Boaz Kipkemboi v Republic

doubt. The result raised the accuracy and ‘genuiness’ of her complain, as it implied she had other alleged sexual intercourse with other persons creating doubt on penetration and identification. The benefit of this doubts (sic) should have been passed on to the Appellant through an acquittal. Reliance is on Simon Gichuki Maina Vs Republic (2016) eKLR. Appellant was set free on doubt created on the involvement of Appellant in the defilement case he was facing. ii. That the Learned trial Magistrate erred in law and fact by not establishing conclusively the age of the Complainant. In the judgement she delivered the Hon. Magistrate indicated the Complainant was born on 16th March 2009 without pointing out her age. On my tabulation she was about 14 years and 4 months at the time of alleged incident. This was in direct contradiction to what the birth certificate indicates/Complainant stated of 12 years. The court deliberately avoided to make a finding on age as it was conflicting on its judgement. iii. That the Learned trial Magistrate erred in law and fact by convicting and sentencing Appellant based on a defective charge sheet as the statement of offence indicates (I) was being charged with defilement under section 8(1)(3) of SOA. While it emerged during hearing that the Complainant was mentally challenged according to the medical doctor. The prosecution allowed, an opportunity to pass of amending the charge accordingly even after the court ordered for a mental assessment but a report on the its outcome was never presented in court as evidence, occasioning him a miscarriage of justice. iv. That the trial Magistrate misdirected herself in fact and law in convicting the Appellant yet the DNA report exonerated the Appellant as the father of the child, the product of the alleged defilement. v. That the Learned trial Magistrate erred in law and in fact by basing her finding on her own personal view and opinions which were neither supported by the evidence before her nor the applicable law (sec 124 of evidence act). The judgement is inconsiderate, unlawful, biased and untenable in law. vi. That the Learned trial Magistrate erred in fact and in law by rightly granting (my) application for a DNA test under section 36(1) of the Sexual Offences act to confirm whether the Appellant was the biological father of the child resulted to his exclusion implying the Complainant had been defiled by someone else. (I) made effort to extract some names from Complainant Kipsore Maiyo Timothy and Chumba who could be responsible for defiling and impregnating Complainant. vii. That the Learned trial Magistrate erred in law and fact by not appreciating and disregarded the evidence of the defence throughout the case. The exculpatory evidence gave credence to the defence that he was not responsible for defilement case and someone else was involved. viii. That the Learned trial Magistrate erred in law and fact by reverting back to the evidence of the Complainant under section 124 of the Evidence act to convict and sentence him. On finding the Appellant was not the father, the court did not make efforts to establish who impregnated the minor and her testimony suffered some credibility when she insisted Appellant alone was responsible for defiling her. She was lying under oath making the Magistrate not to strictly complying with requirement of the above prevision of believing truthful witnesses. ix. That the Learned trial Magistrate erred in law and fact by failing to award the Appellant the benefit of doubt that was raised during his case on the fact reasonable doubt was created over his involvement in the defilement of the Complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 2

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x. That the Learned trial Magistrate erred in law and fact by not making a finding that this case was fabricated against (me) as a result of an existing land dispute involving the parents of the Complainant and the Appellant herein. The testimony of Chelimo is relevant to this fact. xi. That the trial Magistrate erred in law in not complying with its obligatory duty under section 333 (2) of the criminal procedure code that required him to take into account the period Appellant spent in remand custody while undergoing trial. The appellate court should order the sentence to commence from 9th December 2023 or alternatively reduce the 20 years sentence by 14 days. xii. That the Learned trial Magistrate erred in law and fact by not declaring that the Complainant was a vulnerable witness and thereafter appoint for her an intermediary if at all she had mental challenges. Prosecution evidence before the trial Court 4. PW1 was the complainant (a minor) who gave sworn evidence. She stated that she is a class 5 pupil and testified that she the Appellant was known to her as he is a neighbour. She stated that the did Appellant did to her “tabia mbaya” (bad manners) at her home, that he went to her home and told her to remove her clothes and lie on her mother’s bed, he then slept on top of her and put his penis into her vagina, although she did not scream or cry, after which he left. She stated further that he had done the same to her on several occasions, and she had informed C, a neighbour and also the Chief, that she was pregnant but she did not inform her parents since they are drunkards, and that the Chief took her to hospital for examination at which point, it was confirmed that she was pregnant, and she revealed that it is the Appellant who was responsible and who was then arrested. Regarding her age, she stated that she was born on 16/3/2011 and was thus 12 years old. She referred to her Certificate of Birth and the P3 she was issued with. In cross-examination, she stated that the Appellant used to show up at their home when her mother was not around. When given names of some boys residing in the neighbourhood, she confirmed that they were all known to her but denied, in re-examination, that any one of them had defiled her. She also agreed that she only disclosed what had been happening after she discovered that she was pregnant. She also reiterated that it is only the Appellant who had defiled her, and he used to do it at the complainant’s home. 5. PW2 was Gideon Kiptoo Koima, who introduced himself as the Assistant Chief, Muscot sub-location. He stated that he received a report on 3/12/2023 that the complainant had been defiled and he took her to hospital at Muscot Health Centre where it was confirmed that she was pregnant, and that it was the Appellant who was responsible for the same. He testified that he then took the complainant to the police where she recorded her statement, and he later had the Appellant arrested. He stated that the accused and the complainant are neighbours, that the complainant comes from a humble background and she is the one who takes care of her younger siblings. He then identified the Appellant. In crossexamination, he stated that the complainant never informed her that the Appellant had been defiling her on several occasions. 6. PW3 was Dr. Irene Simiyu, who introduced herself as a doctor at the Moi Teaching and Referral Hospital (MTRH) and that she examined the complainant, a girl aged 12 years old, on 5/12/2023 and established that she was about 18 weeks pregnant. She testified that they concluded that the girl was defiled, and was also not mentally stable. She then produced P3 Form she issued. In cross-examination, she stated that the minor mentioned the Appellant as the one responsible for the pregnancy. 7. PW4 was SCK, who introduced himself as the complainant’s neighbour and relative. She testified that she used to give the complainant sanitary towels but the complainant stopped going for them https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 3

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from August about 2023, and that she notified the complainant’s mother of this fact upon noticing this stoppage, and also upon noticing some physical changes in the complainant around December 2023. She stated that when the mother gave her feedback about the pregnancy, members of the public informed the Chief upon which the Appellant was arrested. She, too, then identified the Appellant. In re-examination, she stated that there is a land dispute between the family of the complainant and the Appellant. 8. At this point, the trial Court, noting that the Appellant had earlier requested for a DNA test to be conducted, directed that the Appellant, the complainant and the baby, be escorted to the Government Chemist for their samples to be taken for purposes of conducting DNA analysis. 9. PW5 was Police Corporal Leah Chebet who introduced herself as the Investigating Officer. She testified that on the basis of an allegation of defilement reported at Muscot Health Centre on 5/12/2023, she recorded Witness Statements and issued the complainant with a P3 Form which was then filled, upon which the Appellant was arrested and whom she then charged with the offence. She testified that, according to the complainant, the Appellant gave her avocado before defiling her, that the complainant was not aware of her own pregnancy, and it is the mother who discovered it and informed the Chief who then escorted the complainant to the health centre where she was confirmed to have been 5 months pregnant. She stated that the complainant identified the Appellant, and that the complainant was 12 years old. She then produced a copy of the Certificate of Birth indicating that the complainant was born on 16/3/2011. She also testified that a DNA test was conducted although it excluded the Appellant from being the possibility of being the child’s father. She then produced the DNA Report. Defence evidence before the trial Court 10. As aforesaid, when put on his defence, the Appellant opted to give unsworn testimony, which he then did as DW1 and called no other witness. 11. He testified that he was not at home the previous year and only came in September as his wife had delivered a baby in May 2023, and he used to come home after about 2 to 3 weeks. He stated that on 1/1 /2023, a neighbour’s son came and took a young child alleging that the boy had taken eggs, upon which the complainant’s wife followed him but that the neighbour’s son took a bow and hit the Appellant’s wife with an arrow. He stated that the assailant damaged the Appellant’s bananas and coffee, and when the Appellant returned home in the evening, he heard screams and he called the village elder and the Chief. He testified that in the morning, he went to report to the Chief, who fixed a meeting for the following Friday, that in the meantime, the assailant met the Appellant in an initiation ceremony and threatened the Appellant. He further testified that on 4/12/2023 the Chief told him he had been looking for him and took him to Muscot without disclosing to him the reason for the arrest, only to be later informed that he had defiled a child, and he was then charged in Court. He also pointed that the DNA test conducted upon his request, returned negative results. He denied committing the offence. Hearing of the Appeal 12. The Appeal was then canvassed by way of written Submissions. The Appellant filed his undated Submissions on 23/05/2025, while the State, through Prosecution Counsel Racheal Mwangi, filed the Submissions dated 26/05/2025. Appellant’s Submissions 13. The Appellant submitted that the charge sheet was defective as it failed to identify the exact time and date of the offence which failure, according to him, depicts the possibility of an error in his https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 4

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identification. He cited the case of Simon Gichuki Maina vs Republic [2006] eKLR, and urged that this benefit of doubt should have been to his favour. He also asserted that the complainant’s age was not clearly established and that the trial Magistrate indicated that she was born on 16/03/2009 without indicating her actual age. According to him, the complainant was 14 years and 4 months at the date of the offence, which age was in direct contradiction with the date stated in the Certificate of Birth. He also contended that the trial Magistrate failed to enquire about the complainant’s mental health status, which question was raised by the doctor. He also alleged (though erroneously of course), that the Prosecution never produced the DNA test results which exonerated him, and which, according to him, meant that the complainant had been defiled by somebody else. He faulted the trial Magistrate for believing any evidence given by a minor, and submitted that in this case, the minor was untruthful. He contended that the case was fabricated against him as a result of an existing dispute between himself and the Chief, Assistant chief and parents of the complainant. He further pointed out that he was arrested and detained for 7 days before being presented to Court, which was in violation of his rights under Article 49(1) of the Constitution. Respondent’s Submissions 14. Prosecution Counsel Rachel Mwangi submitted that the Prosecution proved all the ingredients of the offence of defilement beyond any reasonable doubt. On the ingredient of “age”, she submitted that the complainant testified that she was born on 16/03/2011 and was 12 years old when the offence took place in July 2023, which testimony was corroborated by the Certificate of Birth produced in evidence. Regarding “penetration”, she recounted the testimony given by the complainant, and citing Section 124 of the Evidence Act, he urged that the complainant’s testimony alone was enough to prove penetration as the trial Court observed her demeanour and determined that she was being candid and truthful. On the ingredient of “identification”, Counsel stated that the complainant testified that the Appellant was her neighbour who would go to her home when the mother was not around, which testimony, according to Counsel, confirms that the Appellant was not a stranger to the Appellant, but a person well known to her, and that therefore, identification of the Appellant was free from any error. On the issue of “sentence”, she urged that considering that Section 8 (2) of the Sexual Offences Act specifies that a person who defiles a child aged between 12 and 15 years is liable to imprisonment of not less than 20 years upon conviction, the sentence meted out in this case was within the confines of the law, and the Appellant has failed to demonstrate that the trial Court, while passing the sentence, overlooked some material facts or acted on the wrong principles in arriving at the same. Counsel, too, cited several authorities in support of her several points of submissions above. Determination 15. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) 16. The issues that call for determination in this matter are evidently the following: 17. i. Whether the charge sheet was defective in failing to identify the exact time and date of the offence ii. Whether the defilement charge against the Appellant was proved beyond reasonable doubt. iii. Whether the sentence of 20 years imprisonment was merited. On the issue of the charge sheet, it states that the act of defilement was committed “during the month of July 2023 at unknown date and times”. According to the Appellant, this absence of specifity renders https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 5

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the charge sheet defective. It is however generally acceptable and common practice for a charge sheet to adopt terms such as “on an unknown date” or “on diverse dates” as long as the charge sheet still avails the accused reasonable or sufficient information to enable him prepare a defence. This is because it is recognized that some category of victims such as children or those in trauma may have challenges in recalling specific dates. While Section 134 of the Criminal Procedure Code (CPC) requires a charge to contain particulars that ensure an understanding of the nature of the offence is achieved, some extent of flexibility is generally permitted where, as herein, the Prosecution deems that the exact timing of the committal of the offence is not easily ascertainable, or where an offence is alleged to have been continuous or committed on multiple times over an extended period of time. Apart from merely faulting the drafting of the charge sheet in the aforesaid manner, the Appellant has not even alleged that the same prejudiced him in any way. I, too, have not discerned any. I accordingly dismiss this limb of the Appeal. 18. On the issue of proof beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, (i) the age of the victim, (ii) penetration, and (iii) positive identification of the offender. 19. Regarding the above ingredients, Section 8(1) of the Sexual Offences Act under which the Appellant was charged, provides as follows: “ 8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 20. In this case, the complainant testified that she was born on 16/03/2011 which testimony was corroborated by her Certificate of Birth produced in evidence. Going by the Certificate, the alleged offence having reportedly occurred in July 2023, it therefore means that at the time of the incident, the complainant was indeed 12 years of age or thereabouts. This therefore dispenses with the ingredient of “age” as it proves that the complainant was below the age of 18 years, and thus a minor or a child. 21. In respect to “penetration”, Section 2(1) of the Sexual Offences Act defines the phrase as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 22. As was held in the Supreme Court of Uganda case of Bassita Hussein v Uganda, Criminal Appeal No 35 of 1995, which was cited with approval in the subsequent case of E.E v Republic [2015] eKLR, the act of sexual intercourse or “penetration” may be proved by direct or circumstantial evidence, and usually, the sexual intercourse is proved by the victims through testimony, and corroborated by medical or other evidence. 23. In this case, the complainant testified that the Appellant was known to her as he is a neighbour. She stated that the Appellant did to her “tabia mbaya” (bad manners) at her home, that he went to her home and told her to remove her clothes and lie on her mother’s bed, he then slept on top of her and put his penis into her vagina, although she did not scream or cry. She stated further that the Appellant had done the same to her on several occasions, and she had informed C, a neighbour and also the Chief, that she was pregnant but she did not inform her parents because they are drunkards. She testified further that it is the Chief who took her to hospital for examination at which point, it was confirmed that she was pregnant, and she revealed that it is the Appellant who was responsible and who was then arrested. Indeed, the doctor (PW3) who examined the complainant, also testified that she was about 17 days and 2 weeks pregnant at the time she was examined and she concluded that the complainant had been defiled. Unless evidence is produced to prove otherwise, pregnancy is no doubt confirmation of sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 6

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intercourse, and by extension, “penetration”. In view thereof, the complainant having subsequently given birth to a child, the trial Court, upon the Appellant’s request, invoked the provisions of Section 36(1) of the Sexual Offences Act and directed that a DNA test be conducted to establish paternity of the child. However, upon the test being carried out, the results that came out excluded the Appellant from the possibility of being the father of the child. 24. In respect to the relevance of DNA test in cases of defilement, the Court of Appeal, in the case of Williamson Sowa Mbwanga v R [2016] eKLR, held as follows: “ ……… it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the Appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the Appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred v Uganda, CR App No 139 of 2001).” 25. It is therefore trite that defilement can be proved not only by medical evidence, but also by way of oral and/or circumstantial evidence. 26. While I therefore agree that generally, proof of paternity may be proof of “penetration” where sexual intercourse takes place in accordance with the order of nature unlike in cases of in-vitro fertilization (as opposed cases of in-vitro fertilization), I also agree that in a charge of defilement, what is required is proof of “penetration”, not proof of paternity. This is because proof of paternity is not by itself an essential ingredient of the offence. This reasoning was the one applied by the trial Magistrate when she declined to let go of the Appellant merely because the DNA results had excluded him from the possibility of being the child’s father. In this case therefore, the trial Court found that “penetration” had not been established by the medical evidence of the pregnancy, but by witness testimony, the trial Court having held that under the proviso to Section 124 of the Evidence Act, evidence of a single sexual offence victim does not require corroboration and a Court can convict on such evidence upon recording reasons for believing it. The trial Magistrate held that having observed the demeanour of the complainant, she believed her testimony. 27. I however have a lot of questions about the manner in which the investigations and the trial were conducted. As aforesaid, this was a case of a single witness evidence which thus required a lot of caution. First, the DNA results having excluded the Appellant as a possible father to the complainant’s child, barring any other contrary evidence, it is confirmation that the complainant had engaged in sexual intercourse, a case or cases of defilement noting her age, with another or other person during or around the same period of July 2023 that the Appellant is alleged to have defiled her. The complainant however strenuously denied having had sex or being defiled by any other person other than the Appellant. In cross-examination, the Appellant mentioned to her names of several boys in the locality whom he alluded the complainant had engaged in sex with. The complainant confirmed knowing the boys but vehemently denied having had sex with any one of them. According to the complainant therefore, the only person she had engaged in sexual intercourse with was the Appellant. In the absence of any other evidence therefore, the DNA results paint her as either having not told the full truth, or having mistaken the Appellant for somebody else. If she was not being truthful to the Court about the number https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 7

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of other people or person she was defiled by or had sexual intercourse with, her credibility as a witness is therefore put on the line. Can she therefore be believed? 28. The doctor who examined the complainant also revealed that in her assessment, both the complainant and her mother were not mentally stable. Reading through her testimony, I did not notice any indication of mental instability but that impression alone cannot be conclusive. Strangely, the Prosecution said nothing at all about this angle which left me wondering whether the revelation was even investigated by the police, and if so, what the findings were. I say so because for obvious reasons, the testimony of a mentally unstable person ought to be treated differently so as to ensure that it is credible and reliable. This is the import of Article 50(7) of the Constitution which permits the Court to allow an “intermediary” to assist a complainant to communicate with the Court. Similarly, Section 31 of the Sexual Offences Act also permits a Court, in cases of sexual offence, to declare a person a “vulnerable witness” if such witness is, among others, a person with mental disabilities. This inquiry is important because in this case, questions arise on why the complainant’s parents were never called to testify. Granted, they may not have been eye-witnesses but they may have possessed crucial evidence that could have assisted in assessing the circumstantial evidence surrounding the matter. If, as alluded, the complainant’s parents were not called because they were drunkards, why did the Investigating Officer not expressly say so? 29. There is also the neighbour referred to by the complainant as C, whom the complainant testified that she did inform about the defilement and pregnancy. I presume that the said C is the witness who testified as PW4, who stated that she is the one who used to supply the complainant with sanitary pads. I however note that in her evidence, PW4 only testified that the complainant stopped going for the sanitary pads and she later noticed that the complainant had undergone physical changes and she thus alerted the complainant’s mother to assess her. If indeed the complainant told her about the defilement and pregnancy, why did she not say so in her testimony? This might not be a contradiction but it leaves doubts on why PW4, if what the complainant says is true, did not make this full disclosure. 30. Another instance of absence of full disclosure arises from the fact that the Assistant Chief (PW2) testified that the complainant never informed him of the portion that the Appellant had been defiling her on several occasions. Again, this begs the question why did the complainant not disclose this crucial portion to the Assistant Chief if truly id had been happening? 31. I also cannot ignore the fact that the Appellant claimed that he had been framed and the charges against him fabricated because of a dispute between himself on one part, and the complainant’s parents and the Chief, on the other. Although the complainant himself did not clearly explain the nature of the dispute, PW3, a neighbour, disclosed that there was a land dispute between the Appellant and the complainant’s parents. This issue therefore arose at an early stage and the Prosecution was put on notice about it. However, the Prosecution did not address it in any way throughout the trial. 32. I also notice that the Investigating Officer (PW5) testified that the Appellant gave her avocado before defiling her. Strangely, the complainant herself never made this disclosure when she testified. The Investigating Officer also stated that the complainant was not aware of her own pregnancy, and it is the mother who discovered it and informed the Chief. Strangely however, the complainant herself testified that she is the one who informed her mother about the pregnancy. The Assistant Chief (PW2) also testified that the complainant never informed him of the portion that the Appellant had been defiling her on several occasions. This might sound to be minor and harmless contradictions but considered together with the other doubts, half-disclosures and inconsistencies highlighted above, they cannot be termed as wholly insignificant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 8

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33. There is also the testimony of the Assistant Chief (PW2) that upon receiving the report of the defilement, he took the complainant to the health centre where it was confirmed that she was pregnant, and that it was the Appellant who was responsible for the pregnancy. I wonder how an examination of the complainant, presumably a pregnancy test, could have revealed the father of the baby. One is therefore left wondering whether there was a premeditated culprit in the Assistant Chief’s mind. 34. Although the complainant might have indeed been telling the truth, the above matters coupled with her statement that she did not scream when the Appellant defiled her, and also that she never reported the act to anyone despite testifying that the Appellant had done the same to her on several occasions, makes it very difficult for me to agree with the trial Court that the Prosecution had proved the case beyond reasonable doubt. This is so because the complainant did not allege that she did not scream or report the repeated acts of defilement because the Appellant threatened her or that she was in shock or even that she had a reason to “protect” the Appellant. The Prosecution, when leading her in her evidence-in-chief, did not also bother to probe her about these facts. 35. Another point I notice in this matter, although neither of the parties raised it, is that the complainant, a 12 years old child, was never, despite that age, taken through a voir dire examination before the Court established whether she was sufficiently competent to testify, and if so, whether she should give sworn or unsworn testimony. The question is therefore whether the complainant was a “child of tender years”, who ought to have first been taken through a voir dire examination. 36. In respect to the phrase “child of tender years”, the term is not defined, but is generally agreed that, for purposes of voir dire examination, it refers to a child of less than 14 years in age. This was reiterated by the Court of Appeal in the same case of Maripett Loonkomok v Republic (supra) as follows: “ The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82, the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R, Criminal Appeal No. 137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No. 16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination. ………” 37. It is however generally agreed that failure to conduct a voir dire examination is not per se always fatal to the Prosecution case. While it is a requirement to assess the competence of a child to understand the meaning of taking an oath and of telling the truth, an omission by the Court to do so does not automatically vitiate a conviction if there is other evidence that sufficiently corroborates or supports the charge. This principle was similarly reiterated by the Court of Appeal in the same Maripett Loonkomok v Republic (supra) case in which it found and held as follows: “ We turn to consider the effect of failure by the trial Court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterate what has been said many times before that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 9

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…………………………. It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that; “In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge … the Court may still be able to uphold the conviction.” See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015 On the peculiar facts and circumstances of this case, it is our considered view that the trial was not vitiated by the failure to conduct voir dire examination. The complainant’s evidence was cogent; she was cross-examined and medical evidence confirmed penetration. But of utmost significance is the admitted fact that the Appellant took the complainant and lived with her as his wife after paying dowry. So that even without the complainant’s evidence the offence of defilement of a child was proved from the totality of both the prosecution and defence evidence, especially the medical evidence which corroborated the fact of defilement.” 38. The impact of failure to conduct a voir dire examination must therefore depend on the peculiar facts of the case at hand. In this case, the complainant being 12 years old, was a whole 2 years below the cut-off voire dire requirement age. A question about her mental health had also been raised but not followed up. Considering all the other doubts, inconsistencies, and contradictions and half-disclosures highlighted above, it is my finding that the failure to conduct the voir dire, examination compromised the credibility of the complainant’s testimony, and by extension, severely weakened the Prosecution case. 39. In view of the foregoing matters, I find the existence of weighty grounds to fault the trial Magistrate for reaching the finding that the Prosecution discharged its burden of proving that the Appellant was sufficiently identified as the perpetrator or the person who committed the offence. With the state of evidence being as above, it was clearly unsafe to convict the Appellant. Accordingly, I find enough reason to interfere with the Judgment of the trial Court. 40. In the end, weighing the case holistically, I find that the Investigating Officer did not sufficiently ensure that identification of the perpetrator was water-tight before charging the Appellant. She did not carefully scrutinize the complainant’s narrative to rule out the possibility of “influence” from third parties. She ought to have done more. She seems to have simply relied on information from the Assistant Chief who implicated the Appellant. The Investigating Officer seems to have been in a hurry to appease the public by taking the person she had brought to Court without carrying out any independent investigations of her own. As a result, the question of identity of the perpetrator remained in doubt. 41. Having given birth and considering her age, the complainant was no doubt defiled. The perpetrator, whether it is the Appellant or somebody else, certainly deserves to be severely punished for the act. Unfortunately, the case was poorly investigated and the Appellant hurriedly charged before sufficient evidence of his participation in the crime, of the nature that can withstand Court scrutiny had been collected. Due to the bungling of the case, the beastly acts committed against the child may remain https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 10

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forever unpunished. While the Appellant may as well be the perpetrator of the offence, because of insufficient evidence, he walks free. It is sad but that this ends up being the painful fate of this case. Final Orders 42. In the circumstances, this Appeal succeeds and is allowed, and I hereby order as follows: i. The conviction of the Appellant by the trial Court in Iten Senior Principal Magistrate’s Court (Sexual Offences) Case No. E061 of 2023 for the charge of defilement is hereby quashed and the sentence of 20 years imprisonment imposed therein set aside in its entirety. ii. Accordingly, the Appellant shall be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF MAY 2026 WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: Appellant (present virtually from Eldoret Main Prison) Ms. Mwangi for the State Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6369/eng@2026-05-08 11

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