Samuel Kamande Ndungu v Republic

anonymised. The prosecutor’s guide to children in the criminal justice system provides at 2.2.3 as follows: The prosecutor shall ensure that the name of the child, identity, home, last place of residence, school, particulars of the child’s parents and/or relatives and any other 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. 5. 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- 6. (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 This was also the position under Section 76(5) of the repealed Children Act.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. 7. The Trial Court considered the case and rendered the Judgement. The Court found the Appellant guilty and convicted him of the offence of defilement and sentenced to 15 years imprisonment. 8. The complainant gave sworn testimony stating that she does not go to school. She was born in august 2002. She recalled that on 27.11.2028 she was in the kitchen washing clothes. She stated that while she was sweeping the appellant grabbed her and got her to the kitchen. She knew the appellant as he was from Njahini. The appellant locked him inside the kitchen, removed her pant, and defiled her. The appellant blocked her mouth with a lesso as such she did not scream. She later told W and the area assistant chief., went to Karwara police station. She had known the appellant. 9. On cross examination, she stated that she stayed with the mother but was now married. She was 17 years now and was 17 in 2018 and in 2019. She stated that she did not have a birth certificate. She left her clothes near the appellant’s home and did not report to the father she stated that he used a lesso to block her mouth. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 2

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10. PW2 was IW and a business person at Kirwara market. On 27.11.0218, she was staying with JW as she was pregnant. Her two children told her that the complainant was crying. The complainant told her that she had been defiled by the appellant. the complainant had been chased away by her mother. she did not know whether the appellant was getting any help from the complainant, who had since married. 11. PW3 was APC Anastacia M of Gatanga but earlier worked at Mukuru AP camp. she was informed on 30.1.2018 over an incident. she arrested the appellant at his home. on cross examination, she stated that the appellant was arrested at home. 12. PW4 was CPL Fridah Kathurima form Kirwara Police Station. A case of defilement was reported on 27.11.2017 at 5.30 pm. The complaint had been left at home when the appellant grabbed her from the back. The appellant locked the appellant in the kitchen, stuffed a lesso into her mouth the inserted his penis in the complainant’s vagina. she identified the appellant. she produced a torn white pant. she did an age assessment showing she was 17 years old. instead of cross examination, the appellant requested for an advocate. 13. PW3 testified again after the appellant got an advocate on 17.08.2021. she stated that she was the investigating officer. she recalled that on 27.11.2018, a defilement case was reported. she recorded statements. the complainant was at home on 1730 hours, together with other children. the children were locked from outside while the complainant locked her in the kitchen, tore her skirt and defiled the complaint on a sofa. the accused was arrested. she produced documents. 14. On cross examination by the appellant’s advocate, she stated that the incident happened at PW2’S home. There were children in the home but they were locked in the main house. The appellant did not bathe that day. Then another battle started, that is supply of the age assessment report. the matter was slated for mention later. 15. PW 4 continued on 14.12.2021. she attempted to produce an age assessment report which was objected to. the objection was upheld. 16. PW5 was JW at Kandara Hospital. She produced an age assessment report and Xray showing the minor’s age was 17 years. The complainant had 28 teeth. Wisdom teeth erupts at 18 years. The wisdom teeth had not erupted. She stated that there can be disparities when relying on age assessment. On cross examination she sated that she was an oral health officer. She worked as a dentist. She relied on the hx rya report and did not conduct the x-ray herself. She stated that there can be disparity in age if one relies on age assessment. 17. PW6 was Gachenge Kamau of Kirwara level 4 hospital. She stated that the minor went to the hospital. The minor had bruises on the inner thighs. There was white discharge that was not normal. The complainant had dislodged epithelial cells but there was no redness inside the vagina. There were no signs of spermatozoa. The minor did not have pain on the vulva and no bruises on the vulva. The tests were done in 24 hours and there were pus cells. On reexamination, she stated that there was trauma in the vagina. 18. The matter appeared before hon E.W Wambugu on 24.08.2022 who explained the provisions of section 200 to the accused. The defence chose to proceed from where the court had reached. the court directed proceedings to be typed. The appellant was placed on his defence and section 211 of the criminal procedure code was complied with. 19. The appellant gave sworn evidence. He stated that he woke up on 27.11.2028 at 6pm, and went to work. She went to prepare cows and then went to casual work. He went with the wife and other casual https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 3

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labourers. The police came on Friday, 27th and arrested him. She knew the complainant and used to see her in the village. When he was released on bond the wife was called to the complainant’s home with PW2 and extorted Ksh. 50,000/=. He told the prosecutor but was unable to raise the money. After a week the girl got lost but went to get married. The wife was s arrested and the appellant decided to search for the complainant and found that she was married. He stated that the did not commit the offence. He stated that he had differences over a fence with PW2 who were her neighbours. 20. On cross examination he stated that W used to give them work to ferry firewood. He used to pay them in cash. She stated that the complaint used was not a neighbour to PW2. 21. DW2 was the appellant’s wife. she stated that on 27.11.2028 at7 am she left with the appellant to work as casual labourers. thy were 10 people. they took 1 ½ hours to get back home. The appellant went to feed the cows. The next day, the head man came with police officers and arrested the appellant. he was taken to kirwara police station, . she was informed that the appellant had defiled a minor JW. The minor lived with IW, with whom they hailed form the same village in [Particulars Withheld]. later the appellant posted bail and IW called her and demanded Ksh 50,000/=. they went and saw the prosecutor about this particular demand. they were informed to go to court. 22. After a week she received a letter from the assistant chief telling her that she had hidden the complainant and was arrested. The appellant went and sought the complainant from her mother. They went and they were told by the mother that she was married. The mother took her to where she was married and was taken to the police station and the witness was released, she stated that IW had beef with them as they had a dispute where IW ploughed a fence. To where the cows were. She stated that they used to be paid in cash. She stated that the husband teaches at a Sunday school. 23. DW3 was JMN a casual labourer. he stated that on 27.11.2018, they were carrying firewood at Makuhinya’s place. they did this for a while. they worked up to 6pm. they were many, that is MMN, the appellant and himself. they left work at 6pm. they parted ways. his home is 610-minute walk from the appellant's home. 24. DW4 was MMN. He is a casual labouror. He recalled that on 27.11.2108 they were working with the appellant. They used to work at W’s home in Gitite in Ndunyu Chege. They used to carry firewood for the factory depending on the measurements. they worked from 7am and left at 6pm. they normally reach home at 6.30 pm the owner, Mr. M used to pay them. they parted at 6.30. he heard that the appellant was arrested for defilement. the accused could not have committed the offence. 25. On cross examination, he stated that they worked at Ndunyu Chege Area. The owner has a licence. He did not have a licence. (surely who asks as casual labour such a question?) They were many people working at the place including the appellant’s wife. They normally left work at 6pmand got home at 6.30 pm. They we paid according to the firewood one carries. The witness’s home is 10 minutes’ walk from the appellant’s home. The appellant closed his case. Impugned Judgment 26. The court then delivered its judgment. in the judgment the court identified the issue, whether the appellant defiled the minor and if not whether the he committed indecent act with the complainant. with due respect this was not the case reoffer the court. first the court shot itself on the foot at the time of ruling whether there is a case to answer. the court, surprisingly dismissed the alternative charge in these words- the alternative count is dismissed for reasons that I shall give in my judgment at the conclusion of the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 4

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27. Secondly the trial placed the question in such a way that the appellant was guilty of either. The question before the court was simple, whether the offence charged was proved and whether the appellant was the perpetrator. 28. The court dismissed that the alibi defence was introduced at the defence stage. It was found to be corroborated. The court first found the appellant guilty then proceeded to deal with the defence. Submissions 29. The appellant filed undated submissions. he submitted that the state failed to prove the offence under section8(1)(4) of the sexual offences act. Reliance was placed on the case of Christina Sina Mutuku, where Dulu J, held as follows: 11. I now turn to the proof of age of the complainant. This was a case where the trial started de-novo after the complainant Pw1 and his mother Pw2 had previously testified. The complainant Pw1 stated in evidence that he was 18 years in 2018 and that he was 13 years in 2014. Pw2 SZ the mother stated that the complainant was 14 at the time of the incident. None of the two relied on any documentary evidence or stated that there existed any document to support the date of birth. Pw4 PC Michael Kihumba however produced a birth certificate to support the prosecution allegation that the complainant was 14 years at the time of incident. I note that the entries in the birth certificate were that the complainant Ali Arafat was born on 19th October 2000, and that the said birth certificate was issued on 29/05/2015 after the incident. 12. In my view, the entries in the birth certificate are highly suspect and did not prove the age of the complainant for two reasons. First, Pw1, and Pw2 did not mention anything to do with a birth certificate in their evidence, or any documentary evidence on the age of the complainant. Secondly, the said birth certificate having been issued after the alleged incident, the person who made the entries should have been called to testify on how he or she acquired the information about the date of birth of the complainant. That not having been done the birth certificate cannot be relied upon to establish the age of the complainant. 30. He contended that the age of 17 years was not proved. PW2 Affirmed that she did not know when PW1 was born or proof that the complainant was born in 2002/. PW5 posited that there are discrepancies with use if dental assessment. Reliance was placed on Moses Barasa Saeko v Republic [2018] KEHC 2156 (KLR). 31. They submitted that the age assessment made the complainant either 15 or 19 depending on the spectrum and attitude of one. The fact that the appellant was pregnant before the defilement should have been used to give perspective. This line of reasoning is not buttressed by the law. If the appellant whished that the court consider past defilements, then they needed to comply with section 34(3) of the sexual offences act. Section 34 provides as follows: (1) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 5

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(2) Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings. (3) The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning (a) relates to a specific instance of sexual activity relevant to a fact in issue; (b) is likely to rebut evidence previously adduced by the prosecution; (c) is likely to explain the presence of semen or the source of pregnancy or disease or any injury the complainant, where it is relevant to a fact in issue; (d) is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; or (e) is fundamental to the accused's defence. 32. Sections 34(c ) and (e ) were fundamental. However, no application was made under section 34(1) of the sexual offences act and in strict compliance with section 34(2) of the said Act. 33. Regarding inconsistences, they submitted that there is need for credibility and reliability to create trust to the court. Inconsistencies create doubt. She stated that the evidence of pw7 was that pw1 but there is no evidence if the screams alerted anyone. Pw1 and pw2 stated that there was a lesso blocking her mouth hence she did not scream. Pw1 testified that pw1 was defiled in the kitchen when PW4 stated the defilement was on a sofa. He submitted that it is illogical for a sofa to be in the kitchen. Reliance was placed on the case of Kyiafi v. Wono (1967) JELR 69070 (CA), a Decision by the court of appeal of Ghana [Ollennu JA, Azu Crabbe JA, Apaloo J.A]. there is no mention that the principle in that case was rejected by the same court differently constituted in Duah V. Yorkwa [1992] DARYCA DFDA [1993-94] 1 GLR 217—241, where Essiem JA, Brobbey JA, Omari-Sasu Ja found the principle in the former case to be contrary to the evidence act of Ghana. 34. He further invoked the decision in they invoked a common law principle in John Joseph Jenkins V. Her Majesty's Advocate [2011] HCJAC 86, a decision of Lord Clarke Lord Brodie Lord Osborne. 35. On the failure to call essential witnesses, he submitted that the prosecution has discretion on the number of witnesses. However adverse evidence should be drawn for failure to call crucial witnesses. He relied on the case of Bukenya and Others v Uganda [1972] EA 549. IT was stated that the complainant’s mother was a crucial witness and could have shed light on the age of the complainant but she was not called. this was the main issue in contention. the failure to prove the main element by not calling the mother, the case was rendered weak due to weak investigations. 36. they stated that they tendered a cogent defence that the appellant had difference with PW1 and PW2. whereby the matter was reported to the assistant chief. the extortion request of Ksh 50,000/= one month after the appellant was admitted to bind was used to extort the appellant. dw3 confirmed that they were together at the time of the alleged offence. the two defence witnesses vindicated the defence. it was submitted that it is not his duty to prove his innocence. the defence evidence arose from independent witnesses. he submitted that his defence was watertight and he is entitled under article 50 to be presumed innocent. 37. He submitted that 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 6

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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. 38. He submitted that there is a high possibility that the appellant was not in the said house. On sentence he stated that the sentence is excessive given the shady and doubtful evidence produced in court. 39. The Respondent filed submissions that the case was proved beyond reasonable doubt. they submitted that key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as: 40. a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. On age they submitted that the minor was 17 years. they submitted that the age assessment was carried out even though no other documentary evidence was produced. reliance was placed in the Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR where the court stated as follows in respect of proving the age of the 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. 41. They stated that the court found the victim to be truthful and knowledgeable after conducting viva voce. This submission is false. Viva voce is carried out in regard to different reasons. That is to establish whether a witness understands the nature of an oath. 42. The state made a strange submission, that the state evidence was not rebutted. I shall revert to this later. It was submitted that the victim had injuries in the inner thighs, had epithelial cells, pus cells and concluded that there was defilement they submitted and urged the court to adopt the above position. Further reliance was placed on section 124 as an exemption to the fast and hard rule on corroboration in sexual offences. The medical report corroborated the evidence of the complainant. Reliance was placed on the case of Joseph Ndeto Kimunyu v Republic 2018 KEHC 20121 (KLR), where the court L. Kimaru, as he then was, held as follows: This court is aware that it can convict an accused on the basis of uncorroborated testimony of a victim of sexual violence if it is convinced that the victim is telling the truth. 43. They posited that the sentence of 15 years is statutory for a 17-year-old victim. part of the submissions was irrelevant as they relate to a two-year-old. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 7

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Analysis 44. 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. 45. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [Supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 46. 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. 47. 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: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 8

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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. 48. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 49. 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. 50. 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. 51. From the outset, I must admit that this case falls as in the category of cases ,referred to Hard Cases in chapter 4 of Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA. This is because the facts create a penumbra around the facts that oscillate between the truth and fiction. The debate in both submissions refer back to the very first debate by Oliver Wendell Holmes. regarding a penumbra of debatable case. both the accused and the appellant have certain minimum guarantees in sexual matters and in criminal law. where there is a crush and rules do not help the court must as of necessity find the most reasonable decision to make in the circumstances. 52. This is based on the finding from the court below that the defence evidence was well corroborated. The court also found that the prosecution case was well corroborated. However, both scenarios cannot be true. The truth is left in between the penumbra. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 9

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The Law 53. The law under which the appellant was charged is provided under Section 8(1) and 8(4) of the Sexual Offences Act as hereunder: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. (5) It is a defence to a charge under this section if- (8) 54. 55. (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years. The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. The essential constituting defilement were set out in the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, as the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are; a. Proof of the age of the complainant, b. Proof of penetration and c. Proof that the appellant was the perpetrator of the offence. d. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 10

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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. 56. 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. 57. The age of the victim, penetration and positive identification of the perpetrator are essential elements. if one of them falls, then there is no defilement. even if another offence is disclosed, the offence of defilement is circumscribed. this was addressed in the case Fappyton Mutuku Ngui versus Republic [2012] eKLR and Kaingu Elias Kasomo –vs- Republic, Court of Appeal Criminal Appeal No.504 of 2010 (unreported), the Court of Appeal held“ (The) 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 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.” 58. 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. 59. 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. 60. 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. 61. Therefore, the elephant in the room is how old was the complainant. She stated that she was born in august 2002. However, on cross examination she stated that the previous year she was 17 and the current year she was also 17. She was testifying in September 2019. Surely, if her birthday was in August, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 11

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she should have been 18. However, calculating from 2002, it makes her 16. What then was the source of her information on the date of birth? 62. The only evidence available was that of the doctor who did age assessment, she however, indicates that there is always a variation when dental is used. this means the appellant should be younger or older. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290: “ The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 63. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: “ … such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 64. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that: “ while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:"Because this is the evidence of an expert, I believe it." 65. The expert indicated that assessment is =subject to variation. There is no reason to doubt pw5 on the question of variation, though the medical report ewas of dubious authenticity. This means that her evidence was that the assessment was inconclusive as to the age. This is crucial in cases where there is a razor sharp difference where one is either 17 or 18. This was addressed by the court in Moses Barasa Saeko v Republic [2018] KEHC 2156 (KLR),where L. A. Achode J, as she then was, held as follows: 15. In the case of Evans Wamalwa Simiyu vs. Republic [2016] eKLR the Court of Appeal (Githinji, Koome & Okwengu, JJ.A) when deliberating on the significance of establishing the age of a victim of defilement stated thus: “As to whether the Appellant’s age fell within 12 and 15 years of age, the evidence was rather obscure. Although the complainant testified that her age was twelve years, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 12

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she did not explain the source of this information. The Complainant’s mother did not offer any useful evidence in this regard as she did not say anything about the Complainant’s age. This leaves only the evidence of Dr. Mayende who indicated at Part C of the P3 form that the estimated age of the Complainant was 12 years. We have anxiously considered the purport of this evidence since the Doctor does not appear to have carried out a specific scientific age assessment. Nevertheless we do note that under Part C of the P3 form, the age required is estimated age and under the Children’s Act, “age” where actual age is not known means apparent age. This means that in the Doctor’s opinion, the apparent age of the Complainant from his observation was 12 years. Thus although the actual age of the minor complainant was not established, the apparent age was established as 12 years.” 66. 16. Whereas PW7 stated that he had used the universally acceptable standard of tooth eruption sequence, to determine the Complainant’s age, it is noteworthy that heredity and other factors may influence the approximate ages at which wisdom teeth erupt. According to the British Journal of General Practice, wisdom teeth erupt into the mouth between 17 and 25 years of age. PW7 only employed an intra-oral examination in estimating the Complainant’s age. He however failed to employ the other two parameters namely the extra-oral exam and radiography exam because the instruments were not available to him as indicated in his report. 17. Where no documents are produced as proof of age, and the actual age is not known, the court can use the apparent age to determine that an accused person ought to have known that the Complainant was a minor. It is however not clear whether from the appearance, or from a cursory look the Appellant was able to tell that the Complainant was aged below 18 years. There is nothing on the record to show that the trial court did note or indicate in any way that from the Complainant’s appearance, it was obvious that she was a minor. This is because the difference between a 16-year-old girl and an 18-year-old girl may not be apparent by way of appearance. The X Ray indicates the complainant has 32 teeth. Though the wisdom teeth are slightly smaller. The report does not amount to much it is a note which does not indicate who did the assessment. a proper methodology will have sufficed. it is not enough to write on a piece of paper, without any scientific analysis. The X ray is taken at Thika Level 5 on 11-3-2020. the purported report is from Kandara subcounty hospital. it is amazing that the complainant remained 17 years for three years. she was 17 years in 2018, 2019 and 2020. such evidence brings the medical profession to disrepute. It is evidence that C. B Madan, J (as he then was) had in mind when in N v. N [1991] KLR 685, when he expressed himself in the following terms: “ I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” 67. This was recently reiterated in the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 13

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position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 68. The mother was in the best possible position to tell the court and even produce a clinic card, birth certificate or notification of birth or even a baptism card to show the age, of the complainant. 69. It must be recalled that there is no number of witnesses required to prove a fact. 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.” 70. There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called, and the case is wholly, then an adverse inference must be made for failure to call such. In the circumstances of this case, failure to call the complainant’s mother or father was resulted in a break in one crucial element, that is the age of the complainant. the mother surely knows the age of her daughter. she was readily available if PW2 is to be believed. There was no attempt to call her. She was accused by DW2 of extorting the appellant. This evidence was not rebutted. 71. There was no attempt to explain away the lack non production of the birth certificate or any documentary evidence. With shaky medical evidence, the documentary evidence was crucial. In absence of such evidence, the court must make a negative inference that had the birth certificate been produced, it could have been adverse to the prosecution’s case. In the case of 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's 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's 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's 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.” 72. The foregoing had earlier been dealt with in the case of 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.” 73. In the circumstances, failure to call the mother or produce the birth certificate, notification of birth or even baptism card was fatal to the case as the court must make an adverse inference that if she had been called, or such evidence called, it could have been adverse to the prosecution. therefore, I find and hold that the age was not proved. 74. There was other evidence showing that the mother believed that the complainant was not a minor. She got married to another person while this case was ongoing. Pw1 and pw2 confirmed such a position in court. Had she been a minor the state could have preferred similar charges against the “husband.” It is therefore doubtful that she was below 18 years of age. Finally, I don’t take the so called report seriously. It wants the court to convict on basis of evidence, “suggestive of 17 years of age.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 14

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75. Medical evidence must be conclusive and not suggestive. suggestive is so long a standard to use in criminal matters. The court cannot shift the burden of proof to an accused. 76. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington v DPP [1935] AC 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows: As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution. 77. Presumption of innocence basically means that the court must assume that the appellant did not commit the offence until the contrary is provided. If the contrary is not proved, the appellant is presumed innocent. It is irrelevant on the feeling the court gets from the evidence. the evidence on age was so tenuous that no reasonable tribunal will believe it. 78. The second aspect is penetration. penetration relates to one organ in this case, that is the vagina. Surprisingly the alleged injury was in the thighs and the medical practitioner indicted he cause of injury was a penile shaft. This is not evidence that can be deducted by a doctor. It is enough to state it was a blunt object. The age of the injury was 1 day whereas examination was on 28.1.2018. However, the treatment notes showed that the injury in thighs were caused by scratches with nails. 79. The hymen was broken. However, the complainant had already testified that she was pregnant from a different incident. This cannot be related to the current incident. There was no PRC report filed to show the initial report filled. In PKW versus Republic [2012] eKLR, the Court of Appeal posited that: “ Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.” 80. A missing hymen is not automatic proof of penetration through a sexual act. In this case, the complainant was already pregnant. This is an exception to the rule in section 34 of the sexual offences act. The pregnancy was from another act and or offence. It was upon the prosecution to establish beyond reasonable doubt, that complainants was penetrated and so by the appellant. This was not done. Medical examination related to the thighs and not the vagina. The court had already dismissed the alternative plea at the stage of no case to answer. This court will thus end the enquiry there. 81. The last question is whether the appellant was the perpetrator. The court has found that the medical evidence had contradictions. One states that scratches were by nails and the other it was scratched by a penile shaft. The medical evidence did not support the version of evidence tendered by the prosecution. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 15

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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. 82. Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that: The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to crossexamination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 83. The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 84. Therefore, in my overall reevaluation of the evidence, I am unable to agree with the trial court that the prosecution proved the offence beyond a reasonable doubt. In respect to penetration. There was indeed no evidence of penetration given that the primary medical documents showed that the scratches https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 16

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on the thighs were those of nails and not a penile shaft. The treatment notes are irreconcilable with the p3 form. In such circumstances the appellant receives the benefit of doubt as an accused. 85. Though it is unnecessary to go into who committed the offence in the absence of the offence, the court is not the last court. There is need to analyse the evidence regarding the perpetrator. unfortunately ,the court did not analyse the defence evidence before reaching a conclusion that the appellant was a perpetrator. the court the court dismissed the defence evidence as an afterthought. to make matters worse the defence was not considered in arriving at a decision. the court was plainly wrong when the defence was dismissed as an afterthought. the defendant only had one chance to tender evidence, and it is after the prosecution case. he had no duty to disclosed his defence beforehand. even where an alibi is used, the late disclosure diminishes but does not remove the defence. 86. Secondly, the court classified the defence as an alibi. It is not fully an alibi. It is accounting for the day. It will have been dishonest to say that the appellant was not at at Njaini in Gatanga sub county within Muranga County on the material date. the entire evidence is that on the material date he was at home in the morning and evening. the only difference is what he was doing. to understand an alibi, it is important to peruse section of the criminal procedure code which provides as follows: 87. Vide section 87 of the Criminal Law (Amendment) number 5 of 2003, section 307(2) of the Criminal Procedure Code was amended by: Section 307 of the Criminal Procedure Code is amended by deleting subsection (2). 88. The section had restriction on adducing evidence of alibi. The repealed section provided as follows: 89. Therefore, the restrictions were removed by the legislature. they cannot be reimposed by judicial fiat. 90. The one issue that the court failed to address critically was the evidence in defence. The court summarily dismissed the defence of alibi. It is true that in certain cases, an alibi needs to be set out early. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 17

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91. 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. 92. There is an equivalent section for trial in the high court, that is section 309 of the criminal procedure code which is pari materia section 212 of the Criminal Procedure Code and provides as follows: If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it. 93. 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 JJA] 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 18

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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. 94. 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. 95. Fundamentally the court agreed that the defence evidence corroborated. there was no rebuttal evidence impeaching the defence evidence. The Appellant’s defence was in my view not an afterthought. In the case of Wachera v Republic [2025] KEHC 11843 (KLR), this court posited as follows: 43. The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home. 44. The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus: In considering an alibi, we observe that: 96. a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view. b. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial. c. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court. d. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 19

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must be given the benefit of the doubt. In Kiarie v Republic [1984] KLR 739, the Court of Appeal had this to say“ It is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken. Where the evidence relied on to implicate an accused person is entirely of identification, that evidence should be watertight to justify a conviction.” 97. An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…... 46. In the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence: i. There is no burden of proof on the accused to prove his alibi. ii.If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. iii.An alibi moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word. iv.If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable (betroubaar).v.The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt and for this purpose a court may take into account the fact that the accused had raised a false alibi. 47. The burden of proving the falsity of an alibi was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: -It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution.... 48. In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. 98. The alibi was water tight. There is no way four people who were working in one area could give consistent evidence unless they are expert liars or they are saying the truth. On the other hand they all said where they were working and the time they were released. The prosecution had a simple duty to call for rebuttal evidence was the employer of all the witnesses. failure to do so means that the alibi was undisplaced. 99. In a decision relied on by the prosecution, of course, the prosecution did not quote the last part of the same judgment, in Joseph Ndeto Kimunyu v Republic(Supra), the court posited as follows: In the present appeal, the complainants were children of young and tender age. They are impressionable. They are susceptible to influence by adults who have authority over them. The close reading of the testimonies of the complainants reveal uncanny semblance in the manner in which the two complainants narrated the events that are alleged to have taken place. Such uncanny likeness in the complainants’ evidence leads this court to the conclusion that the complainants may have been couched to give their testimony before court in the manner that they did. This court is not persuaded that the complainants were telling the truth to entitle this court convict the Appellant on the basis of uncorroborated evidence of the complainants. Further, the Appellant’s assertion that he had differences with the originator (Dobi) of the information that eventually led to his arrest and arraignment before court, is something that should have been investigated by the police. The fact that the said Dobi was not called upon to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 20

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record a statement or to testify on behalf of the prosecution, raises doubt in this court’s mind that the information that he gave to PW5 was based on the truth. 100. The complainant had sought refuge at PW2’s home due to her pregnancy. it is unknown why the parents were not as enthusiastic as PW2. the court dismissed off hand the question of bad blood between the PW2 and the appellant. the complaint testifed on 18.09. 2019 and stated that she had a child who was one year and five months old. this implies that the child was born somewhere in March / April 2018. ipso facto, she could not be pregnant on 17.11.2028. as that child could be younger. however, PW2 indicated that the complainant was pregnant then. this means that Tpw2 was either lying or relying on a different time zone. the same with PW1. It is either the child was less than one year, if she was pregnant or not pregnant at the time. 101. Such inconsistencies call to doubt the credibility of the witnesses. The evidence of pw7 did not help. It did not find any evidence or injury bruises to the vagina. Even readiness. Surprisingly none noted that she was pregnant. 102. I have said enough t show that the prosecution case, did not meet the threshold of beyond reasonable doubt. 103. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life years imprisonment. The question of such sentences was addressed in the case of Republic v M; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 104. 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 21

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Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 105. 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. However, having allowed an appeal on conviction, the issue of sentence is moot. Order 106. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is allowed. the appellant is set free unless otherwise lawfully held. b. the appellant be removed from the list of sexual offenders forthwith. c. Right of appeal 14 days. d. The file is closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 22

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DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF MAY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara holding brief for Mwakio for the ODPP PC Tirimba at Kamiti Medium Prison Court Assistant – Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6777/eng@2026-05-20 23

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