Simon Irungu Macharia v Republic

information that may disclose the identity of the child is not revealed by using initials in the charge sheet and any other public document, including statements and publications. 4. The foregoing is in line with section 94 of the Children’s Act provides as follows: Where in any proceedings relating to an offence against or by a child, of a sexual nature, a person who, in the opinion of the Court, is under the age of eighteen years is called as a witness, the Court shall direct that such witness be protected by one or more of the following measures- 5. (a) allowing such witness to give evidence under the protective cover of a witness protection box; (b) directing that the witness shall give evidence through an intermediary pursuant to Article 50(7) of the Constitution; (c) directing that the proceedings do not take place in open Court; (d) prohibiting the publication of the identity of the complainant or of the complainant’s family, including publication of any information that may lead to the identification of the complainant or the complainant’s family; (e) any other measure which the Court deems just and appropriate; or (f) any other safeguards provided under the Witness Protection Act, 2006 (No. 16 of 2006) or any other written law It is my sincere hope that this is the last that the breach will occur. Anonymising is not option but peremptory. This was also the position under Section 76(5) of the repealed Children Act. it provided as follows: In any proceedings concerning a child, whether instituted under this Act or under any written law, a child’s name, identity, home or last place of residence or school shall not, nor shall the particulars of the child’s parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise. 6. The Appellant was arraigned on 18.09.2017 and he denied the charges. A plea of not guilty was consequently recorded. The Trial Court considered the case and rendered the Judgement. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to life imprisonment. 7. The Appellant, aggrieved, lodged this Appeal challenging both conviction and sentence. It was his case that the ingredients of the offence were not proved beyond reasonable doubt and the sentence imposed was excessive. _Evidence 8. At trial, PW1 was JN, the minor’s mother. The minor was born on 14.9.2017. On 14.9.2017 at 6.30pm, the minor was coming from school. She told PW1 that she was in pain. She saw blood in the private parts. Pant and dress had blood stains. The minor then said she had been defiled by the Appellant, who pulled the appellant to the bush and defiled her. she knew the appellant as baba EXV. They reported to Rwathia Police post and were referred to Kangema Police Station to report. In cross examination, she did not fix the Appellant. She stated what the minor unraveled to her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 2

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9. On cross examination she stated that she was on a private road. the minor told her that Baba EXV was called Irungu. the appellant had a knife. on being recalled PW1, indicated that the minor was born on 14.06.2006. she recalled that on 14.09.2017 the minor was coming from school and told her that she was feeling pain. on checking, she saw blood in the private parts. they proceeded to Rwathia police station and were given letters. her panties were blood stained. she was told by them in that it was Irungu who defiled her. she pointed out that they are not related to the appellant. she was given a P3 form from Kangema Sub-County hospital the black and red stained panties was identified. 10. On cross examination she stated that the minor passed though the bush. she denied framing the appellant. the appellant tried to defile the minor earlier. 11. PW2 was the minor. After voire Dire, the court ordered that the minor testify and give unsworn evidence. the complainant testified that the appellant held her and did tabia mbaya in the bush. She stated that she was in class 7. she stated that the appellant pulled her when she was heading home and took her to the bush. she was wearing her pantie. the appellant penetrated her private parts which she uses to urinate. She noted that it is the appellant who penetrated her. they went to hospital. 12. On cross examination, she stated that she was alone in the pathway when the appellant accosted her but no one came to her rescue. He stated that the appellant was known to her for a long time. This happened away from home. He identified the appellant on the dock. the appellant undressed her and stuffed her mouth with leaves. 13. on reexamination she stated that she carried her panties with her. 14. The matter took tuns and twists after this between 18.04.2018 and 14.08.2019. the appellant requested that PW1 and PW2 be recalled. 15. PW3 was Peterson Chomba. He was the clinical officer. He filed the P3 Form. there were no physical injuries. there was fresh blood on the groin area. There was blood on the opening of the cervix. The hymen was freshly broken. There was evidence of penile penetration. In cross examination, it was his case that there was evidence of vaginal penetration using penis. 16. PW4 was No. 58xx5 PC Isaiha Jilo attached to Kangema Police Station. The was reported and he was instructed to take up investigation on 14.9.2017. It was his case that following investigations, he reasonably believed that the Appellant was culpable and he arrested the Appellant to face the charges before court. in cross examination, the members of the pubic arrested the Appellant and beat him up. The chief escorted him to Rwathia police post. Corporal Mwangio visited the scene. 17. The Appellant also testified on oath as DW1. He testified that on the material day he had gone farming as usual. At 1 pm, they had gone to fetch Nappier grass. He called one Wa Damary to send a motorbike at 5pm to load the Nappier. They entered the bar and Wa Damary paid their wages. They entertained themselves and drunk. He was with one Nyaga. He waited to watch news in the bar. He was called outside at 7.45 pm and when he went, the chief had come who arrested him. He was framed by the assistant chief who owns a bar and had warned him against entering it. The assistant chief had not testified yet he recorded a statement. 18. DW2 was Geoffrey Nyaga Kanene. He was neighbour of the Appellant. He spent the whole day on 14.9.3027 with the Appellant working. They worked from 1 pm to 5 pm. They thereafter went to the bar and parted at 630pm. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 3

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Submissions 19. The Appellant filed undated submissions together with amended grounds of appeal. it was submitted that the trial court did not consider disagreements between the Appellant and the assistant chief. He coted Eliud Waweru v Republic (2019)e KLR to support the existence of grudges. 20. It was also submitted that the offence was not proved beyond reasonable doubt. He cited Fappyton Mutuku Ngui v Republic (2011)e KLR. 21. Je also submitted that essential witnesses were not called and relied inter alia on Joseph Obondo v Republic HCCRA No. 91 of 1999. It was also his submission that his defence was not considered 22. Lasty on sentence, he submitted that the sentence was harsh and excessive as to infringe his constitutional right to fair hearing. To anchor this, he cited Julius Kitsao Munyeso v Republic COACRA No. E012 of 2921. 23. The Respondent filed submissions dated 8.12.2025. the Respondent submitted that all the elements of the offence were proved to the required standard. 24. It was submitted that the sentence imposed was lawful. Reliance was placed section 8(2) of the sexual offences act that the sentence was life imprisonment and so was proper. Analysis 25. 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. 26. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 4

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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. 27. 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. 28. 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. 29. 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. 30. 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/2026/6368/eng@2026-05-12 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. 31. 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. 32. 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. 33. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: Defilement 34. (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. This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 2. 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; 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. 35. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 36. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 6

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then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: “ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:“ 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.’” 37. The parameters that were to be proved in cases such like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 38. Among all the matters, the court has handled, this one present, the most difficult scenarios. The appellant has been in custody of 10 years pursing this matter. Of all the three elements that the court is to decide, this case turns on the age of the minor. She was a child in special school. She stated that she was 11 years. She was also in standard 7. The mother did not at first know the age of the minor. She was shown the baptism card. The card was obtained on 1.10.2017, long after the matter was in court. Baptism card can be used as evidence of age. However, a card obtained after the offence occurs, it has very low probative value. 39. 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. 40. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 7

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41. 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. 42. 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 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. 43. The question of age was treated in a very cavalier manner. Where there was doubt, age assessment was necessary. this was not done. given that this was a person living with disabilities, it is not fathomable that she could be in grade 7 at the age of 11. however, we cannot guest her age. the card was bogus. the witnesses did not link the card to any baptism that occurred no 1.10.2017, just weeks after the offence. this then brings me to infer that had the birth certificate or notification of birth was produced, it will have been adverse to the prosecution. 44. The second issue was use of an intermediary for the complainant to testify. intermediary is allowed under the law. section 2 of the Sexual Offences Act provides as follows: Means a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children's officer or social worker; 45. The intermediary was the mother, who just testified as PW1. She could not communicate any other answer than what was known to her. Therefore, it is not easy to classify the evidence. This is more so when the of what happened to the panty. This therefore removes the evidence from the protection of section 124 of the Evidence Act.. 46. unfortunately, with soiled evidence where it is the mother who basically identified the assailant, it is noted that the blood was introitus. there was normal labia majora and labia minora. The court noted that whether the penetration was by a penis or something else is for the court to determine. 47. The police indicated that they found the pantie at the scene. One of the most bizarre finding was that blood was introitus. The medics ought to have ruled out menses, given that the labia majora and labia minora were normal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 8

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48. The court relied on the question of alibi as having been raised late. This cannot be true. First, the appellant did not raise an alibi. He accounted for his day. However, the duty to prove the falsity of an alibi still remained with the prosecution. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada explained the standard of proof as doth:The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt. 49. If evidence was tendered that was surprising to the state, they had a chance under section 212 of the Criminal Procedure Code to call for rebuttal evidence. the section provides as follows: If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 50. The question of the rights of the prosecution to receive in advance defence evidence as addressed in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows: So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. … That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 9

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to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: If you rattle a snake, you must be prepared to be bitten by it. …. We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers. They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court: to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. – see section 3A. There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate . But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 51. The appellant was not under duty to disclose his defence before being put on the defence. In any case, the State has a chance to call rebuttal witnesses. The case for the appellant from the cross examination was that he was not there. It used to be the position that alibi had to be disclosed in advance. However, non-disclosure is not fatal. The court failed to displace the defence given. 52. The last question is whether there is penetration. Given the prior finding, it is not necessary to deal with this issue. Given failure to proof age and the identity of the perpetrator, it is my considered view that the appellant must be given a benefit of doubt. The prosecution failed the complainant by failing to have a proper intermediary and to have the age of the minor. In the circumstances, the appeal is allowed. 53. Regarding sentence, it is impossible to know a proper sentence in view of doubt on age. Unfortunately, the end result is that the prosecutorial mistakes have to lead to where they have led, the acquittal of the appellant. 54. However, having allowed an appeal on conviction, the issue of sentence is moot. Order 55. In the circumstances, I make the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 10

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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. Right of appeal 14 days. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 12TH DAY OF MAY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant Present in person PC Pius Kimathi at Nyeri Maximum Mr. Kihara for the Respondent Court Assistant – Michael / Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6368/eng@2026-05-12 11

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