Philip Mbithoka Mati v Republic

5. Upon being affirmed, PW1 testified that at the material time she was a Grade One pupil at [Particulars Withheld] Primary School and resided with her grandmother. She recalled that on the material day her father had sent her to purchase paraffin from a nearby shop. While returning home, she met the accused, a neighbour, whom she knew by the name "Boss". She stated that the accused pulled her off the footpath into a pigeon pea plantation, removed her dress and undergarment, undressed himself, and inserted his penis into her vagina. She testified that the accused tied his shirt over her mouth to prevent her from screaming and warned her not to disclose the incident, threatening to beat her if she did so. She stated that she felt pain during the ordeal. 6. The complainant further testified that after the accused left, she dressed herself, retrieved the paraffin she had dropped, and returned home. Although she found both her parents at home, she did not immediately disclose what had happened because she feared the accused's threats. She later informed her grandmother, who took her to hospital and subsequently to the police station. She maintained that she was able to clearly recognize the accused because he was her neighbour and that she had known him before the incident. During cross-examination, she remained consistent that the incident occurred in the evening as darkness was approaching, that the accused forcibly pulled her into the plantation, and that she eventually disclosed the incident to her grandmother after being gently questioned. 7. Upon re-examination, she reaffirmed that it was the accused who inserted his penis into her vagina. 8. PW2 – CND (Grandmother), testified that on 13th November 2020, the complainant spent the night at her home after school. While preparing to sleep, she detected an unusual odour emanating from the complainant. Upon examining the child's private parts, she observed what she considered signs that the child had been sexually abused, including a whitish discharge and an enlarged vaginal opening. She woke the complainant and gently questioned her about whether anyone had defiled her. According to PW2, the complainant nodded affirmatively and identified the perpetrator as "Boss," whom she described as a neighbour. 9. PW2 testified that after obtaining further information from the complainant, she arranged for her to be taken to Makindu Sub-County Hospital, where the child underwent medical examination. She reported the matter to Makindu Police Station before treatment commenced, after which the complainant was issued with a treatment card, a PRC form, and a P3 form. She also produced the complainant's birth certificate, confirming that the child had been born on 3rd September 2012. 10. She further stated that the complainant's mother suffered from a mental disability and had therefore not acted upon the child's earlier disclosure. She maintained that the complainant had no reason to accuse the accused falsely. 11. PW3 – Dr. Nicholas Mbugua (Medical Officer) testified that he was a Medical Officer at Makindu SubCounty Hospital. He stated that he examined the complainant on 18th November 2020 after receiving a history of alleged defilement. His examination revealed that the complainant was generally in good physical condition with no injuries to the head, neck, thorax, abdomen, or limbs. On examination of the genitalia, he found that the hymen was broken, although the injury was old and not fully broken. He observed no fresh bleeding or discharge. Laboratory investigations, including HIV testing, urinalysis, high vaginal swab, and blood tests, were all normal. The Doctor produced the complainant's treatment card, PRC form, P3 form, and laboratory results. 12. On cross-examination, he clarified that the hymen injury was old and that he could not determine when it had occurred. He further explained that no treatment had been administered because there were no fresh injuries or infections requiring medical intervention. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 2

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13. Upon re-examination, he reiterated that the findings related to old injuries and that the medical documents reflected only the complainant's examination, as the accused had not been medically examined. 14. PW4 – PC Elizabeth Maina (Investigating Officer), testified that she was attached to Makindu Police Station and was the investigating officer in the case. She stated that on 18th November 2020 the complainant, accompanied by her grandmother, reported that she had been defiled. PW4 recorded the report, escorted the complainant to Makindu Sub-County Hospital for medical examination, and obtained the completed P3 and PRC forms. 15. She testified that her investigations established that the complainant had been sent to purchase paraffin and, while returning home, was intercepted by the accused, who dragged her into a neighbour's cowpeas plantation and defiled her. PW4 visited the scene identified by the complainant and confirmed its location. She also produced the complainant's birth certificate, confirming that the complainant was eight years old at the time of the offence. PW4 stated that the complainant knew the accused well because they were neighbours and that the accused had threatened the complainant not to disclose the incident. She further testified that, with the complainant's assistance, she arrested the accused at his home. 16. Upon cross-examination, she explained that the complainant's mother suffered from mental retardation and was therefore unable to appreciate the seriousness of the offence or provide a useful witness statement. She maintained that the complainant had positively identified the accused despite the incident occurring as darkness approached. 17. Upon being placed on his defence, DW1, Philip Mbithoka Mati, denied committing the offence. He testified that although the complainant had been medically examined, the doctor had found her to be normal and had not administered any treatment. He further contended that the complainant's grandmother had falsely alleged that the complainant's mother suffered from mental illness. He also questioned the grandmother's testimony regarding the odour she claimed to have detected and argued that it was inconsistent with the doctor's findings. 18. During cross-examination, however, he admitted that he knew the complainant as his neighbour and acknowledged that she had accused him of defiling her, although he maintained that the allegation was false. 19. DW2 – Joshua Samuel Nyamai, testified in support of the Appellant’s case and stated that he witnessed police officers arrest the Appellant but was unaware of the reason for the arrest at the time. He later learnt that the accused had been detained and subsequently arraigned before the court. He did not testify regarding the circumstances of the alleged offence itself, and his evidence was confined to the arrest of the accused. 20. In this appeal the Appellant raised Seven(7) grounds as follows: 1. That the Learned trial Magistrate erred in both law and in fact by convicting him on evidence that did not meet the minimum threshold of proof beyond a reasonable doubt, hence erroneously convicted the Appellant. 2. That the learned trial magistrate erred in both fact and in law by relying on trumped up charges fabricated stories where it is clearly demonstrated by the complainant that she lied to the Court. 3. That the learned trial Magistrate erred in both law and in fact by not noting that the charge sheet relied upon by the prosecution was fatally defective and hence did not disclose some vital https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 3

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information that ought to have been indicated on the charge sheet, which defect occasioned incurable denial of justice to the Appellant. 4. That the learned trial Magistrate erred in both points of law and fact by holding that the offence of defilement was completed without the ingredient of penetration being proved beyond a reasonable doubt, the medical officer didn’t at any point show or ascertain any sign of penetration. 5. That the learned trial magistrate erred in points of law and fact by unnecessarily delaying this matter acting in violation of article 50(2) (e) in a manner which raised suspicion that something was being cooked to fabricate and create stories that did not exist ostensibly to maliciously charge the appellant with an offence that the prosecution never proved beyond a reasonable doubt. 6. That the learned trial magistrate erred in points of law and fact by holding that the perpetrator of the offence of defilement was properly identified by the complainant and that the prosecution demonstrated a nexus between the appellant and the alleged offence of defilement. 7. That the learned trial magistrate erred in law and fact by not considering that the prosecution’s case was marred by contradictions and inconsistences which were notable across all the witnesses’ testimony. Appellant’s submissions 21. The Appellant submitted on three main issues: whether the prosecution proved the offence of defilement beyond reasonable doubt, whether the prosecution evidence was contradictory and unreliable, and whether the trial court failed to properly consider the defence case. 22. The Appellant’s primary argument rests on the assertion that the prosecution failed to prove the essential elements of the crime beyond a reasonable doubt, rendering the conviction unsafe. Citing the case of Fappyton Mutuku Ngui v. Republic (Cr. Appeal 296 of 2010), he emphasised the three elements that the prosecution must establish to sustain a defilement conviction: proof of penetration, proof of the victim's age, and conclusive identification connecting the accused person to the crime to the exclusion of all others. 23. On that basis, the Appellant argued that penetration was never conclusively established. Rather that the medical evidence adduced during the trial indicated that the victim’s external genitalia were normal, with no physical injuries, bleeding, or active discharge, and the hymen was described only as "broken but not fully broken". The Appellant argues that the presence of pus cells noted by the medical examiner was left unexplained and failed to link him to any unlawful act. 24. Furthermore, he asserts that the initial allegations were built entirely on the speculative assumptions of the victim's grandmother (PW-2), who concluded defilement had occurred based merely on an unusual smell and discharge, and subsequently delayed seeking medical attention for five days. 25. The Appellant further casts doubt on the credibility and reliability of the prosecution’s witnesses, challenging the trial court’s reliance on inconclusive expert medical testimony. To support his critique of the medical evidence, the Appellant relies on SyNzvenga v. Republic (56 of 2021) to submit that medical evidence must be thorough and conclusive to establish penetration beyond reasonable doubt. 26. He further cites Dhalay v. Republic (1997) KLR to argue that while expert opinions deserve respect, they are not binding on judicial officers and must be evaluated alongside all other evidence, especially where a proper basis exists to reject them. To reinforce this skepticism regarding expert testimony, he https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 4

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references The Tracy Peerage (1839) 10 Cl & F 154, highlighting the historical caution courts exercise toward scientific witnesses who may approach a matter with inherent bias. He complements these by noting the suspicious conduct of the grandmother, who secretly examined the child at night rather than inquiring directly and pointing out that the complainant herself testified to not knowing the Appellant or the alias "Boss". 27. Regarding the third issues, the Appellant argues that the trial magistrate erred by failing to properly consider his defense, thereby violating his constitutional right to a fair trial under Article 50 of the Constitution of Kenya and Sections 107 and 109 of the Evidence Act. He maintains that his testimony was consistent and remained unrebutted by the prosecution. Grounding his submission on the case of Woolmington v. DPP [1935] AC 462, the Appellant underscores that the burden of proof rests entirely on the prosecution throughout criminal proceedings, and that raising reasonable doubt entitles an accused person to an acquittal not as a matter of grace, but as a matter of right. 28. Consequently, he argued that since because the prosecution failed to discharge its burden, he urged this Court to allow the appeal, quash the conviction, set aside the sentence, and order his immediate release. Respondent’s Submissions 29. In response to the appeal, the Respondent submits that the appeal lacks merit, the conviction was lawful, and the sentence was justified given the overwhelming evidence presented at trial. 30. The Prosecution contends that it successfully proved all statutory ingredients of the offence of defilement beyond reasonable doubt. First, regarding the victim’s age, the prosecution produced a birth certificate establishing that the complainant was an eight-year-old child at the time of the offence. Second, penetration was demonstrated through medical records, specifically the P3 and PRC forms, which confirmed that the complainant had a broken, though not fully broken, hymen. Third, on the question of identification, the State asserts that the Appellant was positively identified because he was a neighbor well-known to the complainant, who referred to him as "Boss" and knew intimate family details, such as his mother’s name (Murembo), his sisters' names, and the fact that his father had passed away. 31. In addressing the duty of a first appellate court, the Respondent invokes Okeno v. Republic [1972] EA 32 and Mark Oiruri Mose v. Republic [2013] eKLR and argued that while the High Court is obligated to re-evaluate and analyze the evidence on record afresh to reach its own independent conclusion, it must give due allowance to the trial court, which had the distinct advantage of observing the demeanor of the witnesses as they testified. Evaluating the record through this lens, the prosecution maintains there were no material contradictions or inconsistencies in its case. 32. Furthermore, it was argued that while the Appellant provided sworn testimony and called a witness, the trial court properly considered his defense but correctly found it insufficient to dislodge the prosecution's evidence, as the defense merely described the circumstances of his arrest. 33. Regarding the sentence, the State points out that the Sexual Offences Act prescribes life imprisonment for defiling a child aged eleven years or under, making the 30-year term meted out by the trial magistrate lawful and far from excessive. 34. Citing Mbogo & Another v. Shah [1968] EA 93, the Respondent emphasizes that an appellate court will not interfere with the discretion of a trial court unless satisfied that the decision was clearly wrong, misdirected in law, or failed to take proper matters into consideration. They argued that since no such error occurred and the conviction remains safe, the appeal be dismissed in its entirety and that both the conviction and sentence be upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 5

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Analysis and Determination 35. This Court has considered the grounds of appeal, the record of Appeal filed and the rival submissions made by the parties as it is duty bound to do. This being a first appeal, this Court is, as a matter of law, enjoined to analyse and re-evaluate afresh all the evidence adduced before the lower court and to draw own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. This duty was stated by the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, 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 differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 36. Further, in the case of Okeno v Republic [1972] EA 32 at page 36 the East Africa Court of Appeal had this to say regarding 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.” 37. In this case, the Appellant faced a charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act 2003 which provides that;“ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement 8(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.” 38. Accordingly, the prosecution must prove beyond reasonable doubt the following three elements;1. Age of the complainant. 2. Penetration. 3. Positive identification of the assailant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 6

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39. While determining whether the prosecution proved the above listed elements, this Court shall address the Appellant’s argument regarding the alleged contradictions in the prosecution's evidence, the alleged fabrication of the charges, the sufficiency of the evidence, the alleged defect in the charge sheet, and the alleged violation of the appellant's right to a fair trial, to the extent that they arise under each issue. 40. In respect to proof of the first element of age, the Court of Appeal in the case of Onsongo v Republic (Criminal Appeal 18 of 2016) [2024] KECA 415 (KLR), stated as follows: “ …. the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 41. Proof of age is an essential ingredient of the offence of defilement and must be proved beyond reasonable doubt. The importance of proving age lies in the fact that it determines both the nature of the offence and the applicable sentence under the Sexual Offences Act. 42. In this case, the Appellant did not expressly challenge the complainant's age in his memorandum of appeal. However, he contended that the charge sheet was defective for failing to disclose material particulars. The respondent, on the other hand, submitted that the complainant's age was conclusively established through her birth certificate. 43. Upon a fresh re-evaluation of the evidence on record, I note that PW2, the complainant's grandmother, produced a copy of the complainant's birth certificate, which indicated that the complainant was born on 3rd September 2012. PW4, the investigating officer, also produced the original birth certificate during the trial and confirmed that the complainant was eight (8) years old at the time of the offence. Notably, the authenticity of the birth certificate was neither challenged during cross-examination nor controverted by the defence. 44. The appellant further contends that the charge sheet was fatally defective. I have carefully examined the charge sheet and find that it disclosed an offence known in law, cited the relevant statutory provisions, identified the complainant, specified her age, and indicated the place where the offence was alleged to have been committed. Although the charge sheet did not specify the exact date on which the offence was committed, the information therein was sufficient to inform the appellant of the nature of the charge he was required to answer. 45. In my view, the omission to state the specific date of the offence did not render the charge sheet defective. The evidence on record demonstrates that the complainant was a child of tender years who was unable to recall the precise date on which the offence was committed. More importantly, the appellant fully participated in the proceedings, cross-examined all the prosecution witnesses at length, and tendered his defence without raising any objection to the charge sheet at the trial. In addition, he has not demonstrated that the omission occasioned him any prejudice or resulted in a failure of justice. In the circumstances, and pursuant to Section 382 of the Criminal Procedure Code, I find that any such omission was not fatal to the prosecution's case. 46. In the premises, I am satisfied that the prosecution proved the complainant's age beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 7

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47. On whether the prosecution proved penetration beyond reasonable doubt. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. Consequently, proof of complete penetration is unnecessary; even partial penetration suffices. Indeed, the Court of Appeal in case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) held that:“ .. In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 48. The appellant contends that penetration was not proved because the medical evidence did not reveal fresh injuries or conclusively establish penetration. He further argues that the prosecution relied on fabricated evidence and that the inconsistencies in the witnesses' testimonies rendered the conviction unsafe. The respondent, however, submits that penetration was proved through both the complainant’s testimony and the medical evidence. 49. On re-evaluation of the record, PW1 gave a detailed account of the incident. She testified that the appellant dragged her into a pigeon peas plantation, removed her undergarments, undressed himself and inserted his penis into her vagina, causing her pain. She further explained that the appellant covered her mouth with his shirt and threatened her not to disclose the incident. Her testimony remained consistent throughout examination-in-chief, cross-examination and re-examination. 50. PW2 testified that when the complainant spent the night at her home, she detected an unusual odour and, upon examining the child, observed whitish discharge and physical changes to the complainant's genitalia. After gently questioning the complainant, the child disclosed that "Boss" had inserted his male genital organ into hers while she was returning from the shop. PW2 thereafter reported the matter to the police and took the complainant for medical examination. 51. The medical evidence tendered by PW3, Dr. Nicholas Mbugua showed that although there were no fresh injuries, bleeding or discharge, the complainant's hymen was broken, though not completely. He explained during cross-examination that the injury was old and he could not determine precisely when it occurred. He further clarified during re-examination that there were no fresh injuries requiring treatment because the examination took place several days after the alleged incident. 52. As already stated above, the law does not require proof of complete penetration. Section 2 of the Sexual Offences Act recognizes both partial and complete penetration as sufficient to establish this element of the offence. Consequently, the medical finding that the complainant's hymen was only partially broken does not negate the occurrence of penetration; rather, it lends support to the complainant's account of the sexual assault. Moreover, the complainant gave a clear, consistent and unequivocal account that the appellant inserted his penis into her vagina, evidence which directly establishes the fact of penetration. 53. It is now well settled that penetration may be proved through the credible testimony of the complainant, with medical evidence serving principally as corroborative evidence. Accordingly, the complainant's testimony, taken together with the medical findings, leaves no doubt that the element of penetration was proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 8

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54. The Appellant further alleges that the prosecution's case was fabricated and riddled with contradictions. On this issue, the Court of Appeal in Watu v Republic [2016] KECA 696 (KLR) held that:“ The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 55. Having independently reviewed the evidence, the alleged inconsistencies relate largely to peripheral matters such as the sequence of events after the incident and the observations made by PW2. They do not affect the complainant's unwavering account that the appellant inserted his penis into her vagina. Such discrepancies are, in my view, minor and do not go to the root of the prosecution's case. I therefore find that the complainant's direct evidence, corroborated by PW2's observations and the medical findings of PW3, established penetration beyond reasonable doubt. 56. On whether the Appellant was identified as the perpetrator. The Appellant contends that the prosecution failed to establish a nexus between him and the offence and that the complainant fabricated the allegations against him. The respondent on the other hand maintains that this was a case of recognition rather than mere visual identification because the complainant and the appellant were neighbours. 57. Indeed, recognition is generally more reliable than identification of a stranger because it is based on prior acquaintance. Nonetheless, the court must carefully examine such evidence to eliminate the possibility of error. 58. In this case, the complainant (PW1) testified that she had known the appellant before the incident and knew him by the name "Boss." She stated that he lived near her home and identified him by reference to his family members, including his mother(Mrembo) and sisters Nini and Aseli. She also positively identified him in court as the person who defiled her. Despite rigorous cross-examination, she remained steadfast that it was the appellant who committed the offence. 59. Her testimony was materially corroborated by PW2, who testified that when she asked the complainant who had defiled her, the complainant immediately named "Boss" and further described him as the son of Mama Mrembo, thereby demonstrating prior familiarity with the appellant. PW4 equally testified that the complainant consistently identified the appellant as her assailant, explained that he was her neighbour, and subsequently led the police to his home where he was arrested. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 9

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60. Although the offence occurred in the evening as darkness was approaching, the complainant testified that visibility was still sufficient for her to see the appellant. More importantly, this was not a fleeting encounter with a stranger but one involving a person she had known for a considerable period. The possibility of mistaken identity is therefore significantly diminished. 61. The appellant's defence consisted principally of a bare denial coupled with the assertion that the complainant's grandmother had fabricated the allegations against him. Significantly, he did not deny knowing the complainant; on the contrary, he acknowledged that she was his neighbour. He equally failed to offer any plausible explanation as to why the complainant, a child of tender years, would falsely implicate him in such a grave offence. Furthermore, the evidence of DW2 did not advance the appellant's case, as it was confined solely to the circumstances of the appellant's arrest and did not address the events surrounding the alleged offence. In the absence of any evidence capable of discrediting the prosecution's case or raising a reasonable doubt, I find that the appellant's defence amounted to a mere denial and did not displace the cogent evidence adduced by the prosecution. 62. In the circumstances, I am satisfied that the prosecution proved beyond reasonable doubt that the appellant was the person who defiled the complainant. 63. The appellant contends, in his Appeal, that the trial court violated his right to a fair trial under Article 50(2)(e) of the Constitution by unnecessarily delaying the proceedings. I have carefully perused the record of the trial court. The record demonstrates that on each occasion the matter was adjourned, sufficient reasons were recorded by the trial court to justify the adjournment. The delays were therefore explained and cannot be said to have been inordinate or unjustified. 64. In any event, the appellant has not demonstrated the manner in which the said delays prejudiced his defence or otherwise compromised his right to a fair trial. Accordingly, this ground of appeal is devoid of merit and is hereby dismissed. 65. As regards the sentence, the Court of Appeal in the case of Ogolla s/o Owuor vs Republic, [1954] EACA 270, pronounced itself on this issue as follows: “ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. 66. The appellant herein was convicted of the offence of defilement of a child aged eight years, an offence punishable under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. Upon conviction, the prescribed sentence is life imprisonment. In the present case, however, the trial court sentenced the appellant to thirty (30) years’ imprisonment. In the circumstances, I find no basis upon which to interfere with the sentence imposed by the trial court. 67. Accordingly, I find that the appeal is devoid of merit. The conviction is hereby upheld, and the sentence of thirty (30) years' imprisonment imposed by the trial court is affirmed. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 31ST DAY OF JULY 2026 THROUGH THE MICROSOFT TEAMS PLATFORM KENNEDY KANDET JUDGE In The Presence Of: Appellant Present From Kamiti Maximum https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 10

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Ms Musango For The Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12448/eng@2026-07-31 11

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