John Muchoki Maina v Republic

2. That, the learned trial magistrate erred in matters of law and fact by failing to find that my mode and circumstances of arrest were questionable. 3. That, the learned trial magistrate erred in matters of law and fact by failing to consider the explicit evidence of ulterior motives behind the case. 4. That, the learned trial magistrate erred in matters of law and fact by failing to find that would be essential exhibits were not produced namely:(i) The mobile phone allegedly given to PW1 for communication. (ii) The offensive test messages allegedly sent to PW1. 5. That, the learned trial magistrate erred in matters of law and fact by failing to find that the handwritten document, purportedly written by and recovered from the appellant was not proved to have been in my handwriting neither was the recovery proven against me. 6. That, the learned trial magistrate erred in matters of law and fact by shifting the burden of proof to the defence in relation to authenticity of the handwritten documents. The Evidence Prosecution’s case 5. PW1, was the complainant. He testified that between 13th March 2023 and 17th April 2023, while he was residing at [particulars Withheld] , the Appellant called him and offered him work, paying him Ksh. 500/- before any work was performed. According to the witness, three days later, the Appellant stated that he wanted to touch PW1's private parts as a substitute for the work, or else the money would have to be returned. PW1 told the court that the Appellant proceeded to touch his private parts with his hands and showed him pornographic images on a mobile phone. 6. PW1 further recounted an incident on 21st November 2022, where the Appellant allegedly sought to touch his buttocks. He testified that the Appellant requested they meet at [particulars Withheld] , where the Appellant bought him food. Regarding the circumstances of the arrest, PW1 stated that he and another boy, (PW2), were eventually caught by PW2’s parents and taken to Kambirwa Police Station. 7. In cross-examination, the witness maintained that the Appellant had paid him the Ksh. 500/- in March 2022 and that they had met at [particulars Withheld] . He insisted that the Appellant touched his private parts. 8. PW2, JMM was a student at [particulars Withheld] Secondary School. He testified that the Appellant was his friend and football coach from 2022. He stated that he and his classmate, (PW1), used to visit the Appellant’s place to play football. During these visits, the Appellant would allegedly show them pornography on a mobile phone and then touch their penises. He testified that the Appellant would promise to give them money or work, but would later withhold the payment unless they allowed him to touch them. He further told the court that if they refused, the Appellant would threaten to demand the money back or alternatively insist on touching their penises. 9. PW2 recounted meeting the Appellant at [particulars Withheld] along with PW1, where the Appellant reiterated his demands for sexual contact in exchange for money. He produced a birth certificate indicating he was born on 12th April 2006. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 2

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10. Under cross-examination, PW2 maintained that the Appellant used to give him money and denied selling a phone battery to him. He insisted that the Appellant had provided him with a phone for communication regarding work. 11. PW3, testified that she was the mother to PW2. She told the court that her son ran away from home on 16th May 2023. She reported the disappearance at the Kambirwa Police Post. On 17th May 2023, she received notification that her son had been located at [particulars Withheld] in the company of his friend. Under cross-examination, she maintained that her son had been missing from 15th May 2023 until he was found on 17th May 2023 12. PW4, was the investigating officer attached to Kambirwa Police Station. He testified that he took over the case on 17th May 2023 after (PW3) reported that her son, (PW2) was missing. He stated that on the night between 17th and 18th May, 2023, he received information that PW2 had been found at [particulars Withheld] in the company of another boy,(PW1). Upon interrogating the minors at the station to understand why they had run away, the boys alleged that since 2022, the Appellant had been paying them between Ksh. 100/- and Ksh. 500/- to allow him to touch their private parts 13. PW4 testified that based on this information, he tracked down and arrested the Appellant. During a search of the Appellant's person, he recovered a handwritten note from his wallet, written in Kikuyu language, containing names and on how he would touch private parts at a fee. He produced this note and its translation as PExb .2 and PExb. 4 respectively. 14. Under cross-examination, PW4 clarified that the initial police report made was for missing children and not indecent acts. He denied the Appellant’s allegations that the minors were assaulted at the station to force them to record statements. He further confirmed that while the charges were originally in one file, they were later split on the court's direction. In re-examination, he maintained that the translation of the recovered note was performed by a fellow police officer, however he did not produce the certificate of translation. 15. The Appellant testified as the first defence witness. Under oath he told the court that he knew the complainants, (PW1) and (PW2), as they were his neighbours and he frequently gave them casual jobs or coached them on how to play football. He further stated that he was arrested on 18th May 2023 after the two boys had run away from home and were traced to [particulars Withheld] . He stated that the minors were taken to Kambirwa Police Station where they were assaulted by the police, until they implicated him, leading to his arrest. 16. The Appellant further testified that the charges against him were motivated by ulterior motives on the part of PW3. He stated that she wanted him jailed because he had been stopping her son from playing football and missing school. He also alleged a case of attempted extortion, stating that the police called his aunt, Judith Gitari (DW3), and demanded Kshs. 30,000/- to end the case, a sum they could not afford. Regarding the handwritten note (PExb. 2), the Appellant categorically denied the document, stating that he saw it for the first time in court and that the handwriting on the document was not his. 17. Under cross-examination, the Appellant maintained that he had no differences with (PW1) or (PW2) and he was shocked by the accusations . He denied ever showing them pornography or touching their private parts. 18. In re-examination, he reiterated that PW1 had confessed to him that they were beaten at the police station, and that PW3 had vowed to ensure he was jailed for interfering with her son’s schooling. He concluded his testimony by asserting that he was a quiet, church-going man and that the allegations were a fabrication designed to silence his influence over the boys. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 3

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19. DW2, stated that he had known the Appellant for a long time and described him as a quiet man. He told the court he was shocked by the allegations, as he had never heard anything negative about the Appellant or any other criminal cases against him. He further told the court that the complainants, (PW1) and (PW2), were students who had dropped out of school and frequently visited the Appellant because he was their football coach. He stated that the boys had run away from home to avoid going to school. That when they were traced to Mukutano, PW’s mother (PW3) was upset and vowed to ensure that the Appellant was arrested and charged because the boys were often in his company. 20. Under cross-examination, DW2 admitted that while he often gave the Appellant manual labour jobs on his leased land, he did not live with him and could not account for the Appellant’s activities 24hours a day. He stated he could not specifically confirm the Appellant’s whereabouts on the diverse dates between March 2022 and April 2023 stated in the charge sheet. In re-examination, he reiterated the Appellant's standing in the community as a devout Christian. 21. DW3, was an Aunt to the Appellant. She told the court that on 18th May 2023, she witnessed the Area chief and police officers calling the Appellant while he was performing a casual job at a neighbour's home. Out of concern, she followed them to Kambirwa Police Station, where she was informed that the Appellant was being arrested on account of causing two boys, PW1 and PW2 to escape from school. 22. She testified that the arresting officer, told her that the case ought to end at the station if she could pay Kshs. 30,000/- to facilitate the release of the Appellant. She informed the officer she could not afford such a sum, after which the Appellant was formally processed for court. Appearance. 23. She further stated that while at the station, she saw the boys recording their statements from the cells, while their mother was instructing them on what to say, and reminding them not to forget the narrative she had given them. 24. Under cross-examination, DW3 stated she had known the Appellant since he was a child as they lived in the same compound, although their houses were separated by a fence. While she admitted she did not stay with him 24 hours a day, she maintained that there was nothing he did that she was not aware of. She described the Appellant as a quiet man who kept to himself and focused on his work, and the current allegations were fabricated. 25. The Appeal was heard by way of Written Submissions. Appellant’s Submissions 26. The Appellant argues that the trial court contravened Section 169(2) of the Criminal Procedure Code by failing to specify the count for which he was sentenced, instead entering a blanket conviction followed by a 10-year sentence. 27. He further submits that the mode of his arrest was questionable, as it occurred 15 kilometers away from where the minors were originally found. On the evidence, the Appellant contends there was a fatal lacuna due to the non-production of the mobile phone and the alleged offensive text messages. 28. Finally, he faults the trial magistrate for doing a comparison of handwriting without an expert opinion and for shifting the burden of proof to him to disprove the authenticity of the handwritten note. Respondent’s Submissions 29. The Respondent opposes the appeal. It is submitted that the conviction was lawful and supported by evidence. Regarding Section 169(2), it is submitted that any omission to quote the specific section in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 4

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the operative part of the sentence is a minor irregularity curable under Section 382 of the Criminal Procedure Code, as the Appellant was fully aware of the charges. 30. The Respondent maintains that the arrest followed credible information linking the Appellant to the offense and that the handwritten note, recovered from the Appellant's person, served as strong corroborative evidence. It is argued that the prosecution is not required to produce every possible exhibit, if the case is otherwise proved beyond reasonable doubt. Analysis and Determination 31. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. (see Kiilu & Another v Republic [2005] 1 KLR 174.) 32. The court has considered the evidence on record, the grounds of appeal and the parties’ submissions. The issues arising for determination are: a). whether the prosecution proved the two counts beyond reasonable doubt; b). whether the circumstances of arrest, the circumstances surrounding the production of exhibits the alleged ulterior motive affected the safety of the conviction; c). whether the conviction and sentence complied with section 169(2) of the Criminal Procedure Code. whether the prosecution proved the two counts beyond reasonable doubt; 33. Section 11(1) of the Sexual Offences Act (The Act) provides that a person who commits an indecent act with a child is liable, upon conviction, to imprisonment for a term of not less than ten years. Under section 2 of the Act, an “indecent act” includes any intentional contact between any part of a person’s body and the genital organs, breasts or buttocks of another, but does not include penetration. The prosecution therefore had to prove that each complainant was a child, that the Appellant intentionally touched the complainant’s genital organ, and that the Appellant was the perpetrator. 34. The complainants knew the Appellant well. He was their neighbour and football coach and occasionally offered them casual work. The case was therefore one of recognition rather than identification of a stranger. The Appellant equally admitted in his defence that he knew the two boys. Therefore, there was no possibility of mistaken identity. 35. On the particulars of the offence PW1 gave a direct account that the Appellant paid him Kshs. 500, later demanded either repayment or permission to touch his private parts, and then touched his private parts with his hand. PW2 similarly testified that, during visits to the Appellant’s place, the Appellant showed him and PW1 pornographic material and touched their penises, using promises of money or work and demands for repayment to secure compliance. Their accounts were consistent on the material features of the conduct alleged and the method used by the Appellant. 36. The fact that the offences were alleged to have occurred on diverse dates did not, by itself, render the charges defective. The evidence described repeated conduct over the periods stated, and the Appellant, who knew both complainants and cross-examined them on that conduct, was not shown to have been embarrassed in the preparation of his defence. 37. In a sexual offence, the proviso to section 124 of the Evidence Act permits the court to convict on the evidence of the complainant alone where the court, for reasons recorded, is satisfied that the complainant is telling the truth. In this case, the evidence was not merely that of one complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 5

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Each complainant independently described substantially similar conduct by the same person. Their evidence was mutually supportive, although each count must still be considered separately and every ingredient of the offence proved to the required standard. 38. Age is an essential ingredient because section 11(1) applies only where the victim is a child. In Kaingu Elias Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal recognized that age may be proved by a birth certificate, medical evidence, the evidence of a parent or guardian, the victim’s own evidence, or other credible evidence from which the court can safely determine age. 39. In respect to count II, PW2 produced a birth certificate showing that he was born on 12 April 2006. He was therefore below eighteen years throughout the period between March 2022 and February 2023 stated in the charge sheet. His age was proved beyond reasonable doubt. 40. PW2’s evidence that the Appellant intentionally touched his penis was clear and remained unshaken in cross-examination. The Appellant admitted knowing PW2 and interacting with him as a football coach and provider of occasional work. I find PW2’s account credible. The suggested dispute with PW3 did not explain why PW2 would make a detailed false allegation against the Appellant, yet the Appellant expressly conceded that he had no differences with either complainant. Am satisfied that the elements of count II were proved beyond reasonable doubt. 41. On count 1 , the charge described PW1 as a child aged sixteen years, but the evidence summarized in the record does not disclose a birth certificate, age-assessment report, evidence from a parent or guardian, or testimony by PW1 stating his age or date of birth. His status as a secondary-school student, without more, could not establish beyond reasonable doubt that he was below eighteen during the material period. 42. The particulars in a charge sheet are an allegation and not evidence. The burden remained on the prosecution under sections 107 and 109 of the Evidence Act to prove PW1’s age. That essential ingredient was not proved. Thus, notwithstanding the otherwise cogent evidence of touching, I find that the conviction on count I was unsafe. whether the circumstances of arrest, the circumstances surrounding the production of exhibits the alleged ulterior motive afiected the safety of the conviction; 43. The Appellant faulted the prosecution for failing to produce the mobile phone allegedly given to PW1 and the alleged offensive text messages. Under section 143 of the Evidence Act, no particular number of witnesses is required to prove a fact. The prosecution is also not obliged to present a superfluity of evidence. An adverse inference arises only where evidence that appears material is withheld and the evidence presented is barely adequate, as explained in Bukenya & Others v Uganda [1972] EA 549 . 44. In respect to the failure to produce the phone messages, the offence that the prosecution sought to prove was the intentional touching of the complainants’ penises with the Appellant’s hand, not the transmission of an electronic communication. The phone and messages may have supplied corroborative context, but they were not indispensable to proof of the physical act. PW2’s direct testimony, which I have independently found truthful, proved count II. The failure to produce the phone or messages therefore did not create a reasonable doubt on that count. 45. The handwritten note has also been brought into question. PW4 stated that he recovered a note, written in kikuyu language, from the Appellant’s wallet. The Appellant denied both possession and authorship of the note. The prosecution did not produce any inventory or independent witness who witnessed the recovery of the note; there was no proved specimen of the Appellant’s handwriting https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 6

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that was placed before the court, and finally, no handwriting expert or person acquainted with his handwriting testified. 46. Sections 70 and 76 of the Evidence Act require a proper evidential basis for attributing disputed handwriting to a person. Although a court may compare a disputed writing with writing proved to its satisfaction to be genuine, there was no proved comparator in this case. A visual comparison by the trial court, without such a comparator, could not establish authorship of the note. 47. Further, the officer said to have translated the Kikuyu note did not testify, and no basis was laid for the translator’s competence or for the accuracy of the English translation. In those circumstances, the translated contents could not safely be relied upon against the Appellant. To the extent that the trial court required the Appellant to disprove the note, it was shifting the legal burden of proof to the Appellant. That was erroneous. The subject note and its translation are therefore excluded from consideration. 48. Nevertheless, the note was at most corroborative. The direct evidence of PW2 was capable of sustaining the conviction under the proviso to section 124 of the Evidence Act, and was in fact supported in material respects by PW1’s account of the Appellant’s similar conduct. The conviction on count II remains safe without the note. 49. The Appellant’s complaint about the mode and place of arrest is also without merit. PW4 explained that the arrest followed information obtained when the two boys were found and interviewed after a missing-person report. An irregularity in arrest does not, without proof of prejudice affecting the fairness of the trial or the reliability of the evidence, invalidate a subsequent conviction. (see Julius Kamau Mbugua v Republic [2010] eKLR.) There was no such prejudice in this case. 50. The allegations of ulterior motive and extortion were part of the defence and that had to be weighed against the whole of the prosecution case. DW2 and DW3 could not account for the Appellant’s movements throughout the broad period covered by the charges. Their evidence about his good character did not answer PW2’s direct account. The alleged demand for Kshs. 30,000 by PW4, even if it raised concern about that officer’s conduct, did not implicate PW2 in any fabrication and did not displace his evidence. whether the conviction and sentence complied with section 169(2) of the Criminal Procedure Code. 51. Section 169(2) of the Criminal Procedure Code, requires a judgment of conviction to specify the offence of which the accused is convicted, the section of the law under which he is convicted, and the punishment imposed. Where there are several counts, the court must return a finding and impose a distinct sentence on each count. An omnibus conviction or sentence obscures the legal consequence of each count, and is irregular. 52. The trial court convicted the Appellant on both counts but imposed one undifferentiated term of ten years’ imprisonment. That was an omnibus sentence and was therefore irregular. It is not merely the failure to quote a statutory section; it is the failure to identify the punishment attaching to each of two separate convictions. 53. In view of my finding on count I, the conviction on that count is quashed and any sentence referable to it is set aside. The conviction on count II is affirmed. 54. Section 11(1) prescribes a term of imprisonment of not less than ten years. The trial court imposed the statutory minimum, and no basis has been demonstrated for interference with that term. 55. In the end, the appeal succeeds in part and the following orders are hereby issued: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 7

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a) The conviction on count I is quashed and the sentence thereon is set aside. b) The conviction on count II is upheld. c). The omnibus sentence imposed by the trial court is set aside and, in its place, the Appellant is sentenced on count II to ten (10) years’ imprisonment. DATED, SIGNED AND DELIVERED AT ISIOLO VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY 2026. S. CHIRCHIR JUDGE. In the presence of: Roba Katelo- Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12651/eng@2026-07-30 8

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