CRIMINAL APPEAL NO. E013 OF 2026- JUDGEMENT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL NO. E013 OF 2026
DAVID OPIYO PILE....................................................................APPELLANT
VERSUS
REPUBLIC................................................................................RESPONDENT
JUDGMENT
1. The appellant, David Opiyo Pile, was charged before the Senior Principal Magistrate's Court at Nyando with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on 8 th October 2023 at Kariobangi Village, East Kadianga Sub-location, South East Nyakach Location in Nyakach Sub-county within Kisumu County, he intentionally attempted to cause his penis to penetrate the vagina of G.A., a child aged seven years.
2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The alternative particulars alleged that, on the same date and at the same place, he intentionally and unlawfully touched the child's vagina with his penis.
3. The appellant denied both charges. The prosecution called four witnesses. At the close of the prosecution case, the appellant was placed on his defence, gave sworn evidence and called one witness. In a judgment delivered on 3 rd February 2026, the trial magistrate convicted him on the principal charge under Section 215 of the Criminal Procedure Code, made no finding on the alternative charge, and sentenced him to ten years' imprisonment.
4. The petition of appeal refers to the decision as having been delivered by Hon. E. N. Angima. The trial judgment and the proceedings, however, show that the trial was conducted and the judgment delivered by Hon. L. N. Kiniale. I treat the name appearing in the petition as a clerical error which neither obscures the decision appealed from nor occasions prejudice.
5. The appellant challenges both conviction and sentence on four grounds. He contends that the ingredients of the offence were not proved beyond reasonable doubt; that the trial court relied upon fanciful and remote possibilities; that it failed to weigh conflicting prosecution evidence; and that it failed to appreciate his cogent defence, which he maintains overwhelmed the prosecution case.
6. In his written submissions, the appellant argued that the medical examination disclosed no injury to the complainant's genitalia, no tears, lacerations, bruises, discharge or spermatozoa, notwithstanding her account of two attempts at insertion and the release of fluid. He submitted that the absence of injury rendered the account improbable, particularly because the complainant was seven years old and was described by her aunt as a sickler.
7. The appellant further relied on the failure to recover, preserve, produce and scientifically examine the alleged handkerchief, the beddings, the complainant's panty and the stain noted on his trouser zip. He invoked Section 36 of the Sexual Offences Act and Sections 144 and 173 of the Evidence Act, contending that the court ought to have ordered DNA testing. He also relied on John Maina Kamau v Republic [2013] eKLR , the answer in cross-examination which appeared to suggest that another person remained in the shop, and the constitutional guarantees of dignity, equality and a fair trial.
8. On the defence, the appellant maintained that the material day was a Sunday; that he attended church until about 1.30 p.m. and a men's fellowship until about 4.30 p.m.; and that his shop was closed throughout that period. He stated that he went to the shop with DW2, who wished to buy sugar, and that a crowd accosted him before he opened it. DW2 supported that account.
9. The respondent opposed the appeal. It submitted that the complainant's age was proved by a birth certificate; that she gave a vivid account of the attempted defilement; that she positively recognised the appellant, whom she knew as 'Mwalimu'; and that the defence did not raise a reasonable doubt. The respondent's description of the defence as a mere denial is, however, incomplete because the appellant raised a specific and corroborated alibi which must be evaluated on its merits.
10. This being a first appeal, this Court is required to reconsider and re-evaluate the entire evidence, weigh the conflicting versions and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. The Court must not merely determine whether there was some evidence to support the trial court's conclusion. It must itself decide whether the conviction is safe on the whole record. That is the settled duty stated in Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005] 1 KLR 174 .
11. Before the complainant testified, the trial court conducted a voire dire examination. The record shows that she understood the distinction between truth and falsehood and the nature of an oath. She was accordingly permitted to give sworn evidence. I find no irregularity in the reception of her evidence under Section 19 of the Oaths and Statutory Declarations Act.
12. The complainant testified that on 8 th October 2023 at about 3.00 p.m., her younger sister gave her five shillings to buy sweets. She went alone to a nearby shop belonging to a man she knew as 'Mwalimu'. She stated that the shop was about a minute's walk from their home and that her mother had previously sent her there to buy mandazi and sweets.
13. According to the complainant, the appellant called her into the shop, lifted her dress and touched the private part between her legs with his hand. He thereafter led her into an inner room containing a bed, removed her panty, placed her on the bed and removed his own trousers and underwear. In the language of a child, she stated that he twice tried to put his 'dudu', which she explained was the organ used to pass urine, into her private part, but 'it refused'. She further stated that fluid came from his penis onto her private part and that he wiped her with a cloth which he placed on the mosquito net.
14. The complainant stated that she thereafter left and went in search of her mother. She met her mother on the road and reported what had occurred. The family subsequently went to the appellant's shop and confronted him before the matter was reported to the police. The proceedings record that the complainant became distressed and cried when asked to identify the appellant in court, after which she pointed him out.
15. In cross-examination, the complainant stated that she went to the shop alone and that there was only one person there. One answer, that 'the person who was in the shop remained there', could be read as suggesting the presence of another person. In re-examination, however, she expressly clarified that the one person she meant was 'Mwalimu' and not another customer or attendant. She maintained that it was the appellant who removed her panty and attempted insertion.
16. The complainant also stated that the appellant did not give her the sweet, yet she later said that she had carried sweets, and her mother stated that she found her with two sweets. The source of those sweets was not clarified. She also used the expressions that she was 'asleep on the bed' and later 'woke up'. Those portions of her account were imprecise and should not be ignored. They were, however, peripheral to the central allegation and were not developed in cross-examination into an assertion that she was unconscious and incapable of perceiving the acts she described.
17. The complainant's mother testified as PW2 that the complainant was born on 7 th June 2016. She stated that, after the family returned from church and ate lunch, she realised that the complainant had gone to the shop. Approximately twenty minutes later, she met the child coming from the direction of the shop while crying. The child said that she had gone to 'Mwalimu's' shop, where he removed her panty and did 'bad manners' to her. The mother called the complainant's aunt, and the child repeated the account. The family later confronted the appellant at his shop and the police were called.
18. The complainant's aunt testified that the child reported that 'Mwalimu' had put her on a bed, removed her panty and unsuccessfully attempted twice to insert his penis into her private part. The aunt also referred to a white handkerchief which the child said had been used to wipe her and placed on a mosquito net. Her evidence concerning the sexual acts was not direct evidence of their commission; it was relevant principally to the promptness and consistency of the report and to the events which followed.
19. A clinical officer from Nyakach County Hospital produced the complainant's treatment notes and P3 form. He had not personally examined her. The documents had been prepared by a colleague who had since been transferred, and the witness stated that he was familiar with the colleague's handwriting and the facility records. The defence objected, but the court admitted the documents. Section 77 of the Evidence Act permits medical reports to be used in evidence and preserves the court's power to summon the maker. The defence cross-examined the clinical officer, and no specific prejudice arising from the mode of production has been demonstrated.
20. The medical evidence was that the complainant was examined on 9 th October 2023. She appeared anxious and terrified. No tears, lacerations, bruises or genital discharge were noted; the hymen was intact; no spermatozoa were detected; and no torn clothing or bloodstains were recorded. The appellant was also examined. A stain was noted on the zip area of his black trousers, but it was neither sampled nor scientifically analysed.
21. PC Kevin Wafula Kendu, the police officer who testified had taken over the file after the original investigating officer was transferred and after the investigations had been completed. He did not visit the scene, did not receive any physical exhibit and was not given photographs. His evidence was therefore of limited assistance concerning the investigation of the premises and the alleged recovery of the cloth.
22. In his sworn defence, the appellant admitted that he had operated the shop for more than fifteen years and was commonly called 'Mwalimu', although he was not a teacher. He denied knowing the complainant or committing the offence. He stated that he did not open the shop on Sundays and that he was at church and a men's fellowship until 4.30 p.m. DW2 supported his account and stated that, when they reached the shop, a crowd approached before the appellant opened it.
23. The four grounds overlap. They require the Court to determine whether the prosecution proved the statutory elements of attempted defilement; whether the complainant's evidence and recognition of the appellant were reliable; whether the medical findings, contradictions and investigative omissions generated a reasonable doubt; whether the appellant's constitutional and DNA-related arguments have merit; and whether the prosecution displaced the alibi. The legality of the sentence must also be considered because the petition challenges sentence.
24. Section 9(1) of the Sexual Offences Act provides that a person who attempts to commit an act which would cause penetration with a child is guilty of attempted defilement. Section 9(2) provides that a person convicted of the offence is liable to imprisonment for a term of not less than ten years. The offence is therefore attempted defilement, not completed defilement, and actual penetration is not an ingredient.
25. Section 388(1) of the Penal Code supplies the general meaning of an attempt. A person attempts an offence when, intending to commit it, he begins to put that intention into execution by means adapted to its fulfilment and manifests the intention by an overt act, but does not complete the intended offence. The prosecution must therefore prove both the specific intention to penetrate and an overt act sufficiently proximate to the intended penetration. In Mussa s/o Said v Republic [1962] EA 454 , the court explained that the act must not be too remote and, where intention is inferred from conduct, must be incompatible with another reasonable explanation.
26. In Benson Musumbi v Republic [2019] eKLR , the High Court summarised the elements of attempted defilement as proof that the complainant was a child, positive identification of the assailant, and proof of steps taken to execute the intended defilement which did not succeed. Those elements provide an appropriate framework, but each must still be proved beyond reasonable doubt on the evidence in the particular case.
27. The birth certificate produced in evidence showed that the complainant was born on 7 th June 2016. She was therefore seven years and four months old on 8 th October 2023. The trial court stated that she was eight years old, evidently adopting her age when she later testified rather than her age at the time of the offence. That was an arithmetical error, but it caused no prejudice because the charge sheet correctly stated that she was seven and Section 9 does not vary the punishment according to the child's particular age bracket. Her status as a child was proved.
28. The next inquiry is whether the evidence disclosed acts which went beyond preparation and were immediately directed at penetration. The complainant did not merely allege that the appellant called her into the shop or touched her over her clothing. She stated that he removed her panty, placed her on a bed, removed his trousers and underwear, positioned his penis at her genital area and twice attempted insertion. If that evidence is truthful, the conduct unequivocally manifested an intention to penetrate and was sufficiently proximate to the completed offence. It would constitute attempted defilement rather than a mere indecent act or remote preparation.
29. The child's statement that the attempt 'refused' was an age-appropriate description that the intended insertion did not succeed. The Court must consider the substance of the evidence rather than demand technical or adult terminology from a seven-year-old witness. Her occasional use of the word 'inserted' in the typed record must also be read together with her repeated statement that the appellant tried twice but did not succeed. The prosecution case disclosed by the evidence was one of attempted, rather than completed, penetration.
30. The decisive question is therefore whether the complainant's account of those overt acts was sufficiently reliable to meet the criminal standard. Under the proviso to Section 124 of the Evidence Act , a court may convict in a sexual-offence case on the evidence of the alleged victim alone if the court is satisfied that the victim is telling the truth and records the reasons for that belief. Corroboration is not a statutory prerequisite, but the proviso does not lower the standard of proof.
31. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR stressed that a bare statement that the complainant is believed is insufficient; the court must disclose why it believes the witness. The trial judgment in the present case did not expressly invoke the proviso to section 124 and did not formulate its reasons with the clarity that was desirable. Its analysis was brief and did not squarely address every difficulty in the complainant's evidence. That deficiency must be acknowledged rather than glossed over.
32. The trial court nevertheless referred to the complainant's ability to narrate the events, the fact that she knew and recognised the appellant, and the absence of a demonstrated dispute between the families. Those matters indicate why the court accepted her testimony. This Court cannot, however, uphold the conviction merely by supplying reasons which the trial court did not articulate. The conviction can stand only if, upon the fresh and exhaustive evaluation required on a first appeal, this Court is itself satisfied beyond reasonable doubt that the complainant was truthful on the material acts.
33. I have therefore evaluated the complainant's evidence with particular caution. Her account contained a coherent sequence: the reason she went to the shop; the identity of the shop and its proprietor; the invitation inside; the initial touching; the inner room and bed; the removal of her undergarment and the appellant's clothing; the two unsuccessful attempts at insertion; the wiping; her departure; and the prompt report. The narrative contained details expressed in language natural to a child of her age and was not merely a conclusion supplied by an adult.
34. Her evidence was tested in cross-examination. She did not withdraw or materially alter the central assertion that the appellant removed her panty, undressed and attempted to put his penis into her private part. The apparent suggestion that another person remained in the shop was clarified in re-examination. Re-examination was properly confined to resolving an ambiguity arising during cross-examination. The evidence, read as a whole, did not establish that an independent customer remained in the shop throughout the alleged acts.
35. The prompt report is also relevant, though it is not independent proof that the sexual acts occurred. The complainant's mother met her coming from the direction of the shop while crying. The child immediately named 'Mwalimu' and stated that he had removed her panty and acted improperly. She thereafter gave the more detailed account to her aunt. The immediacy and consistency of the report support the conclusion that the allegation was not a later invention, while the truth of the acts must still be determined from the complainant's direct evidence.
36. The unexplained references to the sweets and the expressions that the complainant was asleep and woke up are weaknesses in the presentation of her account. They do not, however, contradict the identity of the person she accused or the overt acts she consistently described. The defence did not suggest that she had confused the shop, the proprietor or the nature of the acts, and no prior inconsistent statement on those central matters was proved.
37. I am satisfied, for reasons now expressly recorded, that the complainant was truthful on the central acts. Those reasons are the coherent and age-appropriate detail of her account; her prior familiarity with the appellant and the premises; her consistency under cross-examination on the removal of clothing and attempted insertion; the prompt naming of the appellant while distressed; and the absence of any proved motive connecting a seven-year-old child and her family to the alleged business rivalry. The absence of a proved motive is not itself proof of guilt, but it removes the only suggested basis for deliberate false implication.
38. I turn to the medical evidence. The absence of tears, bruises, lacerations, discharge or spermatozoa did not prove that an attempt occurred. Equally, those findings did not disprove an unsuccessful effort to penetrate. Injury, resistance, semen and completed penetration are not ingredients of the offence under Section 9(1). The medical findings were therefore neutral on the occurrence of the overt acts, though they were consistent with the prosecution's case that penetration was not achieved.
39. The appellant's argument that a seven-year-old child could not have resisted an adult without sustaining an injury proceeds from an assumption not supported by the statute or medical evidence. The prosecution was not required to prove resistance or the application of physical force. An attempt may fail for reasons unrelated to resistance and may occur without causing visible trauma. The absence of injury was a matter to weigh, but it could not be converted into a rule that the child's account was necessarily false.
40. The clinical officer's conclusion that the findings amounted to attempted defilement was not determinative. Whether proved facts satisfy the legal definition of an attempt is a question for the court.
41. The investigation had material shortcomings. No incriminating inference can properly be drawn from the stain observed on the appellant's trouser zip because it was not sampled and its nature is unknown. The alleged cloth or handkerchief was not produced. The complainant's mother stated that it was not found when they returned to look for it, whereas the aunt stated that police officers found a bed, mosquito net and handkerchief. The original investigating officer and the officers said to have entered the premises did not testify, and the officer who testified had neither visited the scene nor received exhibits.
42. That was a real contradiction concerning the alleged recovery, and the trial court ought to have addressed it. The prosecution's failure to preserve and analyse the cloth, if it was recovered, and the stain deprived the court of potentially useful objective evidence. Neither the alleged handkerchief nor the trouser stain can therefore be treated as corroboration of the complainant's account.
43. Section 36(1) of the Sexual Offences Act provides that the court may direct that appropriate samples be taken from an accused person for forensic or scientific testing, including DNA testing. The provision is permissive, not mandatory. The Court of Appeal has confirmed, including in Nzau v Republic [2022] KECA 502 (KLR) and Kirui v Republic [2024] KECA 959 (KLR) , that DNA evidence is not an indispensable element of every prosecution under the Sexual Offences Act.
44. In the present case, no spermatozoa or identified biological material was detected on the complainant. The alleged cloth was not proved to have been recovered and preserved, and the stain on the appellant's trousers was never identified as semen. A DNA order against the appellant would not, without a preserved comparison exhibit and a chain of custody, have answered the evidential question. The correct consequence of the investigative failure is to exclude the cloth and stain from the evidential basis of the conviction, not automatically to reject the complainant's direct testimony.
45. John Maina Kamau v Republic [2013] eKLR , relied on by the appellant, is distinguishable. In that case, spermatozoa had been detected and identity remained uncertain, yet the available biological material was not tested to connect it to the accused. Here, the charge was attempted defilement; no spermatozoa were detected; and identity was based on recognition by a child who knew the appellant. The decision does not establish that every sexual-offence prosecution without DNA evidence must fail.
46. Sections 144 and 173 of the Evidence Act do not impose a different result. Section 144 outlines the order in which foundational facts affecting admissibility are proved. Section 173 confers extended powers upon the court to ask questions or order production of a document or thing for the purpose of obtaining proper evidence. Those provisions do not compel a trial court to reconstruct an unpreserved exhibit or assume the investigative role of the police. The failure to order DNA testing in the circumstances disclosed by this record did not, without more, violate the appellant's right to a fair trial.
47. The broader constitutional arguments under Articles 19, 24, 25, 27 and 50 were advanced in general terms. The record shows that the appellant was represented by counsel, cross-examined the prosecution witnesses, objected to the production of the medical documents, gave sworn evidence and called a witness. No procedural exclusion, discrimination or denial of an identified fair-trial entitlement was demonstrated. The constitutional guarantees reinforce the requirement of proof beyond reasonable doubt; they do not make a particular form of scientific evidence mandatory where the statute does not.
48. The failure to call the original investigating officer, the assistant chief, the complainant's father or the officers who allegedly entered the shop did not automatically defeat the prosecution case. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. Under Bukenya & Others v Uganda [1972] EA 549 , an adverse inference may arise where essential evidence is withheld and the evidence called is barely adequate. The omitted witnesses would mainly have clarified the arrest, investigation and disputed recovery; none was said to have witnessed the attempted penetration. Their absence weakened the investigative and corroborative aspects of the case but did not extinguish the complainant's direct evidence if that evidence was otherwise reliable.
49. The witnesses gave different approximate times. The complainant referred to about 3.00 p.m.; her mother referred to about 2.45 p.m.; and her aunt said she was contacted at about 3.00 or 3.30 p.m. and estimated that the incident occurred at around 2.00 p.m. The variations are relevant because the alibi covered the afternoon. They nevertheless place the incident and report within the same general period, before the defence's stated end of the men's fellowship at 4.30 p.m. The witnesses did not claim to have checked the exact time.
50. The Court of Appeal in Philip Nzaka Watu v Republic [2016] eKLR explained that discrepancies must be evaluated in context and that the court must determine whether they are minor or go to the root of the case. The differences between 2.00 p.m., 2.45 p.m. and 3.00 p.m. do not alter the identity of the alleged assailant, the shop, the acts described or the fact that the report followed shortly thereafter. They are not comparable to the material contradiction concerning recovery of the handkerchief, which I have excluded from consideration.
51. Identification was by recognition. The incident occurred during the afternoon. The complainant had previously been sent to the appellant's shop, knew its proprietor as 'Mwalimu', conversed with him and said she remained with him at close range. The appellant admitted operating the shop for more than fifteen years and admitted that he was known as 'Mwalimu'. In Anjononi & Others v Republic [1980] KLR 59 , the Court of Appeal observed that recognition of a known attacker is generally more reliable than identification of a stranger because it depends on prior personal knowledge, although it must still be carefully examined.
52. The immediate naming of 'Mwalimu', the complainant's prior familiarity with the shop and proprietor, the daylight conditions and the duration of the alleged encounter substantially reduced the possibility of mistaken identity. The fact that the appellant was later confronted at his shop is consistent with both the prosecution and defence accounts and does not, by itself, prove that he had been there earlier. The decisive evidence placing him there at the material time remained the complainant's recognition evidence, which I have found credible for the reasons stated.
53. The appellant suggested business rivalry as the reason for the charge. He did not identify the alleged rival, describe the dispute or connect the complainant's mother, aunt or the child to it. The suggestion remained speculative. It did not shift the burden of proof, but it did not provide a reasonable explanation for the child's immediate and detailed accusation either.
54. I now turn to the alibi. An accused person who raises an alibi assumes no burden to prove it. The burden remains upon the prosecution to establish the accused's presence at the scene and to disprove the alibi beyond reasonable doubt. That principle was stated in Kiarie v Republic [1984] KLR 739 and Victor Mwendwa Mulinge v Republic [2014] eKLR . The timing of disclosure may be considered because early disclosure enables investigation, but a late alibi cannot be rejected merely as an afterthought or because the accused did not prove it.
55. The trial court described the alibi as an afterthought because it was not raised early or put to the prosecution witnesses, and concluded that the defence did not 'shake' the prosecution case. With respect, that formulation risked shifting the burden. The appellant was not required to shake or disprove the prosecution case. The correct question was whether, after considering the alibi and DW2's evidence, the prosecution had nevertheless proved the appellant's presence and conduct beyond reasonable doubt.
56. The alibi was not a bare denial. DW2 directly supported the appellant's claim that he was at church and at a men's fellowship until 4.30 p.m. His evidence was not to be rejected merely because he was a church colleague or because no church records were produced. The prosecution's cross-examination did not materially discredit his account. The respondent was therefore not correct to treat the defence as a mere denial.
57. The alibi, however, directly conflicts with the complainant's recognition evidence. DW2's evidence that he accompanied the appellant to the shop at about 4.30 p.m. explains the circumstances in which the crowd later confronted the appellant, but it does not independently establish the appellant's whereabouts during every moment between the end of the church service and the confrontation, except through DW2's assertion that they remained together at the fellowship. The Court must therefore decide which version is reliable, without placing a burden upon the appellant.
58. Against the alibi is the complainant's direct evidence that she knew the appellant, found him at his shop, conversed with him and remained with him during the acts. She named him immediately to her mother and consistently maintained the material allegation. Her mo
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL NO. E013 OF 2026
DAVID OPIYO PILE....................................................................APPELLANT
VERSUS
REPUBLIC................................................................................RESPONDENT
JUDGMENT
1. The appellant, David Opiyo Pile, was charged before the Senior Principal Magistrate's Court at Nyando with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on 8 th October 2023 at Kariobangi Village, East Kadianga Sub-location, South East Nyakach Location in Nyakach Sub-county within Kisumu County, he intentionally attempted to cause his penis to penetrate the vagina of G.A., a child aged seven years.
2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The alternative particulars alleged that, on the same date and at the same place, he intentionally and unlawfully touched the child's vagina with his penis.
3. The appellant denied both charges. The prosecution called four witnesses. At the close of the prosecution case, the appellant was placed on his defence, gave sworn evidence and called one witness. In a judgment delivered on 3 rd February 2026, the trial magistrate convicted him on the principal charge under Section 215 of the Criminal Procedure Code, made no finding on the alternative charge, and sentenced him to ten years' imprisonment.
4. The petition of appeal refers to the decision as having been delivered by Hon. E. N. Angima. The trial judgment and the proceedings, however, show that the trial was conducted and the judgment delivered by Hon. L. N. Kiniale. I treat the name appearing in the petition as a clerical error which neither obscures the decision appealed from nor occasions prejudice.
5. The appellant challenges both conviction and sentence on four grounds. He contends that the ingredients of the offence were not proved beyond reasonable doubt; that the trial court relied upon fanciful and remote possibilities; that it failed to weigh conflicting prosecution evidence; and that it failed to appreciate his cogent defence, which he maintains overwhelmed the prosecution case.
6. In his written submissions, the appellant argued that the medical examination disclosed no injury to the complainant's genitalia, no tears, lacerations, bruises, discharge or spermatozoa, notwithstanding her account of two attempts at insertion and the release of fluid. He submitted that the absence of injury rendered the account improbable, particularly because the complainant was seven years old and was described by her aunt as a sickler.
7. The appellant further relied on the failure to recover, preserve, produce and scientifically examine the alleged handkerchief, the beddings, the complainant's panty and the stain noted on his trouser zip. He invoked Section 36 of the Sexual Offences Act and Sections 144 and 173 of the Evidence Act, contending that the court ought to have ordered DNA testing. He also relied on John Maina Kamau v Republic [2013] eKLR , the answer in cross-examination which appeared to suggest that another person remained in the shop, and the constitutional guarantees of dignity, equality and a fair trial.
8. On the defence, the appellant maintained that the material day was a Sunday; that he attended church until about 1.30 p.m. and a men's fellowship until about 4.30 p.m.; and that his shop was closed throughout that period. He stated that he went to the shop with DW2, who wished to buy sugar, and that a crowd accosted him before he opened it. DW2 supported that account.
9. The respondent opposed the appeal. It submitted that the complainant's age was proved by a birth certificate; that she gave a vivid account of the attempted defilement; that she positively recognised the appellant, whom she knew as 'Mwalimu'; and that the defence did not raise a reasonable doubt. The respondent's description of the defence as a mere denial is, however, incomplete because the appellant raised a specific and corroborated alibi which must be evaluated on its merits.
10. This being a first appeal, this Court is required to reconsider and re-evaluate the entire evidence, weigh the conflicting versions and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. The Court must not merely determine whether there was some evidence to support the trial court's conclusion. It must itself decide whether the conviction is safe on the whole record. That is the settled duty stated in Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005] 1 KLR 174 .
11. Before the complainant testified, the trial court conducted a voire dire examination. The record shows that she understood the distinction between truth and falsehood and the nature of an oath. She was accordingly permitted to give sworn evidence. I find no irregularity in the reception of her evidence under Section 19 of the Oaths and Statutory Declarations Act.
12. The complainant testified that on 8 th October 2023 at about 3.00 p.m., her younger sister gave her five shillings to buy sweets. She went alone to a nearby shop belonging to a man she knew as 'Mwalimu'. She stated that the shop was about a minute's walk from their home and that her mother had previously sent her there to buy mandazi and sweets.
13. According to the complainant, the appellant called her into the shop, lifted her dress and touched the private part between her legs with his hand. He thereafter led her into an inner room containing a bed, removed her panty, placed her on the bed and removed his own trousers and underwear. In the language of a child, she stated that he twice tried to put his 'dudu', which she explained was the organ used to pass urine, into her private part, but 'it refused'. She further stated that fluid came from his penis onto her private part and that he wiped her with a cloth which he placed on the mosquito net.
14. The complainant stated that she thereafter left and went in search of her mother. She met her mother on the road and reported what had occurred. The family subsequently went to the appellant's shop and confronted him before the matter was reported to the police. The proceedings record that the complainant became distressed and cried when asked to identify the appellant in court, after which she pointed him out.
15. In cross-examination, the complainant stated that she went to the shop alone and that there was only one person there. One answer, that 'the person who was in the shop remained there', could be read as suggesting the presence of another person. In re-examination, however, she expressly clarified that the one person she meant was 'Mwalimu' and not another customer or attendant. She maintained that it was the appellant who removed her panty and attempted insertion.
16. The complainant also stated that the appellant did not give her the sweet, yet she later said that she had carried sweets, and her mother stated that she found her with two sweets. The source of those sweets was not clarified. She also used the expressions that she was 'asleep on the bed' and later 'woke up'. Those portions of her account were imprecise and should not be ignored. They were, however, peripheral to the central allegation and were not developed in cross-examination into an assertion that she was unconscious and incapable of perceiving the acts she described.
17. The complainant's mother testified as PW2 that the complainant was born on 7 th June 2016. She stated that, after the family returned from church and ate lunch, she realised that the complainant had gone to the shop. Approximately twenty minutes later, she met the child coming from the direction of the shop while crying. The child said that she had gone to 'Mwalimu's' shop, where he removed her panty and did 'bad manners' to her. The mother called the complainant's aunt, and the child repeated the account. The family later confronted the appellant at his shop and the police were called.
18. The complainant's aunt testified that the child reported that 'Mwalimu' had put her on a bed, removed her panty and unsuccessfully attempted twice to insert his penis into her private part. The aunt also referred to a white handkerchief which the child said had been used to wipe her and placed on a mosquito net. Her evidence concerning the sexual acts was not direct evidence of their commission; it was relevant principally to the promptness and consistency of the report and to the events which followed.
19. A clinical officer from Nyakach County Hospital produced the complainant's treatment notes and P3 form. He had not personally examined her. The documents had been prepared by a colleague who had since been transferred, and the witness stated that he was familiar with the colleague's handwriting and the facility records. The defence objected, but the court admitted the documents. Section 77 of the Evidence Act permits medical reports to be used in evidence and preserves the court's power to summon the maker. The defence cross-examined the clinical officer, and no specific prejudice arising from the mode of production has been demonstrated.
20. The medical evidence was that the complainant was examined on 9 th October 2023. She appeared anxious and terrified. No tears, lacerations, bruises or genital discharge were noted; the hymen was intact; no spermatozoa were detected; and no torn clothing or bloodstains were recorded. The appellant was also examined. A stain was noted on the zip area of his black trousers, but it was neither sampled nor scientifically analysed.
21. PC Kevin Wafula Kendu, the police officer who testified had taken over the file after the original investigating officer was transferred and after the investigations had been completed. He did not visit the scene, did not receive any physical exhibit and was not given photographs. His evidence was therefore of limited assistance concerning the investigation of the premises and the alleged recovery of the cloth.
22. In his sworn defence, the appellant admitted that he had operated the shop for more than fifteen years and was commonly called 'Mwalimu', although he was not a teacher. He denied knowing the complainant or committing the offence. He stated that he did not open the shop on Sundays and that he was at church and a men's fellowship until 4.30 p.m. DW2 supported his account and stated that, when they reached the shop, a crowd approached before the appellant opened it.
23. The four grounds overlap. They require the Court to determine whether the prosecution proved the statutory elements of attempted defilement; whether the complainant's evidence and recognition of the appellant were reliable; whether the medical findings, contradictions and investigative omissions generated a reasonable doubt; whether the appellant's constitutional and DNA-related arguments have merit; and whether the prosecution displaced the alibi. The legality of the sentence must also be considered because the petition challenges sentence.
24. Section 9(1) of the Sexual Offences Act provides that a person who attempts to commit an act which would cause penetration with a child is guilty of attempted defilement. Section 9(2) provides that a person convicted of the offence is liable to imprisonment for a term of not less than ten years. The offence is therefore attempted defilement, not completed defilement, and actual penetration is not an ingredient.
25. Section 388(1) of the Penal Code supplies the general meaning of an attempt. A person attempts an offence when, intending to commit it, he begins to put that intention into execution by means adapted to its fulfilment and manifests the intention by an overt act, but does not complete the intended offence. The prosecution must therefore prove both the specific intention to penetrate and an overt act sufficiently proximate to the intended penetration. In Mussa s/o Said v Republic [1962] EA 454 , the court explained that the act must not be too remote and, where intention is inferred from conduct, must be incompatible with another reasonable explanation.
26. In Benson Musumbi v Republic [2019] eKLR , the High Court summarised the elements of attempted defilement as proof that the complainant was a child, positive identification of the assailant, and proof of steps taken to execute the intended defilement which did not succeed. Those elements provide an appropriate framework, but each must still be proved beyond reasonable doubt on the evidence in the particular case.
27. The birth certificate produced in evidence showed that the complainant was born on 7 th June 2016. She was therefore seven years and four months old on 8 th October 2023. The trial court stated that she was eight years old, evidently adopting her age when she later testified rather than her age at the time of the offence. That was an arithmetical error, but it caused no prejudice because the charge sheet correctly stated that she was seven and Section 9 does not vary the punishment according to the child's particular age bracket. Her status as a child was proved.
28. The next inquiry is whether the evidence disclosed acts which went beyond preparation and were immediately directed at penetration. The complainant did not merely allege that the appellant called her into the shop or touched her over her clothing. She stated that he removed her panty, placed her on a bed, removed his trousers and underwear, positioned his penis at her genital area and twice attempted insertion. If that evidence is truthful, the conduct unequivocally manifested an intention to penetrate and was sufficiently proximate to the completed offence. It would constitute attempted defilement rather than a mere indecent act or remote preparation.
29. The child's statement that the attempt 'refused' was an age-appropriate description that the intended insertion did not succeed. The Court must consider the substance of the evidence rather than demand technical or adult terminology from a seven-year-old witness. Her occasional use of the word 'inserted' in the typed record must also be read together with her repeated statement that the appellant tried twice but did not succeed. The prosecution case disclosed by the evidence was one of attempted, rather than completed, penetration.
30. The decisive question is therefore whether the complainant's account of those overt acts was sufficiently reliable to meet the criminal standard. Under the proviso to Section 124 of the Evidence Act , a court may convict in a sexual-offence case on the evidence of the alleged victim alone if the court is satisfied that the victim is telling the truth and records the reasons for that belief. Corroboration is not a statutory prerequisite, but the proviso does not lower the standard of proof.
31. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR stressed that a bare statement that the complainant is believed is insufficient; the court must disclose why it believes the witness. The trial judgment in the present case did not expressly invoke the proviso to section 124 and did not formulate its reasons with the clarity that was desirable. Its analysis was brief and did not squarely address every difficulty in the complainant's evidence. That deficiency must be acknowledged rather than glossed over.
32. The trial court nevertheless referred to the complainant's ability to narrate the events, the fact that she knew and recognised the appellant, and the absence of a demonstrated dispute between the families. Those matters indicate why the court accepted her testimony. This Court cannot, however, uphold the conviction merely by supplying reasons which the trial court did not articulate. The conviction can stand only if, upon the fresh and exhaustive evaluation required on a first appeal, this Court is itself satisfied beyond reasonable doubt that the complainant was truthful on the material acts.
33. I have therefore evaluated the complainant's evidence with particular caution. Her account contained a coherent sequence: the reason she went to the shop; the identity of the shop and its proprietor; the invitation inside; the initial touching; the inner room and bed; the removal of her undergarment and the appellant's clothing; the two unsuccessful attempts at insertion; the wiping; her departure; and the prompt report. The narrative contained details expressed in language natural to a child of her age and was not merely a conclusion supplied by an adult.
34. Her evidence was tested in cross-examination. She did not withdraw or materially alter the central assertion that the appellant removed her panty, undressed and attempted to put his penis into her private part. The apparent suggestion that another person remained in the shop was clarified in re-examination. Re-examination was properly confined to resolving an ambiguity arising during cross-examination. The evidence, read as a whole, did not establish that an independent customer remained in the shop throughout the alleged acts.
35. The prompt report is also relevant, though it is not independent proof that the sexual acts occurred. The complainant's mother met her coming from the direction of the shop while crying. The child immediately named 'Mwalimu' and stated that he had removed her panty and acted improperly. She thereafter gave the more detailed account to her aunt. The immediacy and consistency of the report support the conclusion that the allegation was not a later invention, while the truth of the acts must still be determined from the complainant's direct evidence.
36. The unexplained references to the sweets and the expressions that the complainant was asleep and woke up are weaknesses in the presentation of her account. They do not, however, contradict the identity of the person she accused or the overt acts she consistently described. The defence did not suggest that she had confused the shop, the proprietor or the nature of the acts, and no prior inconsistent statement on those central matters was proved.
37. I am satisfied, for reasons now expressly recorded, that the complainant was truthful on the central acts. Those reasons are the coherent and age-appropriate detail of her account; her prior familiarity with the appellant and the premises; her consistency under cross-examination on the removal of clothing and attempted insertion; the prompt naming of the appellant while distressed; and the absence of any proved motive connecting a seven-year-old child and her family to the alleged business rivalry. The absence of a proved motive is not itself proof of guilt, but it removes the only suggested basis for deliberate false implication.
38. I turn to the medical evidence. The absence of tears, bruises, lacerations, discharge or spermatozoa did not prove that an attempt occurred. Equally, those findings did not disprove an unsuccessful effort to penetrate. Injury, resistance, semen and completed penetration are not ingredients of the offence under Section 9(1). The medical findings were therefore neutral on the occurrence of the overt acts, though they were consistent with the prosecution's case that penetration was not achieved.
39. The appellant's argument that a seven-year-old child could not have resisted an adult without sustaining an injury proceeds from an assumption not supported by the statute or medical evidence. The prosecution was not required to prove resistance or the application of physical force. An attempt may fail for reasons unrelated to resistance and may occur without causing visible trauma. The absence of injury was a matter to weigh, but it could not be converted into a rule that the child's account was necessarily false.
40. The clinical officer's conclusion that the findings amounted to attempted defilement was not determinative. Whether proved facts satisfy the legal definition of an attempt is a question for the court.
41. The investigation had material shortcomings. No incriminating inference can properly be drawn from the stain observed on the appellant's trouser zip because it was not sampled and its nature is unknown. The alleged cloth or handkerchief was not produced. The complainant's mother stated that it was not found when they returned to look for it, whereas the aunt stated that police officers found a bed, mosquito net and handkerchief. The original investigating officer and the officers said to have entered the premises did not testify, and the officer who testified had neither visited the scene nor received exhibits.
42. That was a real contradiction concerning the alleged recovery, and the trial court ought to have addressed it. The prosecution's failure to preserve and analyse the cloth, if it was recovered, and the stain deprived the court of potentially useful objective evidence. Neither the alleged handkerchief nor the trouser stain can therefore be treated as corroboration of the complainant's account.
43. Section 36(1) of the Sexual Offences Act provides that the court may direct that appropriate samples be taken from an accused person for forensic or scientific testing, including DNA testing. The provision is permissive, not mandatory. The Court of Appeal has confirmed, including in Nzau v Republic [2022] KECA 502 (KLR) and Kirui v Republic [2024] KECA 959 (KLR) , that DNA evidence is not an indispensable element of every prosecution under the Sexual Offences Act.
44. In the present case, no spermatozoa or identified biological material was detected on the complainant. The alleged cloth was not proved to have been recovered and preserved, and the stain on the appellant's trousers was never identified as semen. A DNA order against the appellant would not, without a preserved comparison exhibit and a chain of custody, have answered the evidential question. The correct consequence of the investigative failure is to exclude the cloth and stain from the evidential basis of the conviction, not automatically to reject the complainant's direct testimony.
45. John Maina Kamau v Republic [2013] eKLR , relied on by the appellant, is distinguishable. In that case, spermatozoa had been detected and identity remained uncertain, yet the available biological material was not tested to connect it to the accused. Here, the charge was attempted defilement; no spermatozoa were detected; and identity was based on recognition by a child who knew the appellant. The decision does not establish that every sexual-offence prosecution without DNA evidence must fail.
46. Sections 144 and 173 of the Evidence Act do not impose a different result. Section 144 outlines the order in which foundational facts affecting admissibility are proved. Section 173 confers extended powers upon the court to ask questions or order production of a document or thing for the purpose of obtaining proper evidence. Those provisions do not compel a trial court to reconstruct an unpreserved exhibit or assume the investigative role of the police. The failure to order DNA testing in the circumstances disclosed by this record did not, without more, violate the appellant's right to a fair trial.
47. The broader constitutional arguments under Articles 19, 24, 25, 27 and 50 were advanced in general terms. The record shows that the appellant was represented by counsel, cross-examined the prosecution witnesses, objected to the production of the medical documents, gave sworn evidence and called a witness. No procedural exclusion, discrimination or denial of an identified fair-trial entitlement was demonstrated. The constitutional guarantees reinforce the requirement of proof beyond reasonable doubt; they do not make a particular form of scientific evidence mandatory where the statute does not.
48. The failure to call the original investigating officer, the assistant chief, the complainant's father or the officers who allegedly entered the shop did not automatically defeat the prosecution case. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. Under Bukenya & Others v Uganda [1972] EA 549 , an adverse inference may arise where essential evidence is withheld and the evidence called is barely adequate. The omitted witnesses would mainly have clarified the arrest, investigation and disputed recovery; none was said to have witnessed the attempted penetration. Their absence weakened the investigative and corroborative aspects of the case but did not extinguish the complainant's direct evidence if that evidence was otherwise reliable.
49. The witnesses gave different approximate times. The complainant referred to about 3.00 p.m.; her mother referred to about 2.45 p.m.; and her aunt said she was contacted at about 3.00 or 3.30 p.m. and estimated that the incident occurred at around 2.00 p.m. The variations are relevant because the alibi covered the afternoon. They nevertheless place the incident and report within the same general period, before the defence's stated end of the men's fellowship at 4.30 p.m. The witnesses did not claim to have checked the exact time.
50. The Court of Appeal in Philip Nzaka Watu v Republic [2016] eKLR explained that discrepancies must be evaluated in context and that the court must determine whether they are minor or go to the root of the case. The differences between 2.00 p.m., 2.45 p.m. and 3.00 p.m. do not alter the identity of the alleged assailant, the shop, the acts described or the fact that the report followed shortly thereafter. They are not comparable to the material contradiction concerning recovery of the handkerchief, which I have excluded from consideration.
51. Identification was by recognition. The incident occurred during the afternoon. The complainant had previously been sent to the appellant's shop, knew its proprietor as 'Mwalimu', conversed with him and said she remained with him at close range. The appellant admitted operating the shop for more than fifteen years and admitted that he was known as 'Mwalimu'. In Anjononi & Others v Republic [1980] KLR 59 , the Court of Appeal observed that recognition of a known attacker is generally more reliable than identification of a stranger because it depends on prior personal knowledge, although it must still be carefully examined.
52. The immediate naming of 'Mwalimu', the complainant's prior familiarity with the shop and proprietor, the daylight conditions and the duration of the alleged encounter substantially reduced the possibility of mistaken identity. The fact that the appellant was later confronted at his shop is consistent with both the prosecution and defence accounts and does not, by itself, prove that he had been there earlier. The decisive evidence placing him there at the material time remained the complainant's recognition evidence, which I have found credible for the reasons stated.
53. The appellant suggested business rivalry as the reason for the charge. He did not identify the alleged rival, describe the dispute or connect the complainant's mother, aunt or the child to it. The suggestion remained speculative. It did not shift the burden of proof, but it did not provide a reasonable explanation for the child's immediate and detailed accusation either.
54. I now turn to the alibi. An accused person who raises an alibi assumes no burden to prove it. The burden remains upon the prosecution to establish the accused's presence at the scene and to disprove the alibi beyond reasonable doubt. That principle was stated in Kiarie v Republic [1984] KLR 739 and Victor Mwendwa Mulinge v Republic [2014] eKLR . The timing of disclosure may be considered because early disclosure enables investigation, but a late alibi cannot be rejected merely as an afterthought or because the accused did not prove it.
55. The trial court described the alibi as an afterthought because it was not raised early or put to the prosecution witnesses, and concluded that the defence did not 'shake' the prosecution case. With respect, that formulation risked shifting the burden. The appellant was not required to shake or disprove the prosecution case. The correct question was whether, after considering the alibi and DW2's evidence, the prosecution had nevertheless proved the appellant's presence and conduct beyond reasonable doubt.
56. The alibi was not a bare denial. DW2 directly supported the appellant's claim that he was at church and at a men's fellowship until 4.30 p.m. His evidence was not to be rejected merely because he was a church colleague or because no church records were produced. The prosecution's cross-examination did not materially discredit his account. The respondent was therefore not correct to treat the defence as a mere denial.
57. The alibi, however, directly conflicts with the complainant's recognition evidence. DW2's evidence that he accompanied the appellant to the shop at about 4.30 p.m. explains the circumstances in which the crowd later confronted the appellant, but it does not independently establish the appellant's whereabouts during every moment between the end of the church service and the confrontation, except through DW2's assertion that they remained together at the fellowship. The Court must therefore decide which version is reliable, without placing a burden upon the appellant.
58. Against the alibi is the complainant's direct evidence that she knew the appellant, found him at his shop, conversed with him and remained with him during the acts. She named him immediately to her mother and consistently maintained the material allegation. Her mo
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