Shem Ndirangu Njuguna v Republic

b. The learned trial magistrate erred in law and fact by failing to analyse and/or address her mind on the contradictory evidence adduced by the complainant and PW2 hence arrived at the wrong conclusion. c. The learned trial magistrate erred in law and fact by failing to analyse and/or address her mind on the inconsistencies arising from the evidence tendered by the complainant in court vis-à-vis the complainant’s written statement hence arrived at the wrong conclusion. d. The learned trial magistrate erred in law and fact by not taking cognizance of the fact that the complainant never reported to anyone including the police of the alleged defilement by the appellant between the years 2021 and 2022 until she was subsequently defiled on 14.4.2022 by another person. e. The learned trial magistrate erred in law and fact by not appreciating the importance of proving and/or establishing the actual age of the complainant at the time of the alleged defilement and well as the actual date, time or period of the alleged defilement. f. The learned trial magistrate erred in law and fact by holding that the prosecution had proved its case beyond reasonable doubt. 4. The Appellant was arraigned in court on 26.05.2022 before Hon. E. Agade (SRM) where he pleaded not guilty. He was released on Ksh. 200,000/= bond with a surety of a similar amount with alternative cash bail of Ksh. 100,000/=. The appellant was represented. An issue arose relating to E024 of 2022, where there were similar witnesses over the same complainant but involving a different assailant. The court directed the same to be taken to Court 1 for directions before the appellant’s lawyer arrived. The matter was subsequently adjourned until SO E024 of 2022 was concluded. However, it was heard during the November Children Service Month. 5. A bit of voire dire was conducted and the court was satisfied that the complaint knew the purpose of oath. She gave sworn testimony. Though she was in class 7, she could not recall the date she was born. She recalled that in 2021, she was in class 4. She was sent in the year 2021 to buy tea leaves and could go to the appellant’s shop. If she found people, he could first sell to them and could ask her to wait. He then could ask the new customer what he wanted. He could peep and see if a customer is left and then lift her dress and touch her pubic hair and tell her that it grew because of him. 6. When she was in grade 6 if she went to the shop, the appellant asked if she knew how people lie on each other. The appellant could apply saliva on his private part and insert in her private part. When she told him she was feeling pain, he told her to wait until he completely penetrated her. He was asking BST to come and collect five ball gums. Other times he used to take the minor to the bush behind his house. 7. Whenever she went to the shop with siblings the appellant could tell her that this annoyed him. She did not report to the parents. There was another person who defiled her. When she was taken to hospital, she said that it was not just that one person but there was another. She identified the appellant on the dock. The appellant was referred to as Wa Malio. The appellant started defiling her when in grade 4. He sometimes left someone else in the shop. There is a nearby house but it is not occupied. 8. On cross examination, she changed her mind that she was in grade 6 in 2022 and grade 5 in 2021. She informed the police that she intended to report another defilement when one Mokaya was arrested after defiling her. She stated that the appellant’s shop is not by the road as the road is used by many people. No one saw the appellant call her. When she went to school, none saw her being called even when there were 4 children by the road. One of the customers the appellant could sell to first was Lucy and Mama Simon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 2

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9. She stated that it did not happen once but several times. Other times her friend A was there and was sold to and left. She heard when the appellant told her that she waits for him to collect something from behind the shop. She did not inform the police on those who were left in the shop. The police did not record that BST was being sent to her but she informed them. She also did not inform the mother that the appellant was touching her private parts. 10. She also did not tell teachers until a case involving another accused person came. The appellant marked the appellants’ statement as DMFI 1. She stated that the appellant first defiled her on a non-school day and the second time was a school day. However, she told the police that she was going to church. Another day she was sent home to collect money. She was not the only person sent. The appellant could call her by a sound. She usually went to that shop, wherever she was sent. The complainant showed the police the bed where she was being defiled. There is a church and hospital opposite the shop, and is in a public place. 11. PW2 was BST. He was in standard 8. He recalled that after covid-19 broke out, there was a girl who used to go to the appellant’s home. The girl was a friend to his sister SNW. The appellant could give SNW money to buy ball gums. The appellant gave the witness money three times, Ksh50/=, 5/= and 20/=. He gave SNW but did not follow her to the shop. Whenever they were going to school, the appellant could call SNW and they went into the house and locked themselves inside. He did not know what they were doing inside the house. Once the witness was sent to the inner room and he saw a bed. He recalled that the complainant could wake up early to go to church even before church opened. The appellant had asked the witness not to tell anyone. He identified the appellant as Shem or Wa Malio. 12. On cross examination, he stated he was in standard 8. There are other shops near the appellant’s shop but the shop is off the road. He did not tell his parents that the appellant was giving the sister money through him. He did not accompany the complainant to church. 13. PW3 was No. 2xxxx2- PC Samuel Macharia of Kinyona Police Post under Ngonda Police Station within Kigumo Subcounty. He was initially attached to Kigumo Police Station. On 15.04.2022 a girl reported that she was previously defiled. She was escorted by PC(W) Pauline of Kigumo to hospital. She had been taken the previous day for assessment for defilement in another case. She had reported that the appellant had defiled her between 2021 and 2022. They went with IP Ottone and arrested the appellant. The minor took them to the locus in quo, which was a room behind the shop, with a mattress, where the appellant used to defile her. The appellant was taken to Kigumo police station. They got a birth certificate showing the appellant was born on 26.10.2010. 14. The girl was referring to the appellant as Shem Wamatio but they noted that he was Shem Ndirangu. The appellant had been defiling her for some time. On cross examination he stated that the minor was rescued during a sexual assault or defilement by another man. The minor was taken to hospital at night. A report was made on 14.4.2022 and another reported on 15.4.2022 at 14.58 am. He did not establish whether the minor’s parents were employees of the appellant. They recorded a statement from BST who was 13 years old. 15. The complainant pointed out the bed where the defilement took place. The incident was not reported to the parents or teachers. They produced evidence of BST as exhibit 2. They did not recover DNA or other evidence. The witness did not inform the appellant that the complainant was pregnant. On reexamination, he stated that there were many officers who went with the complainant to the shop. 16. PW4 was Naomi Njeri Muigai, a registered Clinical Officer working at Kigumo subcounty hospital. The complainant was brought with history of being defiled since 2021. The perpetrator was a man https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 3

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aged over 60 years. The hymen was old broken with whitish discharge. There was no spermatozoa. She made a diagnosis of defilement. 17. She opened another treatment card although they usually do not open two cards. On examination they found previous sexual encounter. This was recorded in the PRC. She covered the history on the P3. The second form was filled on 14.4.2021. 18. The court found the appellant to have a case to answer and placed the appellant on his defence. The court complied with section 211 of the Criminal Procedure Code. The appellant gave sworn evidence and called a witness. 19. The appellant testified that he was previously a director of Ikumbi Tea Factory, and the Chairman of the tea collection centre, and Chair of Njoguini Primary School. The complainant’s parents used to harvest his tea together with their children. They also used to assist with charcoal burning. They used to buy from his shop on debt. They used to pay but when they stopped picking tea they failed and left a debt of Ksh. 990. They left in 2021, when he approached them to pay. They did not pay and stopped going to his shop. The shop is in Gakigil near Aberdare Forest. The shop has a road heading to a school and Gakigii dispensary which is 43 metres from the shop. There is a catholic church 51 metres await and ACK church nearby. The appellant stated he was arrested on Good Friday. The officers took photos of the shop, especially Macharia. On reaching the police station, he was told that he defiled a girl and she was pregnant. He was told to pay Ksh 200,000/=. He later learnt that there was another case for defilement. He had never had any relationship with the complainant. 20. On cross examination, he stated that the complainant’s parents were picking tea for him. He stated that though the law does not allow the children to work, it is parents who came with their children. 21. DW2 was Samson Kamau Hama. He usually saw the complainant working with the parents in the appellant’s house. They moved tea picking from the appellant to mama Jimi. He was informed that he checks why the appellant was arrested. He stated he was told to take Ksh 200,000/= to the investigating officer. On re-examination, he stated that it is the appellant’s son who asked that they see Macharia with Ksh. 200,000/=. Submissions 22. The appellant filed submissions dated 18.03.2026 where they submitted that the appeal is merited. It was their submissions that the genesis of the complainant was the events on 14.04.2022 where the complainant was defiled by a third party. On examination the appellant turned up in the mix. They stated that the medical examination relied on the examination of 14.4.2022 and not any further examination. He set out in details the statement where the minor is said to have narrated that the incidents occurred when she was going to school, then when going to church, third when coming from school and the other two incidents in the bush behind the appellant’s house. They raised issue with the inconsistencies and what the minor did not record with the police. 23. He submitted that he was framed for a debt of Ksh. 990/=. Further, he submitted that the court must be warry of the evidence of PW2 since no voire dire was carried on him. Reliance was placed on the case of Maripett Loonkomok vs. Republic (2016) eKLR, where it was held that: We now turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 4

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24. He submitted that the injuries were said to be one year old whereas the P3 indicated to be months. They doubted that evidence on recognition was properly presented especially on how the complainant identified the appellant to the chief as “huyu, chief”. He submitted that the evidence of acrimony was not rebutted. 25. The appellant submitted that the trial magistrate appeared to have put the cart before the horse. This was said to be so, since she determined the proof of offence before considering the defence. This was said to be provided by the implausibility of it in the face of her finding of guilt. Such is the misdirection that the court was not able to critically analyze and objectively reach the conclusion. He concluded that a case of confirmation bias can be read through the judgment. 26. The appellant submitted that the foregoing prejudiced him, as his defence was not considered objectively. The court was invited to find that neither the fact of defilement nor the guilt of the appellant was proved beyond a reasonable doubt. He submitted that the case was contrived through PW2, who felt there was something more to the cold. She discovered an injury to the minor’s anus. She interrogated and prodded the minor to believe she had been abused. She built and maintained a case around these suspicions. She fixed it on the appellant, and the prosecution and the trial court swallowed it hook, line, and sinker. 27. On the other hand, the respondent filed submissions dated 19.01.2026 and maintained that the appellant was correctly sentenced. The respondent invited the court to rely on the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. 28. It was the State’s submission that it had discharged the burden of proof by establishing the three elements it was required to prove. Accordingly, the Respondent addressed the Court on three subissues, namely: a. Proof of Penetration whether full or partial. b. Proof of Age of the victim as a minor. c. Identity of the perpetrator. 29. They submitted that they did not just rely on the evidence of the minor but the evidence as a whole. The complainant was sent to buy tea leaves in 2021 and the appellant ensured she was the last customer. He would insert his fingers. When in grade 6 he started inserting his penis. The minor and his brother were given money of different denominations. The minor showed the bed where the incidents took place. They submitted that the complainant’s evidence was consistent. This was corroborated by PW4. 30. They submitted that not every contradiction leads to evidence being rejected. Reliance was placed on the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, where it was held as follows: 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. 31. They noted that there are no contradictions between the evidence of PW1 and PW2. They submitted that any small inconsistencies between the written statement and the testimony in court do not affect the charge. They invited the court to look at the age of the minor and take judicial notice of the events leading to the case. Reliance was placed on the Indian case of Appabhai and anr. vs State of Gujarat https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 5

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AIR1988SC696, 1988CRILJ848, 1988(1)CRIMES606(SC), (1988)2GLR823, JT1988(1)SC249, 1988(1)SCALE228, 1988SUPP(1)SCC241, 1988(2)UJ27(SC), AIR 1988 SUPREME COURT 696, (1988) 1 CRIMES 606 (1988) 1 JT 249 (SC), (1988) 1 JT 249 (SC), where the supreme court of India stated as follows: The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed : This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered (emphasis and disambiguation mine). 32. They posited that there were no irregularities in the record that were based on contradictions and inconsistencies. Further reliance on the dominant principle in exercise of discretion of evidence admitted was placed on the persuasive case of S v Sauls and Others 1981 (3) SA 172 (A) at 182G-H where the court took the approach to be adopted when dealing the evidence of a single witness, that is a common-sense approach that was advocated, and the court advised as follows: There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of a single witness. The trial judge will weigh his evidence, will consider its merits and demerits and, having done so will decide whether it is trustworthy, and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony he is satisfied that the truth has been told… The presiding officer when evaluating the evidence of a single witness should not allow the exercise of caution to displace the exercise of common sense.’ 33. In respect to age, they stated that it is a critical factor to be proved. They relied on the case of Hillary Nyongesa v. Republic [2010] eKLR, where Mwilu J, as then she was posited as follows: Age is such a critical aspect in Sexual Offences that it has to be conclusively proved. Anything else is not good at all. It will not suffice. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim. In this case the age of the victim was not proved and hence any sentence passed and meted out to the accused would be a matter of conjecture which would not stand in criminal cases where the offence must be proved beyond any reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 6

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34. It was submitted that the investigating officer minuted the case and produced a birth certificate showing the minor was born on 26.10.2010. Reliance was placed on the case of Francis Omuroni Vs Uganda, Appeal No. 2/2000 where 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. 35. It was their submission that the age of the minor was sufficiently proved. They urged the court to enhance the sentence to life as the minor was 11 years at the time of defilement. They supported their argument on the question of such sentences on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34(KLR). Analysis 36. 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. 37. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 7

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38. 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. 39. Brennan J addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction… Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 40. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 41. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 8

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proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 42. 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. 43. 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. The Law 44. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder: 8. 45. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows: (1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. (2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years. (3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 9

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46. 47. (4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141) (5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are 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 as; 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 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. 48. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, in Malindi 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. 49. The minor was born on 26.10.2010. She turned 12 on 26.10.2022. The appellant was arrested on 15.4.2022. At the time the minor was 11 years and 6 months. She was thus 11 years. From the outset, there is no doubt in my mind that the age of the minor was 11 years. The incidents are said to have occurred before the arrest. Therefore, the age was proved. 50. The court is aware that 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 10

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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. 51. The appellant, instead of answering to very specific and detailed allegations, he went ballistic on how he helped the parents and how in 2022 they stopped coming as they increased their debt to about Kshs. 990/=. In the answer, the appellant confirmed that he had a shop near Aberdares, he knows the minor and the minor usually shopped. He did not give an alibi defence. His defence related to the day he was arrested on 15.04.2022, a Good Friday. 52. One issue that the court must deal with is voire dire evidence on PW2. He was not a child of tender years and as such voir dire was unnecessary. In the case of MO v Republic (Criminal Appeal 57 of 2020) [2025] KECA 716 (KLR), the court of appeal(HA OMONDI, LK KIMARU & WK KORIR, JJA) stated as follows: We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi vs. R, Criminal Appeal No.10 of 2014. This position was echoed by the Court of Appeal in Athumani Ali Mwinyi vs. Republic, Criminal Appeal No.11 of 2015 where the court stated that: In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” 22. The response to this limb is that a voir dire examination was done for PW1; that the trial magistrate noted so in her Judgement; and that in any event, there is no strict format on how a voir dire is to be conducted. This Court has also through a long line of cases held that voir dire examination of children of tender years must be conducted, but that failure to do so does not per se vitiate the entire prosecution case. However, the evidence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 11

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taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person unless there is sufficient independent evidence to support the charge. (See Maripett Loonkomok vs. Republic (2016) eKLR). 23. Whereas we are in agreement with the finding of the High Court that although voir dire was not thoroughly and elaborately conducted on PW1, it nonetheless constituted an examination of the minor’s capacity to understand the duty of telling the truth in court, in this regard we draw from the decision in Kairimi vs. Republic Criminal Appeal No. 16 of 2014 [2016] KECA 812 (KLR) 3rd February, 2016 judgment, which addressed the issue on who is a child visa vis a child of tender years, in the following manner: Which definition should guide the courts in determining who is a child of tender years, is it the Children Act, or the precedents set by the Court of Appeal? The requirement by the aforementioned provisions of the Evidence Act and the Oaths and Statutory Declarations Act of voire dire examination of a witness of tender years in a criminal trial is meant to guarantee an accused person a fair trial. A fair trial is guaranteed by the Constitution. We have done the aforementioned review of the law and decided cases in an attempt to ascertain in this case whether failure by the trial magistrate to conduct voire dire examination on the complainant a child aged 12 years afiected the credibility of her evidence. We are persuaded the deffnition of a child of tender years under the Children Act cannot globally be imported for ofiences under the criminal law Samuel Warui Karimi. This is because children develop and mature differently depending on their social economic and other factors such that, some children of 11, 12 or 13 years can be very sharp and intelligent witnesses whereas others in the same age bracket may not at all comprehend what is a court of law Samuel Warui Karimi. This explains why the courts have held on the age at 14 years and sometimes even a higher age as the age below which a child is of tender years for purposes of criminal trials and insisted the competency be tested through questions that must be put to the child and answers given by the child be recorded verbatim. The definition of a child of tender years provided under the Children’s Act has remained a guide in regard to criminal responsibility.” 53. PW2 was not a child of tender years and as such the question of voir dire is moot. 54. It is true that the accounts of PW2, BST and PW1 differ in some particulars. They do so because of the details. BST was not being penetrated and did not know why the sister was entering the shop and the same being closed. The minor did not disclose the gory details on the usual practice where she showered and went to church before the church opened. The evidence tended to portray her as, for lack of a better word, “an accomplice”. That may be so. However, a minor is incapable of consenting to defilement. Indeed, the evidence of PW1 corroborated that of PW2, since her complaint was that she was feeling pain and the appellant advised that he was to insert fully before removing. The minor kept going back for the same penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 12

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55. An issue was taken that there was another penetrator. That is well so. However, there is no limit to a number of people who can or did penetrate the minor herein. The other perpetrator was sentenced by the court and I dismissed his appeal on 7.05.2026. It is reported as Michael Mokaya Mbuya v Republic (2026) eKLR. However, this does not bar anyone else from penetrating the same minor. 56. DW2 tendered evidence regarding being sent with 200,000/= to take to the investigating officer. The money did not work the magic they intended. It is clear therefore that it is not the investigating officer who called for it but the family that offered. The investigating officer was not the victim in regard to the sex offence herein. His demand, which was not proved does not change the penetration. 57. The two minors’ evidence was consistent. Luckily the defence also produced the minors’ statements. The statements were consistent. The fact that the minor forgot dates, does not change much as the appellant had made her a jamboree. She was a cesspool where he could wallow at any time and provocation. He started through testing with fingers as he maintained the tempo until he thought, she was wide enough to penetrate. The appellant applied saliva to both the penis and the vagina then penetrated. This evidence was not shaken. Section 124 of the Evidence Act provides as follows: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 58. The court will now turn to the medical evidence to determine whether the minor was penetrated. The minor gave evidence that was repetitive on what happened in the span of two years. PW2 equally gave account how her sister could disappear into the appellant’s shop. The medical evidence showed that prior to the incident involving Mokaya, the minor had been penetrated. The penetration was not just from the medical record, but from the account by the minor. It was consistent all through. The minor was able to show the locus in quo, the bed behind the appellant’s shop where the defilement took place over the period. I am satisfied that the minor was penetrated. The court found the evidence of the minor credible. In the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, the court held as thus: Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 13

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As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded. 59. I have perused the same evidence and I do find it is credible and consistent. The medical evidence showed prior penetration, which led to the appellant. In addressing the question of experts, the court of appeal 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. 60. 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; [19951998] 1 EA 29, that: It is now trite law 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. 61. The penetration was proved beyond reasonable doubt. This was separate penetration from penetration occasioned the days after by Mokaya, who is happily serving a life sentence. 62. The penultimate question is who was the penetrator? The appellant maintained that the family owed him Ksh. 990/=. It is my hope that the defilement was not the payment of the debt. The issue of money is esoteric to him and was raised at the defence stage. The same ought to have been raised at the cross examination. It is true that if evidence was tendered that was surprising to the state, they have 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. 63. However, the kind of defence raised, could only have been raised with the witnesses who testified. Further the defence does not rule out defilement. The evidence of PW1 and PW2 was consistent and unshakeable. On the other hand, the defence evidence was a sieve. It is not true that people cannot commit crimes where there are debts. The debt has nothing to do with penetration of a minor. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 14

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minor recognized the appellant as the episodes were not only during the day, but the complainant would go early in the morning, even before church opened, to be penetrated as per the evidence of PW2. 64. The incident occurred several times during the day at various places. The appellant and the complainant were known to each other. This was not just identification but recognition. In the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 65. The appellant was properly recognized and known by the minor. She went to the shop, knowing the shopkeeper, who ended up preparing her for a year or so then penetrating her, after applying saliva. This was done both in the shop and in the bush. 66. I am satisfied that there were no contradictions. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that: The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised 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. 67. The court below correctly analyzed the alleged contradictions, which did not go to the root of the charge. The court correctly weighed the defence and the prosecution evidence and came with a rational decision. This was as addressed in the case of Erick Onyango Ondeng’ vs. Republic [2014] eKLR, where 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 15

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fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, 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. 68. The appellant was sentenced to 20 years imprisonment. He was warned that the sentence was illegal. 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 Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), stated as follows: 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: 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 16

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69. 70. 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. In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34(KLR), the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 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. This means sentences under the Sexual Offences Act are not suggestive. The sentence provided under section 8(1) of the Sexual Offences Act is a life sentence. The court illegally meted out a sentence of 20 years. This was anathema to good order and punishing the pedophiles. What then happens when a sentence is a nullity? This was addressed in Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, where Lord Denning while delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 17

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71. The twenty year sentence is a nullity. It is set aside. In lieu thereof, it is substituted with life imprisonment as per law required under Section 8(2) of the Sexual Offense Act. Determination 72. In the circumstances, I make the following orders: a. The appeal on conviction and sentence is dismissed. b. The 20-year sentence is set aside. In lieu thereof, the appellant is sentenced to life imprisonment. c. Right of appeal 14 days. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 21TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Kihara for the State Appellant present Court Assistant – Martin Page 11 of 11 M. D. KIZITO, J.** https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7368/eng@2026-05-21 18

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