Dmm v Republic

3. 3. That the learned trial magistrate misdirected herself in law and fact by admitting hearsay evidence from PW2 and PW3, the complaint’s parents who merely relayed what they were told by the complainant without witnessing any act of defilement. 4. That the learned magistrate erred in law by allowing and relying on evidence admitted under section 33 (b) of the evidence act from witnesses who were not primary investigators or the clinical officer who examined the complainant, thus prejudicing the appellant’s right to crossexamine the actual witnesses. 5. That the prosecution failed to call essential witnesses, including the Government analyst who received the DNA samples and the investigating officer who handled the case, creating gaps fatal to the prosecution’s case. 6. That the learned magistrate failed to appreciate that the medical evidence tendered did not support recent defilement, as the genitalia were found normal with no injuries and hymen was old and healed, suggesting no fresh act of defilement as alleged. 7. That the learned magistrate failed to find the investigation was shoddy and incomplete, as no scene of crime was visited and no tangible exhibits were recovered to link the appellant to the alleged offence. 8. That the learned trial magistrate erred in law by proceeding with the trial without ensuring full disclosure, as the record does not show that the prosecution supplied the appellant with witness statement and documentary exhibits, contrary to Article 50 (2) (j) of the Constitution. 9. That the trial court erred by disregarding the appellant’s plausible defense, including his voluntary surrender to the police, which is inconsistent with the conduct of guilty person. 10. That the conviction was against the weight of the evidence and the sentence imposed was therefore unlawful, unsafe and unwarranted. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case. Case for prosecution 4. The case for prosecution was that the complainant was at the material time a class 6 pupil aged 13 years. She was living with her parents, her mother PW2 and her father PW3. The Appellant was their co-villager. 5. That on the 2/12/2023 the Appellant went to the home of the complainant and found the complainant and her mother at home. The complainant was washing clothes outside the home. The Appellant borrowed drinking water from the mother of the complainant. She entered into her house to fetch him the water. The Appellant then gave a hand signal to the complainant to meet him in a thicket near her home. Her mother brought the Appellant the water. He took it and went away. On getting to the road, he pointed to the complainant by his index finger the direction she was to meet him in the bush. After some time, the complainant followed the direction the Appellant had pointed and she found him waiting for her in the bush. He asked her to lie on the ground. She did so and he undressed her. He then undressed himself and lay on top of her. He inserted his penis into her vagina. After he finished, he dressed up and left. She also dressed up and left. On the way back home, she met with her mother who inquired where she had been. She disclosed to her what had happened. Her father was called from the home of a neighbour called Nyabuto. He went home with the said Nyabuto. She was questioned. She took them to the scene. Her father then called the mother to the Appellant and she went to her home. She was briefed. The others took her to the scene The complainant was then https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 2

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taken to Witu health centre where she was examined and found to be 5 months pregnant. She gave birth as the case was going on in court. It was the evidence of the complainant that the Appellant had defiled her before the above stated date. 6. The mother to the complainant PW2 confirmed that the Appellant went to her home and she gave him water. That after he went away the complainant soon after went to the toilet but delayed in going back. She looked for her in the toilet but did not find her. She saw her footprints leading towards the shamba of a neighbour. She then saw the complainant coming from the bush of her neighbour`s farm. She asked her where she was coming from. She kept quiet. They went home and she made further inquiries. The complainant said that she had ben with the Appellant and that he had defiled her in the bush. PW2 called her husband from the home of their neighbour. She told him what the complainant had told her. They reported to the nyumba kumi elder, Mr. Nyambuto and to the Appellant`s mother who all went to their home. They went to the scene of the incident. They took the complainant to hospital where she was examined and found to be pregnant. They reported to the police. The complainant was issued with a P3 form. 7. The father to the complainant PW3 testified that on the material day at 10.30 am he was leaving his homestead when he met with the Appellant entering his homestead. He, P3, went to the home of a neighbour. That after some time his wife went to call him. He went back home with her. She told him that the complainant had been defiled by the Appellant. The complainant took them to the scene of the incident in the bush. They called Nyambuto and took him to the scene. They called the assistant village headman and the Appellant`s mother who is the village headwoman. They went to their home and they took them to the scene. He took the complainant to Witu Health centre. On the following day he took her to Witu police station. 8. A clinical officer at Witu health centre, Mohamed Hamisi PW4, testified that the complainant went to their medical facility on 2/12/2023. A pregnancy test was done that turned out positive. On 4/12/2023 she went back to the facility with her parents and a police officer. A scan was done that confirmed that she was 21 weeks pregnant. Her hymen was absent. A clinical officer called Randu Kithi completed her P3 from and Post Rape Care form. 9. The case was investigated by a police officer who left Witu police station and handed over the investigation file to IP Onesmus Buya Mwaro PW5. The Appellant had already been charged with the offence. During the hearing of the case in court the mother to the complainant identified the complainant`s birth certificate as MFI.5. IP Mwaro PW5 produced it in court as exhibit, P.Exh.5. The clinical officer PW4 produced the treatment notes, the Post Rape Care form and the P3 form as exhibits, P.Exh. 1, 2 and 4 respectively. The birth certificate indicated that the complainant was born on 12/9/2010. Defence Case 10. In his defence, the Appellant stated in a sworn statement that the complainant and her parents are his neighbours. That on 2/12/2023 he was on the road when he met with the father to the complainant. They exchanged greetings. He entered into his home and drank water. He went away and went to his home. He had an appointment with a lady called Mama Kahindi for him to take her to Kipini to buy fish. The lady arrived and he took her to Kipini. He returned home at 5pm. He was informed by a person called Mogaka that the parents to the complainant had gone to the police. He was called by the area chief and informed that he was required at Witu police station. He went there and found the victim and her parents. He was placed in the cells. He was charged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 3

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11. The appeal was canvassed by way of written submissions of the Appellant and those of the prosecution counsel. Appellant`s submissions 12. The Appellant submitted that despite DNA samples being taken from the parties and sent to the government analyst, the DNA report was not produced in court. That failure to produce the same can only lead to the conclusion that it was an attempt to suppress material evidence that was likely unfavourable to the prosecution case. He submitted that the case was not proved beyond reasonable doubt. Reliance in this respect was made in the case of Julius Kiuuga M’Rukaria v Republic (2017) eKLR where the court observed that: Where the prosecution anchors its case on a resultant pregnancy, the absence of DNA evidence renders the entire case speculative and unproven. 13. It was accordingly submitted that the deliberate omission to produce the DNA report fatally undermined the integrity of the trial and rendered the conviction unsafe. 14. The Appellant submitted that the evidence of the complainant was that of a child of tender years and required corroboration in material particulars before it could be made the basis of a conviction. That the trial court failed to take the evidence of a child of tender years with the necessary caution. That the narration by the complainant was not probable and the evidence was not corroborated by medical evidence or any other independent evidence. That there were material contradictions in the evidence of the complainant that created doubt as to whether the offence occurred. Further that her failure to disclose the defilement immediately it occurred casts doubt on the credibility of her account. That this court should find that the evidence of the complainant was unreliable and incapable of sustaining a conviction. 15. The Appellant submitted that the medical evidence in this case was not produced in court by the maker of the documents and that the investigating officer did not testify in the case. It was submitted that the evidence adduced in court by PW4 and PW5 amounted to hearsay and was incapable of sustaining a conviction. That he was in the case deprived the right to cross-examine the witnesses when the prosecution substituted key witnesses without adequate justification. 16. It was submitted that the investigating officer did not visit the scene and neither did he make effort to preserve potential forensic evidence such as the complainant`s clothing. That the investigations were therefore shoddy. Further that the Appellant was not supplied with copies of witness statements and documentary exhibits which constituted violation of Article 50(2) (j) of the Constitution of Kenya, 2010. The Appellant urged the court to allow the Appeal. Respondent`s submissions 17. Whereas the Respondent gave the correct facts of the case, the subsequent submissions did not fit with the facts of this case. The submissions are definitely in respect of another case and not this one. The submissions for the Respondent are thereby not relevant to this appeal. Analysis and determination 18. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 4

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the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that: “ …the duty of the first appellate court is to analyse and reevaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision”. 19. The appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006. The sections provide as follows: “ 8. 20. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) …… (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. It was the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt. The ingredients of the offence of defilement are: proof the age of the victim, penetration and the proper identification of the perpetrator - see George Opondo Olunga vs. Republic [2016] eKLR. 21. The age of the complainant was proved by the birth certificate that was produced in the case that showed that she was born on 12/9/2010 which placed her age in December 2023 at 13 years. The age of the complainant was therefore proved. 22. The Appellant faulted the trial magistrate for allowing the clinical officer PW4 to produce the medical documents in court when he was not the maker of the documents. 23. Section 33 of the Evidence Act provides for situations when documents can be produced in court by a person who is not the maker. The section provides as follows: 33. Statement by deceased person, etc., when Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases— …………….; when the statement was made by such person in the ordinary course of business….. or in the discharge of professional duty; …… 24. The medical documents in this case - the treatment notes and the P3 form - were made by a clinical officer called Kithi Randu and were produced in court by a fellow clinical officer called Mohamed Hamisi PW4. It was the evidence of PW4 that he was working at the same health centre with Mr. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 5

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Randu who happened to be on leave at the time he, PW4, testified in court. The court record indicates that before the documents were produced in court, the court prosecutor made an application under section 33(b) of the Evidence Act for PW4 to produce the documents on behalf of Mr. Randu who was at the time on leave, The prosecution in seeking to have the documents produced by PW4 submitted that the documents were made in the cause of business and discharge of a professional duty. The Appellant was then asked whether he objected to the application and he replied that he did not have any objection. The witness proceeded to produce the documents. 24. In the case of Republic v Teresia Wairimu Thuo (2019) 3KLR, the court restated the holding in Soki v R (2004) 2 KLR 21 where the Court of Appeal held that: “ Before we allow this appeal, as we must do, we need to comment on the manner PW3 (Exh 1) was produced and the way it was dealt with by the trial Court and the superior Court. Section 77 (1) allows any document purporting to be report under hand of a government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same could be produced by a police officer as was done in this case provided the accused does not object. It is however necessary that in a case such as this where an accused person is not represented by a counsel, that the accused be made aware of the consequences of the P3 or such other documents being produced by the police in the absence of the maker of such a document. The Court should explain to the accused his right to insist on seeking to cross-examine the maker if he so wishes. In this case, the appellant, should have been made aware that he could seek to cross examine the maker of P3 if he so wished. That was not done but we make haste to add that in our view, nothing turns on that omission as in any case the ingredients of the offence of robbery were satisfied even if injuries were not proved.” 26. It is clear that the consent of the Appellant herein was sought before the documents were produced and he agreed to the witness producing the documents. The documents were thereby procedurally produced in court. The Appellant cross-examined PW4 after he produced the documents and the witness ably answered all the questions put to him by the Appellant. None of the questions indicated that it was necessary to call the maker of the documents himself to produce the documents. The Appellant was not prejudiced by the production of the medical documents by PW4. This ground of appeal is therefore dismissed. 27. The Appellant further argued that failure to call the investigating officer and substituting him with PC Onesmus Baya, PW5, left the court with no credible evidence linking him to the offence. More so that the evidence of PW5 was hearsay. 28. I have examined the evidence of PC Baya PW5. His evidence was on how the investigating officer, PC Mengich, investigated the case. He said that the officer was transferred to Kericho. Though some aspects of the evidence of PC Baya such as that “on investigation it was discovered that the accused was in a relationship with the victim since February 2023” amounted to hearsay, other aspects of his evidence such as that the Appellant went to the complainant`s home on 2/12/2023 was corroborated by the prosecution witnesses and the accused himself. I have gone through the judgment of the trial court and noted that the Appellant was not convicted on any hearsay evidence adduced by PC Baya PW5. There would be miscarriage of justice if the conviction was based on any hearsay evidence but I do not find any such basis. Though it was necessary to call the investigating officer himself to testify in the case, the failure to do so did not occasion a failure of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 6

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29. The Appellant argued that the prosecution failed to produce the DNA report in court despite assurance by the prosecution that the same was ready. That neither was the government analyst called to produce the report. 30. PC Baya PW5 testified that samples for DNA sampling were taken at Mpeketoni sub county hospital and an exhibit memo was filled. That they took the samples to the government analyst Mombasa but they thereafter received a letter from the government analyst, P.Exh.7, stating that “the analysis was done, but due to challenges of the samples we could not complete the results. We therefore request the in-charge Mpeketoni police station to provide us with fresh samples from the complainant and that of the minor in order to complete the analysis and prepare the report of the same”. 31. I have perused the letter from the government analyst P.Exh.7 and accordingly note that no complete DNA analysis was done by the government analyst. There was no evidence that fresh samples were provided to the government analyst as requested in the letter. It is therefore not true as submitted by the Appellant that the prosecution deliberately refused to produce the DNA report as no such report was prepared by the government analyst. 32. The Appellant submitted that the medical evidence tendered in the case did not support recent defilement as the genitalia was found normal with no injuries and the hymen was old and healed which suggested that there was no fresh act of defilement as alleged. Additionally, that the evidence of the complainant was not corroborated by medical evidence or by any independent witness. 33. Indeed, the complainant was not found with any fresh injuries in her genitalia. Consequently, there was no medical evidence to support the defilement on the complainant by the Appellant. The question was whether the conviction on the Appellant was tenable without there being a DNA report availed in the case or the evidence being supported by medical evidence. 34. The trial court in dealing with the issue of the DNA held that while a DNA test would have aided the prosecution in proving the case, what was before the court for determination was defilement of the complainant and not determination of the paternity of the child. That in the premises a DNA test was not necessary. The court in that respect relied on the case of Isaac Mutinda Mutua v Republic, Nyeri Criminal Appeal No. 181 of 2017 where the Court of Appeal observed that: The appellant appears to think that since there was no proof that he was responsible for CWM’s pregnancy, then penetration on his part was not proved. We hasten to state, however, that it matters not that the victim could have been penetrated by somebody else and impregnated before the date in question. What was in question was whether the appellant defiled the child on the date in question. A DNA test was not necessary as the issue was not the paternity of the baby CWM was carrying. 35. It is trite that the offence of defilement can be proved by other ways other than by way of medical evidence. The Court of Appeal in the case of AML vs. Republic (2012) eKLR, authoritatively stated that: “ The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.” In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that: “The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 36. Besides that, section 124 of the Evidence Act allows a court in sexual offence cases involving children to convict on the sole evidence of the child if the court is satisfied that the child is telling the truth and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 7

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gives reasons for so finding. This was emphasized by the Court of Appeal in George Kioji v Republic, Criminal Appeal no. 270 of 2012 Nyeri, where the court stated that: “ Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,” 37. In the premises, the failure to conduct a DNA analysis in this case was not fatal to the case. Neither was the fact that there was no evidence to support fresh act of defilement an issue as defilement could be proved by other ways such as by the oral evidence of the victim or by circumstantial evidence. More so and by virtue of section 124 of the Evidence Act, it was not necessary for the evidence of the complainant to be corroborated by any independent evidence if the trial court was satisfied that the complainant was telling the truth. In the case of J.W.A. v Republic (2014) eKLR the court stated that: The appellant contend that the evidence of the complainant was not corroborated. We note that the appellant was charged with a sexual offence and the proviso to Section 124 of the Evidence Act clearly states that corroboration is not mandatory. The trial court having conducted a voir dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error of law on the part of the High Court in concurring with the findings of the trial magistrate. 38. The Complainant herein narrated how the Appellant went to her home during day time on 2/12/2023 and signaled her to meet him in a nearby bush. That she followed him to the bush where he defiled her. That as she was returning back home her mother PW2 saw her and inquired where she was coming from. They went home and she disclosed what had happened. It was her evidence that the Appellant had defiled her before that date. 39. The evidence of the complainant that she met with her mother when she was coming from the bush was corroborated by her mother PW2. The Appellant himself admitted to have gone to the home of the complainant on the said morning but he denied to have thereafter defiled the complainant in the bush. The trial court found that the complainant was a credible and consistent witness and believed that she was telling the truth that the Appellant defiled her in the bush on 2/12/2023. The court also believed that she was telling the truth that he had defiled her before that date. 40. I have on my part re-examined the evidence adduced against the Appellant in its entirety and I have no doubt that the trial court came to the correct finding that the Appellant defiled the complainant in the bush on 2/12/2023. The mother to the complainant PW2 corroborated the evidence of the complainant that the complainant disappeared from home a short time after the Appellant had left their home. She PW2 started to look for her and thereafter saw her coming from the bush of a neighbour`s shamba. The circumstantial evidence that the complainant disappeared from home soon after the Appellant left the complainant`s home and that PW2 saw her coming from the bush of a neighbour`s shamba lends credence to the evidence of the complainant that the Appellant had indeed penetrated her in the bush where her mother saw her coming from. More so the complainant took her parents PW2 and PW3 to the scene of defilement in the bush. There was no reason to disbelief all this evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 8

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41. The complainant testified that the Appellant summoned her to the bush by way of a hand signal. It is not possible that the complainant would have understood the hand signal if there was nothing going on between them before that date. The fact that she followed the Appellant to the bush after the hand signal lends credence to her evidence that they had previously engaged in sexual intercourse before that date and she therefore understood that the hand signal was an invitation for them to go and have sex in the bush. The complainant was thereby telling the truth that the Appellant had previously penetrated her before 2/12/2023. 42. The Appellant submitted that the prosecution evidence was riddled with contradictions. That failure by the complainant to immediately disclose the alleged defilement casted doubt on her credibility. That the trial court failed to consider his defence nor did it appreciate that his conduct was consistent with his innocence in that he voluntarily presented himself at the police station upon learning of the report by the complainant`s parents. He relied on the case of Onyango Oloo v Republic (2016) eKLR where the High Court observed that the accused`s calm and cooperative demeanor upon accusation was a material consideration pointing to possible innocence. 43. The Appellant did not point out any material contradictions in the evidence of the prosecution witnesses that would have shown that the prosecution evidence was doubtful. 44. On the submission that the trial court did not consider his defence, the judgment of the court shows that the court considered the Appellant`s defence and found it a mere denial that did not dislodge the water tight case advanced by the prosecution. More so that there was no bad blood between the complainant and her parents and the Appellant that would motivate them to lie against him. 45. I find the reasons given by the trial court for believing the prosecution evidence and dismissing the Appellant`s defence to be plausible. Indeed, the prosecution witnesses did not have reason to lie against the Appellant. The Appellant did not in his defence proffer any reason why the witnesses would be lying against him. That he took himself to the police did not in the circumstances of the case show innocence on his part. I am in agreement with the trial court that the Appellant`s defence as it relates to the issue of defilement was a mere denial without any figment of truth in it. The Appellant`s defence was rightly dismissed in face of the overwhelming evidence from the prosecution. 46. The Appellant argued that the trial court proceeded with the trial without ensuring that there was full disclosure of the evidence by the prosecution as the record does not show that he was supplied with witness statements and documentary exhibits. I have perused the proceedings of the trial court and noted that the court on the plea day on 6/12/2023 made an order for the prosecution to supply the Appellant with copies of witness statements and documents that they were to rely on in the case. The Appellant never thereafter complained that the order of the court was not complied with. When the case came up for hearing on 2/5/2024 and the prosecution said that they were ready with three witnesses to testify, the Appellant never raised the issue of not having been supplied with the said documents. He instead told the court that he was ready with the hearing. Having not raised the issue during the hearing, the presumption is that he was supplied with the documents. 47. In view of the foregoing, I find that the trial court properly considered and evaluated the evidence and came to the correct conclusion that the charge of defilement was proved against the Appellant to the required standard of beyond reasonable doubt. The Appellant`s defence was rightly rejected. Consequently, the appeal lacks merit and is thereby dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH APRIL 2026. J. N. NJAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 9

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JUDGE In the presence of: Miss Mukongo for Respondent Appellant- present virtually at G.K. Prison Malindi Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6036/eng@2026-04-29 10

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