Wycliff Ouma Nyagilo v Republic

ii. That the trial court erred in law and in fact in considering the contradictions, discrepancies and inconsistencies in the prosecution evidence that were inconsequential to conviction. iii. That the learned trial magistrate erred in law and fact in convicting the Appellant on unsworn and uncorroborated evidence of a single eye minor witness. iv. That the learned trial magistrate erred both in law and fact in not appreciating the appellants defence that overwhelmed the prosecution case. v. That the trial court erred in fact and in law by denying the Appellant his absolute right to a least prescribed sentence pursuant to Article 25 (c) and 50 (2) (p) of the Constitution of Kenya. 6. The prosecution lined a total of 4 witnesses. 7. PW1 G.A, the complainant said that she was 15 years old and came from Kamrei and pursuing a tailoring course. That she was born on 8th March,2008. She said she was a learner in Kwoyo Primary school where she sat for her KCPE. 8. She said that on 8/1/2023, she went to her grandmothers’ home in [Particulars Withheld]. On her way, she met Wycliff, a bodaboda rider who she didn’t know. She told him he was going to her mother’s friend, then she goes to [Particulars Withheld] the next day. Wycliffe said he would take her to [Particulars Withheld] and she gave him Kshs. 300/=. 9. They started the journey and upon arriving at Mula, Wycliffe told her that that fuel was over and that she would give her Kshs. 500/= instead. Wycliffe then told her that they were going to eat in a hotel. That they went to a bar and he bought her a soda then spoke with a lady at the bar to give her a room. 10. Wycliff took her to the room but did not lock the door. He said it was late, that she should sleep in the room and would take her to [Particulars Withheld] the following day. He then took the moto cycle into the bar and went back to the room. At the room, he removed her clothes then inserted his penis in her vagina without any protection, three times. He warned her not to scream or else she would kill her. 11. The complaint said that at around 5.00 a.m., Wicliff left after paying for her breakfast at the hotel. He left his contact and said he would come back but never came back. At around 2.00 p.m., the complainant was still at the bar when one of the men at the bar summoned her. She explained what had happened and the man took her to police station. 12. On cross examination by Counsel for defence Mr. Ogwe, the complainant stated that she on 8th of January, 2023, she met the accused person, that the police recorded her statement but did not read out the statement to her. 13. She stated that she does not remember the name of the bar. It was at 7 pm and that there were two ladies at the bar known as Elizabeth and the waitress was Joy. She did also not explain this to police officers. She did not lock the door to the rom. That they went to the room at around 9 .00 p.m. Further she confirmed that it was not her first time having sex. she had a boyfriend 19 years old whose name is Victor and they had been in a relationship for 1 year. 14. PW1 further stated that the accused person gave her his number when he was leaving. That Wycliffe was the only one who wronged her. Her father reported her missing and John Titus was the good Samaritan who helped her. She confirmed that her father and the good Samaritan were known to each other, but did not know if the father knew Wycliffe. She finally stated that she had a phone which she left at the police station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 2

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15. PW2 John Onyango, a business man from Awendo testified that on 14/1/2023, that he was working for Kenyan Peasants League as a volunteer in the Department of Human Rights. That he stepped out for lunch together with his colleague one Mr. Raila where they met the complainant crying for help. She told them that a bodaboda rider was to take her to [Particulars Withheld] on 13th January 2023 but she did not have sufficient money. That the boda boda rider told her he would get her shelter for the night and proceed to [Particulars Withheld] the following day. 16. That she spent the night with the the bodaboda rider, who defiled and left her with a promise to pick her up later. That the rider came back at around 12.00 noon after he left her in the morning. That the complainant gave police officers the phone number of the bodaboda rider 0714731796. The police called the number and told him to come pick a patient and when he arrived, he was arrested. 17. On cross examination by the Counsel, he stated that the complainant was traveling on 13th January 2023 and he met her on 14th January 2023 around midday. That the members of public did not call him to rescue the complainant. That the complaint told him that she spent the night with the accused person at a building in the Centre. The ground floor of that building was a pub and a restaurant while the rooms upstairs were for employees. 18. He further said that he resigned from the organization and at the time of the incident, he was working as a volunteer but resigned in June 2023. He said he did not have anything to show that he worked at the organization. He also denied requesting for compensation from the accused in a bid to compromise the case. 19. PW2 also confirmed that he knew the accused person before but were not at loggerheads with him over politics. That the Police officer known as Serah Gimisi called the accused person. He further stated that the accused person called him asking for assistance and that PW2 did not ask for any compensation from the accused person. He confirmed that he did not see the complainant and the accused person sleep together. 20. He further stated that the complainant informed him at the Centre that she slept with the accused person. That his colleagues were Susan and Raila. That on their way to the Police, they picked Susan Owiti and it was the police who called accused person. He confirmed that he had not fabricated the case against the accused person and that the complainants’ rights had been violated. 21. PW3, Sheila Abuya Clinical Officer from Awendo Sub-County testified that she examined the complainant on 15/1/2023. The complainant was wearing a blue pant and yellow dress and was well kempt. Examination was after 36 hours. A blunt weapon was used. External genitals were normal no lacerations and not freshly broken hymen. There was brown foul-smelling discharge. She produced the P3 filter card and PRC forms and stated that Wycliffe was examined by her colleague Pauline Atango. 22. On cross examination by Counsel, PW3 stated that the injuries were approximately 36 hours as the incident took place on 13/1/2023 and reported on 15/1/2023. She confirmed that there were no fresh injuries to the vagina and did not know if the complainant had had prior sexual encounter. That the complainant stated she was 17 years and also had sex on the night of 13th January 2023. 23. PW3 PC Tabitha Romano No 125276 who took over from PC Sarah Gimisi stated that on 14th January 2023 at around 1425 hour when one minor G.A accompanied by Julius reported the case of defilement. The complainant was taken for examination on 15th January 2023. P3 and PRC forms were filled and the accused person later arrested. 24. She stated that the complainant informed them that she left home on 13th Janaury, 2023 at around 1600 hours to her grandmother’s home in [Particulars Withheld] with Kshs. 300. That she boarded https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 3

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a motor cycle and the rider informed her that the money was not enough. The rider then told her that they would spend the night at [Particulars Withheld] where she spent the night and had sex. The accused person was to take her to [Particulars Withheld] the following day but left never to return. Well wishers rescued her and took her to the police station. 25. On cross examination by the counsel, she stated that she did not investigate the matter and that the name of the restaurant was not captured. She said that the accused left at 0500 hours while defilement occurred at night. She confirmed that John Titus was the good Samaritan who assisted the complainant at an undocumented time. She also said that the father was not accused of defiling the minor and that the investigations done were sufficient. 26. PW4, Penina Otaigo a Clinical Officer from Awendo Sub-County Hospital testified that she prepared the documents before the court and examined the accused on 13th January, 2023 on suspicion of defilement. On examination, the accused was found to have syphilis and was treated. That he had no physical injuries and he also stated that there was a mutual agreement between him and the minor. 27. On cross examination by the Counsel, she stated that the accused had syphilis whose window period for showing is three months. She believed he did not contract it from the victim. She stated that the victim said they used condom while the accused person said they did not use condom. She also said that the accused did not sign the medical report because he did not have to sign it. Finally, she stated that the treatment notes were stating that the samples were collected and tests done. 28. Upon being placed on his defence the accused DWI Wycliffe Nyagilo gave unsworn testimony and testified that he is a farmer from [Particulars Withheld] Village. That on 13th Janaury, 2023 at around 5.00 pm at Awendo, a client approached him for a ride to [Particulars Withheld]. The client had Kshs.100/= but the trip Kshs.150/=. That the client made a call to a man who confirmed that he would pay the fare on arrival. 29. That upon arrival in [Particulars Withheld], the person had switched off his phone. The client thus requested for his phone number so she could send for him fare through his Mpesa later. He went back to work and went home at around 6.30 p.m. He said that the client dropped at [Particulars Withheld] and did not pay and when she called him the following day at around 12.00 noon when she called to be picked, the accused asked her to pay the money owed. That on the call, the girl had told him that he should pick her up at Awendo Hospital. Upon arriving at the hospital, he was arrested and taken to Awendo police station. 30. DW1 also stated that at the police station, the complainant did not recognize her initially but only did so after being interrogated by the police. That he could not recognize her either as she had changed clothes. That PW4 went to the station and jereed at him telling him that he had now been finally arrested. This was because the accused and PW4 had political differences. 31. He stated that while still at the station, one Willis Opala was arrested and Willis told him that he was arrested because his daughter, the victim had reported that he (the father) had defiled her. He said that John Titus asked Wilson to pay him Kshs. 50,000/= each if the accused and William wanted to be released. 32. Further he testified that on 16th January, 2023, only the accused was charged in court while Wilson was released. That he wrote a letter dated 4/8/2023 to the OCS requesting for the OB for Willis Opala but was never supplied with the same. He produced the letter and OB extract from his phone of the exhibits as DEX 2 and 3 respectively. He stated that he did not defile the complainant and that the accusation was politically instigated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 4

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33. DW2, Lilian Auma Mienje, the wife of the accused testified that on 13th January, 2023 the accused returned home at around 7.00 p.m. and slept. That the following day, he left the house at around 10.00 am. On cross examination by state counsel, she said that her husband is a bodaboda rider in [Particulars Withheld] and that their home and [Particulars Withheld] Centre is 1km. 34. DW3 Paul Ogoma Raila Geoffrey in his sworn statement testified that he comes from Sakwa and is a farmer and also works at the Kenya Peasants League which fights for Human Rights and that they dealt with the case. 35. He stated that on 14th January 2023 at around 11.00 hours he was called by his colleague John Titus Onyango (PW2) and when he reached, he found him with a lady who appeared to be around 15-17 years. The girl told them that on 8th January, 2023, she was defiled by her biological father Wilson around midnight but decided to keep quiet. 36. She stated that on 13th January 2023, she met a bodaboda rider one Wicliffe who asked for Kshs. 500/ = but she only had Kshs. 300/=. That they agreed she pay Kshs. 300/= and the balance they would spend the night together. After spending the night together, the rider then damped her, promised to pick her the following day and take her to Mbita. the girl told them she was 17 years and in form 2. That they called their head who gave them go ahead to report the matter to Police. 37. DW3 further stated that her father defiled her and on 8/1/2023, she went to visit his lover Willis Otieno and stayed there from 8th January, 2023 to 13th January, 2023 and met the rider after she had left the home of Willis at around 4.00 am. That both the father and the rider were arrested as the perpetrator. The rider was arrested when he was lured to Awendo Hospital by PC Susan. 38. He also stated that on 15th January, 2023, they went to the station, and the minor was taken to Awendo Sub-County Hospital but was not examined because she had foul smell. He confirmed that he knew the family of the minor and the family stated that the minor was 15 years and had sat for her KCPE. The family also reported to him that it was not the first time she had gone missing. 39. DW3 further testified that at the Kenya Peasant League, they handle several defilements cases but pulled out of this one because of several stories surrounding it. That Titus said “let PESA help him referring to the accused person”. He also stated that the family said the girl is a liar and they also found the girl not to be genuine. He confirmed that there was a bar at the area but there are no lodgings. 40. On Cross Examination by Ms. Ombogo for the State, he stated that he had not produced anything to show that he works with KPL. He confirmed that he used to work together with PW2 and was together with him when the minor told them what had happened. He stated that it was not puzzling the himself and PW2 testified differently because testifying depended on interests of each of them. He concluded that the accused is the one who defiled the minor and he was arrested because the minor had identified him. 41. On re-examination he stated that they laid a trap for the information that was furnished Analysis And Determination 42. 19.The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -“….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 Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 5

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evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” 43. 44. 45. Having dispensed with the duty to rehash the evidence adduced at the trial court and having also considered the submissions filed by parties herein, the issues for determination are:a. Whether penetration by appellant was not proved beyond reasonable doubt. b. Whether there were contradictions, discrepancies and inconsistencies in the prosecution evidence. c. Whether the Complainant’s unsworn testimony was uncorroborated and whether evidence of a single eye witness who was a minor could sustain a conviction. d. Whether the Appellant’s defense was considered. e. Whether the trial court complied with the right to a least prescribed sentence pursuant to Article 25 (c) and 50 (2) (p) of the Constitution of Kenya. Section 8 (1) of the Sexual Offences Act which provides thus; 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. 3. 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. 4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” The elements that need to be proved for a crime of defilement are provided for under Section 8 of the Sexual Offences Act. The prosecution needs to prove beyond reasonable doubt that; i. The age of the victim (must be a child) ii. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs) iii. Positive identification of the accused as the person who committed the act. Penetration 46. Proof of age is important in a sexual offense. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 6

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47. From the record the Complainant stated that she was born on 2/3/2008. This is corroborated by the birth certificate produced as PEX 1 which confirms the date of birth as 2nd March 2008. This court agrees with the trial court that the age of the victim was sufficiently proved beyond reasonable doubt. 48. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person. The P3 form and the medical examination revealed that the complainant's hymen was broken; however, the medical officer observed that the tear was old and healed, with no fresh injuries noted. The examination did not therefore establish that the penetration, if any, occurred on the date alleged by the prosecution. 49. This finding assumes significance when viewed alongside the complainant's own evidence. The record discloses that she had previous sexual encounter with her boyfriend whom she had been dating for over one year. These circumstances presented alternative explanations for the old hymenal tear observed during the medical examination. 50. In those circumstances, the medical evidence merely confirmed that the complainant had experienced previous penetration at some point in time. It did not establish when the sexual intercourse occurred whether on 13th January 2023 or on any other day. 51. When this evidence is considered together with the inconsistencies in the complainant's testimony, the contradictions in the prosecution's case, the unexplained investigative gaps, the date of the offence indicated in the P3 form that the offence took place on 28th Janaury, 2022 and the unrebutted defence evidence, the Court is left with a reasonable doubt as to when the offence occurred whether it was on 8th January 2023 as stated by the Complainant or on 13th of January 2023 as stated in the charge sheet or 28th December 2022 as indicated by the police in the P3 form referring the Complainant to hospital. In the foregoing, this court finds that the evidence on record is not sufficient to prove the element of penetration. 52. The evidence on record shows that the Appellant and the Complainant met on 13th January 2023 when the Complainant asked to be taken to her mother’s friend’s home and she was to go to [Particulars Withheld] the next day. It was her evidence that when they arrived at [Particulars Withheld] the Appellant told her the fuel was over and she was to give him a total of 500/=but she had only 300/=. She alleged that the man took her to a room and defiled her but the prosecution evidence does not disclose the identity of the bar where they allegedly spent the night. She gave the names of the attendants at the bar but the Investigating Officer did not bother to call the said attendants as witnesses. PW2 said that he and Raila DW3 found the Complainant who alleged to have been defiled in the bar by the Appellant but he confirmed that the bar did not have lodgings. Rather that the bar only had residences for the workers only. DW3 confirmed that the bar did not have lodgings. The Complainant and the Appellant may have met and the Appellant confirmed as much but the act of defilement was not proved to the required standards. 53. The Appellant's account was further supported by DW2, his wife, who testified that the Appellant returned home at about 7.00 p.m. on the material evening and remained at home throughout the night. Although the prosecution was under no obligation to disprove the defence by calling a multitude of witnesses, once this evidence was placed before the court, it was incumbent upon the prosecution to rebut it by credible evidence. No such evidence was forthcoming. 54. The defence also advanced the allegation that PW2 bore a grudge against the appellant arising from political differences and sought to implicate him falsely. The appellant's account that PW2 demanded money from him received corroboration from DW3. Additionally, DW3 testified that the organization through which PW2 worked initially handled the matter but subsequently abandoned it due to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 7

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unresolved issues surrounding the complaint. Although these matters do not, by themselves, establish fabrication, they were relevant circumstances that called for careful consideration, particularly where the prosecution case was already beset by inconsistencies. 55. As the record stands, the Court is left without evidence identifying the precise location where the alleged offence occurred. The prosecution neither established the name of the premises nor led evidence describing the scene or its suitability for overnight accommodation. This omission is particularly significant in view of the defence evidence that the locality had a bar but no lodging facilities. A visit to the scene by the investigating officer would have either corroborated or dispelled that assertion. The failure to undertake such a basic investigative step left an important aspect of the prosecution's case unresolved. 56. While the prosecution is not required to call every conceivable witness, it is required to present sufficient evidence to establish the essential ingredients of the offence beyond reasonable doubt. In the circumstances of this case, the investigative omissions regarding the alleged scene of crime created a gap in the prosecution's case which, when considered alongside the other inconsistencies on record, gives rise to a reasonable doubt that must be resolved in favour of the appellant. 57. Consequently, the appeal succeeds, the conviction is quashed, the sentence is set aside, and the Appellant shall be set at liberty forthwith unless otherwise lawfully held. 58. Right of appeal within 14 days explained. It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JULY, 2026. ANNE ONGI’NJO JUDGE Delivered in the presence of: Victor – Court Assistant Calvince – Court Assistant Mr. Oimbo - for Respondent/State Appellant - Present in person Held at Kisumu Maximum Prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12694/eng@2026-07-30 8

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