{Being an appeal from the conviction and sentence of Hon. L. N. Kiniale, SPM delivered on the 22/7/2025 in Nyando SPMCR Case No. E063 of 2022 (S.O)}
1. BENARD ODIWUOR alias BEN (‘the appellant’) was on 17/10/2022 arraigned before Nyando Principal Magistrate’s Court with the offence of defilement contrary to section 8(1) as read with subsection (2) of the Sexual Offences Act No. 3 of 2006.
2. It was alleged that on 30/9/2022 at around 06.30hrs at Kawakungu village in Nyakach Sub-County within Kisumu County, the appellant intentionally caused his male genital organ to penetrate the female genital organ of M.A a child aged 12 years.
3. There was an alternative count of indecent act with the same child. The appellant denied the charges and a full trial ensued. After considering the testimonies of the prosecution and defence, the trial court convicted the appellant of the main charge and sentenced him to 20 years’ imprisonment.
4. Aggrieved with the conviction and sentence, the appellant preferred an appeal to this court vide a Petition dated 5/8/2025 raising 9 broad grounds of appeal. They can be summarized as follows: -
a) That the trial court erred in finding that the prosecution had proved its case beyond reasonable doubt despite inconsistencies in its case and the defence of the appellant which casted doubt in the case.
b) That the trial court erred in dismissing the appellant’s alibi as an afterthought.
c) That the trial court erred in subjecting the appellant’s defence to the level of proof beyond any reasonable doubt.
d) The trial court erred in being influenced by wrong analogy of recognition thereby disregarding the original report made to the police that the perpetrator was an unknown person.
e) That the trial court erred in believing the evidence of the prosecution that the incident occurred in broad day light in a public road where there was heavy traffic.
5. This being the first appellate court, its jurisdiction is well set out. It is obliged to re-appraise and analyse the evidence afresh with a view to arriving at its own independent findings and conclusions but at all times having in mind that it did not see the witnesses testify. (See Okeno vs Republic (1972) EA.
6. The case before the trial court was that on the material day at about 0600hrs, the complainant (Pw1) was on her way to school. She was a class 5 pupil at St. Alloys Primary School. She met the appellant on the way who inquired about her parents’ contact which she declined to divulge. He then pulled her to the side of the road, undressed her, removed his shot and defiled her. He threatened her with a knife. He hit her on the shoulder with a stick and threatened that he will kill her when he leaves jail. He left her and she went to school.
7. After two days, she informed her mother about the ordeal who took her to hospital then police station. She identified her birth certificate and medical records. She knew the appellant and his child as the families live near each other.
8. When cross-examined, she told the Court that she had not gone to school after 2/10/2022. She did her exams at Agape Children’s Home. That she had never had sex with any other boy. That she did not see anyone on the road on the material day.
9. Her mother, Judith Atieno Odhiambo (Pw4) was on 10/10/2022 informed by the complainant that on 30/9/2022, at 6.00am, she met the appellant met the latter on her way to school. The appellant, assaulted her and defiled her. He had a knife and threatened her with death if she ever told anyone about the incident. Pw4 then informed her husband George Odhiambo Owuor (Pw3) about it.
10. When cross-examined, she told the Court that she did not take note of the complainant’s injuries as she was busy attending to the complainant’s sick grandmother.
11. Pw3 told the Court that Pw4 informed him of the complainant’s sickness on 10/10/2022. The following day he took her to hospital where he was advised to report to the police. He made a report at Katito Police Station and was issued with a P3 Form which he returned to hospital. That the complainant did not disclose what had happened as she had been threatened with death by the appellant. In cross-examination, he indicated that he did not discover the complainant’s soiled clothes as she washes her own clothes.
12. David Matheri (Pw2) from Nyakach Hospital attended and produced the P3 Form and medical notes of the complainant. The complainant came to the facility on 11/10/2022 for treatment. She complained of an assault that took place on 30/9/2022. She stated that she had been defiled by a known person who also assaulted her. She had suffered injuries to the upper hand and lower limb. On examination, of her private parts, the hymen was broken but not recent. The labia minora and majora were swollen. She had minor lacerations on the labia minora and had yellow creamlike discharge from her private parts. There was evidence of penetration as there were lacerations on the labia minora. She produced the medical records as PExh2 to 4.
13. In cross-examination, the witness revealed that the complainant had a fracture of the clavicle bone. She could not walk as she was in pain.
14. When placed on his defence, the appellant testified as Dw3. He testified that on 30/9/2022 he left his home at 5.30am and arrived at Felix’s (Dw5) home at 6.00am. He was with Philip Ouma Dw4. They ploughed upto 5.00pm. when he went home. On 15/10/2022, the area Chief called him and had him booked at Katito Police Station. He knew the place of the incident. It is 50 metres from his home. He denied committing the offence. In cross-examination, he disclosed that Felix’s (Dw5) home is about 7-10km from his home. He knew the complainant goes to school at St. Alloys.
15. Philip Ouma (Dw4) told the Court that on the material day he woke up very early and picked the appellant. They went to plough Felix’s (Dw5) land. They had left by 6.30am for Felix’s home. That he went together with the appellant to Felix’s home. In cross-examination, he told the Court that at all times, 30/9/2022, 17/10/2023, 18/10/2022 and 19/10/2022 he was with the appellant.
16. On his part, Felix Awino Oduor (Dw5) told the Court that on 30/9/2022, he took the appellant to his farm to plough. They began ploughing at 6.00am and he left them at 9.30am. The appellant’s wife, Prisca Awino Oduor Dw6 told the Court how she woke up at 4.00am on 30/9/2022 to prepare breakfast for him. He left home at 5.00am to go to the farm. She denied that the appellant could have slept with their neighbour’s child.
17. No. 2356 Inspector Derrick Alemi testified as Dw1. He was the Deputy OCS, Katito Police Station. He produced the O.B No. 15 of 11/10/2022. A report of defilement was made at 3.40pm by Pw3. The same did not mention the name of the suspect. In cross-examination, he admitted that a further report was made vide OB No. 10 of 14/10/2022 by Pw3 together with the complainant wherein the appellant was identified as the perpetrator.
18. It is on the foregoing evidence that the trial court found the appellant guilty and convicted him of the offence charged.
19. The parties filed their respective submissions which I have considered. The appellant collapsed the 9 grounds into one; viz, ‘that the trial court erred in failing to consider that the ingredients forming the offence were not proved to the required standard.’
20. It was submitted for the appellant that the complainant contradicted herself in material particulars. That she failed to mention the appellant in her first report to the police. That the element of identification failed. That the contradictions include the dates of the occurrence of the incident, viz, 14/10/2022 and 15/10/2022 and the discharge summary of serial No. 9948/22 from Nyakach Sub-County hospital.
21. That the testimony of Pw2, the clinician showed that the hymen was broken but not recent. That there was therefore no evidence of penetration as per the date of penetration. That the evidence of the father was unbelievable.
22. The Court has considered the record and the submissions on record. The main ground of appeal is that the prosecution case was not proved to the required standard. The appellant faced a charge of defilement. In order to prove the same, the prosecution had to prove, three ingredients; the age of the victim, the act of penetration and that the appellant was the perpetrator.
23. The foregoing is discernible from section 8(1) as read with section 8(3) of the Sexual Offences Act which provides that: -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.”
24. Age is a crucial ingredient in that, the offence of defilement is committed against a child who is below the age of 18 years. It also matters when it comes to sentencing.
25. Although in his submissions, the appellant did not challenge the fact of age, however, having contended that the prosecution case was not proved beyond reasonable doubt, it behoves this Court to consider if the case was either proved or not.
26. Pw1 testified that she was 12 years as at the time the offence was allegedly committed. A Birth Certificate dated 19/8/2021 No.5089457 was produced in evidence. It showed that the complainant was born on 18/2/2010. That evidence was also corroborated by that of the mother Pw4. The element of age was proved to the required standard. The complainant was 12 years and 6 moths as at 30/9/2022.
27. The second element is penetration. This is defined under section 2 of the Act as: -
“the partial or complete insertion of the genital organ of a person into the genital organ of another person.”
28. The complainant testified that on the material day at about 6.00am, she was going to school when she met the appellant on the way. The appellant asked her name and the telephone contacts of her parents which she declined to give. That the appellant got hold of the complainant threatened her with a knife, took her to the side of the road and defiled her. She was categorical how the appellant removed her pants, removed his shot and inserted his male organ into her genital organ.
29. Pw2, the clinician from Nyakach hospital testified that when the complainant was examined, she was found to have minor lacerations on the labia minora, the labia minora and majora were swollen. That the hymen was broken but not recent. Since the examination took place 11 days old, still these injuries revealed that there had been penetration.
30. The medical evidence corroborated the testimony of the complainant that there had been penetration. I am satisfied that the second element of penetration was satisfactorily proved to the required standard.
31. The last element was who was the perpetrator? The complainant was categorical that the person whom she met on the material day was Ben. She recognized him and stated that she knew him as she was schooling with one of his children. That it was he who held her, threatened her with death before defiling her. The evidence on record shows that the child was so traumatized. She only disclosed this incident to her mother days later. She also disclosed the same to the clinician who examined her on 11/10/2022 at Nyakach Hospital. Her testimony was one of recognition and not identification.
32. The appellant contended that it was improbable that he was the perpetrator as he was never mentioned when the first report was made on 11/10/2022. That his name was only mentioned during the second report to the police on 14/10/2022.
33. It should be recalled that during the first report of 11/10/2022, it is only Pw3 who visited the Station. As at that time, it is clear from the record that he had not talked to the complainant. It is after that that they visited the Station on 14/10/2022, him and the complainant, that the perpetrator’s name was disclosed and recorded. I do not think this lessened the probative value of the evidence that the appellant was the perpetrator. The Court is satisfied that the 3rd element was also proved to the required standard.
34. As regards the appellant’s defence, he complained that the same was unfairly regarded to be an afterthought. His was an alibi. He contended that the prosecution should have investigated his alibi and seek to overturn it. In Victor Mwendwa Mulinge vs Republic (2014) eKLR, the Court of Appeal held: -
“It is trite law that the burden of proving the falsity if at all of an accused’s defence of alibi lies on the prosecution.”
35. In Erick Otieno Meda vs Republic (2019) eKLR, the Court quoted with approval, two South African cases on alibi. The same though persuasive were found to be good law: - in S –vs- Maleto en Andere (1998) (1) SACR 127 (w) AT 158 a – e; the Court held: -
“(a) There is no burden of proof on the accused to prove his alibi.
(b) If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of doubt.
(c) …
(d) If there are identifying witnesses, the Court should be satisfied not only that they are honest but also that the identification of the accused is reliable. (‘betron bar’).
(e) The ultimate test is whether the prosecution had furnished proof beyond a reasonable doubt and for this purpose a court may take into account the accused has raised a false alibi.”
36. In Republic vs Buya (1952) (4) SA 514 (A) AT 521 C it was held: -
“a) An alibi needs to be corroborated by other witnesses and not just a mere regurgitation of the events from the accused’s point of view.
b) The alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she had presented to court.
d) The accused does not need to prove the alibi but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt wo as to allow the alibi to fail.”
37. In the present case, none of the prosecution witnesses were cross-examined on the appellant’s alibi. The alibi was that he was at the time on the way to or in the farm of Felix Onyango alias Opar (Dw4). If it was not an afterthought, it should have been put to the prosecution witnesses that the appellant was at Felix’s farm 7-10kms away at the time of the alleged offence. If such information had been put to any of the prosecution witnesses, then it would have been left for the prosecution to investigate the veracity of the alibi. However, it was not put forth until the appellant took the stand.
38. The other issue is that reading through the evidence of the defence witnesses, it was unbelievable. It was tailored and meant to remove the appellant from the scene of the offence. No wonder the trial court declined to believe his witnesses.
39. The trial court found the appellant’s wife all bent to show that she knew or was at all times with her husband or knew where he was all the time. Philip Ouma Dw3 was out to show that he was with the appellant everywhere at all times. When questioned where the was on 17/10/2022, he stated that he was with the appellant and they went somewhere from morning till 2.00pm. It should be recalled that on that day, the appellant was in court where he took plea before he was released on bail.
40. Further, the appellant testified that he was together with Dw3 on 30/9/2022 from 6.00am at Felix’s land until 10.00am. They returned to plough until 5.00pm. Philip Ouma Dw3 stated that they were together at Felix’s land from 6.30am till 10.00am. He then left the appellant herding his cows and left. (Pg 27 lines 7 to 9 of the proceedings). Felix (Dw4) testified that the appellant and Pw3 arrived at 6.00am. They were through by 9.30am. After that, he does not know where they went. They only tilled a plot of about 60x40.
41. Those contradictions were so material that they left the alleged alibi hollow. The 3 witnesses who were supposed to be allegedly together gave contradictory evidence on the events of the day. It made the alibi unbelievable. The trial court observed that it did not believe them. This Court has no reason and sees no basis to depart from those findings.
42. In view of the foregoing, this Court finds that the alibi was an afterthought and was unbelievable and improbable and was properly rejected.
43. Accordingly, the appeal is found to be without merit and is hereby dismissed and the conviction and sentence upheld.
It is so decreed.
1. BENARD ODIWUOR alias BEN (‘the appellant’) was on 17/10/2022 arraigned before Nyando Principal Magistrate’s Court with the offence of defilement contrary to section 8(1) as read with subsection (2) of the Sexual Offences Act No. 3 of 2006.
2. It was alleged that on 30/9/2022 at around 06.30hrs at Kawakungu village in Nyakach Sub-County within Kisumu County, the appellant intentionally caused his male genital organ to penetrate the female genital organ of M.A a child aged 12 years.
3. There was an alternative count of indecent act with the same child. The appellant denied the charges and a full trial ensued. After considering the testimonies of the prosecution and defence, the trial court convicted the appellant of the main charge and sentenced him to 20 years’ imprisonment.
4. Aggrieved with the conviction and sentence, the appellant preferred an appeal to this court vide a Petition dated 5/8/2025 raising 9 broad grounds of appeal. They can be summarized as follows: -
a) That the trial court erred in finding that the prosecution had proved its case beyond reasonable doubt despite inconsistencies in its case and the defence of the appellant which casted doubt in the case.
b) That the trial court erred in dismissing the appellant’s alibi as an afterthought.
c) That the trial court erred in subjecting the appellant’s defence to the level of proof beyond any reasonable doubt.
d) The trial court erred in being influenced by wrong analogy of recognition thereby disregarding the original report made to the police that the perpetrator was an unknown person.
e) That the trial court erred in believing the evidence of the prosecution that the incident occurred in broad day light in a public road where there was heavy traffic.
5. This being the first appellate court, its jurisdiction is well set out. It is obliged to re-appraise and analyse the evidence afresh with a view to arriving at its own independent findings and conclusions but at all times having in mind that it did not see the witnesses testify. (See Okeno vs Republic (1972) EA.
6. The case before the trial court was that on the material day at about 0600hrs, the complainant (Pw1) was on her way to school. She was a class 5 pupil at St. Alloys Primary School. She met the appellant on the way who inquired about her parents’ contact which she declined to divulge. He then pulled her to the side of the road, undressed her, removed his shot and defiled her. He threatened her with a knife. He hit her on the shoulder with a stick and threatened that he will kill her when he leaves jail. He left her and she went to school.
7. After two days, she informed her mother about the ordeal who took her to hospital then police station. She identified her birth certificate and medical records. She knew the appellant and his child as the families live near each other.
8. When cross-examined, she told the Court that she had not gone to school after 2/10/2022. She did her exams at Agape Children’s Home. That she had never had sex with any other boy. That she did not see anyone on the road on the material day.
9. Her mother, Judith Atieno Odhiambo (Pw4) was on 10/10/2022 informed by the complainant that on 30/9/2022, at 6.00am, she met the appellant met the latter on her way to school. The appellant, assaulted her and defiled her. He had a knife and threatened her with death if she ever told anyone about the incident. Pw4 then informed her husband George Odhiambo Owuor (Pw3) about it.
10. When cross-examined, she told the Court that she did not take note of the complainant’s injuries as she was busy attending to the complainant’s sick grandmother.
11. Pw3 told the Court that Pw4 informed him of the complainant’s sickness on 10/10/2022. The following day he took her to hospital where he was advised to report to the police. He made a report at Katito Police Station and was issued with a P3 Form which he returned to hospital. That the complainant did not disclose what had happened as she had been threatened with death by the appellant. In cross-examination, he indicated that he did not discover the complainant’s soiled clothes as she washes her own clothes.
12. David Matheri (Pw2) from Nyakach Hospital attended and produced the P3 Form and medical notes of the complainant. The complainant came to the facility on 11/10/2022 for treatment. She complained of an assault that took place on 30/9/2022. She stated that she had been defiled by a known person who also assaulted her. She had suffered injuries to the upper hand and lower limb. On examination, of her private parts, the hymen was broken but not recent. The labia minora and majora were swollen. She had minor lacerations on the labia minora and had yellow creamlike discharge from her private parts. There was evidence of penetration as there were lacerations on the labia minora. She produced the medical records as PExh2 to 4.
13. In cross-examination, the witness revealed that the complainant had a fracture of the clavicle bone. She could not walk as she was in pain.
14. When placed on his defence, the appellant testified as Dw3. He testified that on 30/9/2022 he left his home at 5.30am and arrived at Felix’s (Dw5) home at 6.00am. He was with Philip Ouma Dw4. They ploughed upto 5.00pm. when he went home. On 15/10/2022, the area Chief called him and had him booked at Katito Police Station. He knew the place of the incident. It is 50 metres from his home. He denied committing the offence. In cross-examination, he disclosed that Felix’s (Dw5) home is about 7-10km from his home. He knew the complainant goes to school at St. Alloys.
15. Philip Ouma (Dw4) told the Court that on the material day he woke up very early and picked the appellant. They went to plough Felix’s (Dw5) land. They had left by 6.30am for Felix’s home. That he went together with the appellant to Felix’s home. In cross-examination, he told the Court that at all times, 30/9/2022, 17/10/2023, 18/10/2022 and 19/10/2022 he was with the appellant.
16. On his part, Felix Awino Oduor (Dw5) told the Court that on 30/9/2022, he took the appellant to his farm to plough. They began ploughing at 6.00am and he left them at 9.30am. The appellant’s wife, Prisca Awino Oduor Dw6 told the Court how she woke up at 4.00am on 30/9/2022 to prepare breakfast for him. He left home at 5.00am to go to the farm. She denied that the appellant could have slept with their neighbour’s child.
17. No. 2356 Inspector Derrick Alemi testified as Dw1. He was the Deputy OCS, Katito Police Station. He produced the O.B No. 15 of 11/10/2022. A report of defilement was made at 3.40pm by Pw3. The same did not mention the name of the suspect. In cross-examination, he admitted that a further report was made vide OB No. 10 of 14/10/2022 by Pw3 together with the complainant wherein the appellant was identified as the perpetrator.
18. It is on the foregoing evidence that the trial court found the appellant guilty and convicted him of the offence charged.
19. The parties filed their respective submissions which I have considered. The appellant collapsed the 9 grounds into one; viz, ‘that the trial court erred in failing to consider that the ingredients forming the offence were not proved to the required standard.’
20. It was submitted for the appellant that the complainant contradicted herself in material particulars. That she failed to mention the appellant in her first report to the police. That the element of identification failed. That the contradictions include the dates of the occurrence of the incident, viz, 14/10/2022 and 15/10/2022 and the discharge summary of serial No. 9948/22 from Nyakach Sub-County hospital.
21. That the testimony of Pw2, the clinician showed that the hymen was broken but not recent. That there was therefore no evidence of penetration as per the date of penetration. That the evidence of the father was unbelievable.
22. The Court has considered the record and the submissions on record. The main ground of appeal is that the prosecution case was not proved to the required standard. The appellant faced a charge of defilement. In order to prove the same, the prosecution had to prove, three ingredients; the age of the victim, the act of penetration and that the appellant was the perpetrator.
23. The foregoing is discernible from section 8(1) as read with section 8(3) of the Sexual Offences Act which provides that: -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.”
24. Age is a crucial ingredient in that, the offence of defilement is committed against a child who is below the age of 18 years. It also matters when it comes to sentencing.
25. Although in his submissions, the appellant did not challenge the fact of age, however, having contended that the prosecution case was not proved beyond reasonable doubt, it behoves this Court to consider if the case was either proved or not.
26. Pw1 testified that she was 12 years as at the time the offence was allegedly committed. A Birth Certificate dated 19/8/2021 No.5089457 was produced in evidence. It showed that the complainant was born on 18/2/2010. That evidence was also corroborated by that of the mother Pw4. The element of age was proved to the required standard. The complainant was 12 years and 6 moths as at 30/9/2022.
27. The second element is penetration. This is defined under section 2 of the Act as: -
“the partial or complete insertion of the genital organ of a person into the genital organ of another person.”
28. The complainant testified that on the material day at about 6.00am, she was going to school when she met the appellant on the way. The appellant asked her name and the telephone contacts of her parents which she declined to give. That the appellant got hold of the complainant threatened her with a knife, took her to the side of the road and defiled her. She was categorical how the appellant removed her pants, removed his shot and inserted his male organ into her genital organ.
29. Pw2, the clinician from Nyakach hospital testified that when the complainant was examined, she was found to have minor lacerations on the labia minora, the labia minora and majora were swollen. That the hymen was broken but not recent. Since the examination took place 11 days old, still these injuries revealed that there had been penetration.
30. The medical evidence corroborated the testimony of the complainant that there had been penetration. I am satisfied that the second element of penetration was satisfactorily proved to the required standard.
31. The last element was who was the perpetrator? The complainant was categorical that the person whom she met on the material day was Ben. She recognized him and stated that she knew him as she was schooling with one of his children. That it was he who held her, threatened her with death before defiling her. The evidence on record shows that the child was so traumatized. She only disclosed this incident to her mother days later. She also disclosed the same to the clinician who examined her on 11/10/2022 at Nyakach Hospital. Her testimony was one of recognition and not identification.
32. The appellant contended that it was improbable that he was the perpetrator as he was never mentioned when the first report was made on 11/10/2022. That his name was only mentioned during the second report to the police on 14/10/2022.
33. It should be recalled that during the first report of 11/10/2022, it is only Pw3 who visited the Station. As at that time, it is clear from the record that he had not talked to the complainant. It is after that that they visited the Station on 14/10/2022, him and the complainant, that the perpetrator’s name was disclosed and recorded. I do not think this lessened the probative value of the evidence that the appellant was the perpetrator. The Court is satisfied that the 3rd element was also proved to the required standard.
34. As regards the appellant’s defence, he complained that the same was unfairly regarded to be an afterthought. His was an alibi. He contended that the prosecution should have investigated his alibi and seek to overturn it. In Victor Mwendwa Mulinge vs Republic (2014) eKLR, the Court of Appeal held: -
“It is trite law that the burden of proving the falsity if at all of an accused’s defence of alibi lies on the prosecution.”
35. In Erick Otieno Meda vs Republic (2019) eKLR, the Court quoted with approval, two South African cases on alibi. The same though persuasive were found to be good law: - in S –vs- Maleto en Andere (1998) (1) SACR 127 (w) AT 158 a – e; the Court held: -
“(a) There is no burden of proof on the accused to prove his alibi.
(b) If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of doubt.
(c) …
(d) If there are identifying witnesses, the Court should be satisfied not only that they are honest but also that the identification of the accused is reliable. (‘betron bar’).
(e) The ultimate test is whether the prosecution had furnished proof beyond a reasonable doubt and for this purpose a court may take into account the accused has raised a false alibi.”
36. In Republic vs Buya (1952) (4) SA 514 (A) AT 521 C it was held: -
“a) An alibi needs to be corroborated by other witnesses and not just a mere regurgitation of the events from the accused’s point of view.
b) The alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she had presented to court.
d) The accused does not need to prove the alibi but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt wo as to allow the alibi to fail.”
37. In the present case, none of the prosecution witnesses were cross-examined on the appellant’s alibi. The alibi was that he was at the time on the way to or in the farm of Felix Onyango alias Opar (Dw4). If it was not an afterthought, it should have been put to the prosecution witnesses that the appellant was at Felix’s farm 7-10kms away at the time of the alleged offence. If such information had been put to any of the prosecution witnesses, then it would have been left for the prosecution to investigate the veracity of the alibi. However, it was not put forth until the appellant took the stand.
38. The other issue is that reading through the evidence of the defence witnesses, it was unbelievable. It was tailored and meant to remove the appellant from the scene of the offence. No wonder the trial court declined to believe his witnesses.
39. The trial court found the appellant’s wife all bent to show that she knew or was at all times with her husband or knew where he was all the time. Philip Ouma Dw3 was out to show that he was with the appellant everywhere at all times. When questioned where the was on 17/10/2022, he stated that he was with the appellant and they went somewhere from morning till 2.00pm. It should be recalled that on that day, the appellant was in court where he took plea before he was released on bail.
40. Further, the appellant testified that he was together with Dw3 on 30/9/2022 from 6.00am at Felix’s land until 10.00am. They returned to plough until 5.00pm. Philip Ouma Dw3 stated that they were together at Felix’s land from 6.30am till 10.00am. He then left the appellant herding his cows and left. (Pg 27 lines 7 to 9 of the proceedings). Felix (Dw4) testified that the appellant and Pw3 arrived at 6.00am. They were through by 9.30am. After that, he does not know where they went. They only tilled a plot of about 60x40.
41. Those contradictions were so material that they left the alleged alibi hollow. The 3 witnesses who were supposed to be allegedly together gave contradictory evidence on the events of the day. It made the alibi unbelievable. The trial court observed that it did not believe them. This Court has no reason and sees no basis to depart from those findings.
42. In view of the foregoing, this Court finds that the alibi was an afterthought and was unbelievable and improbable and was properly rejected.
43. Accordingly, the appeal is found to be without merit and is hereby dismissed and the conviction and sentence upheld.
It is so decreed.