Bernard Musembi v Republic

3. The respondent has raised an objection to reference to the amended petition since according to it, the appellant did not comply with Section 350(2)(v) of the Criminal Procedure Code. This objection must have been informed by ignorance of the court’s order dated 25th June 2025. Although I have not seen the amended petition, it is common ground, judging from the submissions of the parties that the same identified ten grounds which are similar to what was in the aforementioned draft. I will therefore proceed on the basis of the ten grounds. 4. Having gone through the ten grounds raised and the submissions of the parties, I condense the issues for determination to three as follows; 5. 1. Whether the charge sheet was defective. 2. Whether there were material contradictions or inconsistencies in the prosecution’s evidence which would entitle the appellant to an acquittal. 3. Whether the sentence was excessive. 4. What orders are appropriate in this matter? As required of me by the established legal principle governing first appeals, I will re-evaluate, reconsider and re-analyze the evidence produced before the trial court and come to my own independent conclusion but I will keep in mind that the trial court had the advantage, which I lack, of taking the evidence first hand and observe the demeanour of the witnesses and give due allowance for that. This position has been established and held in many judicial pronouncements one of them being Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) where the Court of Appeal restated that; “ It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court.’ Prosecution’s case 6. The child testified twice, the first one being before Honourable M. Opanga (SRM) on 14-07-2022. The said Magistrate went on transfer and on 14-06-2023, Honourable D.N. Sure (PM) who took over the matter issued directions under Section 200 of the Criminal Procedure Code in which she ordered that the complainant be recalled to testify afresh. 7. In the first testimony, the complainant who was at the time in grade 4 testified under oath after voire dire inquiry that she was in court because of Musembi who did bad manners to her on a date she could not remember. She added that she did not go to school on that date as she was feeling unwell. The appellant who lived in [Particulars Withheld] would pass nearby on his way to Emmah’s home. She stated further that the appellant carried her on his shoulders to a thicket and gave her money and when she ran away, he chased after her. 8. She raised alarm and her mother came out and saw her. She explained that the appellant removed her trousers and put his thing which he uses to urinate into hers. He also hit her with a stone making her leave her shoes. She added that her mother stood at the gate and called her and saw her running and another woman also came. The mother called her father and she was taken to the police station for https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 2

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reporting and later to hospital by her father. She concluded by stating that she used to hear people call the appellant who he identified in court as Musembi. 9. When she was recalled, the child added that she was playing in a plot near the market called [Particulars Withheld] alone when the appellant came and carried her to the bush which was far from the plot. She tried to call out but no one came because her voice was low. In the bush, the appellant removed her clothes which were a dotted dress, shirt and shoes. The child added that the appellant did not remove the dress but he wanted to. He wanted to give her money but she refused. She added that she managed to run to a nearby house where there was a woman who picked her and who she told that Musembi had attacked her. 10. The complainant stated further that, she was taken to hospital and police station where she told the police what had happened and where Musembi could be found. She added that she told the police that he had not done anything to her. She added that the appellant tried to do bad manners to her. He laid her down, and lifted her dress. He did not remove her panties but her legs were apart. She added that the appellant was lying on top of her doing bad manners to her using his organ which is found ‘here’ while pointing at her genitalia and putting it in her organ. 11. The complainant went further and stated that, she ran away and met a woman who asked her why she was running away. The woman helped her and took her to the market and some women took her to the hospital. She stated that she was taken to the hospital by her father, sister and aunt. She concluded her evidence in chief by stating that she knew Musembi that date and had not seen him before. 12. When the child was cross-examined, she stated that the appellant came and found her at their home and carried her to a thicket. She added that she had seen the appellant in the plot when he carried her. She added that the appellant knew her because he used to see her. 13. The second witness was Corporal Josphat Musuko who worked in [Particulars Withheld]. He recalled that on 12-07-2019 at about 4 pm, one Francis Katiku in the company of three brothers and a nine year old girl came to the station. The father of the girl informed him that the child had been defiled the previous day and he had reported at Tala police station and they had come for help because they had spotted the assailant in the area. The witness and one Hellen Githinji went to where the culprit had been spotted and arrested him and when they were back in the office, the child identified him. They escorted the appellant to Tala police station to pave way for investigations. The witness added that he knew the appellant as a good person who had been known to him for one year. He was not cross-examined. 14. Anastacia Mutisya was the third prosecution witness. She testified that on 11-07-2019 at which time she was the head teacher at [Particulars Withheld] primary school, she received a call from the Chief who told her that one of her class 3 pupils had been defiled and was found in a forest behind the market. She went to confirm and she found the child looking sickly and sacred and could not talk. They took the child to Tala police post where they reported by which time the child was beginning to talk. 15. The witness added that the women who had rescued the child had taken her to a dispensary where defilement was confirmed. She pointed out that the child’s mother was dead. The witness added that she asked the child what had happened and she told her that a man had found her playing outside their home and took her to the bushes and defiled her upon which she became unconscious and was rescued by people who were walking nearby. The child also told the witness that she knew the assailant because he was friends with her father. She added that the child and her siblings lived alone in a rental house while their father lived where he worked. The child also told her that the assailant was Musembi or Mutuku. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 3

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16. In cross-examination, PW3 stated that the appellant ran away after the act and when he was brought to the market, the child was still unconscious and was not sure whether it was the appellant but when she recovered, she took the police to his house and they recovered the clothes the appellant was wearing at the time of the attack. 17. PC Hellen Githinji told the court that on 12-07-2019, Corporal Josphat Musuki called and requested her to accompany him to arrest a person known as Bernard Musembi who was implicated in defiling a child. In the market, they spotted him and took him to the nearest police station. The child was brought and identified the appellant who they took to Tala police station. She knew the appellant as a nice person who did not have any records. He stated that the appellant was alone when the child identified him. 18. PW5, Lucia Ndunge James testified that on 11-07-2019 at 10 am, she was passing behind [Particulars Withheld] market when she heard a child screaming from nearby bushes and rushed there and found the child foaming from the mouth. She took her and motor bike riders came from the market and women started screaming. The child told them that she had been held by a man and raped. They checked her genitalia and saw what looked like sperms. They took her to [Particulars Withheld] dispensary but they were told that the case was serious and should be referred to Kangundo Level 4 hospital which she was unable to do. 19. The witness added that she took the child to Tala police station where she left her. She added that the child had implicated a person by the name Musembi. There was a known Musembi who the child’s brother went for as he was cleaning in nearby club. When the said Musembi was brought to the scene, the child said that it was not him. Later, the witness heard that Musembi was arrested and she could not tell what had happened. She insisted in cross-examination that when the appellant was brought to the scene, the child did not implicate him. 20. The sixth witness was PC Trifonia Mwanyolo a Police Constable based in Tala police station. She was the 2nd investigating officer in the matter the first one having been Inspector Alice who had been transferred. The case was reported on 11-07-2017. The complainant was taken to Kangundo Level 4 hospital and it was established that the complainant was playing outside when Musembi grabbed her, took her to a nearby bush, removed her clothes and defiled her. A P3 form was filled and the appellant was arrested by the area Chief and members of the public and re-arrested by police and charged. The scene was visited and the complainant identified the appellant. The witness concluded by producing the child’s birth certificate as an exhibit. 21. The last witness for the prosecution was Bridgit Nzilani John, a clinical officer at Kangundo Level 4 hospital who produced a P3 form dated 12-07-2019. She stated that the child was brought by police officers with a history of defilement by a person known to her and per parents. Examination revealed that the child was stable and well-nourished but shy about the ordeal. It also revealed a foul smelly discharge in the child’s panty and normal internal systems. In the genital area, the clitoris was present with hyperpigmentation with minimal bruises and labia minora had bruises with a whitish fluid oozing from the vagina. 22. PW7 added that lab tests revealed leucocyte and pus cells in the high vagina swap but there were no spermatozoa. The hymen was torn but not bleeding and the anus was normal with no sign of penetration. She produced a P3 form, treatment notes and lab tests result as exhibits. She added in cross-examination that her examination showed that the child was defiled and that the appellant should have been taken to the hospital for examination too. She conceded that she did not know whether the appellant was the culprit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 4

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Defence 23. When he was put on his defence, the appellant told the court that on 11-07-2019 at around 9 am, he was washing his uncle’s house which was being renovated when his brother asked him what had happened which he didn’t know. He took him outside where he found a crowd and a child who was asked if he was the one and she denied it was him. He was left to go back to work but on the following day as he was coming from Tala, he was arrested and brought to court. Analysis and determination 24. I have considered the evidence, the grounds of appeal and the submissions of the appellant dated 17-11-2025 and those of the respondent dated 14th-11-2025 in the context of the issues for determination I have identified above. The charge 25. The appellant has submitted that the charge sheet was defective in that the child talked of November 2019 while the charge sheet spoke of July 2019. When the complainant testified for the first time on 14-07-2022, she stated that she could not remember the date of the defilement while on 12-07-2023, she mentioned the date of 11-07-2019. I do not see where the appellant got the month of November from. In any case, if the complainant had given different dates, it would not amount to defectiveness of the charge sheet but inconsistency of her testimony and even such inconsistency would not in my view go to the core of the case as the other witnesses and documentary evidence spoke of 11-07-2019 and by November 2019, the appellant had already been charged. 26. Further, defectiveness of a charge would constitute failure of it to state all the necessary and requisite information or particulars such that trial based on it would prejudice the accused person or failure to disclose an offence known in law. I adopt the school of thought adopted by Honourable Justice J.N. Ngugi in Ngui v Republic [2012] KEHC 5491 (KLR) when he held that; “ As I have previously held, the test for whether a charge sheet is fatally defective is a substantive one: was the accused charged with an offence known to law and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the charges facing him? In this case, the Appellant was charged under sections 8(1), (2) of the Sexual Offences Act. No such section exists in the Act. Did this prejudice the Appellant and occasion a miscarriage of justice? I have previously said that the answer to that question is provided by seeking to see if the accused person can be said to have understood the charges facing him well enough to understand the ingredients of the crime charged so that he can fashion his defence. This can be tested, for example, by how much or vigorously he participated in the trial process and whether the record shows that he was able to follow the proceedings and ask questions in line with his theory of defence." 27. The above position is fortified by the holding of the Court of Appeal in Peter Sabem Leitu v Republic [2013] KECA 270 (KLR) where it held as follows; “ This court considered the ingredients necessary in a charge sheet and stated as follows in the case of Isaac Omambia V. Republic [1995] eKLR; In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 5

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offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence." 28. The question therefore is, whether the aforesaid defect in the charge sheet caused any prejudice to the appellant as to occasion a miscarriage of justice or a violation of his fundamental right to a fair trial. We think not. Having pleaded to the charge, which contained a clear statement of a specific offence, we are satisfied he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet gave further details as to the description of the property stolen, the date, place and the manner of the alleged offence.’ 29. The appellant has also suggested that the charge sheet was defective because there was inconsistency of dates and particulars between the main and the alternative counts. He has not identified the specific inconsistencies and my look at the counts does not reveal any inconsistency. The appellant has also not shown me what prejudice he suffered from the alleged inconsistency. The appellant was not convicted of the alternative count. There is also no appeal in respect of that count and as such the issue if any is irrelevant as far as the appeal is concerned. The evidence adduced by the prosecution related to the main count and that is what is in issue in the appeal. In view of the above, I find that the answer to the first issue is in the negative. Are there material inconsistencies? 30. This issue would determine whether there was sufficient, plausible and credible evidence to convict the appellant for the offence of defilement. If there were any material inconsistencies and contradictions, they would in effect affect proof of the ingredients of the offence of defilement. It is trite that defilement has three elements which are; the age of the complainant, proof of penetration and identity of the perpetrator. In Dominic Kibet Mwareng v Republic [2013] 1353 (KLR) it was held that; “ The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant." 31. There is no dispute as to the age of the child. The birth certificate produced as exhibit 1 shows that the child was born on 28-11-2010 while the offence is said to have been committed on 11-07-2019. A simple calculation would show that the child was at the time of the alleged commission of the offence aged nine years. The appellant has not taken issue with the age and I don’t think there is much to say about this ingredient. 32. I turn to the issue if penetration. The complainant narrated that she was defiled on the same day she was rescued and taken to hospital. Examination at the hospital showed that she had bruises and whitish discharges in her genital organ. The discharge was not spermatozoa and was smelly. This means that same was not necessarily a product of defilement and in my view the discharges may have been related to issues of hygiene but this alone does not invalidate the claim of defilement. The clinical officer was empathic that the examination revealed that the child had been defiled. With this evidence, I have no doubt in holding that the complainant was penetrated. 33. Having held as above, the next in question of determination is whether the appellant was the perpetrator. The only witness who gave direct evidence in respect of identification was the complainant. The other witnesses testified on what the complainant told them. There was no examination on the appellant or any scientific or documentary finding linking the appellant to the defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 6

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34. Section 124 of the Evidence Act allows a court to convict in sexual offences in reliance to evidence of a single witness provided that it believes that the witness is truthful. The Section provides that; “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth." 35. The appellant has submitted that the trial court erred on this position by failing to disclose her reason for believing the complainant. In her judgment, the Honourable Magistrate, after reproducing portions of the evidence of the complainant made observation among others that she had considered the evidence of the complainant and that she would accept the evidence due to the fact that the complainant was taken from her home and defiled during the day when visibility was not an issue. In my view the trial court gave its reasons for believing the complainant. Whether these reasons were valid or not is another issue altogether. 36. I have evaluated the evidence of the complainant. When she testified for the first time, the complainant spoke of her mother coming out and seeing her when the appellant ran away. It would later turn out that the complainant’s mother had passed on if the evidence of PW3 is anything to go by. She also told the court that the appellant removed her trouser before defiling her. When she was recalled, the complainant did not mention any trouser but a dress and a shirt. She also stated in the second version of her testimony that the appellant wanted to remove her dress but he did not do it and that he did not remove her panty. She actually fell short of saying that the appellant did not defile her but attempted to do so. Again, I have noted that in the first time, the complainant testified that her mother called her father then she was taken to hospital by the father, brother and aunt while PW7 stated that she child was taken to hospital by police officers. The father never showed up to testify. 37. I have also identified disturbing contradictions in the complainant’s testimony when she was recalled. She in one sentence said that the appellant removed her clothes then she in the next said that he did not remove the dress. She also told the court that she told the police that the assailant had not done anything to her which is corroborated by the testimony of PW5 who said that the child told them that it was not the appellant who defiled her. When she was shown the statement she recorded at the police station, she said that she now remembered that the appellant tried to do bad manners to her which in my view means he did not succeed in doing it then, in the next sentence she stated that he did it using his organ. 38. In the narrative she gave when she was recalled, the complainant did not mention her mother rescuing or seeing her. Instead, she claimed that, when she was running, a woman appeared and took her to the market. She also stated that she knew Musembi on the date of the act and had not seen him but in cross-examination, she stated that the appellant knew him because he used to see her. 39. Based on the above inconsistencies, I hold the position that the complainant was either deliberate in twisting her version of sequence of events or forgetful and I find it difficult to hold her evidence as truthful. It is a kind of evidence that needed corroboration by other independent witnesses. It was therefore unsafe for the trial court to apply the proviso to Section 124 of the Evidence Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 7

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40. In addition to the inconsistencies within the complainant’s testimony, her narrative was in contradiction to those of other witnesses. There were also contradictions between the other witnesses which raises doubts in respect of chain of events between the ordeal, taking of the complaint to hospital and identification and arrest of the appellant. 41. PW5 was the first person to encounter the complainant after the ordeal. The witness was clear that the child implicated someone known as Musembi and when her brother went for the appellant who was cleaning a nearby club and brought him to where people had gathered with the child, the child said it was not him only for her to hear later that Musembi had been arrested. I believe that the Musembi who was brought to the scene where the crowd had gathered was the appellant as no other Musembi has been mentioned or identified in the proceedings. The appellant said in his defence that he was picked from his work cleaning a house under renovation and the child said it was not him. PW5 corroborated the evidence of the appellant and not that of the complainant. 42. The investigating officer testified that the appellant was arrested by the Chief who was not called as a witness and members of the public. To the contrary, PW2 testified that the child, her father and three brothers came to the station he was working in asking for assistance to arrest the appellant since they had spotted him in that area. There is no mention of a Chief or members of the public by this witness. 43. When the child spoke to PW3, she told her that the person who defiled her was either Musembi or Mutuku who was a friend to his father. The appellant’s name does not have Mutuku in it and the complaint while testifying for the second time said that she had seen the appellant for the first time on the date of the defilement. This casts a doubt as to whether the Musembi the complainant was referring to while talking to PW3 is the appellant. PW3 also spoke of the complainant having been unconscious and rescued by people passing nearby. PW3 also stated in cross-examination that when the appellant was brought to the scene, the child was still unconscious and was not sure it was the appellant but when she recovered, she took the police to his house and they recovered clothes he was wearing during defilement. This issue of recovery of clothes did not come from the child or the police or any other witness. Actually, all the police officers who testified did not talk of going to the appellant’s house. 44. I have noted from its judgment that, the trial court addressed the inconsistencies in the identification by stating as follows; “ To start with the identification at the market, PW3 stated that PW1 was agitated and appeared unconscious, and I am sure the pressure was high because of a crowd of people and women who were looking at her genitalia when the accused was presented to her by the public for identification. I do not think the circumstances were ideal for identification because PW1 was still traumatized but she implicated a person called Musembi." 45. I take the above observation as a dangerous approach to serious offence like this one. The court made assumptions which had no basis in the context of the evidence. Even if she was traumatised on that date, the complainant could not have been in the same state when she appeared before the court and manifested serious and material inconsistencies. If she was able to remember at the time that she had been defiled by Musembi, I do not see why she would have been unable to recognize his face when he was brought physically. This is an offence attracting a minimum mandatory life sentence and the court should not have made such assumptions or treat the evidence casually as it seems to have done. 46. In conclusion, I find the inconsistencies I have identified above are material and go to the root of the case in respect of identification of the appellant as the perpetrator. The answer to the second issue is therefore in the affirmative. Having held so the issue of whether the sentence was excessive becomes moot. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 8

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47. Consequently, this appeal is merited and I proceed to make the following orders; a. The conviction and sentence passed and meted on the appellant in Kangundo Chief Magistrate’s Court sexual offence number 38 of 2019 on 6-09-2023 is hereby set aside and squashed and replaced with an order acquitting the appellant of the charges he faced in the said case. b. The appellant shall be set free forthwith unless otherwise unlawfully held. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026. B.M. MUSYOKI JUDGE OF THE HIGH COURT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12278/eng@2026-07-29 9

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