Boniface Kioko Muli v Republic

a. The learned magistrate erred in law by failing to take cognizance of the fact that ingredients and evidence required of indecent act with a child were not proved by the prosecution beyond reasonable doubt as by law required. b. The learned magistrate erred in law and fact by holding that the prosecution had proved its case beyond reasonable doubt in the alternative count of indecent act with a child contrary to the light weight, contradictory and inconsistent evidence adduced at the trial and thereby occasioning miscarriage of justice. c. The learned magistrate erred in law and fact by convicting the Appellant on insufficient evidence but working on assumption without physical evidence. d. The learned magistrate erred in law and fact by convicting the Appellant on circumstantial evidence. e. The learned magistrate erred in law and fact by disregarding the convincing evidence adduced by the Appellant in his defence. Summary of the case before the Trial Court 5. The prosecution’s case was that; at the material time relevant to this case, the Complainant and Appellant were neighbors in the same plot. That, on 21st and 22nd September 2024, the Complainant’s mother noticed that the Complainant was missing and upon calling her, she emerged from the Appellant’s house on both occasions. That, on 25/09/2024, the Complainant returned from school and told her younger sibling not to touch her zip like the Appellant. 6. The Complainant’s mother enquired what the Appellant did and the Complaint said that the Appellant opened her zip, held her breast and private parts and touched her vagina with his fingers. That, the Complainant’s mother and Appellant held a meeting with the landlord whereby the Appellant admitted that he had touched the Complainant’s private parts. The Complainant was taken for medical examination and thereafter, the Appellant was arrested, prosecuted, convicted and sentenced. 7. The prosecution called 5 witnesses to wit; The Complainant’s mother (PW1) the Complainant (PW2), the landlord (PW3), the Clinical Officer (PW4) and the Investigating Officer (PW5). 8. The exhibits produced were; Treatment Notes (P. Ex 1), Post-Rape Care Form (P. Ex 2), Laboratory Test Notes (P. Ex 3), P3 Form (P. Ex 4) & Birth Certificate (P. Ex 5). 9. The Appellant, DW1, elected to give sworn evidence and to call one witness. He stated that he was a teacher and that he was aware of the case. That, on 21/09/2024, he arrived home at 6pm from Kikima market. He found his daughter, Sasha, and neighbors’ children (three children). 10. That he told his daughter to do her homework. He cooked supper and prepared to go back to school for evening sessions. That while doing her homework, the other children were present. At 6.30pm, he heard the Complainant’s mother calling the Complainant from outside. They left and went away. He cooked dinner and they ate. He went back to school. 11. He stated that at the material time, he was with his daughter, the Complainant, young brother of Complainant and another child called Sabina. That the police did not record the statements of the other children in the house. He told the court that, the Complainant was seated in the sitting room with his daughter. That they stayed together until the Complainant was called by her mother. According https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 2

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to him, the case was brought due to vendetta. He denied committing the alleged offence against the Complainant. 12. He claimed that the Medical Report was manipulated at the hospital as the mother of the Complainant is a nurse at [Particulars withheld] Hospital where the Complainant was treated after 19 days. That he interacted well with the Complainant’s mother as a neighbor although she could respond to greetings and sometimes she could ignore. That the Complainant’s mother was very bitter during the meeting and insisted that he should vacate the house which he did after the landlord supported her. That his daughter was eleven years old hence older than the Complainant. 13. He told the court that the plot had seven households the Complainant’s family included. He lamented that the police did not record a statement of the caregiver. He wondered why other children did not record their statements and yet they were together with the Complainant on the material day. 14. On cross-examination, he agreed that the Complainant was a neighbor and further stated that she was a frequent visitor in his house. He agreed that she went to his home on 21st and 22nd September 2024. 15. He confirmed that the Complainant and landlord told him to vacate the house and that the meeting was held on 27/09/2024. That, he requested police to record statements of his daughter. That, the other children were not outside the house. He agreed that the Complainant’s mother called her daughter from his house. 16. DW2 was SMK. She testified that the Complainant who was known to her was their neighbor. That, the Complainant went to their house on the material day and they played together. That, her father arrived from the market and told her to do homework which she did and continued playing with the Complainant. That, the Complainant was later called by her mother. 17. She denied that her father did ‘tabia mbaya’ with the Complainant. That, she was together with the complainant yet she was not called to record statement. That, the Complainant’s mother was not present inside the house. 18. On cross-examination, she said that she was in grade 7 and the Complainant was known to her. That, the Complainant used to frequent their home and they used to play in the house. 19. Directions were given that the appeal be canvassed through written submissions. Consequently, the parties complied and filed their respective submissions. Submissions by the Appellant 20. The submissions were filed on behalf of the Appellant by the firm of J. Mbugua Mburu & Associates. 21. It was submitted that the Appellant did not get a fair trial as he was faced with a defective alternative charge. That, the alternative charge did not accord with the evidence given during the trial as the particulars of the offence were that the Appellant touched the Complainant’s vagina with his penis and did not include touching of the breasts and vagina with the Appellant’s hand or finger. 22. That, the trial court acquitted the Appellant of the main charge and held that there was no evidence of contact between the genital organs of the Appellant and that of the Complainant yet it proceeded to convict and sentence the Appellant on the alternative charge. Reliance was placed on the case of Jason Akumu Yongo -vs-R (1983) eKLR for the submission that a charge is defective if it does not, for such reasons, accord with the evidence given at the trial. 23. It was submitted that the trial court gave an erroneous analogy which was not supported by law and evidence. That, it held that the minor was aged 4 years and that the incident took place on 22nd July https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 3

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2024 yet the offence allegedly took place on 22nd September 2024. Additionally, that the trial court found that a Birth Notification had been produced in support of the minor’s age yet a Birth Certificate had been produced as evidence. That, the age discrepancy range and erroneous analogy is such a severe error to sustain a conviction on the alternative charge. 24. It was submitted that there was unexplained delay of 18 days in reporting of the alleged offence and the time the minor was availed for medical examination on the 19th day. That, PW1 being a trained nurse and having terribly failed to offer a reasonable explanation raises doubt as to whether the offence occurred. That, PW1’s behavior during the 18-day period also raises doubt as she confirmed that she did not examine the minor despite having allegedly noted that the minor appeared tensed for about 3 days. 25. That, she also testified that the minor attended school within the period hence it beats logic that PW1 noted the behavioral changes of the minor but failed to take action for 18 good days. That, PW1 did not go to the Appellant’s home thus confirming that she did not even attempt to confront the Appellant. That, ordinarily, a reasonable parent would take immediate action including but not limited to confronting the Appellant if at all the alleged offence was committed. 26. It was submitted that the evidence on record was contradictory. That, the Investigating Officer (I.O) testified that the minor was treated and examined on 10/10/2024 and that the P3 and PRC Form were filled on 11/10/2024 yet the evidence of PW4 and documentary evidence show that the alleged treatment and filling of documents took place on the same day i.e. 10/10/2024. That, it would reasonably be expected that an I.O in such a case would have her facts right not to mislead the court. 27. That, PW1 testified that she disciplined the minor and warned her not to go the Appellant’s house and that her husband equally disciplined the minor but the minor confirmed that PW1 did not discipline her as alleged. That, PW1 testified that she reported to the police on 09/10/2024 yet PW5 testified that the matter was minuted for her investigations on 10/10/2024. That, there was no explanation as to why it took a whole day for the matter to be assigned to the I.O. 28. That, PW1, 3,4 & 5 testified that the minor had been defiled by the Appellant but PW2 only stated that the Appellant touched her breasts and genitalia which evidence was tendered as a result of duress by PW1 and as a result, the Appellant was acquitted of the main charge of defilement. Reliance was placed on the case of John Mutua Munyoki -vs-R (2017) eKLR for the submission that major contradictions go to the root of the prosecution and affect the credibility of a witness. 29. It was further submitted that although PW4 testified that the minor’s internal genitalia was reddish and inflamed, he confirmed that he could not link the Appellant to the offence. That, he testified that something touched the genitalia with force but could not identify the exact thing. It was contended that anything may have happened to the minor in the intervening period of 19 days which could have caused the inflammation other than the offence that the Appellant was convicted for. That, if the alleged offence occurred on 22/09/2024, it would have been reasonably expected that, 19 days later, the minor would have healed and the inflammation would not be fresh as suggested by PW4. 30. It was submitted that no evidence was produced to confirm the alleged confession by the Appellant. That, PW3 clearly stated that the deliberations of the alleged meeting were never recorded. That, the report, alleged confession and informal conversations were all contrary to Section 25 of the Evidence Act. Reliance was placed on Julius Miringu -vs- Republic (2020) eKLR for the submission that confessions outside Section 25 are worthless. 31. It was further submitted that the Complainant’s evidence was coached and unreliable. That, the minor gave unsworn statement wherein she was visibly prompted by PW1 to a point of breaking down due to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 4

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pressure. That, despite the trial court having noticed the same and despite the Appellant’s submissions to that effect, the trial court failed to record it and proceeded to convict the Appellant on the alternative charge. That, the minor was treated at Mbooni Sub-County Hospital where PW1 works as a nurse. That, although it is common knowledge that the Complainant would enjoy benefits from the facility that PW1 works with, the minor should simply have been taken to a different facility to avoid conflict. 32. It was submitted that the I.O was unwilling to testify in this case as evidenced by the numerous adjournments sought by the prosecution in a bid to compel the witness to attend court. That, the I.O only attended court on 02/09/2025 after issuance of warrants of arrest. That, the question which begs for an answer is why the I.O would behave in such a manner if at all she diligently conducted investigations into the matter. 33. It was submitted that the prosecution failed to call key witnesses i.e. the caregiver who handled the minor on a daily basis, the minor’s father to whom the occurrence of the alleged offence was reported by PW1 and the children who were with the minor at the time of the occurrence of the alleged offence. Reliance was placed on Said Awadhi Mubarak -vs-R (2014) eKLR and Paul Kanja Gitari -vs-R (2016) eKLR for the submission that failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution and acquit the accused person. 34. It was submitted that the trial court failed to consider the evidence adduced by the defence which established that the Complainant was a frequent visitor in the Appellant’s house where she used to play with the Appellant’s daughter. That, DW2 was present with other children in the Appellant’s house thus negating the possibility of the alleged offence having occurred as there was no time that the Appellant was alone with the Complainant. 35. In conclusion, it was submitted that the prosecution evidence was extremely doubtful and could not support the alternative charge. Submissions by the State 36. Submissions on behalf of the State were done by Mr. Timothy M. Musyoki- Senior Assistant Director Public Prosecutions. 37. It was submitted that there was unexplained delay of 18 days between commission of the alleged offence and reporting hence raising doubt as to the genuineness of the complaint and a possibility that the case against the Appellant could have been contrived. That, the evidence of the Complainant was that the Appellant touched her vagina with his fingers but the particulars of the charge are that he touched her vagina with his penis and the charge sheet was not amended to bring it into consonance with the Complainant’s evidence. 38. It was submitted that the investigations were not thoroughly done because the children who were playing with the Complainant did not record their statements nor testify. That, in the plot where they were staying, there were people who could have recorded statements and testify in court. That, failure to call the said people left a glaring gap in the prosecution’s case. 39. Consequently, the State submitted that the conviction was not safe and conceded the appeal. Duty of Court 40. It is now settled that the duty of a first appellate Court is to scrutinize the evidence on record, make its own findings and draw its own conclusions giving due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses (Okeno –vs- R (1972) EA 32). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 5

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41. Having looked at the grounds of appeal, the submissions and the entire record, it is my considered view that the only issue for determination is whether the case was proved beyond reasonable doubt. Analysis 42. Despite the fact that the State has conceded the appeal, this court still has a duty to re-evaluate the evidence and arrive at its own conclusions. 43. Section 11(1) of the Sexual Offences Act states that: “ 11(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term not less than ten years.” 44. Section 2(1) of the said Act defines an ‘indecent act’ as follows: “ Indecent act’ means an unlawful intentional act which causes: 45. 46. a. Any contact between any part of the body of a person with the genital organ, breast or buttocks of another, but does not include an act that causes penetration; b. exposure or display of any pornographic material to any person against his or her will.” Consequently, the ingredients of the offence are; a. Proof that the victim is a child in law; b. Proof that there was contact between any body part of the accused person with the genital organ, breast or buttocks of the child victim (but that act must not be an act that caused penetration) or proof of exposure or display of any pornographic material to a child; c. Proof that the act(s) in (b) was/were intentional; d. There should be no legal justification in the acts complained of. The Birth Certificate shows that the Complainant was born on 22/02/2018 and was therefore approximately 6 years and 7 months at the time of the alleged offence. In Kenya, a child is any human being below the age of 18 years. The complainant was therefore a child in law. With regard to the issue of age, the trial magistrate expressed himself as follows; “ 31. 47. In our present case, the prosecution has been able to prove that the complainant was aged 4 years at the time the alleged incident occurred. Reference is made to the birth notification produced as exhibit 1. Therein, its noted that the complainant was born on 15th August 2020. The incident occurred on 22nd July 2024. As such the Complainant was 4 years old at the time when the incident occurred.” It is evident that the entire paragraph 31 of the trial court judgment is erroneous as it is not supported by the evidence on record and specifically the Birth Certificate produced as P. Ex 5. It appears to have been a ‘copy & paste’ of a previous judgment which in my view is not a justification for the glaring errors because a Judicial Officer is expected to be attentive to details. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 6

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48. In the judgment, the trial magistrate repeatedly stated that he had carefully analyzed the evidence on record but this kind of error raises the question as to whether careful analysis of evidence was actually done. Be that as it may, the error does not negate the fact that the Complainant was a child in law. 49. As to whether there was contact between any body part of the Appellant with the genital organ, breast or buttocks of the complainant, the particulars of the alternative charge were that the Appellant did an indecent act to the Complainant by touching her private parts namely vagina with his penis. 50. The Complainant, PW2, testified that she was at the home of the Appellant when the Appellant told her to sit on his laps, separated her legs and touched her vagina with his fingers. That, the Appellant also opened her zip and touched her breasts. It is therefore evident that the Complainant’s evidence was at variance with the particulars of the charge hence making the charge defective. In Peter Ngure Mwangi -vs- Republic [2014] eKLR the Court of Appeal observed that; “A charge can also be defective if it is in variance with the evidence adduced in its support.” 51. As to whether a defective charge sheet should automatically lead to acquittal of an accused person, Superior Courts in our jurisdiction have repeatedly held that the test is substantive and not formalistic. In Thomas Mutune -vs- Republic (2020) eKLR the Court of Appeal (Nambuye, Murgor & Kantai JJ.A), stated; “ The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge. This principle of the law has a constitutional under pinning. However, whatever the irregularity, it is not to be regarded as fatal unless there is prejudice to the person who is charged. It is the substance that the Court must seek to ascertain. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the ball is lost in the labyrinth of insubstantial technicalities.” (Emphasis mine). 52. The question in this case therefore is whether the variance in PW2’s evidence and particulars of the charge caused prejudice to the Appellant. The second ingredient of the offence of ‘indecent act with a child’ is Proof that there was contact between any part of the body of the accused person with the genital organ, breast or buttocks of the child victim. 53. Whereas PW2 testified that the Appellant touched her vagina with his fingers and also touched her breasts, the particulars of the charge are that the Appellant touched PW2’s vagina with his penis. Consequently, it is my considered view that the variance in ‘fingers’ and ‘penis’ did not prevent the Appellant from understanding the charge because both of them constitute body parts of the Appellant and if it is proved that either of those parts came into contact with PW2’s vagina intentionally, then the Appellant would be guilty of the offence. Section 134 of the Criminal Procedure Code provides that; “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 7

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54. Consequently, it is my considered view that the particulars of the alternative charge gave reasonable information to the Appellant as to the nature of the offence charged and as such, the defect in the charge sheet was not fatal. 55. As to whether the case was proved beyond reasonable doubt, the charge states that the offence was committed on 22/09/2024 and the Complainant’s mother, PW1, testified that she reported on 09/10/2024. 56. The P3 Form confirms that the offence was reported on the said date via OB No. 29/9/10/2024. It is therefore evident that the offence was reported 18 days after the alleged offence. Upon being crossexamined on why she took so long to report, PW1 said that she was conducting investigations. PW1 also testified that on 25/09/2024, the Complainant returned from school and told her younger sibling not to touch her zip like the accused. PW1 enquired what the Appellant had done to her zip and the Complainant responded that the Appellant had opened her zip, touched her breast and also touched her vagina with his fingers. 57. According to this testimony and PW1’s evidence on cross-examination, PW1 learnt about the incident for the first time on 25/09/2024. However, the Complainant’s evidence was that she went home after the alleged incident, informed her mother about it but the mother did nothing. If the particulars of the charge are anything to go by, it means that the Complainant informed her mother, PW1, on 22/09/2024 but she did nothing about it. PW1 testified that she did not examine the minor on 21st & 22nd September 2024 and that she only checked the child on 09/10/2024. 58. In my view, it is unusual for a mother to be given such kind of information by a six-year-old child and do absolutely nothing about it (including examining the child, reporting to relevant authorities and seeking medical help) for 18 days in the guise of conducting investigations. 59. Further, the Clinical Officer, PW4, testified that upon examining the minor on 10/10/2024, he observed that the internal genitalia was reddish and inflamed/swollen-meaning that something had touched the genitalia with force. 60. PW1 testified that the minor went to school on 23/09/2024 which means that after the alleged incident on 22/09/2024, the minor continued with her normal routine up to 10/10/2024 when she was medically examined. The question which arises at this juncture is whether the reddish and inflamed internal genitalia of the minor which was observed by PW4 can be connected, beyond reasonable doubt, to an alleged incident which happened 18 days prior. In my view, 18 days was a substantial amount of time where anything else could have happened to the minor resulting in the said inflammation. Further, and fully aware that I have no medical expertise, my common sense tells me that inflammation which occurred on 22/09/2024 would have subsided by 10/10/2024 when PW4 examined the minor. 61. In the judgment, the trial magistrate expressed himself as follows; “ 50. I have carefully analyzed the evidence on record, I find that the evidence of the Complainant that the accused touched her vagina is corroborated by the medical findings. The clinician (PW4) who examined the complainant noted that the internal genitalia was reddish, inflamed and swollen. Reference is made to the treatment notes, PR form and P3 form, exhibit 1, 2 & 4 respectively…the medical findings confirmed contact of the accused hand and Complainant’s genital part.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 8

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62. Respectfully, the above conclusion is not backed by evidence as there was no way for the medical findings to confirm that the Appellants hand made contact with the Complainant’s genital. PW4 himself admitted that the laboratory results did not link the Appellant with the offence. The trial magistrate appears to have put a lot of premium on the minor’s reddish/inflamed internal genitalia and did not even notice the 18-days delay in reporting the incident which means that anything could have happened to the minor in the intervening period. 63. Although there is nothing in the judgment to show that the trial magistrate was influenced by the evidence of the landlord, PW3, to the effect that the Appellant had admitted the offence, it is noteworthy that the procedure of recording confessions is codified in Section 25 of the Evidence Act as follows; “ A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.” 64. Section 25A (1) of the Evidence Act provides; “ A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person's choice.” 65. The landlord, PW3, testified that he had a meeting with the Appellant and parents of the minor on 27/09/2024 whereby the Appellant confessed that he had physically touched the private parts of the minor. Whereas the Appellant agreed that indeed there was a meeting on 27/09/2024, he asserted his innocence throughout the trial and the onus was therefore on the prosecution to demonstrate strict compliance with the safeguards for recording of confessions-which was not done. In any case, the meeting could have been about tenant-landlord issues considering that both the Appellant and Complainant’s mother were tenants in PW3’s premises. 66. In the case of Republic -vs- Ahmad Abolfathi Mohammed & Another (2019) eKLR, the Supreme Court of Kenya observed that compliance with the Constitution, the Evidence Act and the applicable Rules is a condition precedent to the admissibility of a confession. Consequently, the testimony of PW3 goes to no issue and is worthless. 67. Another issue worthy of mention is the evidence showing that the minor Complainant was in the company of other children at the time of the alleged offence. PW1 testified that the Appellant’s child namely Sasha was in the vicinity when the minor Complainant emerged from Appellant’s house. Sasha who testified as DW2 stated that her father did not do ‘tabia mbaya’ with the Complainant. She also testified that she was never called to record a statement. The Appellant, in his defence, stated that the police did not record statements of other children. In view of the circumstances of this case, I am inclined to agree with the Appellant and the State -that the evidence of the other children would have been critical and its omission can only be interpreted to mean that it would have been adverse to the prosecution’s case. 68. In the famous case of Bukenya -vs- Uganda (1972) EA, 349 it was held that; “ The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 9

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may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.” 69. Consequently, it is my considered view that failure to call the other children in the plot as witnesses left an unbridgeable gap in the prosecution’s case. Additionally, it is a fact that the Clinical Officer, PW4, who examined the Minor was/is a workmate of PW1 at Mbooni Sub-County Hospital and as such, the Appellant’s apprehension about collusion cannot be ruled out. 70. The upshot is that the prosecution’s case was not watertight hence making the Appellant’s conviction unsafe. Jurisprudence from our courts has repeatedly stated that an accused person is the favorite child of the law and any iota of doubt should be resolved in the accused person’s favor. Conclusion 71. In my view, the conviction should be quashed, sentence set aside and Appellant set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF AUGUST 202 ............................. J.N.ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13035/eng@2026-08-21 10

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