Cmm v Republic

which the minor’s mother had with the Appellant who was her boyfriend. The court was also blamed for imposing an excessive sentence. Evidence 6. PW1 was the minor. She testified that she was 13 years. She was in [Particulars Withheld] primary school. On 9.6.2024, she had removed clothes from the hanger. She had put them on the bed. The Appellant was her step-father. He came in the house where she was. He held her and put her on the bed. He took the pillow and put it on her face. He removed her pant. He opened his zip. He put his penis in her vagina. After, he went away. Her mother came at 7 pm. P and R informed her mother. She had known the Appellant for 2 months. He had not done this on her before. It was her first time. Her mother and P took her to the police station and thereafter hospital. 7. In cross examination, it was her case that he shielded her mouth using a pillow and she could not scream. There were no people within the compound. The Appellant disagreed with the minor’s mother and he went away. 8. PW2 was the minor’s mother, VN. On 9.6.2024, she went to the shamba at 3.00 pm. She left the Appellant in the house. She came back at 700 pm. P told her that the Appellant had sex with the minor. She checked the minor’s private parts and confirmed. They took the minor to the police station. The Appellant came back at 8.00 pm and was arrested. 9. PW3 was the Clinical Officer, Judith Oloo. On 10.6.2024, she examined the minor. She had lacerations on the genitalia at 6.00 O’clock. She had white discharge. There was presence of spermatozoa. 10. PW4 was No. 10xxx Sergeant Viola Sitingi of Sebania Police Station. Upon analyzing the medical information and the narration by the minor, the Appellant became the apparent suspect and so he was arrested. 11. The Appellant also testified on oath as DW1. He testified that he was arrested on 8.6.2024. He did not defile the minor. The minor’s mother was her girlfriend. She had a grudge with him. Submissions 12. The Appellant filed undated submissions. He described his bad relationship with the minor’s mother which led him to move out. He was illiterate and did not understand the English language through which the proceedings were conducted. It was also submitted by the Appellant that the languages used in trial prejudiced him. He cited Article 50 (2) (g) and (h) of the constitution. The Appellant also submitted that penetration was not proved. 13. The Respondent did not file submissions. The matter was adjourned to have them filed on the CTS but it was all in vain. The state indicated that they had filed submissions. Analysis 14. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 2

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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. 15. 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 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. 16. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the pRcution 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. 17. Brennan addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that: The accused, during a criminal pRcution, 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. 18. 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: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 3

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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. 19. 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 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. 20. 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 pRcution 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. 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. 21. 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 pRcution 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 pRcution or the prisoner, as to whether [the offence was committed by him], the pRcution 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 pRcution 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.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 4

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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 pRcution 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. 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 pRcution 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.” 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 is 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 5

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26. PW1 and PW3 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 as: 28. 29. 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. (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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 6

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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, it was 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 birth certificate. The minor was born on 1.7.2010. I find no basis to disregard the birth certificate that was produced in evidence and find that age was proved to the required standard. The Court of 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. 33. 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 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…. 34. Identification was by recognition as the Appellant had lived with the minor’s mother as her boyfriend, in the same house the minor lived. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 7

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35. On penetration, PW1 testified that the Appellant penetrated her genitalia. She was clear and her testimony justified her assurance of truthfulness in the voire dire. The incident happened in the house she resided. The Appellant did not deny having been in the house on the material day even though his defence was that he had disagreements with the minor’s mother and had moved. Whereas the burden remained with the pRcution, a plausible defence by the Appellant would have far reaching consequences in opening up weakness in the pRcution’s case but it did not. 36. The sentence given was the minimum statutory sentence and I see no manner in which the trial court can be said to have granted an excessive sentence. In the circumstances the appeal against the conviction and sentence is dismissed. Determination 37. In the upshot I make the following final orders: a. This appeal is dismissed. b. The sentence of 20 years shall run from 9.6.2024, the date of arrest. c. 14 days right of appeal. d. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF APRIL, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara for the State Cpl. Hillary Cheboi at Kisumu Maximum Prison Court Assistant – Michael/Martin/Osoo https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6015/eng@2026-04-29 8

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