REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E048 OF 2024
JAPHETH MULEMA MULEMA….…………..…………………………..APPELLANT VERSUS REPUBLIC……………………….……….…….…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon M. Ochieng (SPM) delivered at Hamisi in the Senior Principal Magistrate’s Court in Sexual Offence Case No E001 of 2023 on 27th March 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate convicted him of the main charge and sentenced him to fifteen (15) years imprisonment.
3. Being dissatisfied with the said Judgement, on 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19 th December 2024. He set out four (4) grounds of appeal. On 1 st August 2025, he filed Amended Grounds of Appeal dated 8 th July 2025. He listed five (5) Amended Grounds of Appeal.
4. His Written Submissions were dated 8 th July 2025 and filed on 1 st August 2025 while those of the Respondent were dated 3 rd September 2025 and filed on 5 th September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt;
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
9. Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal No (1), (2), (3) and (4) were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant did not submit on the issue of the age of the Complainant (hereinafter referred to as “PW 1”). The Respondent placed reliance on the case of Musyoki Mwakavi vs Republic [2014] eKLR to the effect that age could be proved by medical evidence, baptism card, school leaving certificates, by the victim's parents and/or guardians, observation or common sense. It submitted that Grace Kasandi, PW 1’s grandmother, (hereinafter referred to as “PW2”) testified that PW1 was born on 24th January 2006 as per the Dedication Certificate. It submitted that age was, therefore, proved to be sixteen (16) years as at the time of commission of the offence.
13. The incident was said to have occurred in 2022. The Investigating Officer, No 236792 Inspector Edward Wanyama ( hereinafter referred to as “PW 3”) tendered in evidence the Dedication Certificate. It therefore, showed, that PW 1 was aged sixteen (16) years around the time of the commission of the offence.
14. The reliance of the Dedication Certificate was in line with the case of Musyoki Mwakavi vs Republic (Supra) and Rule 4 of the Sexual Offences Rules of Court, 2014 which provides that:-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.”
15. As the Appellant did not challenge the production of the aforesaid Dedication Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
16. The Appellant did not submit on this issue. On its part, the Respondent averred that the offence was committed during the day. PW1 testified that it was the Appellant who defiled her. She said that she knew him well as she had stayed with him for one and half (1½) months and further he was a relative. It pointed out that the incident happened more than once at the Appellant's house and that because he was well known to PW 1, she could not have been mistaken as to his identity.
17. It averred that it was evidence of recognition which courts had held to have been more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others v Republic, (1976-80)1 KLR 1566, 1568 .
18. PW 1 told the Trial Court that the Appellant was her uncle, her mother’s cousin. She testified that she finished KCPE in November 2021. She averred that in May 2022, PW 2 met the Appellant in a funeral and he asked her to allow her to help him with work as he had seen that she was not going to school. She stated that she went to his home after two (2) days but did not sleep there on the first day. She pointed out that his wife and child didn’t live there.
19. She told the Trial Court that she returned to his house and he asked her to help him with work without going home. She informed PW 2 of the arrangement and she told her to continue staying there so that she could continue with school . She went back to his house and worked for him for two (2) weeks.
20. From the evidence that was tendered, it was apparent that PW 1 stayed in the Appellant’s house for about three (3) weeks when the conditions of identification were favourable. In his sworn evidence, the Appellant admitted that PW 1 used to work for him. As PW 1 and the Appellant were related, this court was satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way of recognition. The question as to whether he defiled her was a different matter altogether.
C. PENETRATION
21. PW1 explained how the Appellant forced her to have unprotected sex with him on one of the nights that she stayed in his house and his wife was around. He threatened her that she would leave his house if she refused. She averred that since it was at night, she accepted. Her evidence was that he had sex with her twice that night.
22. Her further evidence was that she continued to work for another two (2) weeks after which his wife left and went to her home. She averred that after one (1) week, he forced her to have sex with him during the day on two (2) occasions.
23. She told the Trial Court that she went home but towards the end of May and in June and July, she did not see her menses. She suspected she was pregnant but did not tell anyone at home. She said that she went to her friend, Milka who was pregnant and they both went to Sabatia Hospital where she was examined and found to be pregnant.
24. Her further testimony was that after three (3) months, PW 3 asked her if she was pregnant but she remained silent. She added that when her aunt, Khavai, visited in December 2022, she enquired from her if she was pregnant which she answered in the affirmative. She said that she also told her that the only person she had had sexual intercourse with was the Appellant. Her further evidence was that after Christmas, the Appellant’s wife sent village elders to confirm if she was pregnant, which pregnancy she suspected was Appellant’s.
25. She further stated that on 20th January 2023, the Village Elders called him and he accepted the pregnancy to have been his. He again accepted to be responsible while at the Chief’s office. She said she delivered a baby on 22 nd February 2023 who was taken to Kisumu in a place she did not know.
26. On cross examination, she denied that she disagreed with Appellant’s wife and denied that she screamed during the sexual encounter. She said that the Appellant had sexual intercourse with her when his wife was present but he was whispering to her hence, his wife did not hear them. She said that the house had three (3) rooms and denied that she was the one who entered his room and switched on the lights or that she framed or that she wrote a letter demanding payment of money.
27. PW 2 testified that in February 2022, she found out that PW1 was pregnant. She informed the Village Elder who summoned the Appellant to her house. When he was asked if he knew about the incident, he said that "bibi ni wake ” (the wife was his). He said "mapenzi ambayo niko nayo na mtoto ni mzuri kuliko ya bibi yangu (the love he had with the child was better than that of his wife)."
28. The Clinical Officer at Sabatia Sub- County, Douglas Obare (hereinafter referred to as “PW4”), confirmed that PW1 was twenty eight (28) weeks pregnant when he examined her on 5 th January 2023. Although her labia majora and labia minor were okay, he noted that her hymen was not intact. He also examined the Appellant but he had no injuries to the penis and penile shaft. There was nothing notable in the lab tests. He filled the P3 form and lab results which he produced together with the treatment notes.
29. In his sworn defence, the Appellant denied having committed the offence and asked the court to order for DNA to confirm paternity. He admitted that PW 1 worked for him for one and half ( 1½) months. He stated that there was no grudge between him and PW 1 but that she only disagreed with his wife who did not want her in the house.
30. In his submissions before this court, he argued that penetration was not proved because DNA was not carried out. He cited the case of Eliud Ouma Agwara vs Republic [2016] eKLR where this very court held that the trial court fell into an error when it held that DNA results could never be a defence in an offence and added that the age of the pregnancy and the child should have related to the incident with the results confirming that the appellant therein was the father of the child.
31. He also cited the case of Acoffield Biko Ogweno vs Republic and argued that the evidence of DNA result was decisive and failure by the Prosecution to avail the same was adverse to its case.
32. He further argued that the Trial Court failed to weigh the Prosecution evidence because according to the Charge Sheet, the incident happened between June (sic) and 3 rd January 2023 while PW1 gave birth on 22 nd February 2023 which meant she gave birth one month earlier. He pointed out that PW'2 noted that PW 1 was pregnant on February 2022 which was before PW 1 went to work for him. He added that the medical evidence was quite remote having been taken on 5 th January 2023, seven (7) months from the day of the alleged incident hence, it did not corroborate the incident.
33. He further submitted that the circumstances prevailing were not conducive for the alleged defilement pursuant to Section 33 of the Sexual Offences Act since his wife was in the house and PW1 did not scream to alert his wife. He was emphatic that it was not possible for his wife not have to realised that he had woken up, gone outside, came back to the bedroom and then went to the sitting room. He added that his wife was also not called as a witness.
34. In a rejoinder, the Respondent cited the case of Mohammed Omar Mohammed vs Republic [2020] eKLR where the court stated that the key evidence in proving penetration was a complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer.
35. It stated that there was sufficient oral evidence and circumstantial evidence by virtue that PW 1 was expectant and, therefore, penetration was proved. It further stated that in its judgment, the Trial Court recorded that she observed PW1’s demeanor in court and found her evidence to have been credible.
36. It submitted that failure to do a DNA did not weaken a prosecution’s case. It cited AML vs Republic [2012]eKLR (Mombasa) where the court stated that the fact of rape or defilement was not proved by way of a DNA test but by way of evidence. It also placed reliance on the case of Wayu Omar Dololo vs Republic [2014] eKLR where the court observed that a pregnancy was a biological condition that resulted from a sexual activity unless there was evidence that there was artificial implanting of fertilised ova into the uterus of a female human being. It also referred this court to the case of Williamson Sowa Mbwanga vs Republic [2016] eKLR to demonstrate that what was to be proven was defilement and not paternity.
37. According to the Charge Sheet, the offence was committed between the month of June 2022 and 3 rd January 2023. From PW1’s evidence, the offence was committed in the month of May 2022. There was, therefore, a variance in the date when the offence was said to have been committed. Notably, the Charge Sheet was not amended as contemplated in Section 214 of the Criminal Procedure Code Cap 75 (Laws of Kenya) .
38. Notably, said Section 382 of the Criminal Procedure Code states that:-
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
39. It is worth nothing that pursuant to Section 382 of the Criminal Procedure Code, the Appellant did not state that he suffered prejudice due to the variance in the said dates. However, failure to object to the omission in a charge did not imply that an accused person was automatically guilty of the offence he had been charged with. The burden of proof lay with the Prosecution to provide evidence that would prove the offence.
40. The proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
41. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful.
42. According to PW 4, PW 1 was twenty eight (28) weeks or seven (7) months pregnant on 5 th January 2023, when he examined her meaning that she conceived in May 2022. This corroborated her evidence that she missed her menses from the month of June 2022, when she left his home. The Trial Court stated that it observed PW 1 demeanour and struck the court to be a truthful witness. It also observed that her evidence was credible.
43. PW 1 stated that she gave birth on 22 nd February 2023. By the time she testified on 26 th April 2023, the child was already born. Her evidence was that she did not know where the child was. This caused some uneasiness in the mind of this court. This is because it made it made it difficult for DNA to be conducted both during trial and at this stage. Indeed, the High Court had power to order for the taking of additional evidence at the appellate stage.
44. Section 358 of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides as follows:-
“In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.”
45. Defilement convictions carried long sentences making it necessary for one to be certain because the nature of the cases was the evidence of one party against the other unless of course there were eyewitnesses. In this case, PW 2 stated that she knew that PW 1 was pregnant in February 2022. Assuming PW 1 was one (1) month pregnant in February 2022, then she ought to have given birth in November 2022. The Prosecution did not re-examine her on this issue to clarify the position.
46. This court looked at the handwritten notes to ascertain if the typed proceedings had a typographical error but noted that the hand written notes of the Trial Court showed that PW 2 indeed stated that she discovered PW 1 was pregnant in February 2022. This date did not tally with PW 1’s evidence that she gave birth on 22 nd February 2023.
47. Going further, the period between when PW 1 got pregnant and when she discovered she was pregnant was too long to rule out another perpetrator. Indeed, PW 1 had asserted that she had only had sexual intercourse with the Appellant herein.
48. In his defence, the Defendant denied committing the offence and asked for a DNA test to be conducted to confirm paternity. He had also sought to know from PW 4 if he had conducted DNA. The Appellant’s request for DNA test was not frivolous as it was scientific evidence that would have tied him to PW 1 with certainty. It was also not an afterthought when he demanded that the same be done because he asked for the same before the Prosecution closed its case.
49. There were discrepancies and gaps which were substantial and this court could not ignore the same. It was not for the Appellant to exonerate himself from the allegations but rather, the Prosecution was under a duty to prove its case. This court was, thus not persuaded to find that the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt.
50. In the premises foregoing, Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal No (1), (2), (3) and (4) were dealt with under this head as they were all related.
IV. SENTENCE
51. Ground of Appeal No (5) of the Amended Grounds of Appeal was dealt with under this head.
52. Although this court noted the submissions by both parties in this regard, it did not find it necessary to analyse the same as it had already determined that the Prosecution did not prove its case beyond reasonable doubt. However, as this court was aware that it’s decision could be overturned on appeal, it found it necessary to pronounce itself on the legality of the sentence herein.
53. Notably, the Appellant was charged under Section 8(4) of the Sexual Offences Act . The same provides as follows:-
“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
54. In the event this court would have found the Appellant to have been culpable of the offence of defilement, it could not have faulted the Trial Court for having sentenced him to fifteen (15) years imprisonment as that is what the law provided. This court’s hands were also tied due to the decision that was delivered by the Supreme Court on 12 th July 2024 when it overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
55. The assertion that the Appellant had been bedridden would not have found persuaded this court to reduce the sentence as he did not canvass the issue during the hearing. This court would, however, had granted him the period that he spent in remand while his trial was on going between 3 rd January 2023 and 13 th May 2025 in line with Section 333(2) of the Criminal Procedure Code. This court noted that when the Trial Court delivered its decision, it did not take into account this period.
DISPOSITION
56. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Grounds of Appeal dated 19 th December 2024 and filed on 20th December 2024 and the Amended Grounds of Appeal dated 8 th July 2025 and filed on 1 st August 2025 were merited and the same be and is hereby allowed. The Appellant’s conviction and sentence be and are hereby set aside and/or vacated as they were both unsafe.
57. It is hereby directed that the Appellant be and is hereby released from custody forthwith unless he be held for any other lawful cause.
58. It is so ordered.
DATED and DELIVERED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
hccra no e048 of 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E048 OF 2024
JAPHETH MULEMA MULEMA….…………..…………………………..APPELLANT VERSUS REPUBLIC……………………….……….…….…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon M. Ochieng (SPM) delivered at Hamisi in the Senior Principal Magistrate’s Court in Sexual Offence Case No E001 of 2023 on 27th March 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate convicted him of the main charge and sentenced him to fifteen (15) years imprisonment.
3. Being dissatisfied with the said Judgement, on 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19 th December 2024. He set out four (4) grounds of appeal. On 1 st August 2025, he filed Amended Grounds of Appeal dated 8 th July 2025. He listed five (5) Amended Grounds of Appeal.
4. His Written Submissions were dated 8 th July 2025 and filed on 1 st August 2025 while those of the Respondent were dated 3 rd September 2025 and filed on 5 th September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt;
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
9. Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal No (1), (2), (3) and (4) were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant did not submit on the issue of the age of the Complainant (hereinafter referred to as “PW 1”). The Respondent placed reliance on the case of Musyoki Mwakavi vs Republic [2014] eKLR to the effect that age could be proved by medical evidence, baptism card, school leaving certificates, by the victim's parents and/or guardians, observation or common sense. It submitted that Grace Kasandi, PW 1’s grandmother, (hereinafter referred to as “PW2”) testified that PW1 was born on 24th January 2006 as per the Dedication Certificate. It submitted that age was, therefore, proved to be sixteen (16) years as at the time of commission of the offence.
13. The incident was said to have occurred in 2022. The Investigating Officer, No 236792 Inspector Edward Wanyama ( hereinafter referred to as “PW 3”) tendered in evidence the Dedication Certificate. It therefore, showed, that PW 1 was aged sixteen (16) years around the time of the commission of the offence.
14. The reliance of the Dedication Certificate was in line with the case of Musyoki Mwakavi vs Republic (Supra) and Rule 4 of the Sexual Offences Rules of Court, 2014 which provides that:-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.”
15. As the Appellant did not challenge the production of the aforesaid Dedication Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
16. The Appellant did not submit on this issue. On its part, the Respondent averred that the offence was committed during the day. PW1 testified that it was the Appellant who defiled her. She said that she knew him well as she had stayed with him for one and half (1½) months and further he was a relative. It pointed out that the incident happened more than once at the Appellant's house and that because he was well known to PW 1, she could not have been mistaken as to his identity.
17. It averred that it was evidence of recognition which courts had held to have been more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others v Republic, (1976-80)1 KLR 1566, 1568 .
18. PW 1 told the Trial Court that the Appellant was her uncle, her mother’s cousin. She testified that she finished KCPE in November 2021. She averred that in May 2022, PW 2 met the Appellant in a funeral and he asked her to allow her to help him with work as he had seen that she was not going to school. She stated that she went to his home after two (2) days but did not sleep there on the first day. She pointed out that his wife and child didn’t live there.
19. She told the Trial Court that she returned to his house and he asked her to help him with work without going home. She informed PW 2 of the arrangement and she told her to continue staying there so that she could continue with school . She went back to his house and worked for him for two (2) weeks.
20. From the evidence that was tendered, it was apparent that PW 1 stayed in the Appellant’s house for about three (3) weeks when the conditions of identification were favourable. In his sworn evidence, the Appellant admitted that PW 1 used to work for him. As PW 1 and the Appellant were related, this court was satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way of recognition. The question as to whether he defiled her was a different matter altogether.
C. PENETRATION
21. PW1 explained how the Appellant forced her to have unprotected sex with him on one of the nights that she stayed in his house and his wife was around. He threatened her that she would leave his house if she refused. She averred that since it was at night, she accepted. Her evidence was that he had sex with her twice that night.
22. Her further evidence was that she continued to work for another two (2) weeks after which his wife left and went to her home. She averred that after one (1) week, he forced her to have sex with him during the day on two (2) occasions.
23. She told the Trial Court that she went home but towards the end of May and in June and July, she did not see her menses. She suspected she was pregnant but did not tell anyone at home. She said that she went to her friend, Milka who was pregnant and they both went to Sabatia Hospital where she was examined and found to be pregnant.
24. Her further testimony was that after three (3) months, PW 3 asked her if she was pregnant but she remained silent. She added that when her aunt, Khavai, visited in December 2022, she enquired from her if she was pregnant which she answered in the affirmative. She said that she also told her that the only person she had had sexual intercourse with was the Appellant. Her further evidence was that after Christmas, the Appellant’s wife sent village elders to confirm if she was pregnant, which pregnancy she suspected was Appellant’s.
25. She further stated that on 20th January 2023, the Village Elders called him and he accepted the pregnancy to have been his. He again accepted to be responsible while at the Chief’s office. She said she delivered a baby on 22 nd February 2023 who was taken to Kisumu in a place she did not know.
26. On cross examination, she denied that she disagreed with Appellant’s wife and denied that she screamed during the sexual encounter. She said that the Appellant had sexual intercourse with her when his wife was present but he was whispering to her hence, his wife did not hear them. She said that the house had three (3) rooms and denied that she was the one who entered his room and switched on the lights or that she framed or that she wrote a letter demanding payment of money.
27. PW 2 testified that in February 2022, she found out that PW1 was pregnant. She informed the Village Elder who summoned the Appellant to her house. When he was asked if he knew about the incident, he said that "bibi ni wake ” (the wife was his). He said "mapenzi ambayo niko nayo na mtoto ni mzuri kuliko ya bibi yangu (the love he had with the child was better than that of his wife)."
28. The Clinical Officer at Sabatia Sub- County, Douglas Obare (hereinafter referred to as “PW4”), confirmed that PW1 was twenty eight (28) weeks pregnant when he examined her on 5 th January 2023. Although her labia majora and labia minor were okay, he noted that her hymen was not intact. He also examined the Appellant but he had no injuries to the penis and penile shaft. There was nothing notable in the lab tests. He filled the P3 form and lab results which he produced together with the treatment notes.
29. In his sworn defence, the Appellant denied having committed the offence and asked the court to order for DNA to confirm paternity. He admitted that PW 1 worked for him for one and half ( 1½) months. He stated that there was no grudge between him and PW 1 but that she only disagreed with his wife who did not want her in the house.
30. In his submissions before this court, he argued that penetration was not proved because DNA was not carried out. He cited the case of Eliud Ouma Agwara vs Republic [2016] eKLR where this very court held that the trial court fell into an error when it held that DNA results could never be a defence in an offence and added that the age of the pregnancy and the child should have related to the incident with the results confirming that the appellant therein was the father of the child.
31. He also cited the case of Acoffield Biko Ogweno vs Republic and argued that the evidence of DNA result was decisive and failure by the Prosecution to avail the same was adverse to its case.
32. He further argued that the Trial Court failed to weigh the Prosecution evidence because according to the Charge Sheet, the incident happened between June (sic) and 3 rd January 2023 while PW1 gave birth on 22 nd February 2023 which meant she gave birth one month earlier. He pointed out that PW'2 noted that PW 1 was pregnant on February 2022 which was before PW 1 went to work for him. He added that the medical evidence was quite remote having been taken on 5 th January 2023, seven (7) months from the day of the alleged incident hence, it did not corroborate the incident.
33. He further submitted that the circumstances prevailing were not conducive for the alleged defilement pursuant to Section 33 of the Sexual Offences Act since his wife was in the house and PW1 did not scream to alert his wife. He was emphatic that it was not possible for his wife not have to realised that he had woken up, gone outside, came back to the bedroom and then went to the sitting room. He added that his wife was also not called as a witness.
34. In a rejoinder, the Respondent cited the case of Mohammed Omar Mohammed vs Republic [2020] eKLR where the court stated that the key evidence in proving penetration was a complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer.
35. It stated that there was sufficient oral evidence and circumstantial evidence by virtue that PW 1 was expectant and, therefore, penetration was proved. It further stated that in its judgment, the Trial Court recorded that she observed PW1’s demeanor in court and found her evidence to have been credible.
36. It submitted that failure to do a DNA did not weaken a prosecution’s case. It cited AML vs Republic [2012]eKLR (Mombasa) where the court stated that the fact of rape or defilement was not proved by way of a DNA test but by way of evidence. It also placed reliance on the case of Wayu Omar Dololo vs Republic [2014] eKLR where the court observed that a pregnancy was a biological condition that resulted from a sexual activity unless there was evidence that there was artificial implanting of fertilised ova into the uterus of a female human being. It also referred this court to the case of Williamson Sowa Mbwanga vs Republic [2016] eKLR to demonstrate that what was to be proven was defilement and not paternity.
37. According to the Charge Sheet, the offence was committed between the month of June 2022 and 3 rd January 2023. From PW1’s evidence, the offence was committed in the month of May 2022. There was, therefore, a variance in the date when the offence was said to have been committed. Notably, the Charge Sheet was not amended as contemplated in Section 214 of the Criminal Procedure Code Cap 75 (Laws of Kenya) .
38. Notably, said Section 382 of the Criminal Procedure Code states that:-
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
39. It is worth nothing that pursuant to Section 382 of the Criminal Procedure Code, the Appellant did not state that he suffered prejudice due to the variance in the said dates. However, failure to object to the omission in a charge did not imply that an accused person was automatically guilty of the offence he had been charged with. The burden of proof lay with the Prosecution to provide evidence that would prove the offence.
40. The proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
41. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful.
42. According to PW 4, PW 1 was twenty eight (28) weeks or seven (7) months pregnant on 5 th January 2023, when he examined her meaning that she conceived in May 2022. This corroborated her evidence that she missed her menses from the month of June 2022, when she left his home. The Trial Court stated that it observed PW 1 demeanour and struck the court to be a truthful witness. It also observed that her evidence was credible.
43. PW 1 stated that she gave birth on 22 nd February 2023. By the time she testified on 26 th April 2023, the child was already born. Her evidence was that she did not know where the child was. This caused some uneasiness in the mind of this court. This is because it made it made it difficult for DNA to be conducted both during trial and at this stage. Indeed, the High Court had power to order for the taking of additional evidence at the appellate stage.
44. Section 358 of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides as follows:-
“In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.”
45. Defilement convictions carried long sentences making it necessary for one to be certain because the nature of the cases was the evidence of one party against the other unless of course there were eyewitnesses. In this case, PW 2 stated that she knew that PW 1 was pregnant in February 2022. Assuming PW 1 was one (1) month pregnant in February 2022, then she ought to have given birth in November 2022. The Prosecution did not re-examine her on this issue to clarify the position.
46. This court looked at the handwritten notes to ascertain if the typed proceedings had a typographical error but noted that the hand written notes of the Trial Court showed that PW 2 indeed stated that she discovered PW 1 was pregnant in February 2022. This date did not tally with PW 1’s evidence that she gave birth on 22 nd February 2023.
47. Going further, the period between when PW 1 got pregnant and when she discovered she was pregnant was too long to rule out another perpetrator. Indeed, PW 1 had asserted that she had only had sexual intercourse with the Appellant herein.
48. In his defence, the Defendant denied committing the offence and asked for a DNA test to be conducted to confirm paternity. He had also sought to know from PW 4 if he had conducted DNA. The Appellant’s request for DNA test was not frivolous as it was scientific evidence that would have tied him to PW 1 with certainty. It was also not an afterthought when he demanded that the same be done because he asked for the same before the Prosecution closed its case.
49. There were discrepancies and gaps which were substantial and this court could not ignore the same. It was not for the Appellant to exonerate himself from the allegations but rather, the Prosecution was under a duty to prove its case. This court was, thus not persuaded to find that the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt.
50. In the premises foregoing, Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Amended Grounds of Appeal No (1), (2), (3) and (4) were dealt with under this head as they were all related.
IV. SENTENCE
51. Ground of Appeal No (5) of the Amended Grounds of Appeal was dealt with under this head.
52. Although this court noted the submissions by both parties in this regard, it did not find it necessary to analyse the same as it had already determined that the Prosecution did not prove its case beyond reasonable doubt. However, as this court was aware that it’s decision could be overturned on appeal, it found it necessary to pronounce itself on the legality of the sentence herein.
53. Notably, the Appellant was charged under Section 8(4) of the Sexual Offences Act . The same provides as follows:-
“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
54. In the event this court would have found the Appellant to have been culpable of the offence of defilement, it could not have faulted the Trial Court for having sentenced him to fifteen (15) years imprisonment as that is what the law provided. This court’s hands were also tied due to the decision that was delivered by the Supreme Court on 12 th July 2024 when it overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic [2022] eKLR and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence.
55. The assertion that the Appellant had been bedridden would not have found persuaded this court to reduce the sentence as he did not canvass the issue during the hearing. This court would, however, had granted him the period that he spent in remand while his trial was on going between 3 rd January 2023 and 13 th May 2025 in line with Section 333(2) of the Criminal Procedure Code. This court noted that when the Trial Court delivered its decision, it did not take into account this period.
DISPOSITION
56. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Grounds of Appeal dated 19 th December 2024 and filed on 20th December 2024 and the Amended Grounds of Appeal dated 8 th July 2025 and filed on 1 st August 2025 were merited and the same be and is hereby allowed. The Appellant’s conviction and sentence be and are hereby set aside and/or vacated as they were both unsafe.
57. It is hereby directed that the Appellant be and is hereby released from custody forthwith unless he be held for any other lawful cause.
58. It is so ordered.
DATED and DELIVERED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
hccra no e048 of 20242