James Lochuch Lowoi v Republic

transferred from Nyahururu High Court to this court as it originally had the jurisdiction to handle matters from Rumuruti Law Courts and transferring it back to Nyahururu High Court would have causes delays and injustice to the Appellant herein secondly, because this court reserved the judgment herein before the said Kenya Gazette Notice was brought it its attention. 5. The Appellant’s Written Submissions were dated 5th November 2025 and filed on 7th November 2025 while those of the Respondent were dated 8th April 2026 and filed on 9th April 2026. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. Legal Analysis 6. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 7. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 8. Having considered the Appellant’s Grounds of Appeal, his Written Submissions and the Respondent’s Written Submissions, it appeared to this court that the issues that had been placed before it for determination was whether or not the Prosecution proved its case beyond reasonable doubt. 9. The court therefore dealt with the issues under the following distinct and separate heads. I. Proof of Prosecution’s Case 10. Ground of Appeal No (1), (2), (3), (4) and (5) of the Petition of Appeal were dealt with under this head. 11. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement. 12. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 13. The Respondent submitted that the age of the Complainant (hereinafter referred to as “PW 1”) had been proved beyond reasonable doubt through the evidence of her father, James Apim (hereinafter referred to as “PW 2”) and the Birth Certificate that was produced, as an exhibit, by the Investigating Officer No 257244 Millicent Wawira (hereinafter referred to as “PW 4”). It argued that the evidence established that PW 1 was a child aged fifteen (15) years at the time of the offence and hence, the ingredient of age had therefore been satisfied. 14. The Appellant did not dispute that the Prosecution had proven PW 1’s age. He relied on the case of Edwin Nyambogo Onsango vs Republic (2016) eKLR where it was held that age could be proven by documentary evidence such as birth certificates, baptism cards or oral evidence of the child was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 2

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sufficiently intelligent to state his or her age or through the evidence of the parent or guardian of the child. 15. This court perused the Post Rape Care Form and noted that the date of PW 1’s birth was 10th October 2022. This appears to have been the date when the Clinical Officer, Jamleck Mwangi ( hereinafter referred to as “PW 3”). The Trial court determined that PW 1 was fifteen (15) years as at July 2022 as per the Birth Certificate, having been born on 16th September 2007. This court did not see a copy of the Birth Certificate in the Record of Appeal. There was also no lower court file. 16. In the absence of the Birth Certificate and the lower court file in which the original Birth Certificate may have been, this court could not ascertain PW 1’s age with certainty. It could also not for a fact state that the Trial Court correctly found that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times of this incident. However, as the Appellant did not dispute PW 1’s age, this court was persuaded to hold that she was a child at all material times. B. Identiffcation 17. The Appellant submitted that the Prosecution was required to prove beyond reasonable doubt that he was the person who committed the offence. He placed reliance on the case of Charles Wamukoya Karani vs Republic Criminal Appeal No 72 of 2013, and submitted that positive identification of the perpetrator was one of the essential ingredients that had to be proved in a charge of defilement. 18. He contended that although PW1 stated that she knew him as James and that they were neighbours, her evidence was unreliable and insufficient to sustain a conviction. He argued that her failure to remember the clothes he wore on the material day raised doubt as to the accuracy and reliability of her recognising him. 19. He further submitted that PW 2’s evidence did not assist the Prosecution’s case since he admitted that he did not see him and PW 1on the material day. He argued that PW 2 had merely relied on information that was given to him by her son, Lokrani, but who was not called as a witness. He contended that the failure to call Lokrani weakened the Prosecution’s case and left the evidence on identification uncorroborated. 20. He submitted that the evidence relied upon by the Prosecution amounted to mere recognition based on the fact that he was known to PW 1 and her family, but that the circumstances surrounding the incident had not been examined to exclude the possibility of error. He relied on the case of Wamunga vs Republic (1989) KLR 426 where it was held that although the evidence of recognition could be more reliable than identification of a stranger, the same still required careful scrutiny before a conviction could be based upon it. 21. He argued that the Prosecution had failed to prove beyond reasonable doubt that he was the person who committed the offence and that the evidence on identification raised doubt which ought to have resolved in his favour. 22. On its part, the Respondent submitted that the Prosecution had proved beyond reasonable doubt that the Appellant was the person who committed the offence against PW 1. It contended that her evidence amounted to recognition rather than identification of a stranger. It set out PW 1’s and PW 2’s evidence to demonstrate that the Appellant was well known to PW 1. 23. It argued that the familiarity between them reduced the possibility of mistaken identification. It asserted that PW 1 had clearly placed the Appellant at the scene of the offence and had explained that they had sought shelter together when it started raining, when the act occurred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 3

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24. It further submitted that PW 2’s evidence corroborated PW 1’s testimony as he knew the Appellant well as a neighbour who had previously interacted with PW 1. It stated that he testified how the Appellant used to visit PW 1’s home, which supported her evidence that she knew him. 25. It relied on the principle that recognition evidence was generally more reliable than identification of a stranger, although it still required careful consideration as was held in the case of R vs Turnbull (citation not given). It contended that in the present case, PW 1 had recognised the Appellant as a person known to her and had identified him by name and thus urged this court to find that the ingredient of identification had been proved beyond reasonable doubt. 26. A perusal of the proceedings showed that PW 1 testified that she knew the Appellant well as James and that he was her neighbour. She also stated that she had known him before the incident and that he was her boyfriend at the time. She said that they had been in a relationship with him for about one (1) month. 27. She further told the Trial Court that she met him while she was in the forest collecting firewood and that when it started raining, they both sought shelter at a nearby homestead where the act occurred. She further stated that after the incident, she went to his home where she slept in his sister’s bedroom, before returning home the following morning. 28. This court noted that PW 1 was the principal witness who identified the Appellant as the person who defiled her. As the Appellant actually admitted that he knew her mother and he seemed to know PW 1, this court did not see the need to belabour the point of his identification. It determined that the Appellant and PW 1 knew each other before the alleged incident. The question of whether the Appellant defiled her was, however, a different issue altogether. C. Penetration 29. The Appellant submitted that the Prosecution had failed to prove penetration beyond reasonable doubt. He argued that PW 1 stated that she had protected sex with him but did not provide sufficient details describing the act of penetration. He relied on the case of Julius Kioko Kiviva vs Republic (2015) eKLR where it was held that though traumatic, the description of the sexual act was important in proving penetration. He averred that the Prosecution relied on the evidence of PW 1 and the medical evidence produced by PW 3 but PW 1’s evidence on penetration was inconclusive. 30. He rehashed PW 1’s evidence before the Trial Court and challenged the sufficiency and credibility of her evidence. He averred that her testimony lacked sufficient sensory details regarding the act, including her mental state, how she felt during the incident, whether she experienced pain or bleeding, and what occurred thereafter. He argued that the Trial Court ought to have subjected her evidence to a more critical examination. 31. He asserted that the failure by the Prosecution to elicit such details through examination and reexamination rendered her evidence scanty, ambiguous, and insufficient to sustain a conviction. He placed reliance on the case of Julius Kioko Kiviva vs Republic (Supra) and submitted that the evidence of having had sex, without further details, did not necessarily prove penetration. 32. He further submitted that the medical evidence did not corroborate penetration. He argued that PW 3 had found that PW 1’s hymen was broken but that it was not recent, that there were no injuries, bleeding or discharge, and that there was no evidence of recent sexual activity. He placed reliance on the case of P.K.W. vs Republic (2012) eKLR and submitted that a broken hymen alone could not prove penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 4

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33. The Respondent agreed that penetration was an essential ingredient of the offence of defilement and was required to be proved to sustain a conviction. It relied on the case of Sammy Charo Kirao vs Republic [2020] eKLR which adopted the reasoning of the decision in Bassita vs Uganda S.C. Criminal Appeal No 35 of 1995 to the effect that penetration could be proved through direct or circumstantial evidence. 34. It submitted that although medical evidence was desirable, it was not a mandatory requirement in every case, provided that the evidence presented and in particular that of the complainant was sufficient to prove the offence beyond reasonable doubt. 35. It submitted that victims of sexual offences could describe sexual acts using ordinary language. It stated that in the present case, PW 1 clearly stated that she had protected sex with the Appellant. It was categorial that the term she used was not ambiguous and, in the circumstances surrounding the case, she sufficiently described the act of sexual intercourse between herself and the Appellant. 36. It asserted that her evidence had to be considered in the context of her age and the circumstances under which the offence occurred. It was emphatic that the law did not require a child complainant to describe the act of penetration using technical or graphic language or explicit detail before a conviction could be sustained. It argued that such an approach would disregard the reality that victims of sexual offences may find it difficult or embarrassing to recount the details of the abuse in open court. It pointed out that PW 1 was sixteen (16) years old at the time of giving evidence and was, therefore, capable of understanding and explaining what had occurred. 37. To buttress its argument, it referred this court to the decision in the case of Muganga Chilejo vs Republic [2017] KECA 359 (KLR) where the Court of Appeal observed that child victims of sexual offences could use ordinary words or euphemisms when describing the acts committed against them and because sexual offences involving children were sensitive matters, they were not always expected to use precise legal terminology when narrating their experiences. 38. It further pointed out that penetration had been proved through PW 1’s evidence which was corroborated by PW 3’s medical evidence, which confirmed that her hymen was broken. It asserted that although the medical evidence did not establish recent injury, it supported her account that penetration had occurred. It, therefore, submitted that the ingredient of penetration had been proved beyond reasonable doubt. 39. Notably, the proviso of Section 124 of the Evidence Act states 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 (emphasis).” 40. This court noted that while the law did not require corroboration of the evidence of a complainant in a sexual offence, corroborative evidence could, nonetheless strengthen the prosecution’s case. This was because in sexual offences, it was one person’s word against the other. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 5

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41. Evidently, PW 1 testified that she had protected sexual intercourse with the Appellant where they had gone to seek shelter after it started raining when they were in the forest. PW 3 told the Trial Court that she did not have any injuries, bleeding or discharge, and that there was no evidence of recent sexual activity. 42. PW 1 did not strike this court to have been a truthful witness. She testified that the Appellant was her boyfriend for about a month. As per the Charge Sheet, the incident was said to have been in July 2022. She testified that she had sexual relations with the Appellant on 8th October 2022. It was not possible to ascertain from which month the one (1) month period commenced. Be that as it may, on 10th October 2022, PW 3 found that PW 1 had had sexual activity but that the hymen had not been freshly broken raising more questions than answers in the mind of this court. 43. The fact that PW 1 averred that she had protected sex with the Appellant, PW 3 did not observe recent sexual activity and the fact that the hymen was not freshly torn caused this court a lot of unease. There was no scientific evidence that linked the Appellant to her sexual activity on an unspecified day in July 2022. This court could not with certainty ascertain if he was responsible for PW 1’s past torn hymen. 44. Indeed, this court’s finding on this issue would have been different had the hymen been freshly torn and there was evidence of recent sexual activity as at 10th October 2022. It would have been immaterial if the sexual intercourse was protected or unprotected as there would definitely have been evidence of sexual activity. 45. Going further, this court noted certain contradictions in the Prosecution’s case. Whereas PW 1 told the Trial Court that she went home after sleeping in the Appellant’s sister’s bedroom, PW 4 averred that PW 1’s mother traced her at the Appellant’s house. This was a material contradiction. The Prosecution ought to have called PW 1’s mother to fill the gap to connect PW 1 to the Appellant and/or to elucidate what had transpired on the day complained of. 46. Against this backdrop, this court had due regard to Section 143 of the Evidence Act that provides as follows:“ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 47. While the Prosecution had the sole mandate of deciding the number of witnesses and who it would call as a witness by virtue of the said provision of the law, failure to call a crucial witness was fatal to its case. This court wondered if PW 1’s mother did not come to testify because she did not think that the Appellant defiled PW 1 as Joseph Lowoi (hereinafter referred to as “DW 3”) told the Trial Court. In the absence of the evidence of PW 1’s mother, this court became jittery to state with certainty that indeed the Appellant committed the offence as had been alleged. 48. In addition, at no given time did PW 1 say that she fought over a panga with the Appellant before he grabbed her and forced her to have sexual intercourse as PW 4 had contended. There was legitimate expectation that as the Investigating Officer, PW 4 would investigate and present cogent and consistent evidence. 49. While this court noted that the Trial Court considered the Appellant’s defence and submissions but dismissed his alibi, bearing in mind PW 1’s evidence vis a vis that of PW 3 and PW 4, this court was not persuaded to find and hold that penetration had been proved beyond reasonable doubt as the Respondent had submitted. This court found and held that the gaps, inconsistencies and contradictions in the Prosecution’s case were so material that they created doubt in the mind of this https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 6

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court of the veracity of PW 1’s allegations against the Appellant herein. In this respect, this court found and held that the Trial Court erred in having found that penetration had indeed been proven. 50. In the premises foregoing, Ground of Appeal No (1), (2), (3), (4) and (5) of the Petition of Appeal were merited and the same be and are hereby dismissed. II. Sentence 51. The Appellant did not raise the issue of his sentence as a ground of appeal. Having found that the Prosecution did not prove its case to the required standard, which in criminal cases was proof beyond reasonable doubt, it was not necessary for this court to analysed the Written Submissions on the issue of sentence. However, this court had at the back of its head that it could be found to have been wrong on appeal. It was for that reason that it pronounced itself on the sentence. 52. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: “ 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” 53. This court could not, therefore, have faulted the Trial Court for having sentenced the Appellant to twenty (20) years’ imprisonment as that was the lawful sentence. In line with the decision of 12th July 2024 in which the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR on the ground that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence, the Trial Court would also have had no choice but to mete out the minimum mandatory sentence of twenty (20) years. 54. The Trial Court was mandated to consider the period the spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides that: “ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 55. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: “ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: … Time already spent in prison by the convict…” 56. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 7

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57. A perusal of the proceedings indicated that the Appellant was arraigned in court on 13th October 2022. He was released on bond on 8th November 2022, his bond pending appeal having been approved on the 9th October 2024. He was sentenced on 20th December 2023. 58. Although there was no Charge Sheet that was placed before this court, it was the finding of this court that the period that he spent in custody while his trial was ongoing ought to have been taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) at the time of sentencing and that in failing to take that period into account, the Trial Court erred. However, as this court had found the Appellant’s conviction to have been improper, the period he had spent in custody while his trial was ongoing had been rendered an academic exercise, having been overtaken by events. Disposition 59. For the foregoing reasons, this court found was that the Appellant’s Petition of Appeal that was lodge in this court on 17th April 2024 was merited and the same be and is hereby allowed. The Appellant’s conviction be and is hereby quashed and his sentence set aside and/or vacated as they were both unsafe. It is hereby directed that the Appellant be and is hereby set free forthwith. 60. It is so ordered. DATED AND DELIVERED AT NANYUKI THIS 27TH DAY OF JULY 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12716/eng@2026-07-27 8

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