Ali Omar Faraji Alias Nyayo v Republic

3. c. The learned magistrate misdirected himself in fact and law by not appreciating the inconsistencies in the testimonies of the Prosecution witnesses PW-1 Asha Abdul and PW-4 Police Constable Robina Oinye as to when PW-2 and F.A (both minors) were taken to Nairobi Women's Hospital and examined in order to determine as to whether evidence of sexual assault could have been tampered with. d. The learned magistrate misdirected himself in fact and law by not appreciating the inconsistencies in the Prosecution's evidence being PExh- 1,2,3,4 and 7 mismatch as to the date and time of examination of the minors at Nairobi Women's Hospital after the alleged sexual offence. e. The learned magistrate misdirected himself in fact and law by not appreciating the fact that Clinical Officer Ms. Lucy Njoroge who examined the minors and prepared PExh- 1 and PExh3 being the Gender Violence Recovery Centre (G.V.R.C) Forms for both minors, PExh- 2 and PExh- 4 being the Post Rape Care (P.R.C) Forms for both minors and PExh - 7 being the P-3 was never called to testify and produce the evidence and be subjected to cross examination. f. The learned magistrate misdirected himself in fact and law by not appreciating the fact that PW- 3 Clinical Officer John Njuguna was neither the maker of the documents he produced in court nor the person who examined the minors and as such his evidence was mere hearsay with no probative value before a court of law. g. The learned magistrate misdirected himself in fact and law by not appreciating the fact that despite the Appellant being taken for DNA testing at the Government Chemist, the results were never availed as evidence before court; which could only be construed that the results would have favored the Appellant had they be presented as evidence in court. h. The learned magistrate misdirected himself in fact and law by not appreciating the fact that failure to present the minors before the Government Chemist for DNA Testing and comparison with the Appellant's DNA; which could only be construed that the results would have favoured the Appellant had they be presented as evidence in court. i. The learned magistrate misdirected himself in fact and law by conducting voire dire for PW-2 (minor aged 3 years) and noted on the proceedings that the "child was playful and did not understand what was happening" and instead of stopping his testimony, he allowed the same to proceed and heavily relied on it in his final determination. j. The learned magistrate misdirected himself in fact and law by conducting voire dire in chambers for PW- 2 (minor aged 3 years) in the presence of his mother PW-1 Asha Abdul would have distorted his testimony and as such the same could be constructed as having being coached as to what to say. The appeal raises the following issues for determination;a) whether there was sufficient evidence to support the conviction b). whether there were inconsistencies and contradictions in the prosecutions case to render the prosecution’s case worthless. c). whether the learned Honorable magistrate erred by taking the evidence of the minor M.A after she had declared him unable to understand what an oath was. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 2

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4. d). whether the absence of DNA evidence linking the appellant to the commission of the offence was fatal to the prosecution case. e) whether the learned Honorable magistrate considered the defense tendered by the appellant The parties agreed to have the appeal heard by way of written submissions which this court has duly considered. Appellant’s Submissions 5. The appellant submitted that he challenges both conviction and sentence on grounds summarized into two principal issues, namely, lack of sufficient evidence and failure to call crucial witnesses. 6. On the issue of sufficiency of evidence, the Appellant submitsted that the prosecution failed to discharge its burden of proof beyond reasonable doubt, as required by law. 7. The appellant contended that the prosecution’s case was riddled with material inconsistencies and contradictions which, when weighed against the Appellant’s defence and evidence on record, ought to have created reasonable doubt in favour of the Appellant. 8. In particular, reliance was placed on the testimony of PW1, who stated that upon leaving the minors with the Appellant briefly, she returned to find him in suspicious circumstances with the infant, after which she allegedly observed injuries on the child. 9. She further alleged that the older minor, Mohammed, informed her that the Appellant had assaulted him. 10. The Appellant points out that although the minors were examined at Nairobi Women’s Hospital – Adams Arcade within approximately 12 hours of the alleged incident, and despite assertions that DNA samples were taken, no conclusive forensic evidence was produced linking the Appellant to the alleged acts. 11. The Appellant further relies on the testimony of PW3, who produced medical documents on behalf of other practitioners and confirmed that no spermatozoa was detected and that certain findings, including absence of lacerations in some areas, were noted. 12. Similarly, the appellant relied on the evidence of PW4 who testified that although she collected the Appellant’s buccal swabs, she did not obtain samples from the minors, resulting in the absence of any DNA report. 13. The Appellant submitted that this omission was significant, particularly in light of the prosecution’s earlier indication that a Government Analyst would be called to testify. 14. It is contended that the failure to produce such crucial forensic evidence raises an inference that the same may have been unfavorable to the prosecution’s case. 15. The Appellant further submitted that the circumstances surrounding the case, including alleged external pressure due to media attention and involvement of non-profit organizations, raise the possibility of investigative bias and potential tampering with evidence. 16. The appellant further argued that in a case where the alleged offence and medical examination occurred within a short time frame, the prosecution bore a heightened obligation to present conclusive scientific evidence, including DNA analysis, to eliminate any doubt as to the Appellant’s involvement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 3

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17. In advancing his defence, the Appellant submitted that the minor had pre-existing health issues, including difficulty swallowing, and that he accompanied PW1 to the hospital during the night and no allegations of defilement were made at that time. 18. According to the appellant, the complaint was allegedly raised only the following day, thereby casting doubt on PW1’s credibility. 19. Additionally, the Appellant highlighted a prior complaint made by PW1 against another individual, Marijan, involving similar allegations which were found to be false. The Appellant questioned the plausibility of repeated allegations of a similar nature within a short period and suggests that the injuries observed may have arisen from the earlier alleged incident. 20. He further relied on documentary evidence contained in the Supplementary Record of Appeal to support his position that reasonable doubt existed and that he should have been acquitted of the charges. 21. The Appellant also challenged the reliance placed on the evidence of a minor of tender years, arguing that the trial court improperly conducted voire dire examination. 22. The appellant submitted that the record does not demonstrate that the court sufficiently inquired into the child’s understanding of the duty to tell the truth, nor does it indicate whether safeguards were taken to prevent possible influence by PW1 during the testimony. 23. In this regard, the appellant placed reliance on Wamunga v Republic, (1989) KLR 424 and Maripett Loonkomok v R Court of Appeal at Mombasa Criminal Appeal No. 68 of 2015. The appellant further argued that the possibility of coaching could not be ruled out, particularly in light of the child’s tender age. 24. The Appellant submitted that the conviction was largely based on circumstantial evidence, yet the same did not meet the threshold required in law. 25. The appellant contended that the production of medical records by a witness who neither conducted the examinations nor authored the reports deprived the Appellant of the opportunity to effectively challenge the findings. In addition, the absence of a DNA report further weakened the evidentiary basis of the conviction. 26. The Appellant relied on Abdalla Bin Wendo v. R [1953] 20 EACA 166 in support of the proposition that such evidence must be scrutinized with great caution. 27. Further, the Appellant pointed to inconsistencies in the prosecution’s evidence regarding the dates of the alleged offence. The PRC Report indicates that the minors were examined on 17th November 2020, with a history suggesting that the incident occurred two weeks prior, whereas PW1’s statement and oral testimony indicated that the incident had occurred the previous day. 28. The Appellant submitted that no explanation was offered for this discrepancy, which according to him is material and undermines the credibility of the prosecution’s case, particularly in light of the allegation of repeated acts unsupported by evidence. 29. On the issue of failure to call crucial witnesses, the Appellant submits that the prosecution’s case was fundamentally weakened by its failure to call the medical practitioners who examined the minors, namely Lucy Njoroge and Edwin Omwenga, whose reports were instead produced by PW3. 30. The appellant argued that no sufficient explanation was provided for their absence, nor was there evidence of efforts made to secure their attendance, including through summons or virtual testimony. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 4

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The Appellant contends that this omission was prejudicial, particularly given the reliance on medical evidence in a case of this nature. 31. The Appellant further submitted that the record does not demonstrate that PW3 was adequately qualified to authenticate the reports, as there is no indication that he was familiar with the handwriting or signatures of the purported authors. 32. In this regard, reliance was placed on Sibo Makovo v Republic, Criminal Appeal [1997] eKLR. The Appellant reiterated that the failure to call the Government Analyst, despite earlier indications that such a witness would testify, deprived the court of critical expert evidence necessary to corroborate the allegations. 33. In conclusion, the Appellant submitted that the prosecution failed to prove its case beyond reasonable doubt and that the evidence on record was insufficient and unreliable, and that the failure to call crucial witnesses further weakened the case against him. 34. The appellant thus argued that the conviction was unsafe and that this Honourable Court ought to allow the Appeal, quash the conviction, set aside the sentence, and order that he be set at liberty. Respondent’s Submissions 35. The Respondent submitted that the Appellant herein was duly charged with the offences of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 and Sexual Assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act No. 3 of 2006. 36. Upon full trial, the prosecution called four witnesses and the Appellant was placed on his defence. The Honourable Trial Magistrate found the Appellant guilty on both counts and sentenced him to life imprisonment on the first count and ten (10) years imprisonment on the second count. 37. Being dissatisfied with both conviction and sentence, the Appellant preferred the present Appeal, which the Respondent opposed in its entirety, maintaining that the same lacks merit and ought to be dismissed. 38. According to the Respondent, the issues arising for determination are whether the prosecution proved its case beyond reasonable doubt and whether the prosecution’s case was marred by inconsistencies. 39. On the question of whether the prosecution discharged its burden of proof, the respondent submitted that the essential ingredients of the offence of defilement, namely the age of the complainant, proof of penetration, and positive identification of the assailant, were fully established, as enunciated in Dominic Kibet Mwareng vs. Republic [2013] eKLR. 40. The respondent argued that the Appellant’s primary contention that penetration was not proved due to absence of spermatozoa, and that identification was not established in the absence of a DNA report, was misplaced both in law and in fact. 41. Penetration is defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of one person into the genital organs of another. 42. The jurisprudence in Alex Chemwotei Sakong v Republic [21081 eKLR, as read together with Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2018] eKLR, clearly affirms that penetration does not necessarily require emission or presence of spermatozoa and may be established even where the act is incomplete or superficial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 5

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43. Further, the Court in Kassim Ali v Republic (2021) e KLR affirmed that absence of medical evidence is not decisive, as the offence may be proved by oral or circumstantial evidence. 44. The respondent submitted that penetration in respect of the minor FA was proved through the production of the GVRC Form (PEXH.3), PRC Form (PEXH.4), and P3 Form (PEXH.6), which revealed lacerations in the rectal region and associated pain. 45. Similarly, penetration in respect of MA was established through the PRC Form (PEXH.2) and P3 Form (PEXH.7), which showed swelling of penile tissue and lacerations of the anal opening. The medical evidence on record was therefore sufficient to prove penetration, rendering the presence or absence of spermatozoa immaterial. 46. With regard to the Appellant’s contention that crucial witnesses, particularly the makers of the medical reports, were not called, the Respondent relied on Section 77 of the Evidence Act, which permits the production of such reports in criminal proceedings and allows the court to presume their authenticity. 47. Additionally, Section 33(b) of the Evidence Act provides for admissibility of statements made in the course of professional duty where the maker is unavailable. 48. In this instance the respondent submitted that PW3 sufficiently explained his familiarity with the makers of the reports and the unavailability of the said makers due to transfer and on being away for further studies. Notably, the Appellant raised no objection to the production of the documents. 49. The production of the medical reports according to the respondent was lawful, and the argument regarding failure to call critical witnesses was devoid of merit. 50. On the issue of identification, the Respondent submitted that the same was proved beyond reasonable doubt. The evidence of PW1 established that she left the minor FA in the custody of the Appellant and later found him in bed with the child under suspicious circumstances, immediately after which injuries were observed. This sequence of events, coupled with the absence of any other person in the house, irresistibly pointed to the Appellant as the perpetrator. 51. In respect of MA, the minor gave unsworn evidence identifying the Appellant as the assailant. 52. The law, as stated in Oloo v Republic [2009] eKLR, requires corroboration of unsworn evidence of a child of tender years. The Court of Appeal in Jamaal Omar Hussein v Republic [2019] eKLR, as well as May v Republic (1981) KLR and Mwangi v Republic (2006) 2 KLR 94, clarified that while unsworn evidence carries less probative weight, it is admissible and may form the basis of a conviction if corroborated. 53. Further, in Dada v Republic (Criminal Appeal E031 of 2023) [2024] KEHC 6021 (KLR) (22 May 2024), citing R v Baskerville [1916] 2 KB 658, Mukungu vs. Republic [2002] 2 EA 482, Mutonyi vs. Republic [1982] KLR 2003, and Republic v Manilal Ishwerlal Purohit [1942] 9 EACA 58, the Court emphasized that corroboration must connect the accused to the offence. 54. In the present case, the unsworn evidence of MA was corroborated by medical evidence and surrounding circumstances, including the undisputed fact that the Appellant was the only adult left with the minors at the material time. The minor’s report of the incident, including the description of the act, further reinforced the prosecution’s case. 55. The Respondent further submitted that the case was properly proved through circumstantial evidence. In Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, citing R v Taylor, Weaver and Donovan [1928] Cr. App. R 21, the Court affirmed that circumstantial evidence can be as cogent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 6

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as direct evidence where it irresistibly points to the guilt of the accused. In the instant case, the circumstances under which the offences occurred exclude any reasonable hypothesis other than the Appellant’s guilt. 56. According to the respondent the Appellant’s reliance on medical documents dated 5th August 2020 is equally unavailing, as the said documents neither relate to the material date of the offence nor were they produced by their maker, thereby rendering them unreliable. Their contents, if anything, reinforce the prosecution’s case by excluding the possibility of prior interference by any other person. 57. On the issue of alleged inconsistencies, the respondent submitted that the law is settled that not all discrepancies are fatal. As held in Richard Munene vs. Republic [2018] eKLR, only material contradictions that go to the root of the case and occasion prejudice to the accused can vitiate a conviction. 58. This position was further affirmed in Mumo v Republic (Criminal Appeal 49 of 2021) [2024] KECA 236 (KLR) (8 March 2024), which cited Dickson Elia Nsamba Shapwata & Another vs. The Republic [2008] TZCA 17, Erick Onyango Ondeng' vs. Republic [2014] eKLR, and Twehangane Alfred vs. Uganda [2003] UGCA 6, to the effect that minor inconsistencies should be disregarded unless they affect the substance of the prosecution’s case. 59. In the present matter, the respondent maintained that the alleged inconsistency regarding dates between the medical report and the testimony of PW1 is minor and does not undermine the overwhelming evidence establishing that the offences occurred. The totality of the evidence from the complainants, PW3, PW4, and the medical reports consistently pointed to the commission of the offences by the Appellant. 60. In conclusion, the Respondent submitted that the prosecution proved its case beyond reasonable doubt, that the conviction was safe, and that the alleged inconsistencies are inconsequential. The Appeal is therefore devoid of merit, and this Honourable Court is urged to dismiss it in its entirety. Analysis And Determination Duty Of First Appellate Court 61. The court has fully considered the submissions by counsel and as the first appellate court, this court has a duty to analyse, examine and evaluate the evidence afresh to satisfy itself that indeed there was evidence to convict the appellant. 62. This duty is described aptly in the case of Okeno vs. Republic [1972] EA 32, as follows: “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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. 63. This court as a first appellate court must itself by weighing conflicting evidence and draw its own conclusions on the evidence tendered before the trial court. See Shantilal M. Ruwala vs. R (1957) EA. 570 where the court held that 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 finding and conclusion; 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 vs. Sunday Post [1958] E.A 424.” 64. This court remaining alive to the responsibility bestowed upon it by the law undertook a meticulous and detailed analysis of the evidence tendered by the prosecution in the lower court as well as weighed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 7

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it against the defense tendered by the appellant to determine whether the conviction and sentence handed down to the appellant was supported by the evidence and the law. Issue No. 1 whether there was suffcient evidence to support the conviction 65. The offence of defilement would require proof of identification of the perpetrator, age of the victim and penetration. 66. PW1, Asha Abdul testified that she was a housewife living in Kibera and that the accused person, commonly known as “Nyayo,” was her boyfriend with whom she was living with since 2017. 67. She testified that she has 5 children and that the accused was not the biological father of the two children involved in the case, namely Mohammed Asha and Fatuma Asha, but their stepfather. 68. She went further to state that Mohammed Asha was three years old, having been born on 17 November 2017, and that she had lost his clinic card, while Fatuma Asha was born on 14 November 2020 and was four days old at the time of the incident. 69. On 16 November 2020, PW1 testified that she was at home with the accused and the children, prepared lunch at about 1.00 pm, and at around 2.00 pm left the house to go to the market, leaving Fatuma in the house with the accused and leaving with Mohammed, before returning at about 3.00 pm and finding the baby asleep. 70. At about 5.00 pm, she went to the communal toilets, which were crowded and some distance away, leaving Mohammed outside the house and the accused inside the single-room house with the baby on a mattress. Upon returning, she found the accused lying on the mattress with the baby, his back turned, and the baby covered with a blanket, and despite warning him that the baby could suffocate, he insisted the baby was fine. She observed the accused repeatedly moving his hand under the blanket and licking his small finger, heard the baby crying continuously, and upon removing the baby’s diaper, saw a bleeding cut on the anus. 71. She went on to state that when she later attended to Mohammed, she observed that he preferred lying on his stomach, could not drink water, and appeared uncomfortable. The accused left to buy chips, and during his absence, Mohammed told PW1 that “Nyayo” had inserted his “chululu,” meaning penis, into his mouth and anus when PW1 went to the toilet. PW1 examined Mohammed and noticed swelling in his throat, pain in his anus, and frequent urges to go to the toilet. The accused returned with chips which Mohammed could not eat, and PW1 did not immediately confront him. That night both children were crying, and PW1 confronted the accused with what she had observed and what Mohammed had reported, to which the accused did not respond. Although the accused initially denied to taking the children to hospital, he later agreed after PW1 assured him she would not disclose what she knew. 72. At about 3.00 am, they went to Nairobi Women’s Hospital at Adams Arcade but were turned away and advised to return in the morning. On 17 November 2020, they returned to the hospital, and despite earlier assurances, PW1 disclosed to medical personnel that the accused had violated the children, after which the accused was asked to step outside. The children were examined, and PW1 produced Mohammed’s medical notes as MFI-1 and his PRC form as MFI-2, Fatuma’s medical notes as MFI-3 and her PRC form as MFI-4, and later an exhibit memo form for Mohammed’s DNA sample as MFI-5. PW1 testified that the children were admitted for about one week and that Mohammed was taken to theatre as he could not control his stool, and she maintained that the accused was the person who violated her children. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 8

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73. During cross-examination by counsel Aswani, PW1 stated that her other children were Sauma Abdul born on 1 December 2002, Mariam Asha born on 17 July 2006, and Zena Asha born on 4 August 2013. She stated that she first knew the accused in 2000 but only lived with him from 2017 and had not lived with him in 2005. 74. The evidence of Pw1 established the ingredients of the offence of defilement namely, age of the victims, penetration and identification of the perpetrator. The evidence placed the appellant at the scene of crime a fact he did not deny. The evidence of Pw2 taken together with that of the minor PW2, connected the appellant to the incident. 75. The identity of the appellant was established beyond doubt and the narration by PW2 of what he had done established the issues of identification and penetration. 76. The evidence of Pw2 was corroborated by medical evidence and the circumstantial evidence tendered by Pw1. 77. On the issue of age, in the cases of Mwolongo Chichoro Mwanyembe vs. Republic, Mombasa Criminal Appeal No.24 of 2015 (UR) (cited in Edwin Nyambaso Onsongo vs. Republic [2016] eKLR) on the issue of age, the Court stated:“…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, amongst 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. " 78. The issue of the two victims being minors was therefore proved beyond a reasonable doubt through the evidence tendered by Pw1 the mother of the victims. 79. In Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, the court held: “In defilement case, medical evidence is paramount in determining the age of the victim and 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... " 80. The evidence of Pw1 was not displaced by the appellant in respect of the key ingredients of the offences that the appellant was charged with even though the appellant attempted to allege that it was in the nature and character of Pw1 to make similar complaints without cause. 81. Pw2 testified and even though he was not sworn, he remained consistent in his evidence and even upon cross-examination he remained consistent and unshaken as he identified the appellant as person who defiled him. He stated “ Chululu is this one (touches his penis) Nyayo put his chululu in my Mouth and here (touches his anal region). We were in the house….i know Marijan. He is not here. It is Nyayo who put his chululu in my mouth”. 82. The testimony of Pw1 established quite clearly the there was penetration into his anal area satisfying the provisions of the law under Section 8 (2) of the Sexual Offences Act. 83. There was no evidence that the witness may have been coached to implicate the appellant and taking into account his tender age, there clearly could not have been any reason by the minor to want to falsely incriminate the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 9

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84. The appellant in his defense complained that this was not the first time the mother of Pw1 was making a complaint of this nature. He sought to urge the court to find that the complaint was malicious and that he had not committed the acts complained of. 85. In this court’s view, the fact that Pw1 had earlier on complained against another person who ended up not being prosecuted could not be the basis of precluding Pw1 from reporting any other crime incident involving her child or children. It is the duty of a parent or guardian to ensure that children are protected from all forms of crime for they are inherently vulnerable and can only have their best interests protected by those under whose care they fall. 86. It not the rule that all criminal complaints must result in a prosecution. It is all dependent on the question of availability of evidence to support the complaint and where no evidence was unavailable, the complaint would naturally fail and that should not therefore be taken to mean that any other complaints in the future that are supported by evidence should not be prosecuted. 87. Pw1 testified that Mohammed Pw2 specifically named the accused as the perpetrator and that she saw blood on Fatuma’s diaper, a cut on the anus, swelling in the vaginal region, and swelling in Mohammed’s throat, that Mohammed’s clothes had stool when she soaked them, and that a police officer later bought diapers for him. 88. PW3, John Njuguna stated that he is a clinician at Nairobi Women’s Hospital produced medical documents prepared by colleagues Lucy Njoroge and Edwin Omwenga. He produced the GVRC form for Fatuma Asha, born on 14 November 2020, noting that the child appeared sick, had normal external genitalia, but had lacerations in the rectal region and back pain, producing the GVRC form as Exhibit 3 and the PRC form as Exhibit 4, and the P3 form for Fatuma as Exhibit 6. 89. PW3 further produced the GVRC and PRC documents for Mohammed Asha, noting complaints of pain in the cheeks, anal region, and during urination, blood spots on the cheek, redness at the back of the mouth, swelling, swollen penile tissue, and anal lacerations with feacal matter present, producing the PRC form as Exhibit 2 and the P3 form as Exhibit 7. 90. Upon cross-examination, PW3 confirmed that the degree of injury was not indicated on Exhibit 6 but maintained that injuries were documented, stated that history was obtained from the mother as normal procedure, that no spermatozoa were detected, that swabs were not indicated despite samples being collected, that diapers could cause irritation but not lacerations, and that the accused was not presented for medical examination. 91. The evidence of Pw3 corroborated that of Pw1 and Pw2 thus the evidence of defilement was overwhelming in this court’s view and that the trial magistrate correctly applied the facts to the law in arriving at the conclusion she did. 92. The production of the medical documents by Pw3 was preceded by the explanation that the colleagues who filled the documents were unavailable as one had left the hospital and the other had proceeded for further studies. The defense counsel did not object to the production of the documents and therefore the allegation that the trial court improperly admitted the documents is clearly an afterthought. 93. PW4, PC Robbin Oyee, attached to Kilimani Police Station, Gender and Children Desk, stated that on 17th November, 2020 at about 13.00 hours she was instructed by the OCS to attend Nairobi Women’s Hospital following a report of suspected sexual violence involving two minors allegedly committed by their stepfather. She testified that she arrested the accused at the hospital, that Mohammed told her that Nyayo forced him to suck his penis and also penetrated his anus, and that the mother reported having left the accused alone with the children. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 10

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94. The officers evidence demonstrates that the victim Pw2 was a witness of truth for he maintained consistency throughout and gave similar account to both Pw1 and Pw4. Inconsitencies And Contradictions In The Evidence 95. An appellant who seeks to rely on such a ground bears the burden of proving that the inconsistencies and contradictions alluded to are material and go to the root of the matter so as to vitiate a trial. 96. It is not enough to allege that there are inconsistencies. On contradictions, the Court in the case of Joshua Mutua Musyoki vs R [2017] KECA 376 KLR, stated: “How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully. In this case there were a number of such contradictions and inconsistencies that have been alluded to by the appellant in his written submissions.…Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie about what led her to report to school late, what else did she lie about? (emphasis added). 97. The decision above clearly stresses the need to have the contradictions and inconsistencies highlighted by the appellant so that the court can weigh them carefully. In this case unfortunately, the appellant has failed to highlight any inconsistencies in the prosecutions evidence and upon independent analysis and the evaluation of evidence, I find none to justify interfering with the decision of the learned trial magistrate. Absence Of Dna Evidence Linking The Appellant To The Commission Of The Ofience. 98. The appellant also took issue with the absence of DNA material to link him to the offence. According to the appellant, the absence of DNA evidence to connect him to the offense was fatal and that he should have been acquitted. The court is of the firm view that the absence of DNA evidence to link an accused to the commission of the offence cannot lead to an automatic acquittal more so where there is direct eye witness account to connect the accused with the offence. 99. The presence of DNA evidence would be dependent on whether the investigator set out to collect the same. 100. In the instant case PW4 stated that on 18th November 2020 the accused was presented before Kibera Law Courts and granted five days’ detention on E105/2020, and that on 20th November 2020 the accused was charged in court. She visited the scene, which was a one-roomed house in Kibera, took buccal swabs from the accused, and stated that DNA testing was not conducted due to lack of swabs for the minors. 101. It is therefore clear from Pw4’s evidence that there were no samples taken from the minors for purposes of DNA. The omission though significant cannot be used as a basis to hold that the rest of the evidence was worthless. All that one needed to prove in this case in order to establish defilement was that there was penetration of the victim Pw2 and that the penetration was by the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 11

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102. This court finds and holds that the absence of DNA evidence was not fatal to the prosecution’s case. That line of argument is rejected in toto. 103. The medical evidence by Pw3 and the eye witness account of Pw2 was sufficient to connect the appellant with the offences charged. 104. The second count of Sexual Assault was also established through the evidence of PW1 and Pw3. Whether The Defence Case Was Considered 105. The trial magistrate at pages 3, 4 and 6 of the judgment analyzed the defense of the appellant. It is therefore not true that trial court did not weigh his defense against the evidence by the prosecution. 106. This court has also independently examined the defense and the court is not persuaded by the accused person’s defense. The cogent evidence of the prosecution witnesses remained unchallenged at the end of the trial. 107. The appellant denied all the charges against him and testified that he had no romantic relationship with Asha Abdul, stating that he was only assisting her as a friend. He further stated that he did not ordinarily stay at her house, slept elsewhere, and was not present during the day as alleged. 108. He testified that on the day of the incident, Asha left him in the house with the infant Fatuma at around 5.00 pm when she went to the public toilet, and that she usually took between five to ten minutes to go and return. According to DW1, the baby was asleep when Asha left and remained asleep when she returned, and no complaint or suspicion was raised at that time. 109. The appellant’s testimony was contradictory and that the attempt to introduce an alibi defense failed on his own admission that he was left with the infant by Pw1 when she went to the toilet. 110. The appellant was simply untruthful in his defense thus the same was properly rejected by the trial magistrate. 111. The allegation by the appellant that Pw2 may have been coached was in this courts view an afterthought since during cross examination that issue did not feature at all. It was a feeble attempt by the appellant to avoid responsibility for the crime. 112. The upshot of above is that the appeal has no merit and the same is hereby dismissed on both conviction and sentence. 113. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Oloo for the Appellant Mogere for the Respondent Appellant: Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11740/eng@2026-04-13 12

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