Paul Otieno Kibondo v Republic

6. The Appellant, aggrieved, lodged this appeal. The Petition of Appeal dated 21.3.2024 raised 3 grounds. The gist of the appeal is that the trial court erred in law and fact in convicting the Appellant when the elements of the offence of defilement were not proved at all. It was also pleaded that the evidence of the witnesses who were called was marred with inconsistencies and contradictions. The court was also blamed for imposing an excessive sentence. Evidence 7. PW1 was Christopher Ombuka. On 20.4.2020, he was at Senior Chief’s office, central Kamagambo around 1pm. He got information that the Appellant was holding a minor at his home. He took two elders and they went to the said home. They found the Appellant and the minor sitting in his dining room. They were fully dressed. There was no cross examination. 8. PW2 was the minor. No voire dire was done on her. She proceeded to testify. It was her case that she was 15 years old and was not in school. She had given birth. The father of her child was Paul. She did not know the other name. She did not know when she got pregnant. She came to know the Appellant at the market. They knew each other for a week. During the week, he did tabia mbaya to her. He removed his trousers, he inserted his penis in her vagina. Omuso had also had sex with her. The Appellant’s mother came. She asked whether the Appellant had PW1’s permission to marry PW2. On cross examination, she testified that the Appellant defiled her. 9. PW3 was No. 24xxxx PC Deborah Wateria of Kamagambo Police Station. Upon analyzing the medical information and the narration by the minor, the Appellant became the apparent suspect and so he was arrested. 10. PW4 was Dancun Nyabatho. He was the Clinical Officer. He filled P3 Form on 20.4.2021. The minor was allegedly defiled on 19.4.2020. On examination, there were bruises on outer genitalia. She was on menses. Hymen was not freshly broken. Vaginal walls were inflamed. 11. The Appellant also testified on oath as DW1. He testified that he denied the charges. He never defiled the minor. On cross examination, he did not know the minor. He had never seen her even in the village. The village elder came and found him with the minor. The Appellant met the minor on the road in Riosiri Market and went with her to his home. His mother prepared them food. The minor spent the night in his house but he never defiled her. She was on her periods. Submissions 12. The Appellant filed submissions dated 18.3.2025. It was submitted that the age of the minor was not proved beyond reasonable doubt. The facts in the age assessment report were not proved. He cited Eliud Ouma Agwara v R (2015) eKLR. 13. The Appellant also submitted that penetration was not proved. 14. It was the submission of the Appellant that sentence was ordered to run from date of sentence instead of date of arrest hence he was prejudiced. 15. It was also submitted by the Appellant that the languages used in trial prejudiced him. He cited article 50 (20 (g) and (h) of the constitution. 16. The Respondent filed submissions dated 22.5.2025. It was submitted that the elements of the offence were proved beyond reasonable doubt. Reliance was placed inter alia on Section 107 of the Evidence Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 2

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17. It was submitted further that the age of the minor was proved by the age assessment report. Analysis 18. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 19. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: “ …that this Court will not interfere with the execise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 20. The most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that; “ Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 21. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. according to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: “ The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 3

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The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.” 22. The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:“ The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 23. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 24. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. The section reads as follows: “ 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 4

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25. Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up to imprisonment of 20 years as per section 8(3) of the Sexual Offences Act. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 26. PW1 and PW4 were the most crucial witnesses for the Respondent and their evidence would make or unmake the case against the Appellant. The Appellant remained innocent until otherwise proved guilty. 27. In proving the case against the Appellant, the Respondent had the burden to dislodge the 3 key ingredients of the offence of defilement as held in George Opondo Olunga v Republic [2016 ] eKLR which are: 28. i. Proof of the age of the complainant ii. Proof of penetration and iii. Proof that the appellant was the perpetrator of the offence Section 8 of the Sexual Offences Act provides as follows: “ 8. (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. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. (5) It is a defence to a charge under this section if (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 5

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29. (6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. (7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act. (8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.” The first element is age. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (Emphasis added). 30. Age had to be proved just like penetration and identity for conviction to be sustained. In the case of Kaingu Elias Kasomo vs. Republic Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows: "Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 31. The 3 ingredients were reiterated in Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that: “ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 32. In this case, age was proved by age assessment produced by PW3, the investigating officer. The said report was generated by Dancun Nyabola, a clinician from Rongo District Hospital. It is dated 21.4.2020 and stating that PW1 was 13 years old. The report was however produced by PW3 and not the maker. Considering the necessity of proving age as by law remedied, it was critical for the parameters that led to the conclusion of the age of the minor herein to be laid before the court. There must have been basis for which a minor would be described as not just a minor but a minor aged 13 years. 33. The parents of the minor did not testify and the minor testified that she was 15 years as at 24.11.2021 and she had dropped out of school in class two. The basis for the minor’s age stated to be 13 years was not laid before court and I disregard the evidence presented in the assessment report that was not produced by the maker and whose procedure and findings were not stated in court. The Court of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 6

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Appeal in the case of Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the proof of age: “ ... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable. 34. Exhibit 5 showed the minor was 17 years on 21.04.2020. Ipso facto the minor was not 13 years as alleged. The complainant alleged to be 15 years at the time of testimony. This was barely a year later. The purported age assessment indicates the date of birth as 2002. Surprisingly it did not bother the clinician that the complainant was born in 2002 and had 30 teeth. According to National Library of Medicine, a full set of 28 to 32 permanent teeth (including 30 or more) usually erupts between 17 and 25 years of age. The complainant could not have been less than 17 years. 35. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290: “ The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 36. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: “ … such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 37. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, that: “ While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:"Because this is the evidence of an expert, I believe it." https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 7

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38. The clinician was least qualified to fill the age assessment report. The report is to say the least, false. There is no way a person born in 2002 can be 13 years in 2020. She was 18 years of age. Further it is unclear on when the appellant is said to have had sex with the complainant. At least the defence case was clear that the appellant and the complainant were found sitting and fully dressed. The appellant testified that they did not have sex because the complainant was on menses. This was proved by the medical evidence. 39. There was also another man in the picture. At least there was no evidence of penetration on the date in issue. The dates came from strangers who did not witness. This was hearsay. It is not clear why the complainant’s birth certificate was not produced. 40. Whereas the Appellant was clearly identified as the person who met the minor and went to his home with her, there was still need to prove age and penetration for the conviction to be safe. Turning to identification, in R –vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated as doth: "The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 41. On penetration, PW1 testified that the Appellant penetrated her genitalia. One Omuso also had penetrated her. The appellant stated that the complainant was on her periods. This is the same conclusion from the clinical officer that there was blood. P3 also shows that the client was on menses. 42. The minor’s mother had planned that the minor be married to the Appellant. No wonder the mother of the minor never testified in court or offered to be a witness. There was however no evidence of pregnancy or presence of the child that was born and no connection was proffered to the Appellant. 1. The appellant denied the allegations. This is where the court invoked section 124 of the Evidence Act. The court, in my view wrongly proceeded as if, the said section overrides Article 50 of the Constitution. Section 124 is a rule of evidence and not a rule on the standard of proof. It is not automatic that the court must just believe the complainant. The rule is the exceptions are set in section 124 of the Evidence Act. The said section posits as follows: 124. Notwithstanding the provisions of section 19 of the oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 8

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Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 44. 45. The later part, or the proviso is key, in that it requires that the following conditions be met: i. The matter is a sexual offence, ii. The only evidence is that of the alleged victim of the offence, iii. For reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. That is why the truth should always be recorded and reasons for so believing. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows: “ Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” 46. The trial court noted that there was no need for corroborating the evidence of PW1 in light of Section 124 of the Evidence Act. The court went into a wild goose chase and returned a verdict based on conjecture that the complainant was credible and telling the truth. There is no basis of finding that the complainant was saying the truth. Indeed, reading her evidence, it brings out a very confused person. The obscenest piece of evidence was that the penetration led to birth of a child, when medical evidence was clear that the complainant was having menses. It is either there was menses or it led to birth or a child. It cannot be both. 47. The appellant was arrested after that date. In the case of Maripett Loonkomok v Republic [2016] eKLR the court of appeal reiterated that children under the age of fourteen (14) ought to be taken through a voire dire examination and held that: “ The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 18 years. The court reiterated the holding in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 where it categorically stated that the definition in the Children Act is not of general application and that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. …“It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination. It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 9

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48. The underlying necessity for voir dire is due to the child’s susceptibility to adult influence and the child’s inability to distinguish truth from fantasy. The court must thus be certain that the child not only understands but also appreciates the quality of speaking the truth. McGough in an article entitled Asking the Right Questions: Reviving the Voir Dire For Child Witnesses Georgia State University Law Review, Vol 5, Issue 2 Spring 1989 has authoritatively observed: “ Both common and civil law regarded child witnesses as suspect, only a short step removed from the perceived unreliability of imbeciles and lunatics. Reasons underlying this skepticism were not clearly differentiated. However, because of the spiritual immaturity of a child, his ability to appreciate an oath taken before God eclipsed all other possible concerns. Most children were precluded from testifying ‘because of their supposed inability to understand the significance of the oath’ in a religious sense. The foregoing perception was due to the child’s susceptibility to adult influence and the child’s inability to distinguish truth from fantasy. However, the test of competency for a child witness has changed. Children can been heard provided they possess sufficient knowledge and nature and consequence of an oath, and where it is demonstrated they do not understand the nature and consequence of an oath, then they give unsworn testimony.” 49. This court appreciates the impact of our constitution that places the right to a fair trial in the criminal justice administration system at a higher notch. This is particularly where an accused is presumed to be innocent till proved guilty. The accused is entitled to fairness and true investigation and the court is expected to play a balanced role in the trial of an accused person. This mandate is contained in Articles 50 of the Constitution. The Right to a fair trial is one of the cornerstones of a just society. The Supreme Court of India in Rattiram v. State of M.P. {2012} 4 SCC 516 stated as doth:“ Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism.” And again:“Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused..." 50. Further Section 8(1) of the Sexual Offences Act provided as follows: “ 8. (1) 51. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. In line with the foregoing, the defence presented by the Appellant was plausible and dislodged the evidence presented by the Respondent. He did not penetrate the minor. The prosecution had the burden to prove the allegations against the Appellant. The minor herself related the Appellant as father of child she had delivered without details and evidence. She then mentioned that she had sexual intercourse with another man without laying any details. Her evidence was floppy and incredible and as it formed the basis for conviction of the Appellant, the said conviction was not safe and has to be set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 10

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52. Even though the Appellant was well identified as the perpetrator, there was no connection to him as the person who defiled the minor and age was not proved as to uphold the conviction and sentence. Evidence that was at variance with the charge would only be interpreted in favor of the Appellant. 53. In the circumstances the appeal against the conviction is allowed. Equally, having found that the conviction was unfounded I proceed to set aside the conviction. I find no utility in dealing with the issue of sentence. The Appellant is set free. Determination 54. In the upshot I make the following final orders: a. The appeal is allowed. b. The conviction and sentence are set aside. c. The Appellant is set free unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 27TH DAY OF APRIL, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Kihara for the state Appellant present at Kisumu Maximum GK Prison Cpl. Nelson Omondi at Kisumu Maximum GK Prison Court Assistant – Michael/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5450/eng@2026-04-27 11

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