Godfrey Maina Wanjiru v Republic

5. a. That the trial magistrate erred in both matters of law and fact by failing to consider that there was a grudge between I the appellant and the complainant’s grandmother who framed up this case due to her goats which are killed in our shamba. b. That the trial magistrate erred in law and fact by failing again to find that the incident took place on 12/4/2022 and I the appellant was arrested on 19th August, 2022 this was an afterthought I never went at large miscarriage of the justice was occasioned (sic). c. That the trial magistrate erred in law and fact by failing to appreciate that the medical evidence was inclusive and the DNA analysis was also not conducted. d. That the trial magistrate erred in law and fact by failing to consider that prosecution tendered contradicted and uncorroborated evidence. e. That trial magistrate erred in law and fact by rejecting my sworn evidence which was not challenged by the prosecution side without cogent reasons to do so. The respondent filed notice of enhancement dated 5.5.2026 pursuant to section 354(3)(b) of the Criminal Procedure Code. The said section provides as follows: (3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may(b) in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence; 6. The Respondent submitted that there was no evidence of any grudge between the victim and the appellant. Further, the alleged grudge was between the appellant and the complainant's grandmother, not the victim. It was further submitted that this allegation was never put to the complainant's mother during cross-examination and therefore remained unsubstantiated. The Respondent also pointed out that the alleged incident involving the death of goats occurred on 15.08.2022, approximately four months after the commission of the offence, and was therefore incapable of establishing a motive for false implication. 7. Regarding the date of the offence, the Respondent submitted that all the prosecution witnesses consistently confirmed that the offence occurred on 13.04.2022. The victim was medically examined by PW3 on 14.04.2022, while PW2 and PW3 testified that the victim's dress was bloodstained and that there was blood on her private parts. These findings, it was submitted, were consistent with the prosecution's case. The Respondent further submitted that immediately after the commission of the offence, the appellant disappeared and only returned several months later, when he was arrested on 20.08.2022. It was therefore contended that the delay in his arrest was attributable solely to his efforts to evade justice and not to any laxity on the part of the State. 8. The State submitted that the medical evidence adduced by PW4 established penetration. Counsel pointed out that the complainant's vaginal wall and labia were inflamed, the hymen was freshly broken, and there was bloody vaginal discharge. It was argued that these findings corroborated the complainant's testimony and were consistent with recent sexual penetration. 9. On the appellant's contention that DNA evidence ought to have been obtained, the State submitted that section 36 of the Sexual Offences Act confers a discretionary, rather than mandatory, power on the court to order the taking of DNA or other forensic samples. Accordingly, the absence of DNA evidence was not fatal to the prosecution's case where there was other cogent evidence establishing the offence. In support of this proposition, the State placed reliance on the case of Robert Mutungi Muumbi v https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 2

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Republic [2015] KECA 584 (KLR), where the court of appeal [Makhandia, Ouko & M’inoti JJ.A.] posited as follows: Section 36(1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved. In George Kioji V. Republic, Cr. App. No. 270 OF 2012 (NYERI), this Court expressed itself thus, on proof of commission of a sexual offence: “ 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 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.” (See also Kassim Ali V. Republic, Cr. App. No. 84 of 2005 and Omumbo v Republic [2008] KECA 315 (KLR). 10. On contradiction, they stated that the evidence was consistent and clear. It was further submitted that the same does not have evidential value. On sentence, reliance was placed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR). Evidence 11. PW1 was the complainant. Voire dire was carried out on her. She gave testimony on oath. She stated that she was 12 years old, having been born on 28.07.2010. 12. The complainant testified that she knew the appellant, GM, as he was her neighbour. At the material time, she lived with her grandmother. She recalled that on 13.04.2022, while herding her grandmother's goats in a nearby thicket, the appellant called her to his house. She left the goats and went to respond to his call. By then, the goats had strayed into the appellant's shamba and destroyed some of his maize crop. The appellant told her that the maize destroyed by the goats was inside the house and invited her to enter and see it. At that time, he remained standing outside. She described the appellant's house as a two-room timber structure with sufficient natural lighting, enabling her to clearly observe him throughout the incident. 13. Further, once she entered the house, the appellant followed her inside and locked the door. He then removed all her clothes and warned her not to tell anyone what was about to happen. The complainant testified that the Appellant removed a condom and placed it over what she referred to as his "kitu yake ya kukojoa" (penis). The complainant testified that the Appellant inserted his penis into her vagina. She stated that she remained with him in the room from approximately 1100 hours until 1500 hours. Thereafter, the Appellant dressed himself, instructed her to return home, unlocked the padlocked door, and she left. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 3

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14. The complainant testified that she cried because of what had happened to her and because of the incident involving the goats. She thereafter ran to the homes of two neighbours, where she first reported the incident to one PW3, informing her of what the appellant, Godfrey, had done to her. PW3 then telephoned the complainant's grandmother and informed her of the report. The grandmother, in turn, sent two of the complainant's uncles to pick her up. 15. The complainant further testified that she experienced difficulty walking and complained of pain in her private parts. Upon her return home, her grandmother examined her and observed her condition. Since it was already late, the grandmother decided that she would take the complainant to hospital the following day. The matter was first reported at Kiawara Police Station, after which the complainant was taken to Bellevue Hospital for medical examination and treatment. 16. On cross examination she stated that there was no maize in the shamba. The complainant state that it was the appellant who defiled her. She stated that she was certain that it is the appellant who defiled her. 17. PW2 was the complainant's grandmother. She testified that on 13.04.2022, she sent the complainant to herd goats. At about noon, the goats returned home unaccompanied by the complainant. Later that evening, at approximately 7.00 p.m., she received a telephone call from PW3, who requested her to pick up the complainant from her home. Initially, PW3 suggested that the complainant could spend the night there, but she later informed PW2 that the child had been defiled by the appellant and urgently needed to be taken to hospital. Consequently, PW2 sent John and David to collect the complainant. 18. When the complainant returned home, PW2 observed that she was walking with difficulty. Upon inquiring what had happened, the complainant informed her that the appellant had lured her into his house and defiled her. PW2 testified that she examined the complainant's private parts and observed bloodstains. She also noticed bloodstains on the back of the complainant's dress, which reinforced her belief that the complainant had been sexually assaulted. 19. The following morning, PW2 reported the matter at Kiawara Police Station, after which she proceeded with the complainant to Bellevue Hospital for medical examination and treatment. They were subsequently referred to Embaringo Police Station. The complainant was issued with medication and a Post Rape Care (PRC) Form was completed. The appellant went into hiding from April and was found in August when he was arrested and charged. 20. PW2 further testified that she had no bad blood with the appellant and had no reason to falsely implicate him. She described the appellant's house as an old structure that was almost collapsing and noted that its door was not an ordinary door. 21. During cross-examination, PW2 denied ever demanding money from the appellant or his family in relation to the matter. She maintained that after the incident, the appellant went into hiding while the police were searching for him. She explained that the appellant relocated to his mother's home in Kiaragana. According to her, the appellant was eventually arrested when he returned to his father's home. The father is their neighbour. 22. She further testified that when the appellant resurfaced after having gone into hiding, he returned with a wife and four children. She added that the appellant's brother accommodated the family by providing them with another house in which his wife and children resided. 23. PW3 testified that she is Anne. The complainant went to her home at 1.30 pm. The complainant told her that the appellant defiled her, tabia mbaya. She called the minor’s grandmother to take the minor to hospital. On cross-examination, she stated that she was not present when the incident occurred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 4

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24. PW4 was Elena Nduta, the investigating officer. She testified that she received a report from PW2 alleging that her granddaughter, aged about 12 years, had been defiled by a neighbour on 13.04.2022. Following the report, she interviewed the complainant, who narrated the circumstances leading to the alleged offence. 25. According to PW4, the complainant stated that while she was herding goats, the appellant lured her to his house on the pretext that the goats had destroyed his crops. Once inside the house, the appellant removed the complainant's clothes as well as his own. He then put on a condom, directed the complainant to lie on the bed, and inserted his penis into her vagina. The complainant stated that she was left in pain after the incident. She thereafter went to a neighbour's home, from where PW2 was contacted. She also testified that she went to a nearby shop to seek assistance, and the shopkeeper escorted her home. It was there that she disclosed that she had been defiled. Subsequently, two young men were sent to pick her up and take her home. 26. PW4 produced the undergarments, birth certificate and P3. They were in communication with the victim's family and were informed when the appellant went back home. 27. On cross-examination, she stated that the appellant was hiding. The complainant identified him as the perpetrator. He was not arrested during the act, and the complainant ran away after the incident. 28. On cross-examination, PW4 testified that the appellant had gone into hiding immediately after the incident, which explained the delay in his arrest. She stated that the complainant positively identified the appellant as the perpetrator since he was well known to her as a neighbour. PW4 further stated that the appellant was not arrested at the scene of the offence because the complainant managed to escape immediately after the incident and reported the matter to other people before the police commenced investigations. According to the witness, the appellant was eventually arrested after he resurfaced from hiding. 29. PW5, Dr. Diana Ondieki, had a Bachelor of Medicine and Bachelor of Surgery (MBChB) from the University of Nairobi. She produced a document, which had been completed and signed by Dr. Muriuki on 26.04.2022. The medical findings indicated that the complainant had been sexually assaulted and had sustained injuries that were only a few hours old. Upon examination, the external genitalia appeared normal. However, the vaginal wall and labia were inflamed, the hymen was freshly broken, and there was bloody vaginal discharge. These findings were recorded in both the P3 Form and the Post Rape Care form, which PW5 also produced in evidence. 30. The PRC Form further indicated that the survivor had not changed her clothes before the examination. Based on the clinical findings and the history given, PW5 concluded that the complainant had been defiled. 31. On cross-examination, PW5 testified that the alleged incident occurred in April 2022. She reiterated that the injuries observed during the examination were only a few hours old. She confirmed that although the external genitalia were normal, the vagina was inflamed and there was bloody vaginal discharge. Based on the nature of the injuries and the clinical findings, she concluded that they were consistent with penile penetration. 32. The appellant was found to have a case to answer. The court complied with section 211 of the Criminal Procedure Code. The appellant chose to give sworn evidence and did not have a witness. The matter was then listed for defence hearing on 22.02.2024. The appellant gave sworn testimony as DW1. He stated that on 13.04.2022 he was at work. On 15.08.2022 he woke up in the morning and sprayed onions. He then went to Kambati to look for onions for the boss. He stated that due to the spray, 2 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 5

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goats died. The complainant’s mother demanded Ksh 25,000/= from the appellant to look the other way to let the matter of the death of goats go. 33. The complainant stated that her grandmother told her that she would face the consequences. On 16.08.2022, the grandmother went and demanded money, and on 19.08.2022, he was milking cows with his wife when the police officers arrested him. The grandmother still asked for money. He was held in the police station until 22.08.202 when he was taken to court. The grandmother visited him in prison in January 2024 and said that she wanted him arrested. 34. He was convicted and mitigated. He prayed for a lenient sentence, to take care of the family. The matter was fixed for sentencing, pre-sentencing report. The court considered the report and sentenced the appellant to 30 years' imprisonment. 35. On being convicted, the appellant was invited to mitigate. In mitigation, he pleaded for leniency, stating that he was a family man and urging the court to impose a sentence that would enable him to continue providing for his family. The trial court thereafter called for a pre-sentence report. The court considered the mitigation alongside the contents of the pre-sentence report and sentenced the appellant to 30 years' imprisonment. Submissions 36. The Appellant filed written submissions dated 06.02.2026. In setting out the duty of a first appellate court, he relied on the decision in Okeno v Republic [1972] EA 32 at page 36. On the essential ingredients of the offence, he cited George Opondo Olunga v Republic [2016] eKLR. 37. The appellant submitted that the medical evidence was inconsistent regarding the age of the injuries. He argued that although the clinician opined that the injuries had been sustained within hours, the evidence indicated that the alleged incident occurred on 13.04.2022 and was reported on the same date at about 1300 hours. He further submitted that the prosecution witnesses were not truthful and that their evidence lacked credibility. In addition, he contended that the prosecution failed to identify or produce the clothes the complainant was allegedly wearing at the time of the incident, thereby weakening its case. 38. He submitted that the contradictions and inconsistencies cast doubt on the reliability, veracity and accuracy of the prosecution witnesses' evidence. Reliance was placed on the case of Munene v Republic [2018] KECA 186 (KLR), where the court of appeal posited as follows: As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. 39. Finally, he submitted that the defence evidence was not considered. He prayed that he be acquitted. Analysis 40. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 6

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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. 41. 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 [1972] EA 32 at 36, the East Africa Court of Appeal stated the following 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. 42. 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. 43. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 7

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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. 44. 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. 45. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 46. 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 scrutinising 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. 47. 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 carry a lifelong stigma and can only be justified based on indisputable evidence. 48. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 8

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3. 49. 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. The first appellate court is entitled to consider the evidence in the trial court as a whole as being submitted afresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:1. 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. 2. 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. 50. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. The sub-issue is whether the appellant should be enhanced as prayed for by the prosecution. 51. The parameters that were to be proved in cases such as the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 52. The first question is whether age of the minor was proved. The complainant’s evidence was cogent. The complainant was born on 28.07.2010. As at 13.04.2022, she was 11 years old. The birth certificate, P3, PRC, proved the age. The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held: ‘‘…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. Consequently, age herein was proved by the production of the Birth notification. The birth notification stated that PW1 was born on 8.2.2016 and so was 6 years 3 days old. The birth notification was proper and credible analyzed with the 53. The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held: ‘‘…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 9

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54. Consequently, age herein was proved by the production of the Birth Certificate. Consequently, the age was proved. 55. The next question is penetration. Section 2 of the sexual offences Act defines penetration as follows: “ Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 56. The minor stated that he was penetrated between 11 am and 1500 hours. There was a bit of exaggeration since she went to seek help at 1.30 am. However, being penetrated for a long time for an 11-year-old would look like an eternity. However, on medical examination, it showed that the complainant's vaginal wall and labia minora were inflamed, and that her hymen had been freshly broken. Although the external genitalia appeared normal, there was blood-stained vaginal discharge. These findings were consistent with recent penetration. Examination was done within 24 hours. This was both in the P3 and the PRC. 57. Medical evidence, considered together with the complainant's testimony, established vaginal penile penetration beyond reasonable doubt. I therefore find that the prosecution proved penetration. 58. Before considering the identity of the appellant. It is necessary to deal with the appellant’s defence. The evidence tendered regarding 13.04.2022., he stated as follows: “ I was at home doing my work.” 59. The appellant's defence placed him at the locus in quo on the material date and did not amount to an alibi. He offered no explanation as to what transpired on 13.04.2022 or to rebut the cogent evidence adduced by the complainant. 60. The court notes that the P3 form was completed on 19.04.2022, while the PRC form was completed on 14.04.2022. To the extent that the defence dwelt on events occurring after 13.04.2022, those matters are irrelevant to the issues for determination in this case. Similarly, the evidence concerning the Appellant's goats has no bearing on whether the offence charged was committed and is therefore of no probative value. 61. The Appellant's defence did not effectively controvert the prosecution's evidence, particularly the clear and cogent testimony of the complainant, which remained consistent on the material particulars. 62. The final issue for determination is whether the prosecution proved that the Appellant was the perpetrator of the offence. I am satisfied that it did. The complainant positively identified the Appellant. The incident occurred in broad daylight, affording her ample opportunity to observe him. They remained together for over two hours, eliminating any possibility of mistaken identity. Further, the complainant knew and recognized the Appellant prior to the incident, making this a case of recognition, which is generally more reliable than identification of a stranger. She also testified that, following the ordeal, she was unable to walk due to the injuries she had sustained. In the circumstances, I find that the Appellant was positively identified as the perpetrator beyond reasonable doubt. 63. The complainant recognised the appellant as a person known to her. The appellant himself did not question the identification. Recognition was addressed in the case of Reuben Taabu https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 10

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Anjononi,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where 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 nighttime, 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). 64. In the same vein, I reject the Appellant's contention that he was falsely implicated by the complainant's grandmother. The alleged killing of the grandmother's goats occurred in August 2022, whereas the offence the Appellant was charged with was committed on 13.04.2022. There is therefore no factual basis for the suggestion that the allegation concerning the goats motivated the complaint. 65. Further, the evidence shows that immediately after the offence, the Appellant disappeared from the locality and remained away until December 2022. He offered no plausible explanation for his departure or prolonged absence. The prosecution evidence that the police searched for him without success was not challenged during cross-examination and remained uncontroverted. 66. The Incident was reported to the police on 14/04/2022, as reflected in the Occurrence Book OB/14/04/2022. This factually demonstrates that the complaint was made promptly, long before the alleged dispute concerning the goats arose. This significantly undermines the Appellant's claim that he was framed. I therefore find that the defence of fabrication is devoid of merit. 67. This, in turn, answers the question of the identity of the perpetrator. Upon a careful evaluation of the entire evidence on record, I find that it points irresistibly to the Appellant, and to no one else, as the person who committed the offence. The prosecution proved beyond reasonable doubt that the Appellant was the perpetrator. 68. It must also be realized that the question of proof can be accomplished by circumstantial evidence. In the case of Maitanyi v Republic [1986] KECA 39 (KLR), where the court of appeal [Nyarangi, Platt & Gachuhi JJA] addressed the question of a single identifying witness as follows: Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition: “Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 11

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69. Circumstantial evidence must be inconsistent with an accused’s innocence. In the case of the first principle governing reliance on circumstantial evidence is that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), the Court of Appeal [P. Kihara Kariuki, PCA, M’Inoti & Murgor, JJ.A] addressed circumstantial evidence as follows: However, it is altruism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21: “It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” (See also Musili Tulo v. Republic Cr. App. No. 30 of 2013). Before circumstantial evidence can form the basis of a conviction, however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” (See also Sawe v. Republic (supra) and GMI v. Republic, Cr. Ap. No. 308 of 2011. In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. (See Teper v. R. [1952] All ER 480 and Musoke v. R. [1958] EA 715). In Dhalay Singh v Republic, Cr App. No. 10 of 1997, this Court reiterated this principle as follows: “For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an accused is entitled to an acquittal.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 12

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70. The Court of Appeal was overruled by the Supreme Court [DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ] in the case reported as Republic v Mohammed & another [2019] KESC 48 (KLR), as follows; The law on the definition, application and reliability of circumstantial evidence has, for decades, been well settled in common law as well as other jurisdictions. Circumstantial evidence is “indirect [or] oblique evidence … that is not given by eyewitness testimony.” It is “[a]n indirect form of proof, permitting inferences from the circumstances surrounding disputed questions of fact.”6 It is also said to be “[e]vidence of some collateral fact, from which the existence or non-existence of some fact in question may be inferred as a probable consequence… On its application, circumstantial evidence is like any other evidence. Though it finds its probative value in reasonable, and not speculative, inferences to be drawn from the facts of a case,8 and, in contrast to direct testimonial evidence, it is conceptualised in circumstances surrounding disputed questions of fact, circumstantial evidence should never be given a derogatory tag. Jowitt’s Dictionary of English Law, 4th Edition, states thus of circumstantial evidence: … with circumstantial evidence, everything depends on the context: circumstantial evidence can sometimes amount to overwhelming proof of guilt, as where the accused had the opportunity to commit a burglary, and items taken from the burgled house are found in his lock-up garage, … a fingerprint recovered from the window forced open by the burglar matches the accused’s fingerprints, … [or where there is] a … DNA match between the accused’s control sample and genetic material recovered from the scene of the crime ….” 57. This is why, way back in 1928, the English Court of Appeal asserted that circumstantial evidence “is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics.” However, conclusive as it may be, as it has long been established, caution is always advised in basing a conviction solely upon circumstantial evidence. The Court “should proceed with circumspection when drawing firm inferences from circumstantial evidence.”11 The court should also consider circumstantial evidence in its totality and not in piecemeal. As the Privy Council stated in Teper v. R [1952] AC at p. 489 “, Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.”(See R v Taylor Weaver and Donovan (1928) 21 Cr. App. R 20, Teper v R [1952] A.C. 480 PC as [489] and S v Reddy & others 1996 (2) SACR 1 (A). As was further stated in the case of Musili v Republic CRA No 30 of 2013 (UR) “ to convict on the basis of circumstantial evidence, the chain of events must be so complete that it establishes the culpability of the appellant, and no one else without any reasonable doubt .” The chain must never be broken at any stage.16 In other words, there “must be no other co-existing circumstances weakening the chain of circumstances relied on” and the circumstances from which the guilt inference is drawn must be of definite tendency and unerringly pointing towards the guilt of the accused. “ Suspicion, however strong, cannot provide a basis for inferring guilt. 71. The evidence on record shows that, following the commission of the offence, the Appellant disappeared from the locality and remained away for approximately four months before resurfacing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 13

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His conduct was consistent with flight, and no plausible explanation was offered for his prolonged absence. Having considered the evidence as a whole, I find that the entire gamut of the evidence leads to one irresistible conclusion: that the Appellant was the perpetrator of the offence and was guilty as charged. 72. The Appellant also questioned the prosecution's failure to adduce DNA evidence. That argument is without merit. It is well settled that neither DNA evidence nor medical evidence is an indispensable prerequisite to proving the offence of defilement. A conviction may properly be founded on the credible and cogent testimony of the complainant where the court is satisfied that the prosecution has proved all the essential ingredients of the offence beyond reasonable doubt. In the case of Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR), the court of appeal [S.E.O. Bosire, P.N. Waki, J.W. Onyango Otieno] held as follows: The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). 73. This was also the position held in the case of Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR), where the court of appeal [S.E.O Bosire, E.M. Githinji and J.W. Onyango Otieno] held as follows: Bukenya v. Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt. 74. Penetration was not just from the medical record, but from the account by the minor. 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. 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. 75. 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, where it was held 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 14

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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. 76. 77. The hymen was freshly broken. In the case of P.K.W v Republic [2012] KECA 103 (KLR), the court of appeal held as follows: 15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse? 16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769. 17. In this case the doctor who examined the complainant child was not asked whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. As we have pointed out the complainant child aged only six behaved normally after the alleged defilement. That together with her mother’s behavior, issues that the two lower courts do not seem to have addressed their minds to, has raised doubt in our minds as to the guilt of the appellant. In other words the concurrent findings of the two lower courts are not fully supported by the evidence on record. Consequently, we have no option but to give the appellant the benefit of doubt. In the other part, the appellant averred that there were discrepancies. However, where there are trivial discrepancies and contradictions which were not fundamental as to cause prejudice to an accused, as human nature is not memory-proof. In the case of Kibor v Republic [2022] KECA 1269 (KLR), the court of appeal [PO Kiage, J Mohammed & M Ngugi, JJA] held as follows regarding discrepancies: 34. This Court in Joseph Maina Mwangi v Republic CA No 73 of 1992 held that: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 3 & 2 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 15

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35. We find that the trial court correctly held that there were minor and inconsequential discrepancies that did not go to the root of the prosecution case and the trial court was right in treating them as such. In the end, we are in agreement with the trial court that the appellant, with malice aforethought, was responsible for the death of the deceased. 78. The next issue for determination is whether the sentence imposed by the trial court ought to be interfered with. The Appellant was convicted and sentenced to 30 years' imprisonment. At the commencement of the hearing of the appeal, this Court informed the Appellant that, should the appeal fail, the sentence could be enhanced. Although such a warning was not strictly necessary in the circumstances, it was nevertheless given out of an abundance of caution. The Appellant confirmed that he understood the warning and elected to proceed with the appeal. 79. The nature of sentences under the Sexual Offences Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 80. 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it is 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 16

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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. 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. 81. The sentence imposed by the trial court was unlawful. Upon convicting the Appellant of the offence, the court was required by law to impose the sentence prescribed by the applicable statutory provision, namely, life imprisonment. The sentence of 30 years' imprisonment was therefore illegal and amounted to a nullity. 82. As has been consistently held by the superior courts, where a trial court imposes a sentence that is not sanctioned by law, an appellate court is not only entitled, but duty-bound, to set aside the unlawful sentence and substitute it with the sentence prescribed by law. In the case of Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning 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.” 83. Therefore, the 30-year sentence is set aside. In lieu thereof, it is substituted with a life sentence effective the date of arrest, on 20.08.2022. Determination 84. In the circumstances, I make the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 17

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a. The appeal on conviction and sentence is dismissed. b. The 30-year sentence is set aside. In lieu thereof, the 30-year sentence is substituted with a life sentence. c. Right of appeal 14 days. d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Mr. Kihara & Ms. Akinyi for the ODPP Appellant present Court Assistant – Timothy Page 12 of 12 M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11965/eng@2026-07-28 18

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