Kevin Mwangi Kangethe v Republic

concession, the court took no further step regarding the minority of the accused. Unfortunately, the question of both the appellant and the complainant being minors were not addressed. 5. The matter took off with witnesses testifying without any safeguards as to the trial. Of a minor. The first witness was the complainant’s mother who testified that the complainant left and did not come back. She searched and later was informed that the complainant was at a certain place. By Catherine. Catherine went to the appellant’s house where they were arrested. The complaint was tested and went back home on Friday. She asked for forgiveness for herself and another person. 6. On cross examination she stated that she did not know the motor bike that carried the complainant. The court did unnecessary voire dire for a 17-year-old minor. the court came to conclusion that the witness was refractory without a request by any party. 7. PW2 testified that the appellant was his boyfriend. She was born on 10.10.005. She knew the appellant as a boyfriend. On 28.08.2022 she left home and went to Catherine’s home. She found Catherine and her husband kelvin and no-one else. In the evening she met Kevin and his friend MNA and his cousin who name she did not know. They all went to Maragua and left Kevin and the cousin to go home. They went to MNA’s place with MNA and Wambui and slept there. 8. When they were going home they met Kevin who went with home but turned with Wambui. They went to Gititu with Kevin, MNA and Kevin and then went back to Gititu at around 9.00 PM. Wambui took MNA to her home and returned saying her things were stolen. They left for Wambui’s home. They called the grandmother who did not respond. She slept with Kevin on bed while the others slept on the couch. 9. The appellant went to work. Later when the appellant came from work, they started playing with pillows. She touched Kevin’s penis and put it into her vagina. They finished and nothing else happened. They went to Maragua and swim for 2-3 hours and retuned, only the two of them. 10. They went back and the complainant took the appellant’s penis and inserted into her vagina. MNA was still in the house. They cooked ugali in the next morning and went swimming. Later the police, Francis and Catherine came to arrest Kevin, MNA and the complainant. She knew him the day they met. On cross examination she stated that they had sex at night. 11. PW3, Francis, testified that the complainant left and did not return home she did not also return on Wednesday. Catherine came to know that she was in a man’s house in Gititu. They took the police who arrested the complainant and the appellant. He did not know the appellant before the arrest. 12. PW4 was PC Wycliffe Obari of Kahuro police station. On 1.09.2022 he received a report from Catherine that her sister escaped from home on 28.08.2022 and they noted that she was in Gititu area. They went to the appellant’s house and found them taking supper. He stated that the complainant was 17 years old. He did not say the age of the appellant. He was not cross examined. A warrant was issued against Catherine the appellant requested the matter to start de novo the court declined. 13. PW5 was Davis Njoroge, a clinician from Nyakiaga subcounty hospital. He held a diploma in clinical medicine from KMTC Murang’a. He had examined a girl on 1.09.2022. There was no spermatozoa or yeast seen. The patient was gram negative. The clinician used information on the treatment nots and PRC to fill the P3 form. These were filled by Triza. He was not cross examined. It was not indicated whether the hymen was freshly broken. 14. The court on her own recalled the investigating officer to produce a birth certificate. A birth certificate was produced. Dated 20.02.2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 2

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15. The appellant was placed on his defence and section 211 of the criminal procedure code was complied with. 16. The appellant gave unsworn evidence he said he had not known the charges against him. He said that he was a rider in 2019. He stopped school at form three due to lack of fees, he had worked for 4 years. He stated that he used to carry a passenger who told him to take her from Muchungucha to Maragua. The said person paid Ksh. 150/=. 17. He continued that the customer was happy and took his number to give her jobs. He used to carry her during Saturdays and Sundays. On 28.08.2022, he carried her from Gititu to with the complainant. He left them at Kaharati. He went to sleep as usual. On 30.08.2022 he woke up and went to work until 9 pm. He was in Thika the next day where his motor vehicle cycle was being repaired. He saw three visitors who told her they were to see his grandmother, who was unwell. He took them to her grandmother and slept. On first the complainant, Antony and the complainant went to his place. He welcomed them and served them with rice. Catherine left for about 10 minutes and came back with the police, where all the three were arrested. He stayed in cells until 5.09.2022. He denied the offence. Submissions 18. The appellant submitted that the appellant the court ignored that both the appellant and the complaint were minors. He further stated that the court disregarded the fact that the minor misled the appellant that she was over 18 years old. The court failed to consider that the evidence did not comply with sections 68 and 77 of the Evidence Act. 19. The appellant stated that both the minor and the complainant were 19 though due to effluxion of time, he has now clocked 19 years old. He submitted that the age of the complainant is also important. 20. He submitted that it is the complainant who admitted to have defiled him as he is the one who admitted to have taken the appellant’s penis and inserted into her vagina. He stated that they were all arrested in the same house. He stated that they needed parental guidance and not jail term. 21. He filed a further submission saying that the record indicates that they were both minors. He submitted that the complainant played a key role. 22. The Respondent field submissions that the case was proved beyond reasonable doubt. they submitted that key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as: a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. 23. On age they submitted that the minor was 16 years and 11 months old. Further that penetration was proved by the evidence of Davis Njoroge and the documents they produced. 24. On the perpetrator the appellant was well known to the complainant and he was her boyfriend. They averred that age of the perpetrator is not material to the offence of the perpetrator. What is needed is age of the victim, penetration and positive identification of the perpetrator. reliance was placed on the case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 3

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of Fappyton Mutuku Ngui versus Republic [2012] eKLR and Kaingu Elias Kasomo –vs- Republic, Court of Appeal Criminal Appeal No.504 of 2010 (unreported) the Court of Appeal held“ (The) age of the victim of…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 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.” 25. They further relied on the case of JKK v Republic (Criminal Appeal 118 of 2011) [2013] KECA 241 (KLR), where it is indicated that whoever wishes to rely on age must raise it at trial. They stated that the question of who defiled who cannot arise in view of the medical evidence. He stated that the fact that the appellant looked older does not arise. The appellant must honestly and reasonably believe. They submitted that the court of appeal stated that the belief must strictly be proved. 26. On challenge of medical documents reliance was placed on section 68 and 77 of the Evidence Act. They relied on the case of CKW V Republic (2014)eKLR and Julius Kiunga M’Rukaria v Republic(2017)eKLR. JKK v Republic (Criminal Appeal 118 of 2011)[2013] KECA 241 (KLR). They placed further reliance on the cases of Bukenya and Others v Uganda [1972] EA 549 and Kibangeny Arap Kolil v Republic [1959] EA 92, and Geoffrey Kioji v Republic (2017)eKLR. Analysis 27. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held 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. 28. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [Supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 4

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findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 29. 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. 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. 30. Brennan addressed the standard of proof required in such cases, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 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 stigmatized 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. 31. 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. 32. 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. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 5

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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. 33. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 34. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. The Law 35. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 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. 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. 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. 36. The essential constituting defilement were set out in the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, as the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are; a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 6

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d. 37. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. 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. 38. While addressing the question of age of the victims in the Sexual Offenses Act, the court in 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. 39. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows: In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. 40. However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that: In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 7

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the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 41. The question of penetration is largely not disputed. The evidence of the complainant was credible. She gave a vivid account of how they had escapades for three days. Two elements however stand out. The defence raised does not largely impeach the evidence of penetration or the involvement of the appellant. However, one matter which both the court and the prosecution treated in a cavalier was the age of the appellant. It is not true that the age of the male is irrelevant. It is irrelevant when, is forceful by one part. However, in case where the prosecution concedes on record that both parties are minors, then the court and the prosecution were under duty to first ascertain the minority of the minor and then enforce protections in the children’s act and the constitution. 42. Article 53(2) of the constitution provide as follows: (2) 43. A child’s best interests are of paramount importance in every matter concerning the child. Once a person accused is alleged to be a minor, the court must provide protection for the minor including the right to representation. section 96 of the children’s act provides as follows: Where a child who has not attained the age of sixteen is a complainant or is otherwise brought before a children’s Court in proceedings under this Act or any other written law, the Court shall, where the child is unrepresented, order that the child be granted legal representation in accordance with the Legal Aid Act, 2016 (No. 6 of 2016). Any reasonable fees and expenses incurred in relation to the legal representation of a child under subsections (1) or (2) shall be a charge on the Legal Aid Fund. Without prejudice to the generality of subsection (1), a child in conflict with the law shall be entitled to legal representation at the State’s expense. 44. First, if the appellant was a child as the state admitted, he was entitled to be heard in the children’s court and given legal representation. This was not done the appellant who was admittedly a minor was then subjected to adult standards. 45. This was breach of the right of the appellant as a minor. Secondly, where there was no use of force, it is difficult to know who was the perpetrator in the circumstances of the case. By failing to safeguard the right to fair hearing the entire process became soiled that it is irredeemable. 46. The next question was whether the complainant was a minor. At the time of arrest there was no birth certificate. The birth certificate was obtained way after the Case had been started, that is on on 20.2.2023. 47. There is no explanation on why it was not available or registered before the alleged offence on 1.09.2022. Such a birth certificate produced after age has been disputed is not useful. There was thus no proof of age of the appellant. This is even so where the age difference to 18 is paper thin. The evidence of the complaint was such that it may not alert anyone especially another minor. Though section 8(5) was not raised directly, the narrative from not parties is that they did not have regard whether they were minors or adults. 48. Further, to dissuade the respondent from such arguments, they must consider that who is a victim is important. Secondly, they cannot place the duty on the appellant to show that he is not over 18. An order for age assessment ill have arisen if there was doubt whether the appellant was a minor. However, having admitted that the appellant was am into at the time of alleged offence, then there was no issue on minority. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 8

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49. The two children were basically children in need of car and protection and not for jail in any case, both should have been charged. Such discriminatory charging is anathema to Article 27 of the constitution. 50. The final part is that given minority of the appellant, the children’s act provides the maximum period of confinement of a minor. It is not the sentence given. The appellant has been in custody for over three years. Even if the court orders a retrial it will serve no useful purpose. 51. Consequently, the appeal is allowed. The conviction and sentence is set aside. Order 52. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held. b. The appellant’s name be removed from the register of sexual offenders. c. The names of the appellant and the minor be redacted to protect their privacy as minors. d. Right of appeal 14 days. e. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 30TH DAY OF APRIL, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara holding brief for Mwakio for the ODPP PC Tirimba at Kamiti Medium Prison Court Assistant – Michael/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5530/eng@2026-04-30 9

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