Smm v The Republic

3. 4. Aggrieved and dissatisfied with the judgment and sentence, the appellant has relied on the following grounds in his petition of appeal dated 1st July 2024; 1. That the learned Magistrate erred in law and in fact by failing to re-evaluate the whole evidence of the prosecution case as incumbent of him to find that the ingredients forming the case in question was not established. 2. That the learned Magistrate erred in law and in fact by failing to observe that the prosecution’s case was open to ambivalent since the trial was unfair in contravention of Article 25 (c) of the Constitution. 3. That the learned Magistrate erred in law by failing to give the appellant’s defence adequate consideration, consequently acting inconsistently with Article 50 of the Kenyan Constitution. 4. That the learned trial Magistrate erred in matters of law and facts by failing to find that the essential prosecution witnesses and exhibits, necessary to prove basic facts were not produced. 5. That further grounds will be adduced at the hearing of this appeal upon receipt of a copy of trial records. In a first appeal like this one, the appellate court is bound to re-evaluate, re-analyse and re-consider the evidence produced before the trial court and come to its own independent conclusion but always bear in mind that it did not hear the witnesses first hand and did not have an opportunity to observe their demeanour and therefore give due allowance for that. In C.K. Bett Traders Limited & 2 others v Kennedy Mwangi & another [2021] KEHC 5107 (KLR), Justice E.C. Mwita restated this position by holding that; This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.’ Prosecution’s case 5. The complainant was the first witness. She told the court that she stayed with her grandmother at Kikawani. She was at the time of the testimony 20 years old having been born in January 10, 2003. She added that she knew the appellant who was her brother from the same parents. The appellant was the 3rd born while the complainant was the 4th born in a family of seven children. She added that she recorded statement in May 2020. It is recorded that at this moment, the complainant kept quiet when she was asked to narrate what happened and after looking at the appellant, she stated that her brother attacked her and did bad things to her and she then completely failed to talk and was stood down to compose herself. 6. Later, the complainant continued and testified that her brother raped her when she was asleep in the bedroom. He came in the bedroom through the door, held and raped her. She added that her small brother was in the room. After the appellant finished, he went to sleep. The following day she told the village manager who did not do anything. She also did not do anything. 7. The complainant went on and told the court that on 12/7/2020, her brother repeated the same thing. He came in the bedroom at night which had its door locked and called her small brother to open. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 2

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appellant did not enter immediately after the door was opened, but shortly he entered and raped her and they went to sleep. This time she did not tell anyone. 8. She added that on 22/7/2020, the appellant came again through the mabati area, at 12.00 a.m. He came to the door but the complainant locked it with a nail. The appellant went and took a knife and went on the roof but she went out of the room and ran away and closed the door from outside. She went to the village manager of [Particulars Withheld] who opened for her and she slept at his place. The following day, they went to the chief's office. She added that the appellant was arrested and they went together to the Chief's office where they were referred to Kathiani police station. She was then escorted to Kathiani Sub-County hospital where she was examined and a report given. She was also issued with a P3 form which was filled. 9. The complainant added that, after the hospital, they went back to the police station where his brother was detained and that her younger brother who witnessed the incident was 16 years. At home, they were staying with their father who had his own room and the appellant also had a room in the same house. She was categorical that she saw the appellant very well as she used the torch that she lit. 10. The complainant went on to identify the appellant in court by pointing at him. On cross-examination, she stated that she did not tell her father of all the happenings. She could not remember the exact time of the first incident but it was on 20th May 2020. She added that she only told the village manager and no one else. 11. PW2 was one Patrick Muthini Jonah, a village manager in Kitheki location. He testified that he knew the appellant who is his neighbour. He added that on 22/7/2022 at 6.30 a.m. he was at home when he received a call from Mr. Richard Titus who asked him to go near his home and that they met at the Church area. Richard was the village manager of the appellant’s village. When they met, Titus told him that a girl whose name he could not remember was in his home having been chased away from their home by her brother and that they should go and arrest the said brother and escort him to the office. 12 The witness added that they went to the appellant’s home, arrested him and took him to the AssistantChief's office where they met the Chief. He put them in his vehicle and escorted them to Kathiani police station. They went and recorded statements, left the accused there and went back home. 13. Richard Mwilu Titus was the third prosecution witness who stated that he knew the appellant who was his neighbour in Kaliluni sub-location. He told the court that on 22nd July 2020 at 1.00 a.m. while asleep, he heard a knock on the door and when he asked who was knocking, she identified herself as MM. He woke up his wife to escort him and upon opening the door and lighting up the lamp, he confirmed it was M and welcomed her in. 14. The witness added that upon interrogation, M told him that while she was sleeping with her siblings, she was shocked on seeing the appellant’s hand who threatened to kill her. He gave her a place to sleep until the morning and at 5.00 a.m., he called his fellow elder, PW2 who came. He explained the issue to PW2 and asked him to take him to M's home where they told the appellant what his M had told them and he asked him (the appellant) to accompany them to the Assistant Chief’s office. 15. They got to the Assistant Chief’s office at 7.30 a.m. and found him absent but before he could come, the Chief passed by and he asked M to explain to the Chief what happened which she did. The witness also went to see M's father who was not at home as he was working elsewhere and informed him, and he came. The Chief told them to take the matter to the police station. He added that they had not hoped it would get to that level and that at Kathiani, the accused was put in custody. He added that after recording statements at the police station, they went home and that the girl did not give him further particulars. He also stated that he did not know the offences the appellant was charged with and that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 3

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16. MS the complainant’s and the appellant’s father was the 4th witness who told the court that the appellant was staying at home with him and that he was not at home when the alleged offence was committed. He added that on 22/7/2020, at 8.00 am, he was called at the Assistant Chief's office and when he arrived there, he was told that the appellant had abused the complainant. He added that he did not speak to M at the Chief's office. They were told to go to police station and MM was taken to hospital for examination. He alleged that he did not know why she was being taken for examination and did not inquire. He added that M was staying with his other child known as K who was 12 years and the two were sharing one bedroom while the appellant had his own room. 17. PW5 was one David Wambua, who sated that he was attached to Kathiani Level 4 hospital. He had a medical report for M Mbithe dated 23/7/2020. He added that the patient reported to have been defiled severally by the brother on 20/2/2020, July 2020 and reported to a village elder who later reported to police. 18. On examination. The complaint who was 17 years was physically in good general condition, sober mind, with no history of duress or alcoholism. She had no injuries on neck or head, thorax or abdomen or the upper limbs. He added that this incident which eh said was attempted defilement was the 3rd one. The witness added that there were no injuries on genitalia but the hymen was broken and the hymen had been broken some years ago. He sated further that they examined the innerwear and found old blood stains and on conducting lab tests, no abnormality detected. He produced the P3 form and lab request form as exhibits. 19. No. 1xxx4 PC Woman Elizabeth Mwende attached at Kathiani police station performing general duties was the 6th and last witness. She stated that she was not the initial investigating officer but had taken over from P.C Woman Irene Ng'ang'a who was transferred. She added that when she took over, she did investigations and established that on 23/7/2020 the case was reported at Kathiani police station vide occurrence book entry number 8 where the complainant was escorted by Area Chief one Charles Loki of Iveti location with the village manager. 20. The appellant was arrested and placed in cells and she then took the victim to Kathiani level 4 for treatment and according to the doctor, it showed that the appellant had defiled the complainant. P3 form and PRC form were filled and confirmed that the appellant had defiled the complainant. She added that the victim was 17 years according to the birth certificate which showed that she was born on 10-01-2003. She produced the Birth certificate as an exhibit and identified the appellant. Defence case 21. In his short defence, the appellant gave a sworn statement. He told the court that on 22nd at 9.00 p.m., he left home and took vegetables to Kaseve market. At 5.00 am on 23rd , he arrived home and when he entered, just before he could sleep, 2 village elders came for him. He swore that he did not know about the case. He admitted that the complainant is his sister. He concluded that he has never had any dispute with any of the witnesses and that they had no reason to frame him but he denied defiling his sister. Analysis and determination 22. I have read the submissions of the appellant dated 30th October 2025 and those of the respondent dated 29th January 2026 and considered them alongside the testimony and evidence produced by both sides. I discern from the said documents and pleadings that the appellant challenges the finding of the court on the basis that the ingredients of the offence of incest were not proved. He also claims that the charge sheet was defective. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 4

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Charge sheet 23. The appellant has submitted that the charge sheet was defective in that, from its particulars, it was not certain and clear about the dates of the incident and it was in variance with the evidence produced by the prosecution witnesses. According to him, the description of what the complainant meant by stating that he did bad things to her was opaque and could not sustain the charge. He adds that the statement by the complainant that ‘my brother raped me’ was also not enough to sustain the charge as the complainant did not explain the process or steps he took for his penis penetrate her vagina. I find these arguments pedestrian and lacking any basis. The complainant’s allegations that she was raped were clear. At the time she was testifying, the complainant was twenty years and she was expected to know what the word rape means and she needed not explain the steps or process or acts which consisted rape. 24. There need be no expert in English language to explain what rape means. If such explanation is needed, Section 3 of the Sexual Offences Act is there to describe what it means. Even in his defence, the appellant used the same word by stating that ‘I did not rape my sister’ which means that he understood the charges he was facing meaning that he did not suffer any prejudice by the way the complainant described the offence committed against her. That being the case, if this could be termed as a defect which I do not think it is, is curable under Section 382 of the Criminal Procedure Code. Ingredients of the offence 25. The ingredients of an offence of incest as can easily be discerned from Section 20(1) of the Sexual Offences Act are; the relationship between the complainant and the accused person, the penetration and identification of the suspect. 26. The ingredients of relationship is not in dispute. The village managers and the father of the complainant testified and swore that the appellant was elder brother to the complainant. The complainant and the appellant testified as much with the appellant admitting that the complainant was his sister. 27. The second ingredient is proof of penetration. The complainant claimed that the appellant went to her bed three times with the two of them being reported to the village manager. The village manager PW3 gave the complainant accommodation the last day. The medical documents produced by PW5 are clear that the appellant had broken hymen some few years before which is an indication that she had had other experiences before the incident since the examination was just three days after. 28. The remaining and most contentious issue is whether the appellant was the one who penetrated the complainant in the period indicated in the charge sheet. In my analysis of the totality of evidence produced, I find many grey areas which creates some reasonable doubts as to the narration of the events by the complainant. It may be said that the complainant and the other witnesses did not have grudges or reason to frame the appellant but that is not the only issue that a court should consider while handling a serious matter like this which attracts a life imprisonment. 29. The verdict of guilty by the trial court condemned a young man of 22 years or thereabout who was still in either school or colleges going by the fact that the proceedings shows that the matter was at some point adjourned because he was setting for national examinations, to fifty years behind bars. That means his productive life was cut short if he will ever leave jail. I am not saying that young people should not be punished for crimes as per the law, but emphasizing the point that in an offence attracting such serious punishment, the court must be like in any other cases find one guilty where the evidence is clear and devoid of any possibility of an error. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 5

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30. The complainant claimed that she was raped on 20-05-2020 in presence of her brother who she said was twelve years although PW4 put the same person’s age at sixteen and who they shared a bedroom. This was done again on 12-07-2020 on which date it was the younger brother who opened the door. It was not mentioned whether the younger brother was present when the appellant attempted to enter the room on 22-07-2020. 31. It begs a big question why the investigating officer did not make an attempt to get a statement from the younger brother who would have corroborated the complainant’s story. I have noted from the judgement of the trial court that the learned Magistrate made an observation to the effect that the appellant was at liberty to call the younger brother if he thought that his evidence would exonerate him. In my view, this is a wrong approach. An accused person has no duty to prove his innocence. The duty lies with the prosecution throughout the trial to prove the offence against the accused person beyond any reasonable doubt. This duty never shifts to the accused person. In Republic v Boniface Isawa Makodi [2016] KEHC 162 (KLR), it was held that; Under Article 50 (1) (a) of the Constitution 2010 the accused person is presumed innocent unless the contrary is proved. What can be deduced from these provisions of the law and the legal principles in the Miller Case (Supra) the duty to prove the guilty of the accused lies on the prosecution and that burden never shifts to the accused save for exceptional circumstances where the accused is required to give evidence in rebuttal ie. On the doctrine of recent possession of property however even in this circumstance the prosecution bears the greatest responsibility to prove the ingredients of the offence beyond reasonable doubt.’ 32. The complainant told the court that after the ordeal of 20-05-2020, she on the following day told the village manager who she did not mention but I presume to be PW3 who did nothing and she also did nothing. PW3 did not in his testimony talk of being informed of the incidence either on 21-05-2020 or any other day. Even on 22-07-2020 when the complainant finally went to the PW3’s home, she did not talk of any sex encounter between her and the appellant. The testimony of PW3 does not reveal that the complainant told him of the rape on 20-05-2020 or 12-07-2020. All that she told him was that the brother had chased him away. 33. It was not explained whether the complainant had an issue with PW4 (her father) or she feared telling him of the story and for what reason. I find it inconceivable that a girl of 17 years would go through such experience and trust a village manager who she had no relationship with and fail to tell her father or anyone else close to her. PW4 claimed that at the Assistant Chief’s office, he did not talk to the complainant. He was just called and informed that the appellant had abused his daughter. He was not clear what kind of abuse it was and I doubt that a father would be told of his daughter’s sexual abuse and act as casually as he appears to have done. 34. It is also interesting that the only thing the Chief and the Assistant Chief who are normally active and should be involved in matters of this nature could do after listening to the story, was to advise the village managers to go to the police. It is recorded that PW4 did not even know why the complainant was being taken to hospital for examination and he did not enquire. It is also recorded that PW3 was not aware of the charge which the appellant was facing or any incest yet the complainant claimed to have told him. Could there have been other disputes and not rape? It is strange to me that a prudent and well-trained investigating officer did not see the need to take statements from the Chief and the Assistant Chief to ascertain what was the dispute when they met the complainant, the witnesses and the appellant at the Assistant Chief’s office. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 6

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35. The only evidence of the appellant penetrating the complainant came from her only. While I am aware that Section 124 of the Evidence Act allows the court to convict in reliance to evidence of a single witness, there is a qualification that the court must be satisfied that the witness is telling the truth. In Mwachongo v Republic [2016] KECA 521 (KLR), it was held that; Under the proviso to section 124 of the Evidence Act, a trial court can convict the accused person in a prosecution involving a sexual offence on the evidence of the victim alone if it believes the victim is truthful and records the reasons for that belief.’ 36. The medical documents produced in court and the testimony of PW5 are not helpful to this case. PW5 told the court that the hymen was broken some years before yet the incidents were said to have been a week and two months before the examination. Again, the history given to the doctors at the hospital was for an attempted defilement. It is most likely that the complainant had been engaging in sex before the 20-05-2020. That is not to mean that someone can engage in sex with a minor simply because she has had it before but the court should be careful and cautious in convicting an accused person where the other evidence apart form the complainant’s oral testimony points to a possibility that the accused person may not have been the perpetrator. 37. In my analysis, the testimony of the complainant does not bring her out as a truthful witness as far as the alleged rape is concerned. What she told the court was different from the version to PW3 and what she told the attendants at the hospital was a different narrative from the former two versions. 38. To make matters worse, PW6 who testified as the investigating officer did not narrate what the complainant told her and what investigations he carried out. From her testimony, there seems to have been no investigations. All that she did was to escort the complainant to the hospital for examination and charge the appellant. The conduct of the complainant of rushing to strangers whose evidence contradicts her version of the events speaks volumes. For instance, when she went to PW3, she told him that she saw the hand of the appellant who threatened to kill her. She did not tell him of seeing the appellant or his face with a torch as she alleged in court. 39. The other area that creates doubt in my mind is the conduct of the appellant. It is alleged that he raped the complainant twice and tried to do it again on 12-07-2022 but the complainant ran away. Obviously, he must have known that the complainant ran away to a safe place and possibly at her age to report to someone. Come in the morning, two village managers come to his house, knock and tell him what the complainant had told them and he opens the door for them without resistance and accompanies them to the Assistant Chief’s office where he meets their father and later accompanies the team to the police without compulsion. His conduct is not consistent with someone who was guilty of such an act. 40. With the above doubts, I do not hesitate to hold that although the elements of relationship between the appellant and the complainant and penetration were proved, it is doubtful that the appellant was the culprit. In that regard, this appeal is allowed and the conviction and sentence of the trial court are hereby set aside and quashed. The appellant shall be set free forthwith unless otherwise lawfully held. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. Judgment delivered in presence of the appellant logged in from Kamiti Maximum Prison and Mr. Kisumba holding brief for Mr. Mang’are for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7100/eng@2026-05-22 7

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