Albert Simiyu Kisika v Republic

a. The learned trial magistrate erred in law and fact when he proceeded to convict the appellant for the offence of defilement notwithstanding that there was no sufficient evidence to support the charge. b. The learned trial magistrate totally ignored the entire evidence of the appellant adduced through him and his witnesses as well as submissions which, if he had considered, would have led to an acquittal. c. The learned trial magistrate erred in law and fact when he failed to address material contradictions in the evidence of the prosecution including the matter of age of the complainant. d. The learned trial magistrate erred in law and fact when he proceeded to convict the appellant even after warning himself that there was no collaborating evidence to support the charge and instead relied on medical evidence which was lacking in credibility. e. The learned trial magistrate erred in law when he casually handled the trial of the appellant failing to conduct it with the seriousness it required thereby occasioning a failure of justice. f. The learned trial magistrate failed to consider that the complainant was vulnerable by his own admission and easily subject to manipulation. 5. The appeal was disposed of through written submissions. The appellant argued that the elements of the offence were not proven. They contended that the prosecution’s evidence on the complainant’s age was conflicting, that the overall evidence was limited, and that the medical evidence was unreliable and should have been disregarded. They also claimed that the trial magistrate made deliberate omissions during the proceedings, suggesting he had already formed a view on the appellant’s guilt. 6. It was further submitted that the appellant’s right to a fair trial was violated when the court permitted the prosecution to tender evidence without providing the necessary particulars, amounting to trial by ambush. The bare evidence presented by the prosecution shifted the burden of proof onto the appellant. Additionally, the trial court dismissed the appellant’s defence in its judgment, thereby disregarding fairness. 7. On its part, the respondent submitted that the ingredients of the offence of defilement were not proven beyond reasonable doubt, and, as such, the respondents conceded the appeal, recognising the gaps, inconsistencies, and contradictions as material and as those that could not be wished away. 8. As the first appellate court, its duty is clearly set out, namely, to reassess the evidence presented before the trial court and subject it to fresh analysis to reach its own independent conclusions and findings, while always bearing in mind that it did not observe the witnesses testify. (See Okeno v Republic [1972] EA 32.) 9. The complainant, C.W.W., testified as Pw1. He stated that he was in Form 3 at Bungoma Boys, was born in 2006, and was 17 years old. However, the birth certificate indicated that he was born in 2010. He said that when he was in Class 8 and going home, he used to meet the appellant on the road, and they started talking and became friends. That their friendship continued as he joined Form 1, but the appellant began giving him money and asked him to have sex with him. That he reported him. The appellant came to their home and asked him to go with him. The appellant took him to another home, where he removed his trousers, hanged, then pulled down his pants, put his penis between his legs, applied oil to both of their penises, then inserted his penis into his anus. The appellant gave him money and continued to defile him. He told his uncles Ben and Felix, and later told his father, after which https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 2

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he was taken to Bungoma County Referral Hospital. He was later taken to Nzoia Police Station and given a P3 form. That the appellant was a neighbour. 10. During cross-examination, the complainant testified that his birth certificate stated he was born in 2010, but he was actually born in 2006. He said that by 2023, he was 17 years old and in Form 2. His father was the first to report the incident to the police, and then they went together to make the report. According to the birth certificate, he was 13 years old but had not been subjected to an age assessment. The first time the appellant took him to a maize plantation, he was sodomised three times, not eight. The appellant used to give him money, although he could not remember the exact amount. That the appellant used to give him Kshs. 500/- upwards to Kshs. 1,500/-. The appellant told him he would give him Kshs. 5,000/- to buy a phone. He informed Bramwell about what the accused did to him. That he first reported the incident to his uncle, Ben Isika, at about 7 pm after the appellant had sodomised him at about 6pm. He reported the incident to Ben, who was in the company of Felix. 11. In re-examination, the complainant testified that the appellant’s assault began in 2022 when he was in Form One. He stated that the first time the appellant gave him Kshs. 1,000/-. The appellant also gave him Kshs. 1,500/- and Kshs. 5,000/- to buy a phone. 12. Pw2 Felix Masinde Waluku testified that on 1/7/2023, he was on his way from Bukembe Market when he passed by his brother’s home, where the complainant entered the house running. He stated that the complainant called Ben to inform him of what had happened, after which they both called him to say that the appellant had turned him into a woman. He was later called by the appellant’s father, and he went to the police. 13. In cross-examination, Pw2 stated that he was at his brother’s home when the complainant arrived and called his brother Benson. He said he heard the complainant telling Benson what had happened. Pw2 then changed his account, stating that Benson had called him and informed him of what the complainant had said. He also stated that the complainant was approximately 16 or 17 years old. 14. Pw3 Dismas Wanyonyi Wamalwa stated that on 24/7/2023 he returned home from work when his son, the complainant, informed him that the appellant had defiled him and threatened him. He took the complainant to Bungoma Hospital, where the doctor informed him that the complainant had been infected. The complainant was born in 2006, but the birth certificate had an error. The age assessment indicated that the complainant was between 16 and 17 years old. On 25/7/2023, the appellant and his wife came to his home and informed him of what had happened, and he tried to apologise. 15. In cross-examination, Pw3 testified that he received the report from Ben Kisika, who also informed Felix of what had happened. The child stated that he had been defiled on 7/1/2023 and 1/7/2023. He took the child to Nzoia District Hospital and then Bungoma Hospital. The doctor looked at the child, told him to remove his clothes and confirmed that the child had been defiled. That he told the police that the complainant was 17 years old. 16. Pw4 Tom Barasa Juma from Bungoma County Referral Hospital produced the complainant’s P3 form. He testified that the complainant was treated on 31/7/2023 and had a history of molestation from 2021 to July 2023. Upon examination, the complainant was found to have pain in the anal region, and the muscle was loose, leading to a conclusion of sexual assault. The examination revealed that the splinter muscle was loose and there were blood stains. The complainant was 13 years old. 17. During cross-examination, Pw4 testified that he saw the complainant on 31/7/2023. He stated that the complainant had a loose anal sphincter muscle, which could be caused by forceful entry, medical conditions, or hard stools. He also said the patient was expected to recover from the injuries. If the history had not been given as defilement, he would have concluded that the complainant was suffering https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 3

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from a medical condition. He indicated that the act was done to the complainant on 1/2/2023, and that the complainant came for examination after five years, though he was not sure whether the injuries would have healed by then. 18. Pw5 No. 7118 PC Denis Odhiambo testified that on 26/7/2023 at 10:15, Dismas Wanyonyi reported that his son had been defiled by the appellant. He issued them a P3 form and sent them to hospital. They then proceeded to the appellant’s home and arrested him. 19. During cross-examination, PW5 testified that he directed the complainant and his father to Bungoma District Hospital. He further stated that the complainant told him he was 13 years old and requested a birth certificate. The age assessment ordered by the court confirmed that the complainant was 17 years old. 20. When placed on his defence, the appellant gave evidence as Dw1. He stated that he was a retired teacher and an SDA elder. He further said that the complaints against him were initiated by his brothers. He also said that the complainant’s father informed him that the issue had been raised by Ben and Mark Kisika, his brothers. When he went home, Mark told him that he was being pressured to participate in the lies. During cross-examination, the appellant reiterated that he had never met the complainant. 21. Dw2 Winstone Wasike testified that in March 2023, Mark Kisika told him that the appellant had sodomised boys, including his son. However, when he asked his son, the son testified that this was not true. 22. Dw3 Collins Situma testified that the appellant was his customer. He stated that Mark sent people to arrest him and that while he was in the police cells, Mark, along with three other individuals, questioned him about whether the appellant had paid him to bring boys to his shop to sleep with. He was discharged, and later Dismas called him to Nzoia Police Station, where he was interrogated and discharged again. He asked the complainant about the allegations against the appellant, and the complainant claimed he was being forced to make the complaint. Analysis And Determination 23. I have considered all the evidence. For the charge of defilement to be sustained, the Prosecution bears the burden of proving three essential elements as outlined under Section 8(1) of the Sexual Offences Act No. 3 of 2006. These elements include confirming that the victim is a minor, evidence that penetration took place, and definitive identification of the perpetrator. 24. The Appellant was charged with the offence of defilement contrary to Section 8 (1), as read with Section 8 (2), of the Sexual Offences Act, which provides: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(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.” 25. The age of the victim of defilement is a crucial element because defilement is a sexual offence committed against a child, who under the Children’s Act, is a person under 18 years of age. Additionally, the child's age serves as an aggravating factor when determining the sentence to be imposed, according to the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence. 26. In this case, the complainant testified that he was 17 years old, despite referring to a birth certificate which showed he was born in 2010, thus indicating he was 13 years old at the time of the incident. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 4

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complainant’s father, Pw3, testified that the complainant was born in 2006 and would therefore be 17 years old at the time of the incident. He stated that the birth certificate presented had a computer error, which he had sought to have corrected. Pw4, the clinical officer who examined the minor, testified that the minor was 13 years old. This was the age recorded on the P3 form, which was admitted as P Exh 2. 27. This disparity in age appeared to have been resolved through the age assessment form submitted as P Exh 3, which indicated that the complainant was approximately between 16 and 17 years of age. 28. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: “ …………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….” 29. Medical evidence is essential for determining the age of the victim, and the doctor is the only person qualified to professionally assess the victim's age when other types of evidence are uncertain. In Francis Omuroni v Uganda, CR. A 2/2000, it was held: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observation and common sense. ….” 30. In Richard Wahome Chege v Republic [2014] eKLR, the Court of Appeal stated that; “ 12. On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.” 31. Was the age proven? I think not. The contradictions regarding Pw1's age, in my view, are irreconcilable. With due respect, the trial court casually concluded that Pw1's age was proved without resolving the inconsistencies and contradictions about the age. The court relied on a birth certificate allegedly showing a birth date of 2010, without considering the age assessment form. This is despite the fact that there is no evidence on record indicating that the birth certificate was produced as an exhibit in court. 32. Having introduced evidence of birth certificate(s), despite it being erroneous, it was no longer open for the prosecution to rely on proof of age through other recognised means of evidence as held in Francis Omuroni (Supra), which the trial court erroneously applied without resolving the contradictions aforementioned. 33. Accordingly, the element of age was not proven beyond reasonable doubt. 34. Regarding whether penetration was proved, the clinical officer testified that the complainant experienced pain in the anal region. Upon examination, the muscle was found to be loose, leading to the conclusion of sexual assault. The examination revealed that the splinter muscle was loose and there were blood stains. The complainant was 13 years old. However, it was his testimony that if he had no https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 5

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history of defilement, he would have concluded that the complainant was suffering from a medical condition. 35. In its judgement, the trial court-based proof of penetration on the complainant’s testimony, stating that he “found the evidence of the complainant though not corroborated not have been challenged.” ....I totally believed the evidence of the complainant and I find no reason to doubt the same, he was consistent in his evidence and he positively recognised the accused as the one who defiled him” 36. It is trite law that penetration is not necessarily proved by medical evidence only. In Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) it was held thus; “ The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” 37. This is in line with Section 124 of the Evidence Act which states that; “ 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: 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.” 38. However, Section 124 of the Evidence Act can only be complied with if the “reasons are recorded in the proceedings indicating that the Court is satisfied that the alleged victim is telling the truth”. 39. In the present case, the complainant consistently stated that the appellant lured him with money, giving him cash amounts ranging from Kshs. 500/- to 1,500/-, and even provided him with Kshs. 5,000/- to purchase a phone. The appellant put his penis between his legs, applied oil on both their penis, then inserted his penis into his anus. The complainant testified that the appellant defiled him on numerous occasions. 40. The appellant denied committing the offence and instead accused his brother, Mark Kisika, of framing him. He called Dw3, who testified that Mark had also reported the appellant to him for allegedly defiling his son. However, when he questioned his son about this, he found the claim to be untrue. This defence, advanced by the appellant, creates doubt in my mind as to whether penetration was really proved. 41. Where there is any doubt in a criminal matter, and evidence that could likely support the case for the prosecution is not produced, the outcome would favour the accused person, in this case, the appellant. The trial court never examined the merits of the appellant’s defence, merely stating that it found the same to be lacking in merit without providing reasons for this. 42. From the foregoing analysis, I find that the prosecution failed to prove penetration. 43. Having failed to prove the first two ingredients of the crime, I find no reason to belabour on the issue of identification. In any case, the appellant was well known to the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 6

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44. I therefore find that the conviction and sentence imposed on the appellant were unsafe. As a result, the conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is hereby ordered that the appellant shall be released immediately. DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 9TH DAY OF APRIL 2026 R. OUGO JUDGE In the presence of : Albert Simiyu Kisika/ Appellant Miss Matere -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5503/eng@2026-04-09 7

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