by the complainant’s mother. 28. PW2 told the Court how on the material day when she returned, she found the appellant hastily leaving the house. She narrated how the minor reacted when she heard her voice and how the appellant ran away when he confronted her. PW2’s testimony was aptly corroborated by the medical evidence adduced by PW4. 29. In Kiarie v Republic [1984] KLR, the Court of Appeal held at page 3 that: “ An alibi raises a specific defence and an accused person who puts an alibi as an answer to a charge does not in Law thereby assume any burden of proving that answer and its sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The Judge had erred in accepting the trial Magistrate’s finding on the alibi because the finding was not supported by any reasons.” 30. The time of bringing the defence also influences the mind of the Court. The appellant further failed to raise the defence at inception of the case. This potentially casts doubt on the credibility of this defence. 31. In Karanja v Republic [1983] eKLR, the Court of Appeal held at page 3 that: “ Nevertheless, we agree with the observations of the Court of Appeal for Eastern Africa in R v Ahmed Bin Abdul Hafid (1934) 1 EACA 76, and with those of the former Court of Criminal Appeal in R v Little boy, [1934] 2 KB 413, that in a proper case the court may, in testing a defence of alibi and in weighing it with all the other evidence, to see if the accused person's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence, or his alibi, if it amounts thereto, at an early stage in the case, and so that it can be tested by those responsible for the investigation and prevent any suggestion of afterthought.” 32. Consequently, I find that the prosecution’s case remained intact throughout the trial thereby proving its case beyond reasonable doubt that the appellant penetrated PW1, a child aged 2 years. 33. In the present case, in the absence of the complainant’s testimony, there was independent evidence of the complainant’s mother, that of the father and the clinical officer that linked the appellant to the defilement of the complainant. Therefore, the conviction was proper. The appeal on conviction therefore lacks merit and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5392/eng@2026-04-24 4

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34. As regards the sentence meted out on the appellant, the same was not raised in the petition of appeal in which the appellant relied on herein. However, I must note that section 8(2) of the Act provides for a sentence of life imprisonment upon conviction. This was the sentence meted out by the trial court. I find no reason to interfere with the same. 35. Accordingly, the appeal is found to be without merit and the same is hereby dismissed in its entirety. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. A. MABEYA, FCI ARB JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5392/eng@2026-04-24 5

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