Isaac Mburu Mwaura v Republic

a. That the learned trial Magistrate erred in both law and in fact in convicting the Appellant for the offence of Defilement when there was no sufficient evidence to support the charge and the elements of defilement were not proved to the required standard. b. That the learned trial Magistrate erred in both law and in fact in finding that the evidence of PWI was solid and unimpeachable and hence sufficient to sustain a conviction when there was overwhelming evidence to show that her credibility was-questionable. c. That the learned trial magistrate erred in both law and fact in convicting the Appellant purely based on the evidence of PWI when it was not safe to do so. d. That the learned trial magistrate erred in both law and fact in completely disregarding the results of the DNA test which exonerated the Appellant as the father of the complainant's child, the product of the defilement. e. That the learned trial Magistrate erred in law and fact in delivering a judgement that was merely speculative and based on assumptions rather than cogent evidence thereby arriving at an erroneous decision that resulted in unnecessary hardship and grave prejudice as against the Appellant. f. That the learned trial Magistrate erred in law and fact and manifested immense bias by completely disregarding the evidence of the defence and placing undue regard to the prosecution's case when there was no legal basis for the same. g. That the sentence meted was harsh, excessive in the circumstances and bad in law. h. That the trial Magistrate's judgement and sentence in this matter was biased, unjust, oppressive and not founded on sound principals of the law or otherwise. 5. The appeal was canvassed by way of written submissions. 6. Counsel for the Appellant submitted that the trial magistrate relied solely on the evidence of the Complainant PW1, which evidence was shaky and uncreditworthy and hence it was unsafe to convict on the same. That Complainant's primary evidence was that the Appellant defiled her in the last week of the month of April, 2023 and whereof she later found herself pregnant thereafter. However, a DNA report carried out on the child the resultant of the alleged defilement, excluded the Appellant as the father thereof and hence it was proved in evidence that PW1 was lying when she alleged that the Appellant was the father of her child. It was also in evidence that the complainant was defiled by someone else and not the Appellant. 7. Counsel adds that in complete disregard of the evidence before the court and clear demonstration of bias on his part, the trial magistrate applied the case of AML vs Republic (2012) eKLR which precedent did not apply to the circumstances of the present case. The trial magistrate further made a finding that there was indeed penetration in the month of April, 2023 when no such evidence existed since from evidence it showed that the Complainant's child must have been conceived in the month of May. Further, the P3 Form which was filled in the month of September demonstrated that the hymen was not freshly broken. The finding of the trial magistrate therefore that PW3 corroborated the evidence of PW1 that hymen was broken in the month of April was erroneous and farfetched because PW3 could not tell the exact time the hymen was broken. 8. It is the Appellant’s case that the Complainant's child must have been conceived mid-May, barely two weeks from the alleged date of defilement. This proves beyond reasonable doubt that the Complainant had relations with another man around the same time she accused the Appellant of defiling her and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 2

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hence it is clear that the Appellant was framed and the trial magistrate demonstrated immense bias by disregarding this critical evidence. 9. The trial magistrate also completely disregarded the defence evidence that prior to the report of the defilement being made to the police and before the Appellant was apprehended, the Complainant's family had demanded a whooping sum of Kshs. 250,000/- so as not to pursue the charges and the Appellant refused to be extorted hence the case against him. The defence led clear evidence towards this which was never disputed and it was also corroborated by PW2, the Complainant's mother, who admitted that she had indeed sent village elders to the Appellant's home prior to the charges being made. When she was asked what she expected from such action, she could not answer. 10. Counsel submits that the entire judgement of 8th November, 2024 was purely based on the evidence of PW1 yet the evidence on record taken in its totality was unsafe to convict on the evidence of a single witness whose testimony was found to be uncreditworthy based on the report of the DNA test results. No reasons whatsoever were given by the trial magistrate why he placed such a high reliance on the evidence of the minor other than stating that the minor knew the Appellant very well. However, that is not a proper ground especially since it was part of the evidence that the two families were neighbours and hence her knowledge of the Appellant was not a special circumstance. 11. Additionally, that the fact that the Complainant did not mention during evidence and/or report the father of her child to the police shows a clear intention to absolve him from his crime at the expense of the Appellant. How then did the trial magistrate convince himself that the Complainant was truthful when she said it was the Appellant who defiled her when the whole time she was aware of a different culprit but failed to mention him? 12. Reliance was placed on the decision in Simon Gichuki Maina v Republic (Criminal Appeal 50 of 2015) [2016] KEHC2924 (KLR) (29 July 2016) (Judgment) where it was stated as follows: “ Whilst paternity test cannot conclusively prove the fact of defilement, these DNA results cast genuine doubt on the evidence of the complainant and bring her veracity into question. If as proved appellant was not the father of her child, then the complainant must have had sexual intercourse with a person other than the appellant and that person fathered her child. Her identification of the appellant as the man who defiled her is cast into doubt. The very real possibility that the complainant only named (identified) the appellant purely to shield some other third party cannot be entirely ruled out. Nobody witnessed the defilement. Nobody saw appellant in the company of the complainant. The complainant's claim that the appellant fathered her child through this act of defilement has been disproved by scientific evidence. I find that pertinent and genuine doubts remain regarding the identification of the appellant by the complainant. Once a witness is found to have been untruthful in one aspect of his testimony, then the entire testimony of that witness is cast into doubt. The benefit of such doubt must be awarded to the appellant. As such he was entitled to an acquittal." 13. Counsel urges that, similarly, in this matter, nobody else witnessed the defilement or the company of the complainant with the Appellant. It was part of evidence that during that time, schools were closed and that the Appellant's children were home, one of whom was aged 10 years at the time. The Appellant has four children, the lastborn being at least 5 months at the time as per evidence. These children were obviously not with their mother since it was alleged that the mother was at the garden on that day with the young one and hence they must have been home. According to the evidence of the Complainant, she took about 30 minutes to come to the Appellant's home from the time she was allegedly invited. That is a long time for three children to be playing outside without coming home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 3

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They would have likely seen the Complainant come to their home. Neighbours would also have likely seen her. Yet no such evidence was available. The Complainant’s evidence having then been found to be very shaky, the Appellant was entitled to an acquittal. 14. Further that the trial magistrate, in his wisdom or lack of it, made a decision to disregard the DNA results and convict on the sole evidence of the Complainant. The trial magistrate's reasons for disregarding the DNA report was that it was irregularly introduced to him by the investigating Officer. This was not the case since the report was in fact introduced and handed to court by the state counsel as per the proceedings. Even then, when the report was introduced, the trial magistrate did not complain or mention the said irregularity. He also did not direct for another report if indeed he believed that the same was interfered with. That the prosecution was not opposed to the said report neither dispute its authenticity. Further, it was not clear why he disregarded this particular evidence from the Investigating Officer yet the court was more than ready to accept all other evidence produced by the state which was also procured and supplied to the prosecution by the same Investigating Officer. 15. It is submitted that it is therefore clear from the foregoing that the trial magistrate was determined to convict the Appellant through whatever means and was in fact disappointed that the DNA results did not support his predetermined finding. He even went ahead to quote a very unrelated precedent just to support his pre-conceived notion. As was stated in the above quoted case of Simon Gichuki Maina v Republic where the circumstances were similar as the current matter: “ It is clear that the learned trial magistrate did not have an open mind in analyzing the evidence before her. She was biased and was out to render a conviction regardless of the nature of evidence available. The thinking of the trial magistrate is made very clear in her statement found in her Judgment at page 50 line 11 “Referring back to the complainant's testimony she stated she was a virgin when she was defiled and insisted that the accused was the one responsible for the pregnancy. So how come the DNA turned negative where was the original DNA results? How was the DNA conducted? How was it transmitted back to court..."The trial magistrate seems to be gravely disappointed by the fact that the DNA4 results did not support the evidence given by the complainant. It is not the business of the court to side with one or other party in a case. The court must maintain an open mind and decide a case purely upon the basis of the evidence presented to it. A magistrate should never try to twist and/or manipulate evidence to suit a certain preconceived position." 16. It is the Appellant’s case that the evidence was not sufficient and there are serious questions of law and fact that are raised and thus the court is urged to overturn the conviction. 17. For the Respondent it was submitted that in the instant case, a birth certificate was produced and it clearly indicated that the victim was born on 11th May, 2005 and the offence was in the month of April, 2023. This shows that the victim was 16 years, therefore, age was sufficiently proved as 16 years old. 18. That regarding penetration, PW1 testified that in the month of April 2023 she had closed school and was at the shop when the appellant who is her neighbor ask him to assist in ofioading some goods from a motor cycle and she did so. When she was done ofioading the appellant stood on the door and while she tried to get out the appellant closed the door and moved towards her and undressed the complainant he also removed his clothes and had sexual intercourse with the complainant. 19. Counsel adds that it was on 27th May, 2023 when she had not experienced her menstrual period and she went to the school doctor where it was established that she was 4 months pregnant. 20. It is the Respondent’s case that the complainant was examined by PW3 who filled the PRC and P3 form. The pregnancy test was positive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 4

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21. It is urged that Section 2 of the Sexual Offence Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Genital organs is defined to include the whole part of male and female genital organ and for purpose of the act it include the anus. 22. That PW1 testified that the appellant undressed her and he then undressed climbed on top of the her and had sex. This clearly shows that the child vagina was penetrated and therefore the evidence on penetration was solid and proved. 23. On identification, it is submitted that PW1 in her testimony stated that the appellant herein was their neighbor and a family friend the appellant went to the shop where the complainant was and requested her to assist in ofioading some luggage from his motor cycle. The appellant was their neighbor and was well known to her. All the witnesses confirmed that they were neighbors. The appellant was well known to the victim the evidence on identification was therefore solid. 24. Counsel submits that the court was right in relying on the evidence of PW1 wholly as the court noted that the victim was truthful and her testimony was consistent and remained unshaken even after rigorous cross examination by the accused and the defence. That the trial court made the correct finding in relying on the evidence of a single witness as per the provisions of Section 124 of the evidence Act. The section allows the court to rely on the evidence of a victim of a sexual offence to convict if she is the only witness, and for reasons to be recorded the court is satisfied that the alleged victim is telling the truth. 25. It is urged that the trial court made proper finding in disregarding the DNA test results and relying on the evidence of the complainant. The offence of defilement is not proved by way of a DNA test but by way of evidence. 26. The application of the case of AML VS REPUBLIC (2012) eKLR by the court was proper as it well fitted the circumstances of the instance case. The court therefore did not misdirect itself in relying on this precedent. 27. Reliance was placed on the case of Williamson Sowa Mbwanga v Republic Criminal Appeal No. 109 Of 2014 eKLR, the Court of Appeal pronounced itself with respect to DNA in defilement cases. 28. That it was therefore immaterial whether or not the pregnancy of the complainant was as a result of the alleged offence of defilement. To prove defilement, it requires that penetration be proved which was sufficiently proved and the trial court properly found so. 29. Counsel submits that the Appellant’s defense was a mere denial which was not strong enough to rebut the prosecution case. The trial court was therefore right in disregarding the same. That the prosecution discharged its burden of proof and that the appellant was properly convicted of the offence defilement. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. And if there were any inconsistencies the same were minor and did not go to the root of the case. All the ingredients of the offence of defilement were establishment beyond reasonable doubt. 30. On sentence, it is submitted that the appellant was given a chance to mitigate. He stated that he was a family man and a teacher with the T.S.C. He was remorseful and sought leniency. 31. Section 8 of the Sexual Offences Act Provides: “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”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 5

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32. That the sentence was lawful, appropriate, and proportionate to the offence, the appellant was properly sentenced. 33. That looking at the circumstances of the case, the appellant abused the trust bestowed upon him by the society and instead took advantage of a girl who was 16 years at the time of the incident. Being a neighbor, a teacher, he ought to have protected the victim. Instead he turned against her and became the tormentor. 34. A recap of the evidence at trial is as follows. The complainant (PW1) testified that she assisted the Appellant ofioading goods to his house. When she tried to pass, the Accused closed the door and moved towards her and she fell on a seat. The Appellant undressed her and also removed his clothes. He climbed onto her and they had sex. The sex did not take long and once the Appellant was done, PW1 dressed up and went home. On 27.5.2023, she missed her periods and the school nurse confirmed she was pregnant. 35. PW2 was called and informed of the development. She could not make it to school as she was pregnant and had problems. She questioned PW1 when schools closed and she said that the Appellant was responsible for the pregnancy. PW1 stated that it is only the Appellant that she had had sex with. She reported to the chief who took her to the police. A P3 form was issued. 36. PW2 stated that earlier on she had seen an inappropriate message in her phone which PW1 was using. She confirmed that the line was the Appellant’s through Mpesa. She sent a person to warn the Appellant to keep off her daughter. The wife of the Appellant had also complained of the Appellant giving PW1 a basin when the wife had declined to do so and when the basin was broken, the Appellant offered to pay. The Appellant was also accused of giving PW1 money, a thing that incensed the wife. 37. PW3 examined PW1 and found she was 4 months pregnant. The hymen was broken with no bruises or discharge. 38. PW4, the investigating officer stated that the complainant informed him that she had been defiled in April 2023. The report was recorded and the victim taken to hospital. A P3 form and a PRC form were filled. Tests confirmed she was 4 months pregnant. PW1 named the Appellant as the culprit and who was a teacher and a family friend. 39. On interrogation, the Appellant denied involvement. Explaining the delay in the reporting, PW4 stated that he was told the parties were trying to settle the matter but the Appellant stood firm. The child was born on 4.1.24. 40. PW1 was recalled and further cross examined stated that she expected her menses on 27.5.23. They failed. She denied a relationship with the Appellant. That she did not scream as she was afraid of shouting as her parents are harsh and they could have beaten her and chased her away. She denied that any money was demanded from the Appellant. 41. PW2 was also recalled and cross examined maintained she never asked for any money from the Appellant. The rest of her evidence remained largely the same. 42. In his sworn defence, the Appellant stated that PW1’s family were his neighbours with whom he had a good relationship and they used to assist each other. He denied any relationship with PW1. He only learnt of the allegation in August when an elder was sent to him. The complainant’s mother demanded money or else matter would be reported to the police. A meeting was held but he still denied responsibility. A demand of 250,000 was made. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 6

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43. The Appellant attributed the accusation to his alleged obstruction of some payment of money to the complainant’s family over the take-over by someone else of the shop the complainant’s family were running before. 44. He added that his wife never used to leave home as she had a 5 months old child. The wife would always be at the posh mill or at home and never in the farm. 45. The appellant added that the complainant could not have gotten pregnant in April since she had her menses in the month. He stated he did not request a DNA test. That PW1 had relationships with men and her mother used to complain. He denied ever sending her a message. 46. DW2 exonerated the Appellant from the offence. She said she had a 4 months old child and so would not leave home. She had a 12 year old son who would have reported the incident if at all. She supported DW1’Ss contention that the whole issue arose out of a grudge over money that was to be paid to the family of the complainant for a shop which they had vacated. 47. That was the totality of the evidence. 48. This being a first appeal, it is by way of a retrial and parties are entitled to this court’s re-evaluation, reanalysis and reconsideration of the evidence and its own decision on that evidence. The court should however bear in mind that it did not see the witness testify and give due allowance for that. (See Okeno v Republic [1972] EA 32). 49. The same principle was emphasized in Pandya v Republic and Shantilal M. Ruwala v Republic. Those decisions underscore that although a first appellate court is not bound by the factual findings of the trial court, it must give due regard to the trial court's advantage of observing the demeanour of the witnesses. Where the findings are supported by the evidence and the law, an appellate court ought not to interfere merely because it might itself have reached a different conclusion. 50. This principle is buttressed in the decision in Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal held that: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 51. The burden of proof in criminal cases is well settled. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that to for a conviction to lie in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR: “ [I]t is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 7

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52. In the famous case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt: “ 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.” 53. In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating: “ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 54. Guided by those principles, I have carefully read and reconsidered the entire record of the proceedings before the trial court, the documentary exhibits produced, the judgment appealed against, the grounds of appeal and the submissions made before this Court. I shall now proceed to analyse the evidence afresh in order to determine whether the convictions entered by the learned trial magistrate were safe and whether the sentence-imposed warrants interference. 55. The conviction in this case was in the words of the court based on the evidence of the complainant which impressed the court as being truthful and remained unshaken even under rigorous cross examination by both the Appellant and his counsel. The court formed the opinion that the complainant had no role to play in the feud between her parents and the Accused if such existed. The evidence impressed the court as truthful. 56. Addressing the DNA report which excluded the Appellant as the father of the child born to the complainant, the court found that that fact does not on its own disprove the fact that the Appellant had sex with the complainant in April. The court further observed that the DNA report was submitted in an irregular manner as it should have been sent under confidential cover to the court. 57. On my evaluation of the evidence as is indeed my obligation and legal duty, the prosecution case is based on the fact that the complainant had sex with the Appellant and that resulted in a pregnancy. That is the position taken by in the direct evidence of the complainant, the mother (PW2) and the investigating officer. All tie the culpability of the Appellant on the pregnancy. 58. Crucially, it is worth of note and emphatic that the Appellant never requested a DNA test. According to the DNA report, the request was made by the state through No. 24417 PC Nzomo Felix of Olmoran police station. The request was to determine paternity. 59. Throughout the prosecution’s case the emphasis is on a sexual encounter that led to a pregnancy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 8

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60. It is the law that prove of defilement is based on evidence and not necessarily the results of medical evidence. 61. In my considered view, where the prosecution’s case is framed in a manner to show that it is based on a pregnancy, the accused within his constitutional rights under Article 50(b) to be informed of the charge with sufficient detail to answer it would be heavily prejudiced if he finds himself required to defend himself beyond this scope. 62. In a case like this where it is the prosecution that finds it necessary to produce the report, the prosecution’s case is weakened when the findings in the report do not support the charge. 63. A witness before the court must be truthful in all respects and where in a situation like the one obtaining here a witness is candid on an alleged one incident of sexual activity but fails to shed light on another incident which led to a pregnancy, the credibility of the witness comes into question. The question that arises is, why the selective report and prosecution? Is there a possibility of a culprit being shielded? 64. Although the prosecution was under no legal obligation to prove paternity in order to establish the offence of defilement, it consciously elected to anchor its case on the assertion that the complainant conceived as a direct consequence of the alleged sexual intercourse with the Appellant. That factual foundation was repeatedly advanced by the complainant herself, her mother and the investigating officer. The prosecution thereafter procured and produced a DNA report specifically for purposes of determining paternity. Once the scientific evidence demonstrated that the Appellant was excluded as the biological father of the child, the prosecution could not simply invite the court to disregard that evidence without offering any explanation consistent with the remainder of its case. 65. It is settled law that the essential ingredients of the offence of defilement are proof of the age of the complainant, proof of penetration and proof of the identity of the perpetrator. Medical evidence, though desirable, is not a mandatory prerequisite to establish penetration. In Fappyton Mutuku Ngui v Republic [2014] eKLR, the Court of Appeal held that the offence may be proved by the credible testimony of the complainant even in the absence of medical evidence, provided the court is satisfied beyond reasonable doubt that penetration occurred. Likewise, in Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal reiterated that medical evidence merely corroborates the prosecution case and is not the only means of proving penetration. 66. Equally, however, where the prosecution itself introduces scientific or medical evidence as part of its proof, such evidence cannot be ignored merely because it turns out to be unfavourable to the prosecution. Scientific evidence is ordinarily regarded as objective evidence. Where it directly contradicts a material aspect of the prosecution case, the court must evaluate the contradiction and determine whether the prosecution has nevertheless discharged the burden of proof beyond reasonable doubt. The burden never shifts to an accused person to explain inconsistencies created by the prosecution's own evidence. 67. The learned trial magistrate acknowledged that the DNA report excluded the Appellant as the father of the complainant's child but proceeded to discount it principally on the basis that it had allegedly been transmitted to court irregularly. With respect, that approach cannot be sustained. The report was produced by the prosecution through its investigating officer without objection from the prosecution itself. No challenge was made regarding its authenticity, the qualifications of the Government Analyst or the integrity of the samples analysed. Neither was any application made to expunge the report or to order a fresh analysis. Having admitted the report into evidence, the trial court was under a duty to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 9

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evaluate its evidential value together with all the other evidence on record. It was not open to the court to disregard material scientific evidence without any legal basis. 68. The importance of witness credibility in criminal proceedings cannot be overstated. A conviction founded principally on the testimony of a single witness is legally permissible under section 124 of the Evidence Act, provided the court records the reasons for believing that witness. Nevertheless, the witness must be truthful and reliable in all material particulars. In Ndungu Kimanyi v Republic [1979] KLR 282, the Court emphatically stated: “ The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise suspicion about his trustworthiness." 69. That principle has consistently guided our courts. The issue is not whether a witness tells the truth in some respects, but whether the court can safely rely on the witness on the disputed facts after considering all the surrounding circumstances. Where objective evidence substantially contradicts a witness on a material issue, the court must carefully examine whether it remains safe to act upon that witness's evidence without independent corroboration. 70. In the present appeal, the complainant's evidence was not simply that the Appellant had sexual intercourse with her. Her evidence was categorical that she had never had sexual intercourse with any other person and that the pregnancy resulted from the encounter with the Appellant. PW2 repeated the same account, stating that the complainant informed her that it was the Appellant who had made her pregnant. The investigating officer likewise investigated and prosecuted the matter on that very premise. The pregnancy therefore became an integral factual component of the prosecution narrative rather than a collateral circumstance. 71. The DNA report completely displaced that factual foundation by excluding the Appellant as the biological father. It necessarily followed that another man had sexual intercourse with the complainant within the relevant conception period. Yet the complainant neither disclosed that fact nor offered any explanation to the investigating officer or the court. That omission was not peripheral. It directly affected her credibility because she had presented herself as having had only one sexual partner during the relevant period. 72. This Court is alive to the fact that exclusion as the biological father does not, in itself, conclusively prove that the Appellant never had sexual intercourse with the complainant. It remains legally possible for a complainant to have had sexual intercourse with more than one person during the relevant period. However, that possibility was never the prosecution case. Courts determine criminal liability on the evidence actually presented and not on speculative hypotheses introduced after the prosecution evidence has collapsed. 73. The decision of the High Court in Simon Gichuki Maina v Republic [2016] eKLR is particularly instructive. The Court held that although DNA evidence cannot conclusively determine whether defilement occurred, where the complainant has maintained that the accused was responsible for the pregnancy and scientific evidence disproves that assertion, genuine doubt is cast upon the complainant's credibility and identification of the offender. Such doubt must, in accordance with settled criminal law principles, be resolved in favour of the accused person. 74. The present case falls squarely within that reasoning. The complainant never informed the court that she had engaged in sexual intercourse with another person. She never corrected her evidence after the DNA results became available. Neither did the prosecution seek to amend or clarify its case. Instead, the prosecution invited the trial court to ignore the DNA report altogether. Such an approach effectively https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 10

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required the Appellant to defend himself against an entirely different factual case from the one that had been presented throughout the trial. 75. That approach occasioned prejudice to the Appellant. Article 50(2)(b) of the Constitution guarantees every accused person the right to be informed of the charge with sufficient detail to answer it. That constitutional guarantee extends beyond the wording of the charge sheet to the factual case advanced by the prosecution throughout the trial. An accused prepares and presents his defence in answer to the prosecution case as disclosed in the evidence. 76. Throughout these proceedings, the prosecution's factual case remained that the complainant became pregnant after being defiled by the Appellant. It was therefore entirely reasonable for the Appellant to direct his defence towards disproving that allegation, including reliance upon the DNA evidence excluding him as the father. Once that scientific evidence emerged, fairness demanded that the prosecution either explain the inconsistency or accept the doubt thereby created. It was not open to the prosecution, or indeed the trial court, to shift the factual basis of the case by arguing that pregnancy had become irrelevant after the defence had already been mounted on that very issue. 77. The defence also raised evidence that elders had approached the Appellant seeking payment before the matter was reported to the police. Whether or not that evidence ultimately established an attempt at extortion, it constituted part of the surrounding circumstances which required careful consideration alongside the DNA evidence and the contradictions in the prosecution case. The learned trial magistrate dismissed that evidence without adequately analysing whether it could have affected the credibility of the accusations made against the Appellant. 78. I have equally considered the medical evidence. PW3 merely confirmed that the complainant was approximately four months pregnant and that her hymen was broken. The examination was undertaken several months after the alleged incident. The medical officer candidly did not and could not determine when the hymen had been broken or identify the person responsible. That evidence therefore established neither the timing of penetration nor the identity of the perpetrator. It could not resolve the significant doubts created by the DNA report. 79. Upon my own independent evaluation of the entire evidence, I find that the prosecution failed to present a coherent and consistent account capable of proving the charge beyond reasonable doubt. The scientific evidence contradicted the factual premise upon which the prosecution had built its case. The complainant's failure to disclose another sexual partner materially affected her credibility. The trial court failed to properly evaluate the significance of those inconsistencies and instead discounted objective scientific evidence without lawful justification. 80. Criminal convictions cannot rest upon speculation, conjecture or selective acceptance of evidence. Where two views of the evidence are reasonably possible, the law requires the court to adopt the interpretation favourable to the accused. The cumulative effect of the inconsistencies identified above creates reasonable doubt which must be resolved in favour of the Appellant. 81. Consequently, I find that the conviction for the offence of defilement was unsafe. The appeal against conviction succeeds. The conviction is quashed and the sentence of fifteen (15) years' imprisonment is set aside. 82. The Appellant shall be released forthwith unless he is otherwise lawfully held. DATED SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2026. A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11151/eng@2026-07-21 11

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