This is appeal from conviction and sentence meted upon the appellant in Kithimani Chief Magistrate’s Court sexual offence case number E022 of 2022 where he was sentenced to life imprisonment for offence of defiling a minor aged 11 years. The particulars of the charge were that on 14 th day of July 2022 at Ithekethini village in Yatta Sub-County within Machakos County, the appellant intentionally caused his penis to penetrate the vagina of AMM a child aged 11 years.
The appellant has in petition of appeal dated 19 th June 2025 raised the following grounds;
1. THAT the learned Magistrate erred in law and in fact by failing to re-evaluate the whole evidence of the prosecution case as incumbent of him to find that the ingredients forming the case in question was not established.
2. THAT the learned Magistrate erred in law and in fact by failing to observe that the prosecution’s case was open to ambivalent since the trial was unfair in contravention of Article 25 (c) of the Constitution.
3. THAT the learned Magistrate erred in law by failing to give the appellant’s defence adequate consideration, consequently acting inconsistently with Article 50 of the Kenyan Constitution.
4. THAT the learned trial Magistrate erred in matters of law and facts by failing to find that the essential prosecution witnesses and exhibits, necessary to prove basic facts were not produced.
5. THAT further grounds will be adduced at the hearing of this appeal upon receipt of a copy of trial records.
In his written submissions, the appellant has in my view collapsed the grounds of appeal to three issues, which are; that the evidence of the complainant was not credible and the child was not truthful and that the elements of defilement were not proved. I have carefully read and considered the submissions of the appellant dated 21 st October 2025 and those of the respondent dated 10 th January 2026. As I evaluate and re-analyse the evidence produced before the trial court as the law require me to, I will reproduce the parties’ case as recorded as follows.
Prosecution’s case
The complainant was the first prosecution witness. She told the court that she was in class 6 at Mtakatifu Angela Star Academy and that on 14/7/2022, she was not in school as she had been sent away for exam fees. Mutuku came and called her at their home and she thought he was to send her but he did not. He held her by her hand and led her to their neighbour Samson's farm. She added that, he had a panga used for cutting maize.
The complainant stated further that when they got to the farm, Mutuku turned his plans and did bad manners to her. He asked her to take off her clothes and lay on her. She got scared that he would cut her and she removed her clothes as she was standing. He put his jacket on the ground and asked her to lie on the jacket. She added that she removed the trouser and pant she was wearing and Mutuku took off his trouser then lay on her and inserted his penis into her part that she uses to urinate. She added that she did not do anything and when he saw darkness setting in, he stood up and left her alone. She dressed up and went home and she did not tell anyone.
The complainant added that on 15/7/2022, she also did not go to school. She also stated that Mutuku had instructed her not to say anything to anyone and told her that he was an angel and would know if she told anyone but she later told her teacher, one Stephen who she asked to tell her mother to take action which he did. The teacher came and called her from class and they went to police and she was taken to hospital where she was treated.
The complainant further told the court that Mutuku was the accused person in the dock. She swore that she knew the accused person whose nick name was Mutuku. She gave his full name as Benard Mutuku Mbinya who people also called Kitiviti. She concluded that she was born on 20 th March 2011 and identified a copy of her birth certificate in court.
Stephen Mutunga Kituku, a teacher at Mtakatifu Angela Star Academy was PW2. He told the court that on 14/7/2022, 15/7/2022 and 18/7/2022 the subject AMM did not go to school. He went and asked her mother to bring the child back which she did on a Tuesday during a parent meeting. He called the child aside who told him that she was spending the day with one Mutuku who would defile her. He looked for the head teacher and after the meeting, they called the child’s mother and told her. They also called the director and told her. The witness added that the child repeated the same thing all along.
He stated further that they proceeded to Matuu police station and reported and were directed to the hospital. The witness did not know the appellant but he saw him in the market.
PW3 was Mary Goretti Mutindi who told the court that on 14/7/2022, the child was sent for school materials and she left her at home and went to talk to the Chief. On the next day, he prepared the child for school but she did not go. On Tuesday, she went with the child to school during a parent's day as she wanted to sort out the issue. After the meeting, the teacher called her and told her that there was a young man known as Mutuku who was disturbing the child by sexually exploiting her. They decided to report at Matuu police station then to Matuu Level 4 Hospital.
The witness added that the child was examined and she identified lab test report dated 19/7/2022, P3 form dated 19/7/2022 and PRC form dated 19/7/2022. She added that when the complainant was being treated, the appellant had not been arrested. She added that the child was born on 20 th March 2011. She produced the child’s certificate as an exhibit. She identified the appellant in the dock.
Jeremiah Nzioka Mutindi, a clinical officer based at Machakos Level 5 Hospital told the court that in 2022, he was based in Matuu Level 4 hospital. He examined the child who had a history of defilement by someone known to her and filled P3 form and PRC form for her and sent her for lab testing.
On examination, the hymen was not intact and she had been penetrated. He added that the child was aged 11 years and the perpetrator was not brought to hospital and he did not know him. He produced the P3 form and PRC form as exhibits.
PW5 was No. 92374 CPI Lucy Mbuvi who was previously based at Matuu Police Station and the investigating officer. She recalled that on 19/7/2022 at about 1520 hours, they received a report of defilement reported by a teacher known as Stephen Mutunga and a female adult Mary Goretti Mutindi in company of a juvenile A.M.M.
The witness added that, AMM was a class 5 pupil at St. Angela Academy. The teacher reported that, the victim informed her that she had been defiled on 14-07-2022 by their neighbor, one Mutuku who asked her not to tell anyone about it. She booked the report and accompanied the victim to Matuu Level 4 hospital where she was examined and treated. P3 form and PRC forms were filled and she recorded witnesses’ statements. On 22/7/2022, the appellant was arrested by members of the public and taken to Matuu police station. She added that Mutuku was the appellant’s nickname.
The witness added that the victim showed her a bush next to the road but she could not recall the time of the incident. She concluded by stating that she did not take the appellant to hospital but relied on the victim's evidence.
Defence case
The appellant told the court on oath that he was not taken to hospital for medical examination and did not commit the offence. In the year 2022, he was a shamba boy and the child was not his neighbour but he was employed at the neighbour’s home. He admitted that he used to see the victim and they had no conflict. He alleged that a Mr. Mulu and the victim's mother had a conflict.
Analysis and determination
It is trite that the elements or ingredients of the offence of defilement is proof of age, penetration and positive identification of the perpetrator. In WMA v Republic [2025] KEHC 2054 (KLR), my sister, Honourable Lady Justice A.C. Bett held that
‘In the premises, the elements that have to be proved to sustain a conviction in a defilement case are: -
(i) That there was an act of penetration.
(ii) The age of the minor.
(iii) The identity of the Accused.
In the case of Gacheru v. Republic [2023] KEHC 3005 (KLR) the court reiterated the position and stated as follows: -
“The ingredients for the offence of defilement are identification on recognition of the offender, penetration and the age of the victim.”
The appellant claims in his submissions that the child’s age was not proved and claims that her birth certificate was not produced an exhibit. I have seen the list of exhibits in the lower court file which shows that a copy of birth certificate was produced as prosecution’s exhibit 4. The proceedings show that the birth certificate was produced by PW3 on 17-01-2023 and the accused was present during the hearing and he had no questions in cross-examination. The child in this matter was said to have been 11 years and in grade six. I have also sighted the birth certificate number 1130446 clearly marked as exhibit 4. The birth certificate show that the child was born on 20-03-2011 while the offence was committed on 14-07-2022 meaning that she was 11. In the premises, I do not see where the appellant is coming from in his argument about the age and I hold that this ground has no merits.
The other element is penetration. PW1 told the court that she was penetrated by the appellant after he instructed her to removed her trouser and panty and went on to remove his trouser. Looking at the proceedings, the child’s evidence is so consistent and well flowing that there can’t be a doubt as to what her assailant did. In addition to the oral evidence, the prosecution produced through PW4 medical documents including P3 form, PCR form and lab test and PW4 concluded that the child had been penetrated and the hymen was missing.
The appellant submits that, PW4 did not state conclusively that the child was penetrated and that there was no injury. Again, the appellant seems to have missed part of the evidence. In his evidence in chief, PW4 who personally examined the child stated; ‘On examination, hymen was not intact. She had been penetrated’ . In my opinion, there can’t be a clearer conclusion than this. It is not a must that penetration cause other physical injuries other than what PW4 stated. I find the evidence of PW4 corroborative of the complainant’s testimony. Whether or not the penetration was by the appellant is another issue altogether. It is therefore my conclusion that the prosecution proved the ingredient of penetration.
The third and last issue is that of identification. The complainant was categorical that she was defiled by the appellant. She referred to the appellant by his name and stated that he was their neighbour. The child even knew the appellant by his nick mane which she gave to the court as Kitiviti or Mutuku. In the circumstances, the identification of the appellant was by recognition. The appellant can only escape this aspect of identification if this court were to find that the complainant was not telling the truth or whether there is material inconsistency or contradiction which would be capable of lowering the probative value of the complainant’s testimony.
It is true that where a witness is demonstrated as inconsistent or untruthful, the court must treat their testimony with caution and give it less probative value. Justice W. Musyoka held in Enock Ebwogo v Republic [2021] KEHC 7160 (KLR) that;
‘ The law on how to handle contradictions and inconsistencies in the testimonies of witnesses in criminal matters was stated in Twehangane Alfred vs. Uganda [2003] UGCA 6, as follows:
‘With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
The position is that whether contractions or inconsistencies are relevant to the final determination depend on their gravity, and where they are minor, they would only matter if they appear to suggest deliberate untruthfulness on the part of the witness.’
The appellant has claimed that the complainant was not truthful in some aspects. According to the appellant, if the complainant was truly defiled, she would have reported immediately after the incident and to her mother and not teacher. The appellant believes that going by the sequence as explained by the complainant, she was coerced to give evidence. Truth or lack of it in the evidence or testimony of a witness is not found in how the consumer of the same believes in it. One may have doubts on how things are done but that alone is not the yardstick of truth. Truth comes out or is determined by consistency and firmness of the testimony as against the ordinary course of things and availability of other corroborative pieces of evidence.
One may wonder why the complainant chose to tell her teacher instead of her mother and after some days but it is not unusual in cases such as this. It all depends on who the child was comfortable telling and circumstances surrounding the disclosure. Whichever way and to whoever it was disclosed does not mean that she was not telling the truth. The appellant has not demonstrated why a girl of 11 years would frame him for such a heinous offence yet he did not have a grudge with her, the teacher or the mother.
The appellant has questioned why the headteacher of the school the child used to attend who had been informed by PW3 was not called as a witness. It is not clear what the appellant would have expected the headteacher to say that did not come out of the testimonies of PW2 or PW3 or the child. It is not a must that the prosecution calls everyone who had something to say about the commission of an offence. All that is required is sufficient proof of the commission of the offence. As rightly submitted by the respondent, there is no minimum number of witness that the prosecution must call to prove the offence. In Ngui v Republic [2012] KEHC 5491 (KLR), the restated this position when it held that;
‘The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.’
The appellant has argued that the child stated that she was defiled by a Mr. Mutuku while the charge sheet does not have that name. In her evidence, the child stated that the appellant was nicknamed as Mutuku and she proceeded to give his full name as Benard Mutuku Mbinya. She went on to identify the appellant in court and gave his nickname as Kitiviti Mutuku. Based on this, I do not have doubt that the complainant was talking of and referring to the appellant as the one who approached and defiled her.
The appellant has further submitted that the trial court did not evaluate his defence of alibi. The defence of the appellant as recorded does not bring out a defence of alibi. Alibi is a defence that is available to an accused person who is able to demonstrate that he was not at the scene or he was elsewhere other than the scene of crime at the alleged time of commission of the offence. In Nyamburi v Republic [2023] KEHC 21971 (KLR), it was held that;
‘An alibi defence is raised when an accused alleges that he was not at the scene of the crime but in a different place. The law is clear on how the court should consider alibi defence.’
The inevitable conclusion from the above analysis is that this appeal lacks merits and the same is dismissed and the conviction and sentence of the appellant upheld.
Dated signed and delivered at Nairobi this 22 nd day of May 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant logged in from Kamiti Maximum Prison and Mr. Kisumba holding brief for Mr. Mang’are for the respondent.
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The appellant has in petition of appeal dated 19 th June 2025 raised the following grounds;
1. THAT the learned Magistrate erred in law and in fact by failing to re-evaluate the whole evidence of the prosecution case as incumbent of him to find that the ingredients forming the case in question was not established.
2. THAT the learned Magistrate erred in law and in fact by failing to observe that the prosecution’s case was open to ambivalent since the trial was unfair in contravention of Article 25 (c) of the Constitution.
3. THAT the learned Magistrate erred in law by failing to give the appellant’s defence adequate consideration, consequently acting inconsistently with Article 50 of the Kenyan Constitution.
4. THAT the learned trial Magistrate erred in matters of law and facts by failing to find that the essential prosecution witnesses and exhibits, necessary to prove basic facts were not produced.
5. THAT further grounds will be adduced at the hearing of this appeal upon receipt of a copy of trial records.
In his written submissions, the appellant has in my view collapsed the grounds of appeal to three issues, which are; that the evidence of the complainant was not credible and the child was not truthful and that the elements of defilement were not proved. I have carefully read and considered the submissions of the appellant dated 21 st October 2025 and those of the respondent dated 10 th January 2026. As I evaluate and re-analyse the evidence produced before the trial court as the law require me to, I will reproduce the parties’ case as recorded as follows.
Prosecution’s case
The complainant was the first prosecution witness. She told the court that she was in class 6 at Mtakatifu Angela Star Academy and that on 14/7/2022, she was not in school as she had been sent away for exam fees. Mutuku came and called her at their home and she thought he was to send her but he did not. He held her by her hand and led her to their neighbour Samson's farm. She added that, he had a panga used for cutting maize.
The complainant stated further that when they got to the farm, Mutuku turned his plans and did bad manners to her. He asked her to take off her clothes and lay on her. She got scared that he would cut her and she removed her clothes as she was standing. He put his jacket on the ground and asked her to lie on the jacket. She added that she removed the trouser and pant she was wearing and Mutuku took off his trouser then lay on her and inserted his penis into her part that she uses to urinate. She added that she did not do anything and when he saw darkness setting in, he stood up and left her alone. She dressed up and went home and she did not tell anyone.
The complainant added that on 15/7/2022, she also did not go to school. She also stated that Mutuku had instructed her not to say anything to anyone and told her that he was an angel and would know if she told anyone but she later told her teacher, one Stephen who she asked to tell her mother to take action which he did. The teacher came and called her from class and they went to police and she was taken to hospital where she was treated.
The complainant further told the court that Mutuku was the accused person in the dock. She swore that she knew the accused person whose nick name was Mutuku. She gave his full name as Benard Mutuku Mbinya who people also called Kitiviti. She concluded that she was born on 20 th March 2011 and identified a copy of her birth certificate in court.
Stephen Mutunga Kituku, a teacher at Mtakatifu Angela Star Academy was PW2. He told the court that on 14/7/2022, 15/7/2022 and 18/7/2022 the subject AMM did not go to school. He went and asked her mother to bring the child back which she did on a Tuesday during a parent meeting. He called the child aside who told him that she was spending the day with one Mutuku who would defile her. He looked for the head teacher and after the meeting, they called the child’s mother and told her. They also called the director and told her. The witness added that the child repeated the same thing all along.
He stated further that they proceeded to Matuu police station and reported and were directed to the hospital. The witness did not know the appellant but he saw him in the market.
PW3 was Mary Goretti Mutindi who told the court that on 14/7/2022, the child was sent for school materials and she left her at home and went to talk to the Chief. On the next day, he prepared the child for school but she did not go. On Tuesday, she went with the child to school during a parent's day as she wanted to sort out the issue. After the meeting, the teacher called her and told her that there was a young man known as Mutuku who was disturbing the child by sexually exploiting her. They decided to report at Matuu police station then to Matuu Level 4 Hospital.
The witness added that the child was examined and she identified lab test report dated 19/7/2022, P3 form dated 19/7/2022 and PRC form dated 19/7/2022. She added that when the complainant was being treated, the appellant had not been arrested. She added that the child was born on 20 th March 2011. She produced the child’s certificate as an exhibit. She identified the appellant in the dock.
Jeremiah Nzioka Mutindi, a clinical officer based at Machakos Level 5 Hospital told the court that in 2022, he was based in Matuu Level 4 hospital. He examined the child who had a history of defilement by someone known to her and filled P3 form and PRC form for her and sent her for lab testing.
On examination, the hymen was not intact and she had been penetrated. He added that the child was aged 11 years and the perpetrator was not brought to hospital and he did not know him. He produced the P3 form and PRC form as exhibits.
PW5 was No. 92374 CPI Lucy Mbuvi who was previously based at Matuu Police Station and the investigating officer. She recalled that on 19/7/2022 at about 1520 hours, they received a report of defilement reported by a teacher known as Stephen Mutunga and a female adult Mary Goretti Mutindi in company of a juvenile A.M.M.
The witness added that, AMM was a class 5 pupil at St. Angela Academy. The teacher reported that, the victim informed her that she had been defiled on 14-07-2022 by their neighbor, one Mutuku who asked her not to tell anyone about it. She booked the report and accompanied the victim to Matuu Level 4 hospital where she was examined and treated. P3 form and PRC forms were filled and she recorded witnesses’ statements. On 22/7/2022, the appellant was arrested by members of the public and taken to Matuu police station. She added that Mutuku was the appellant’s nickname.
The witness added that the victim showed her a bush next to the road but she could not recall the time of the incident. She concluded by stating that she did not take the appellant to hospital but relied on the victim's evidence.
Defence case
The appellant told the court on oath that he was not taken to hospital for medical examination and did not commit the offence. In the year 2022, he was a shamba boy and the child was not his neighbour but he was employed at the neighbour’s home. He admitted that he used to see the victim and they had no conflict. He alleged that a Mr. Mulu and the victim's mother had a conflict.
Analysis and determination
It is trite that the elements or ingredients of the offence of defilement is proof of age, penetration and positive identification of the perpetrator. In WMA v Republic [2025] KEHC 2054 (KLR), my sister, Honourable Lady Justice A.C. Bett held that
‘In the premises, the elements that have to be proved to sustain a conviction in a defilement case are: -
(i) That there was an act of penetration.
(ii) The age of the minor.
(iii) The identity of the Accused.
In the case of Gacheru v. Republic [2023] KEHC 3005 (KLR) the court reiterated the position and stated as follows: -
“The ingredients for the offence of defilement are identification on recognition of the offender, penetration and the age of the victim.”
The appellant claims in his submissions that the child’s age was not proved and claims that her birth certificate was not produced an exhibit. I have seen the list of exhibits in the lower court file which shows that a copy of birth certificate was produced as prosecution’s exhibit 4. The proceedings show that the birth certificate was produced by PW3 on 17-01-2023 and the accused was present during the hearing and he had no questions in cross-examination. The child in this matter was said to have been 11 years and in grade six. I have also sighted the birth certificate number 1130446 clearly marked as exhibit 4. The birth certificate show that the child was born on 20-03-2011 while the offence was committed on 14-07-2022 meaning that she was 11. In the premises, I do not see where the appellant is coming from in his argument about the age and I hold that this ground has no merits.
The other element is penetration. PW1 told the court that she was penetrated by the appellant after he instructed her to removed her trouser and panty and went on to remove his trouser. Looking at the proceedings, the child’s evidence is so consistent and well flowing that there can’t be a doubt as to what her assailant did. In addition to the oral evidence, the prosecution produced through PW4 medical documents including P3 form, PCR form and lab test and PW4 concluded that the child had been penetrated and the hymen was missing.
The appellant submits that, PW4 did not state conclusively that the child was penetrated and that there was no injury. Again, the appellant seems to have missed part of the evidence. In his evidence in chief, PW4 who personally examined the child stated; ‘On examination, hymen was not intact. She had been penetrated’ . In my opinion, there can’t be a clearer conclusion than this. It is not a must that penetration cause other physical injuries other than what PW4 stated. I find the evidence of PW4 corroborative of the complainant’s testimony. Whether or not the penetration was by the appellant is another issue altogether. It is therefore my conclusion that the prosecution proved the ingredient of penetration.
The third and last issue is that of identification. The complainant was categorical that she was defiled by the appellant. She referred to the appellant by his name and stated that he was their neighbour. The child even knew the appellant by his nick mane which she gave to the court as Kitiviti or Mutuku. In the circumstances, the identification of the appellant was by recognition. The appellant can only escape this aspect of identification if this court were to find that the complainant was not telling the truth or whether there is material inconsistency or contradiction which would be capable of lowering the probative value of the complainant’s testimony.
It is true that where a witness is demonstrated as inconsistent or untruthful, the court must treat their testimony with caution and give it less probative value. Justice W. Musyoka held in Enock Ebwogo v Republic [2021] KEHC 7160 (KLR) that;
‘ The law on how to handle contradictions and inconsistencies in the testimonies of witnesses in criminal matters was stated in Twehangane Alfred vs. Uganda [2003] UGCA 6, as follows:
‘With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
The position is that whether contractions or inconsistencies are relevant to the final determination depend on their gravity, and where they are minor, they would only matter if they appear to suggest deliberate untruthfulness on the part of the witness.’
The appellant has claimed that the complainant was not truthful in some aspects. According to the appellant, if the complainant was truly defiled, she would have reported immediately after the incident and to her mother and not teacher. The appellant believes that going by the sequence as explained by the complainant, she was coerced to give evidence. Truth or lack of it in the evidence or testimony of a witness is not found in how the consumer of the same believes in it. One may have doubts on how things are done but that alone is not the yardstick of truth. Truth comes out or is determined by consistency and firmness of the testimony as against the ordinary course of things and availability of other corroborative pieces of evidence.
One may wonder why the complainant chose to tell her teacher instead of her mother and after some days but it is not unusual in cases such as this. It all depends on who the child was comfortable telling and circumstances surrounding the disclosure. Whichever way and to whoever it was disclosed does not mean that she was not telling the truth. The appellant has not demonstrated why a girl of 11 years would frame him for such a heinous offence yet he did not have a grudge with her, the teacher or the mother.
The appellant has questioned why the headteacher of the school the child used to attend who had been informed by PW3 was not called as a witness. It is not clear what the appellant would have expected the headteacher to say that did not come out of the testimonies of PW2 or PW3 or the child. It is not a must that the prosecution calls everyone who had something to say about the commission of an offence. All that is required is sufficient proof of the commission of the offence. As rightly submitted by the respondent, there is no minimum number of witness that the prosecution must call to prove the offence. In Ngui v Republic [2012] KEHC 5491 (KLR), the restated this position when it held that;
‘The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.’
The appellant has argued that the child stated that she was defiled by a Mr. Mutuku while the charge sheet does not have that name. In her evidence, the child stated that the appellant was nicknamed as Mutuku and she proceeded to give his full name as Benard Mutuku Mbinya. She went on to identify the appellant in court and gave his nickname as Kitiviti Mutuku. Based on this, I do not have doubt that the complainant was talking of and referring to the appellant as the one who approached and defiled her.
The appellant has further submitted that the trial court did not evaluate his defence of alibi. The defence of the appellant as recorded does not bring out a defence of alibi. Alibi is a defence that is available to an accused person who is able to demonstrate that he was not at the scene or he was elsewhere other than the scene of crime at the alleged time of commission of the offence. In Nyamburi v Republic [2023] KEHC 21971 (KLR), it was held that;
‘An alibi defence is raised when an accused alleges that he was not at the scene of the crime but in a different place. The law is clear on how the court should consider alibi defence.’
The inevitable conclusion from the above analysis is that this appeal lacks merits and the same is dismissed and the conviction and sentence of the appellant upheld.
Dated signed and delivered at Nairobi this 22 nd day of May 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant logged in from Kamiti Maximum Prison and Mr. Kisumba holding brief for Mr. Mang’are for the respondent.
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