Mbau Ndungu v Republic

i. The learned trial magistrate erred in law and fact in finding that the case was proved beyond reasonable doubt. ii. The learned trial magistrate erred in law and fact in convicting the Appellant despite contradictions and inconsistencies in the Respondent’s case. iii. The learned trial magistrate erred in law and fact in failing to make a finding that the Appellant was deprived of the right to legal representation. iv. The learned trial magistrate erred in law and fact in failing to consider the defective nature of the charge sheet. v. The learned trial magistrate erred in law and fact in failing to consider the Appellant’s defence. Evidence 7. At trial, PW1, the minor testified on 6.6.2023. There is no evidence of a voire dire on record. The Appellant defiled her. Njoki had sent her to the shop. The Appellant called her but she turned away. he then pulled her back by hand. He took her to the butchery. He did bad manners to her. He recovered is clothes and removed her clothes. He inserted his private part into her private parts. He lay on to of her. Her friend E was present who was inside the room where he did this. E was in PP2. The Appellant warned her against telling anyone. He gave her Ksh. 20/= and she left. She did not tell her mother. She told her friends who told her mother. Her mother took her to hospital. On cross examination, the matter was reported after some days. there were 3 other people in the butchery but there was no one in the room the incident occurred. The other people did no do anything. 8. The court conducted a site visit. 9. PW2 was Rahab Muthoni, the clinical officer. The produced the PRC Form and P3 form. PW1 was examined on 30.9.2020. There were no physical injuries on the genitalia. There was a small opening of the vulva and the hymen was not freshly broken. There was no discharge. There were epithelial cells and pus cells that showed signs of recovery. 10. PW3 was BM. She was mother of PW1. PW1 was born on 8.10.2010. She had sent PW1 to buy mandazi and on her way back she met the Appellant who took her to him room and filed her. PW1 reported to her after about 7 days. She inquired why PW1 was nit playing with others and was just going to sleep. That is when PW1 broke the news of her defilement. She took PW1 to the hospital and P3 Form was filled. 11. PW4 was No. 24xxx5 PC Esther Gathoni of Sabasaba Police Station. She testified that she was the investigating Officer. She visited the scene of crime. Investigations linked the Appellant and he was arrested and charged. On cross examination, it was her case that she did not take the Appellant for testing. She followed the evidence presented by the minor to decide on prosecuting the Appellant. 12. The Appellant also testified on oath as DW1. He testified that it was not true that he defiled PW1. He was merely framed. Submissions 13. The Appellant filed submissions. They are dated 27.2.2020. He submitted that the trial court erred in failing to conduct a voire dire. He cited Kibageny Arap Korir v Republic (1959) EA 92. 14. It was submitted that the case was not proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 2

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15. The Appellant submitted that it was prejudicial to convict on the evidence of PW1 alone. H cited Section 125 of the Evidence Act. 16. The Respondent also submitted via the submissions dated 2.10.2026 that all the ingredients of the offence being defilement, penetration, age and identity were proved beyond reasonable doubt. Reliance was placed inter alia on George Opondo Olunga v Republic (2016)e KLR. 17. The Respondent also submitted that the evidence of PW1 was corroborated by the medical evidence. In any case, under Section 124 of the Evidence Act, the hard rule of corroboration had an exception. 18. The sentence, it was submitted was lawful and should not be interfered. Analysis 19. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is 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. 20. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 21. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. I reproduce the said law as follows: Defilement (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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 3

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22. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. It is trite that 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. 23. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 24. 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”, 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.’” 25. 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. 26. At trial, PW1, the minor testified that her mother had sent her to the shop and when met the Appellant, he took her together to the butchery house. There was a room inside where he led her. In that room, there was also her friend E. In the butcher, there were two other men. The Appellant removed his https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 4

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clothes and removed her clothes. He lay on top of her and inserted his private part into her private part. This was in the presence of E. The other 3 men were in the butchery side of the building and not in the room where the incident occurred. The Appellant then finished and gave her Ksh. 20 before warning her against telling anyone. She left and did not tell her mother. She however told her friends who told her mother dates later. 27. The Appellant maintained that he was framed. As he had denied the charges, the Appellant remained innocent until proven otherwise guilty. 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 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 5

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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. 28. I proceed to established whether the act of penetration was proved to the required standard. The evidence of PW1 viwed with the medical evidence revealed no offence. According to PW2, the hymen was old broken and had healed and there were no visible injuries on the examination of the genitalia. There was no discharge. The medical evidence did not support PW’1s version of evidence. Going by the medical report, there was no evidence of penetration. Partial or complete penetration was not proved as shall be detailed herein below. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that: “ The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 29. The identification was by recognition. However, the person identified also ought to have committed the offence. The Respondent had the obligation to extract the criminal element of the offence. That is why proof standard was beyond reasonable doubt. In this case there was reasonable doubt as to whether PW1 was in the two roomed house of the Appellant as alleged and whether the Appellant had sex with PW1 in alleged room in the presence of E and while 3 other men were in the butchery room of the same house. I am fortified by the decision of this court in the case of Cleophas Otieno Wamunga v Republic [1989] eKLR the court stated as follows:“ It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 6

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whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 30. Lastly, on the aspect of age, age is such a crucial component in sexual offences that it points to the extent of punishment for the offenders. This was also the position of the court in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), where the Court of Appeal stated doth: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 31. Consequently, age herein was proved by the production of the Birth Certificate. The birth certificate stated that PW1 was born on 2.1.2012 and so was 7 years and 8 months old. I have no reason to doubt the birth certificate which was registered on 29.2.2012 and issued on 15.12.2012. 32. Another aspect that the court finds odd was that there was no voire dire. The court did not conduct a voire dire. It proceeded believing the minor to be saying the truth. The Respondent submitted that Section 124 of the Evidence Act applied. The rule is the exceptions are set in section 124 of the evidence act. The said section posits as follows: 124. Notwithstanding the provisions of section 19 of the oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 33. 34. The later part, or the proviso is key, in that it requires that the following conditions be met: i. The matter is a sexual offence, ii. the only evidence is that of the alleged victim of the offence, iii. for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. That is why the truth should always be recorded and reasons for so believing. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows: “ Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 7

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35. In case of Maripett Loonkomok v Republic [2016] eKLR where the Court of Appeal reiterated that children under the age of fourteen (14) ought to be taken through a voire dire examination and held that: “ 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 18 years. The court reiterated the holding in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 where it categorically stated that the definition in the Children Act is not of general application and 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. 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.” 36. The underlying necessity for voir dire is due to the child’s susceptibility to adult influence and the child’s inability to distinguish truth from fantasy. The court must thus be certain that the child not only understands but also appreciates the quality of speaking the truth. McGough in an article entitled Asking the Right Questions: Reviving the Voir Dire For Child Witnesses Georgia State University Law Review, Vol 5, Issue 2 Spring 1989 has authoritatively observed: “ Both common and civil law regarded child witnesses as suspect, only a short step removed from the perceived unreliability of imbeciles and lunatics. Reasons underlying this skepticism were not clearly differentiated. However, because of the spiritual immaturity of a child, his ability to appreciate an oath taken before God eclipsed all other possible concerns. Most children were precluded from testifying ‘because of their supposed inability to understand the significance of the oath’ in a religious sense. The foregoing perception was due to the child’s susceptibility to adult influence and the child’s inability to distinguish truth from fantasy. However, the test of competency for a child witness has changed. Children can been heard provided they possess sufficient knowledge and nature and consequence of an oath, and where it is demonstrated they do not understand the nature and consequence of an oath, then they give unsworn testimony.” 37. This court appreciates the impact of our constitution that places the right to a fair in the criminal justice administration system at a higher notch. This is particularly where an accused is presumed to be innocent till proved guilty, the accused is entitled to fairness and true investigation and the court is expected to play a balanced role in the trial of an accused person. This mandate is contained in Articles 50 of the Constitution. The Right to a fair trial is one of the cornerstones of a just society. The Supreme Court of India in Rattiram v. State of M.P. {2012} 4 SCC 516 stated as doth:“ Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 8

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And again:Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused..." 38. Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up for life imprisonment. This must be a serious offense that required the clearest view of the evidence to justify keeping the Appellant behind bars for his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 39. This was a sexual offence when the first condition was met. However, the second and third conditions were not met. The victim was not the only witness. There was medical evidence and there was circumstantial evidence that could be produced. In the absence of the production of circumstantial evidence available, then the court was wrong. Thirdly, and more crucially, there was no evidence and reasons recorded for believing the Complainant to be saying the truth. The clinical officer did not testify whether or not there was penetration. There was no evidence of partial penetration. Looked at together with the medical records produced, it is that there was no evidence of penetration at all. PW1 was taken to the hospital on 30.9.2020 two weeks after the alleged incident. the minor laceration at the vulva was not linked to penetration by the Appellant. There were visible injuries to the vagina. 40. The appellant maintained that he was framed. There was a key witness who was mentioned but had no horse in the race. One E who was said to be in the presence of the Appellant and PW1 during the alleged defilement. The Respondent strained to place the Appellant in the other room of the two roomed building with PW1. There was also alleged to be 3 men who were not called or recorded statements. It was doubtful that 3 men would not have taken any action when the Appellant was defiling the minor. The 3 were neither witnesses nor accomplices. Worse more, the Respondent did not bother to have them record witness statements or testify. These shortfalls ought to have been interpreted to keep the constitutional innocence and liberty of the Appellant as opposed to convicting him. In the case of Awii V Republic [2025] KEHC 5626 (KLR), Wakiaga J, underscored the question of adverse inference as follows: 41. 33. I have also noted that one very important witness was not called to testify leading to an adverse inference that had he been called it would have adverse to the prosecution case this being John Kilonzi who was on duty with the appellant and the complainant and whom the complainant first made a report to. 34. In convicting the appellant, the trail court based the same on speculation which was not supported with evidence on record to wit that the accused had not envisaged that any other person would be within the compound whereas the evidence on record was that there was ongoing construction and that there were three guards on duty in the compound all the time. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:“ No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.” 42. The law as it presently stands is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even where some of those witnesses may give evidence adverse to the prosecution’s case. This obligation ensures that the trial is conducted fairly and that the court is placed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 9

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in a position to consider all relevant facts before reaching a conclusion. Failure to call material witnesses may result in an incomplete picture of the events, potentially undermining the prosecution’s case and affecting the court’s assessment of the evidence as a whole in Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated: “ The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.” 43. The court had also discussed the question of In Keter v Republic [2007] 1 EA 135 the court held inter alia: “ The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt. 44. The conviction herein was thus based on circumstantial and not direct evidence. The inculpable facts were not inconsistent with the innocence of the Appellant and co-existing circumstances weakened the chain of circumstances relied upon. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that: “ In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused. 45. The court can only infer, that should they have testified, their evidence could have been adverse to the prosecution. 46. I am unable to find reason to sustain the conviction. The prosecution failed to prove its case beyond reasonable doubt and the court was wrong in convicting the Appellant. Having found that the Appellant ought to have been acquitted in the first place, I find no utility in venturing into the path of the sentence imposed. I set the Appellant free. My findings are that this appeal succeeds. I quash the conviction, set aside the sentence and order that the Appellant be and hereby set free unless lawfully held. Determination 47. I make the following final Orders: i. This Appeal succeeds. The conviction is quashed, the sentence is set aside and the Appellant be and hereby set free unless lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 10

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DELIVERED, DATED AND SIGNED AT NYERI VIRTUALLY ON THIS 13TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Pro Se for the Appellant Mr. Kihara for the Respondent PC Wachira at Kamiti Prison Court Assistant –Martin M.D.KIZITO,J https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6749/eng@2026-05-13 11

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