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3. 4. That the learned trial magistrate erred in law and fact by failing to appreciate the prosecution proved all the ingredients of each offence. 5. That the learned trial magistrate erred in law by failing to comply with the provision of section 169 of the Criminal Procedure Code. The prosecution called 5 witnesses in the case while the Respondent defended himself and called 3 witnesses. Case for prosecution 4. The first witness for the prosecution was a boy called AYA (PW1) whose evidence was that he was at the time he testified in court in March 2021 aged 10 years and was in class 3. That a person called Mohamed had been penetrating him into his anus since the time he was aged 4 years. That the latest he did so was on 24/11/2020 at 4pm when he picked him from his home where he was playing with other children and took him behind an incomplete house that was under construction at [Particulars Withheld] village. The man removed his, the boy`s, trousers and costume and put his hand inside his anus. The man then gave him food of rice and beans. 5. That on 23/11/2024 the said Mohamed picked him again from where he was playing and took him to the same incomplete house and removed his costume and trousers. This time he inserted his penis into his (the boy`s) anus. 6. It was the evidence of the boy that he did not report the defilement to his parents as the said Mohamed had threated to kill him if he did so. That he used to involuntarily pass stool into his pants and when his mother was washing him she would ask him what the problem was and he would lie that he had stomachache. 7. That on 5/12/2020 his mother took him to his aunt and told her aunt that he was passing stool on his pants. That his uncle called N him as to who was defiling him and he cheated that it was another child because he was scared of mentioning Mohamed. That on 6/12/2020 N took him to the police station. The police interrogated him and he told them that it is a person called Mohamed who had been defiling him. He demonstrated how Mohamed walks. The said Mohamed then brought to the police station. Mohamed looked at him with very harsh eyes and he became scared. That his step-father called HM slapped him so as to mention the person who defiled him. That Mohamed was present when he was slapped by his step-father. He then mentioned the person who had been defiling him. 8. He, the witness, was then taken to hospital and treated. During the hearing of the case in court he identified the Respondent as the person called Mohamed. He said that the Respondent had introduced himself to him as Mohamed. 9. It was the evidence of the witness that the said Mohamed used to work at a big fish shop near the main mosque at [Particulars Withheld] village. That Mohamed had even taken him to his house at [Particulars Withheld] village but he did not enter into the house. 10. The mother to PW1 who was PW2 in the case testified in court in March 2020 and said that PW1 was at the time aged 11 years. That between 2017 and 2020, the boy was having an issue of passing stool without control but whenever she asked him, he would not tell the cause. That on 4/12/2012 the boy told her that a person called ed Mohamed been penetrating him into his anus in an unfinished house. That she took him to her sister called A and her husband N for them to get more information from the boy. He told them what he had told her. They did not believe him and they took him to the police station. The police interrogated him and he told them what he had told her. That they entered into https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 2

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a car with the police. The boy took them to an old house at [Particulars Withheld] village where the defilement had taken place. He showed them another one near the cemetery. 11. It was further evidence of PW2 that while they were within the said village, the boy saw a man walking and told them that he is the one who had been sodomizing him. She, PW2, did not know the man before. They returned to the police station. While they were at the police station her husband HM came with the man. The boy was asked to look around and see who had been sodomizing him. He pointed at the Respondent. The Respondent was locked up at the police station. They took the boy to hospital. During the hearing of the case in court the witness PW2 identified the boy`s birth certificate, P.Exh.1. It showed that he was born on 16/6/2010. 12. The witness further stated in cross-examination that her husband H is a step-father to the boy. That at the police station H slapped the boy. 13. The testimony of the sister to PW2, A PW3 was that her sister PW2 took her son PW1 to her and told her that he had been defiled by a person called Mohamed. That she interrogated the boy and he told her that he indeed had been defiled by a person called Mohamed. That on the following day her sister went and picked her son. On 7th she went to the police station with her sister PW2 and recorded a statement. 14. A clinical officer at Malindi sub county hospital PW5 testified that the child herein was taken to their medical facility by his mother and an aunt on 6/12/2020. The child told him that he had been defiled by a certain man. He conducted an anal examination on him and found multiple scars in the anal orifice. That the anal muscles were weak and flabby. He formed the opinion that there was anal penetration. He filled a P3 form to that end. During the hearing of the case in court, he produced the lab reports, treatment notes, the P3 form and the Post Rape Care form as exhibits, P.Exh.2, 3, 4 and 5 respectively. 15. The case was investigated by CPC Winnie Wambua PW4 of Malindi police station. It was her evidence that on 7/12/2020 the boy herein was taken to the police station by his mother and an uncle called HM. They had already made a report at the police station on the previous day and the boy had been treated at hospital. They gave her his treatment notes. That she interrogated the boy and she told him that a person called Mohamed had been defiling him at two un occupied houses at [Particulars Withheld] village. That he went and showed them the two houses. That as they were going back to the station the boy saw the man he referred to as Mohamed. That on the following day, the said Mohamed who happened to be the Respondent, was taken to the police station. She charged him with the offence of defilement. During the hearing of the case in court she PW4, produced the complainant`s birth certificate as exhibit, P.Exh.1. Defence Case 16. The Respondent in his defence stated in a sworn statement that he sells fish. That on 9/12/2020 a person called HM who is a brother to a friend of his approached him and asked him to go and collect his luggage at Dola office. He HM instead took him to the police station. That at the police station they found a boy. H asked him if he knew the boy. He said that he did not. He then asked the boy if he knew him, the Respondent. The boy said he did not. HM slapped the boy three times. The boy fell down and started to cry. H picked him and started to tell him to say if he, the Respondent, was not the one. He, the Respondent, was picked by PC Winnie and thrown into a cell. He was charged. 17. It was further evidence of the Respondent that on 24/11/2024 he was down sick with blood pressure for 3 days. 18. Joseph Mzungu DW2 testified that on 9/12/2020 he was at Malindi police station to attend to a traffic issue. That while there he heard a boy shout, “si ndiye huyu”. He then saw an old man slap a boy. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 3

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old man while pointing at the Respondent told the boy, “si ndiye huyu alikubaka”. The boy said that he was not the one. He was slapped again and he fell down. A woman police officer went and took away the boy, the Respondent and the old man. He also left. 19. MH DW3 told the trial court that the Respondent is his father and lives at Sabasaba in Malindi. That his father suffers from hypertension. That the Respondent was down sick between 22nd d and 27th November 2020 and was indoors. He was taking care of him. 20. AO DW4 testified that he lives at [Particulars Withheld] village and is an in-law to the Respondent. That he knows a house known as Taifa. That it belongs to his uncle. That it is an old house that is under renovation. It is vacant. That HM is a first cousin to the owner of the house. 21. The appeal was canvassed by way of written submissions of the counsel for the Appellant. The counsel for the Respondent did not file submissions in the case despite being given sufficient time to do so. Appellant`s submissions 22. The Appellant submitted that the trial court erred in failing to analyze the evidence presented before it against the ingredients of the offence of defilement and determine whether the offence was committed but instead acquitted the Respondent on the ground that the charge sheet was defective for failure to mention the name of the complainant. Further that the Respondent`s defence of alibi was not worthy of dislodging the evidence presented to the trial court by the prosecution. 23. Whereas the Appellant admitted that the name of the complainant was omitted in the charge sheet, they submitted that that was not a fatal defect as to warrant the acquittal of the Respondent. 24. The Appellant made reference to section 134 of the Criminal Procedure Code and submitted that the requirement of the law is for an accused person to be charged with an offence known in law and for the charge to specify all the relevant information in such a manner that would enable the accused to put an appropriate defence. 25. It was submitted that the test in determining whether a charge is defective is to first consider whether the charge is indeed defective and if so whether the defect can be remedied. In this respect the Appellant relied on the case of Peter Ngure Mwangi v Republic (2014) where the Court of Appeal held that: On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. 26. Further reliance was placed in the case of Benard Ombuna v Republic (2019) eKLR where the same Court as in the previous cited case held that: In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 27. In view of these authorities, the Appellant submitted that failure to mention the name of the complainant in the charge sheet was not fatal to the case as the trial court and the defence saw and heard the complainant in court. That the Respondent was represented by counsel during the hearing and they cross-examined the complainant. Therefore, that the Respondent could not have failed to know the charge that he was facing and never suffered any prejudice. That a look at the proceedings confirms that he was fully aware of the nature of the charges and at no time was he confused about it as he put https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 4

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up a defence in the case. The Appellant urged the court to find that the trial court erred in finding that the charge was defective. 28. On the alibi defence purported to have been raised by the Respondent, the Appellant submitted that it is trite that an alibi must be raised at the earliest moment during the trial for the prosecution to gather evidence in rebuttal. That the Respondent never gave notice that he would be raising an alibi and neither did he lay a basis for it so that the prosecution could gather evidence in rebuttal. More so that the Respondent in his defence only said that he was down with pressure for 3 days and did not elaborate which pressure he meant and his whereabouts. That it is the Respondent`s son DW3 who attempted to explain where the Respondent was between 22nd and 27th November, which the Respondent never raised himself nor did he tender evidence to show that he was sick. That the same ought to have been disregarded as a mere afterthought. 29. It was submitted that the trial court erred in finding that the Respondent had raised a proper alibi when he had not raised one. That the same could not stand in light of the cogent evidence presented by the prosecution. 30. As regards proof of the ingredients of the offence of defilement the Appellant submitted that the age of the victim was proved by the birth certificate that was produced in the case as P.Exh.1. That the evidence was not challenged by the defence and therefore that the age of the victim was proved. 31. On penetration it was submitted that the victim narrated how the Respondent penetrated his anus with his penis for a period of 4 years. That his testimony was corroborated by the medical evidence of the clinical officer PW5. 32. On the issue of identification of the Respondent, the Appellant submitted that the victim positively identified the Respondent as the person who had penetrated his anus over the years. That the victim explained in cross-examination that his failure to disclose that the Respondent had been penetrating his anus over the years was because he was afraid of him. That the victim went on to state that he knew where the Respondent lived near [Particulars Withheld] ferry and described the house where he was defiled as abandoned and run down. That the identification of the Respondent was by recognition and the same was proved. 33. It was submitted that though the victim was beaten by his uncle, there was no evidence that he was beaten into identifying the Respondent as the one who penetrated him. More so that the Respondent in his evidence did not mention DW2 to have been present when the victim was beaten by his uncle. That it is curious where DW2 emerged from. 34. It was submitted that the trial court only took the evidence of the defence witnesses and is not the one that took the evidence of the prosecution witnesses. That it therefore never saw the demeanor of the prosecution witnesses and particularly that of the victim. That the court should in its judgment have noted that it only dealt with the defence witnesses. 35. It was submitted that though the trial court said that there were contradictions in the prosecution evidence, it failed to elaborate what the contradictions were in proper detail. 36. The Appellant submitted that the prosecution had proved all the ingredients of the offence of defilement and urged this court to find so and convict the Respondent of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 5

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Analysis and determination 37. This being a first appeal, this court is required to analyze and re-evaluate afresh the evidence adduced before the trial court in line with the holding in the case of Odhiambo v Republic Cr. App No. 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”. 38. Having considered the grounds of appeal, the record of the trial court, the submissions and the law applicable, the issues that arise for determination in the appeal are: 1. Whether the charge sheet is defective, and if not 2. Whether the ingredients of the offence of defilement were proved. Whether the charge sheet is defective 39. The trial court found that the charge sheet was defective for failing to indicate the name or abbreviations of the complainant and only referred to the complainant as “a boy aged 10 years”. The court held that the omission violates the Respondent`s right to fair trial under Article 50(2) (b) of the Constitution that requires an accused person to be informed of the charge with sufficient detail so as to answer to it. That the omission of the name went to the substance of the charge and could not be ignored. That the charge sheet as drawn was fatally defective and could not be the basis of a conviction on the accused. That a conviction on the same would be prejudicial to the accused and would occasion a miscarriage of justice. The court in coming to that conclusion relied in the case of Nelson Kitese Maweu & 2 others v Republic [2008] KECA 159 (KLR) where the court held that the charge sheet was fatally defective for omitting the name of the complainant. 40. I have perused the facts in the case of Nelson Kitese Maweu & 2 others and noted that the charge sheet in that case gave the name of the complainant as PMM and the amount robbed from him as Kshs.2,000/= and the place of the robbery as Baba Ndogo, yet the evidence adduced in court of which the Appellants were convicted of showed that the complainant was one PMM (PW1) who was robbed of Kshs.18,000/ = at Yaya Inn in South B. The state in that case conceded that the Appellants were convicted of robbing a completely different complainant and at a different place from what was stated in the charge sheet. The Court Appeal for that reason found the charge sheet defective as it did not accord with the evidence adduced in court and not because of the omission of the name of the complainant. 41. It is the requirement of the law that every charge should be precise and clear as to give an accused person reasonable information of the offence that he is facing. Section 134 of the Criminal Procedure Code that gives a guide on the manner of drawing charge sheets provides as follows: “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 6

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42. A charge is therefore required to contain a statement of the offence and the particulars of the offence. The Court of Appeal in the case of Isaac Omambia v Reoublic [1995] eKLR held that: “ the particulars of a charge [form] an integral part of the charge.” 43. In Sigilani - v – Republic, [2004] 2 KLR 480 it was stated: “ The principle of the law governing charge sheet is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence.”. 44. In the present case the particulars of the offence did not inform the accused the name of the person he was alleged to have defiled. It only stated that it was a boy aged 10 years. The question is whether the omission rendered the charge fatally defective. 45. The question as to what constitutes a defective charge sheet was spelt out in the case of Yosefu and another -vs- Uganda (1960) E.A., 236. The East Africa Court of Appeal held:“ The charge was defective in that it did not allege an essential ingredient of the offence; i.e. that the skins came from animals etc, in contravention of the Act." 46. The test in determining whether a charge is defective was laid out by the Court of Appeal in the cases of Peter Ngure Mwangi v Republic and Benard Ombuna v Republic (supra). The court has first to determine whether the charge is indeed defective and if it is, determine whether the defect is one that prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 47. The charge that the Respondent was facing disclosed that he was facing a charge of defilement. The particulars of the offence disclosed that he was accused of penetrating the anus of a boy aged 10 years, though his name was not disclosed. He was facing an alternative charge of committing an indecent act contrary to section 11(1) of the Sexual Offences Act whose particulars were that he touched the anus of A.Y.A, a boy aged 10 years. 48. In my view the main charge that the Respondent was facing was defective in omitting the name of the complainant. However, the complainant was identified in the alternative charge by way of initials as he was a minor. The complainant having been identified in the alternative charge, I do not think that the Respondent suffered any prejudice by the omission to identify the name of the complainant in the main charge of defilement. 49. Besides that, the court record indicates that prior to the commencement of the trial, the court prosecutor informed the court on the 8/3/2021 that he had issued copies of witness statements to the defence. The statements enabled the Respondent to know the name of the boy that he was accused of defiling. The boy appeared in court as PW1 in the case and was cross-examined by the defence. There was no confusion in the charge that the Respondent was facing that could have prevented him from preparing an appropriate defence. He in fact offered a defence to the charge that showed that he clearly understood the charge that he was facing. 50. It is also worthy of note that the defence did not raise the issue of the defect in the charge during the trial. In the premises I find that the omission to mention the name of the complainant in the charge did https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 7

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not render the charge fatally defective nor occasion a failure of justice. The defect is one that is curable by the provisions of section 382 of the Criminal Procedure Code that provides that: 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.” 51. There was no failure of justice in omitting the name of the complainant in the charge of defilement. Accordingly, I find the trial magistrate was in error in finding that the charge was fatally defective. Whether the ingredients of the offence of defilement were proved 52. The elements of the offence of defilement that the prosecution is under duty to prove beyond reasonable doubt are proof of the age of the complainant, penetration and identification of the perpetrator, see George Opondo Olunga v Republic [2016] eKLR, 53. The trial court did not make a finding on the age of the complainant. A birth certificate, P.Exh.1 was however produced that showed that the complainant was born on 16/6/2010 which placed his age in the year 2020 at 10 years. The age of the complainant was therefore proved. 54. Moving on to the issue of penetration, Section 2 of the Sexual Offences Act defines “penetration” as: “ the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 55. It was the evidence of the complainant that the Respondent had been defiling him since when he was in class one in the year 2017. That on 24/11/2020 he picked him from where he was playing with other children and took him to an unfinished house and inserted his hand into his anus. He then gave him food. That on 23/11/2020 (?) he picked him again and took him to the same house and this time he inserted his penis into his anus. That he never told anybody about the defilement because the Respondent had threatened him. 56. The trial court dismissed the evidence of the complainant on penetration by the respondent on the ground that the prosecution did not avail any of the boys who were playing with the complainant when the Respondent picked him and took him to an incomplete house where he defiled him. That the complainant declined to implicate the Respondent as a result of which he was slapped by his stepfather, HK. That the complainant testified that he lied against the Respondent because he was slapped by HK who did not even testify in the case yet he is the one who took the Respondent to the police station. Additionally, that the prosecution did not displace the Respondent`s alibi defence. More so that there were numerous contradictions in the evidence of the prosecution witnesses. Consequently, the trial court held that the case was not proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 8

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57. It is my duty to re-evaluate the evidence adduced by the prosecution witnesses and weigh it against the Respondent`s defence and the law and determine whether the trial court reached the right decision in acquitting the Respondent of the charge. 58. The clinical officer who examined the victim herein, PW5, found him with multiple scars on the anal orifice and weak muscles at the said place. That he could easily insert his fingers into the boy`s anus. He formed the opinion that the boy had been defiled 59. In my view, the finding of the clinical officer corroborated the evidence of the victim that he had been penetrated into his anus. The fact that the clinical officer found him with weak muscles of the anus opening gave reason as to why the victim was passing stool without control which must have been as a result of penetration into the anus for a considerable period of time. In view of this evidence, I find that the victim herein had been penetration into his anus. The question is whether the Respondent was identified as the person who penetrated the victim. 60. It was the evidence of the mother to the victim PW2 that the complainant refused to tell her as to what was causing him to pass stool on his panties. That he eventually told her that it is a person called Mohamed who was defiling him. She took him to her sister and then to the police. He opened up to the police and he went to show them the house where the acts of defilement had taken place. They went and found the house was an old one written “Taifa”. That after they returned to the police station the Respondent was brought to the station by her husband, HM. She admitted that her husband slapped the victim at the police station. 61. The complainant in his evidence stated that when the Respondent was brought to the police station, he looked at him with very scaring eyes and he got very scared. That his step father H slapped him while demanding that he mentions the person who defiled him. That the Respondent was there when he was slapped. 62. It is clear from the evidence that the step-father to the victim called H is the one who arrested the Respondent and took him to the police station. A question then arises as to the person who identified the Respondent for the step-father to the victim to have arrested him. 63. The mother to the victim PW2 and the investigating officer PW4 told the court that while they were going away after the victim showed them the house where he had been defiled, the victim saw a man walking and told them that he is the Mohamed who had been defiling him. However, the complainant in his evidence in court never talked of such an incident. He in fact never told the court that he went to show the police the house where he was defiled. Both the mother to the victim PW2 and the investigating officer PW5 admitted in cross-examination that they did not mention the incident in their written statements. Though the statement to the police of the complainant`s aunt PW3 states that the complainant on the 6/12/2020 escorted her to the scene where the offence was committed, she denied in court that that was indeed the case. Whereas the investigating officer said that she was with another police officer called PC Dama and the step father to the complainant HM when the complainant showed them the Respondent, she did not explain why they did not follow him up and arrest him. It is therefore doubtful whether the victim took the police to the scene and that he identified the Respondent to the police before the Respondent was arrested by H. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 9

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64. It is admitted by both the victim and his mother that the victim was beaten by his step-father at the police station after the step father delivered the Respondent at the police station. The evidence of the complainant was as follows: ....my step father HM…slapped me. He threatened me I mentioned that person who defiled me. He was there when I was slapped”. 65. If then the victim was beaten and threatened by his step-father so as to mention the Respondent as the person who defiled him, was he telling the truth that the Respondent is the person who defiled him? Why was he reluctant to mention the Respondent such that it took the beating from his step-father for him to mention the Respondent? Was the reluctance out of fear of the Respondent or was it because he was lying against the Respondent? 66.. The step-father to the victim is the one who arrested the Respondent and took him to the police station. He seems to have been attending the court hearings and was in court when DW2 testified in the case. There is no reason why he was not included as a witness in the case yet he was the one to tell the court as to why he arrested the Respondent. He should have told the court whether he forced the victim to implicate the Respondent as the person who defiled him. 67. The victim herein was the sole witness identifying the Respondent as the person who defiled him. He was a child of tender years. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for so finding. Though the trial magistrate did not make a clear finding on the demeanor of the complainant victim, I on my part do not find sufficient evidence that the victim was telling the truth. The victim is not the one who led to the arrest of the Respondent. He did not come out clearly whether his identification of the Respondent was genuine or it was out of coercion by his step-father. 68. I have weighed the Respondent`s defence against the evidence adduced by the prosecution. In view of the deficiency of the prosecution evidence as outlined above, the defence cannot be dismissed outrightly. There were no sufficient reasons to believe the evidence of the complainant that the Respondent is the person who defiled him. It was thus not safe to convict on the sole evidence of the victim herein. 69. For the aforesaid reasons, I find that the trial court did not err in acquitting the Respondent of the offence. 70. The upshot is that I do not find merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF APRIL 2026. J. N. NJAGI JUDGE In the presence of: Mr. George Kariuki for Appellant Miss Mkongo for Respondent Respondent – Present virtually Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5988/eng@2026-04-29 10

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