Being an Appeal against the Judgment and conviction of the Chief Magistrate’s Court at Malindi Hon. Onalo J.K Olga Resident Magistrate in S.O E029 of 2021 delivered on 7 th July, 2023)
The appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. The particulars of the charge were that on the 5 th day of March, 2021 at Kata Village, Marafa Location in Magarini Sub County within Kilifi County, intentionally attempted to cause his penis to penetrate the vagina of R.K.C a child aged 9 years.
The appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 5 th day of March, 2021 Kata Village, Marafa Location in Magarini Sub County within Kilifi County, intentionally touched the vagina of R.K.C a child aged 9 years with his penis.
The appellant pleaded not guilty to the charges when he was arraigned in court. The matter proceeded with the prosecution calling four (4) witnesses. The appellant when placed on his defence gave a sworn statement and he did not call any witness. In a judgment delivered on 7 th July, 2023, the trial court found the appellant guilty of the main charge of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve eight (8) years.
The appellant aggrieved by the conviction and sentence preferred this appeal. He raised four (4) grounds of appeal to wit:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by law in breach of Section 109 and 110 of the Evidence Act;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions by the prosecution in contravention of Section 163(1)(c) of the Evidence Act;
3. That the learned trial magistrate erred in law and facts by failing to consider both conviction and sentence were against the weight of the evidence adduced by the prosecution; and
4. That the learned trial magistrate erred in law and facts by failing to adequately consider his defence.
The prosecution case was briefly that PW1 the victim who gave sworn testimony after voire dire examination told the court that she was aged 10 years at the time she testified and was a class two pupil at Bodoi Primary School. She said the appellant was known to her as her uncle. Her evidence of the incident was that on 5 th March, 2021 she was playing with her siblings Mramba, Patrick and Jackson. They were also with Tuma the appellant’s child. The appellant called her into his house to help him peel cassava. The appellant put her on the bed, removed her panty and he also removed his pants and put his penis in her vagina. She narrated what the appellant did in Kiswahili stating that the appellant “alinigaidi”. She stated the appellant “removed hiyo panty yake, nikaona dude lake yenye alitumia kunigaindi na huwa analitumia kukojoa.” She said she felt pain when he tried to insert the same inside her and she was in pain and started crying. She said he did not insert the whole of his penis inside her but just tried to put it on the surface. She cried heading to home to her mother. She was then taken to hospital and went to Marafa police station.
When cross-examined she said she was with Baraka when he called her. baraka was inside the house and he removed him outside and told him to go to the kitchen which was about 150 metres apart. She said she cried loudly but no one came. She said the incident happened at around lunchtime. She said the appellant had told her mother to go and fetch water but she did not get the water and so she came back and found her crying. She said the appellant did not call her child to help her peel the cassava even though she was there.
PW2 No. 54096 Cpl. Japhet Mambo of Marafa police station investigated the case. He told the trial court that on 6 th March, 2021 while at the report office he went through the Occurrence Book and found that he had been assigned the case to investigate. The allegation was that a child by the name R.C had been defiled by the appellant. He talked with the complainant’s father PW4 who brought the child to the station and he recorded her statement. At the time of the report the child had already been issued with a P3 Form. The child was taken to Malindi General Hospital and the doctor found that she had not been penetrated. He arrested the appellant and charged him with attempted defilement.
On cross-examination he said he relied on the findings in the P3 Form in arriving at the decision to charge the appellant with attempted defilement as the appellant had touched the child. He said it is the child who stated that the appellant called in his house to help him peel cassava and then he took her to the bed. When he started touching her, she started crying and he let her go.
PW3 Tuma Jumaa is the appellant’s daughter. She was examined voire dire and gave unsworn statement. She said it was during the day and she was at home with her brother Baraka, Tsofa and Amina. They were playing when the appellant called the complainant to go and peel cassava. The complainant came and entered the house alone and his father the appellant closed the door. Later the complainant came outside the house crying. His father also came outside the house.
On cross-examination she said the complainant was at their home at the time when the appellant called her from her home. She said at the time the appellant was cooking cassava and at the time he called the appellant the cassava was already cooked but there was some cassava which was not cooked which he called the complainant to peel. She said when the complainant passed heading to the appellant’s house, they did not greet her. She maintained that she was telling the truth. She said Baraka saw the complainant heading to the appellant’s house. She further stated that they did not ask the complainant why she was crying.
PW4 Rufus Katana Charo is the father of the complainant. He said on 5 th March, 2021 he was at Marafa where he used to ply his trade of carpentry. He was called by his wife at around 2.30pm and told him that the appellant had attempted to defile the complainant. He went home and found the appellant. he also went to get his wife who was at a neigbours home. He enquired what had happened and the complainant narrated to him what had happened. He further said Tuma also said that the appellant called the complainant to his house and she came out of the house crying. He asked the appellant who is his brother what had happened but he told him that he can go to the police. He went to the police station and later took the complainant to hospital.
On cross-examination he said he was told that the appellant defiled the complainant. He believed because he took the complainant to hospital. He said the children themselves also said what happened including the appellant’s child. He said the appellant wanted to have the issue resolved but wondered how his child is going to view him. He said the appellant said he wanted to defile the child but when she cried and the other children who were there also cried, he got scared and let her go.
The appellant when put on his defence he stated he did not see the complainant live alone defiling her. He attributed the allegations to a grudge he had with the complainant mother. He said the complainant mother was found by him and his grandmother in forest having sex with Shida Mukambi. She asked for forgiveness then she went home. Later she came to his house and asked him to have sex with her but he refused as she was sister-in-law. She feared that he will tell her husband. It is at this time that she took her child and went to Samwel a neighbour and then called her husband to the neighbour’s home and started saying that he had defiled her child. His brother PW4 came and he denied having defiled the child but he did not believe it and he told them that they can take the child to hospital to be checked. He said the following day he asked them what was the outcome of the examination but instead PW4 started accusing him of fighting over land and threatened to have him arrested. He was then arrested on allegation of defilement. He said he is the one who brought PW4 to the land after he was released from prison over defilement but he was now causing chaos.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered.
Briefly, the appellant submitted that the element of age was not proved as the birth certificate the prosecution relied on was procured in 2019 while the complainant was born in 2011 which he submitted was a plot to frame him for reasons well known to the prosecution. He urged the court to disregard the evidence adduced before the trial court regarding the proof of age of the complainant. Further the appellant submitted that the evidence of PW1 indicated that there was penetration contrary to the finding of the doctor who said there was no penetration but an attempt to penetrate. He wondered why he was not charged with defilement going by the evidence of the complainant. He argued that the whole case was a frame up. He further wondered why the complainant’s mother was never called to testify. He questioned the credibility of the prosecution witnesses and especially the complainant and PW3 whom she said were not aware of what was being investigated. He faulted the trial court for disregarding his defence and especially that there existed a grudge between him and the mother of the complainant.
The respondent on its part submitted that the case was proved as required. It was submitted that the prosecution proved all the ingredients of the offence of attempted defilement to wit the ingredients of defilement except penetration as required. It was submitted that the complainant and PW3 were categorical that the appellant attempted to defile the complainant but the same was not actualized as the complainant cried during the attempt prompting he appellant to release her. reliance was placed on the case of Bungoma HC Criminal Appeal No. 176 of 2016. The respondent maintained that the prosecution evidence was consistent and corroborative and the appellant cannot allege any contradictions.
This being a first appeal, it is trite that the duty of this court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision without overlooking the fact that it did not have the chance to hear and see the witnesses testify in court. This cardinal principle was laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court independently to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Further to the foregoing, it must be remembered that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Therefore, the issues for determination in this case are:
a) Whether the prosecution proved its case against the appellant beyond reasonable doubt;
b) Whether the appellant’s defence raised any doubt on the prosecution’s case; and
c) Whether the sentence imposed is lawful.
In this case the appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act which provides:
“9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.
From the foregoing provision, the prosecution was required to prove the ingredients of defilement save for penetration. In other words, the prosecution is required to prove, firstly the age of the complainant, attempted penetration and identification of the assailant.
In the instant case, the prosecution produced birth certificate showing that the complainant was born on 9 th May, 2011. The offence is alleged to have been committed 5 th March, 2021. Simple arithmetic puts the age of the complainant at approximately 9 years. It therefore follows that the age was proved as required.
On the positive identification of the appellant as the assailant, there is no dispute that the complainant knew the appellant as her uncle being brother to her father. It was also the evidence of PW3 that the appellant was her father. Further PW4 in his testimony knew the appellant as his brother. Therefore, chances of mistaken identity are very remote. The prosecution therefore proved the element of identification of the appellant as required.
This appeal therefore lies on whether there was attempted penetration. In other words, the prosecution must show that there was failed defilement in the sense that the complainant was not penetrated but there was attempt to penetrate. The prosecution must led evidence to show the overt act that the assailant with intent took steps to penetrate the victim. The Black’s Law Dictionary 10 th Edition defines attempt to mean:
“An overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime.”
In the instant case, the trial court relied on the evidence of PW1 and PW3 who stated that the appellant called the complainant to the house and she came out crying. The complainant in her evidence said that the appellant undressed her and also removed his pants. He tried inserting his penis into her vagina but she felt pai and started crying. The trial court believed the evidence of the complainant which it found was corroborated by that of PW3. The trial court was alive to the provisions of Section 124 of the Evidence Act which requires no corroboration in evidence of a minor provided the court is satisfied that the minor is telling the truth and the reasons for so believing being recorded in the trial court judgment. In this case it is incumbent to point out that both the complainant and PW3 were minors. The trial court judgment does not seem to have record of reasons why it believed the evidence of the two minors. I am not persuaded that the finding of the trial court in believing the evidence of the two minors was based on any reasons. I state so because, it is clear from the evidence of PW4 that he was informed of the incident by his wife the mother of the complainant. The appellant in his defence alluded to grudges with the complainant’s mother. The trial court apart from stating what the appellant stated in his defence, it appears did nothing to apart from stating that it found the defence of no relevance to the case. I disagree with trial court for reason that had the complainant’s mother who informed PW4 of the incident been called as a witness, probably the alleged grudge alluded to by the appellant would have come out clearly. Much as the prosecution is not bound to call as many witnesses as possible, I find that the evidence of the complainant’s mother was crucial in this case and failure to call her as a witness draws adverse inference to the prosecution case. Further to the foregoing and in as much as medical evidence may not be necessary in a case of attempted defilement, I find it curious that the investigating officer upon relying on the finding of the doctor who concluded that there was no penetration, he found it not necessary to call him as witness in view of the evidence of PW1 who stated that the appellant attempted to insert his penis into her vagina. This is because the complainant said she felt pain when the appellant attempted to defile her suggesting that indeed the appellant tried to insert her penis into the complainant’s vagina hence possibility of injuries on her genitalia.
All the foregoing raises doubt on the prosecution case and that doubt must be decided to the benefit of the appellant. In the circumstances I entertain doubt on the prosecution case and consequently I find the appeal merited and the same is allowed. The appellant is hereby acquitted and set free unless otherwise lawfully held.
Dated, signed and delivered virtually this 17 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Shimo Medium G.K Prison
Ms. Mutua for the respondent appearing virtually
Ms. Otwo Court Assistant appearing virtually from Milimani Law Court
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The appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. The particulars of the charge were that on the 5 th day of March, 2021 at Kata Village, Marafa Location in Magarini Sub County within Kilifi County, intentionally attempted to cause his penis to penetrate the vagina of R.K.C a child aged 9 years.
The appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 5 th day of March, 2021 Kata Village, Marafa Location in Magarini Sub County within Kilifi County, intentionally touched the vagina of R.K.C a child aged 9 years with his penis.
The appellant pleaded not guilty to the charges when he was arraigned in court. The matter proceeded with the prosecution calling four (4) witnesses. The appellant when placed on his defence gave a sworn statement and he did not call any witness. In a judgment delivered on 7 th July, 2023, the trial court found the appellant guilty of the main charge of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve eight (8) years.
The appellant aggrieved by the conviction and sentence preferred this appeal. He raised four (4) grounds of appeal to wit:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by law in breach of Section 109 and 110 of the Evidence Act;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions by the prosecution in contravention of Section 163(1)(c) of the Evidence Act;
3. That the learned trial magistrate erred in law and facts by failing to consider both conviction and sentence were against the weight of the evidence adduced by the prosecution; and
4. That the learned trial magistrate erred in law and facts by failing to adequately consider his defence.
The prosecution case was briefly that PW1 the victim who gave sworn testimony after voire dire examination told the court that she was aged 10 years at the time she testified and was a class two pupil at Bodoi Primary School. She said the appellant was known to her as her uncle. Her evidence of the incident was that on 5 th March, 2021 she was playing with her siblings Mramba, Patrick and Jackson. They were also with Tuma the appellant’s child. The appellant called her into his house to help him peel cassava. The appellant put her on the bed, removed her panty and he also removed his pants and put his penis in her vagina. She narrated what the appellant did in Kiswahili stating that the appellant “alinigaidi”. She stated the appellant “removed hiyo panty yake, nikaona dude lake yenye alitumia kunigaindi na huwa analitumia kukojoa.” She said she felt pain when he tried to insert the same inside her and she was in pain and started crying. She said he did not insert the whole of his penis inside her but just tried to put it on the surface. She cried heading to home to her mother. She was then taken to hospital and went to Marafa police station.
When cross-examined she said she was with Baraka when he called her. baraka was inside the house and he removed him outside and told him to go to the kitchen which was about 150 metres apart. She said she cried loudly but no one came. She said the incident happened at around lunchtime. She said the appellant had told her mother to go and fetch water but she did not get the water and so she came back and found her crying. She said the appellant did not call her child to help her peel the cassava even though she was there.
PW2 No. 54096 Cpl. Japhet Mambo of Marafa police station investigated the case. He told the trial court that on 6 th March, 2021 while at the report office he went through the Occurrence Book and found that he had been assigned the case to investigate. The allegation was that a child by the name R.C had been defiled by the appellant. He talked with the complainant’s father PW4 who brought the child to the station and he recorded her statement. At the time of the report the child had already been issued with a P3 Form. The child was taken to Malindi General Hospital and the doctor found that she had not been penetrated. He arrested the appellant and charged him with attempted defilement.
On cross-examination he said he relied on the findings in the P3 Form in arriving at the decision to charge the appellant with attempted defilement as the appellant had touched the child. He said it is the child who stated that the appellant called in his house to help him peel cassava and then he took her to the bed. When he started touching her, she started crying and he let her go.
PW3 Tuma Jumaa is the appellant’s daughter. She was examined voire dire and gave unsworn statement. She said it was during the day and she was at home with her brother Baraka, Tsofa and Amina. They were playing when the appellant called the complainant to go and peel cassava. The complainant came and entered the house alone and his father the appellant closed the door. Later the complainant came outside the house crying. His father also came outside the house.
On cross-examination she said the complainant was at their home at the time when the appellant called her from her home. She said at the time the appellant was cooking cassava and at the time he called the appellant the cassava was already cooked but there was some cassava which was not cooked which he called the complainant to peel. She said when the complainant passed heading to the appellant’s house, they did not greet her. She maintained that she was telling the truth. She said Baraka saw the complainant heading to the appellant’s house. She further stated that they did not ask the complainant why she was crying.
PW4 Rufus Katana Charo is the father of the complainant. He said on 5 th March, 2021 he was at Marafa where he used to ply his trade of carpentry. He was called by his wife at around 2.30pm and told him that the appellant had attempted to defile the complainant. He went home and found the appellant. he also went to get his wife who was at a neigbours home. He enquired what had happened and the complainant narrated to him what had happened. He further said Tuma also said that the appellant called the complainant to his house and she came out of the house crying. He asked the appellant who is his brother what had happened but he told him that he can go to the police. He went to the police station and later took the complainant to hospital.
On cross-examination he said he was told that the appellant defiled the complainant. He believed because he took the complainant to hospital. He said the children themselves also said what happened including the appellant’s child. He said the appellant wanted to have the issue resolved but wondered how his child is going to view him. He said the appellant said he wanted to defile the child but when she cried and the other children who were there also cried, he got scared and let her go.
The appellant when put on his defence he stated he did not see the complainant live alone defiling her. He attributed the allegations to a grudge he had with the complainant mother. He said the complainant mother was found by him and his grandmother in forest having sex with Shida Mukambi. She asked for forgiveness then she went home. Later she came to his house and asked him to have sex with her but he refused as she was sister-in-law. She feared that he will tell her husband. It is at this time that she took her child and went to Samwel a neighbour and then called her husband to the neighbour’s home and started saying that he had defiled her child. His brother PW4 came and he denied having defiled the child but he did not believe it and he told them that they can take the child to hospital to be checked. He said the following day he asked them what was the outcome of the examination but instead PW4 started accusing him of fighting over land and threatened to have him arrested. He was then arrested on allegation of defilement. He said he is the one who brought PW4 to the land after he was released from prison over defilement but he was now causing chaos.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered.
Briefly, the appellant submitted that the element of age was not proved as the birth certificate the prosecution relied on was procured in 2019 while the complainant was born in 2011 which he submitted was a plot to frame him for reasons well known to the prosecution. He urged the court to disregard the evidence adduced before the trial court regarding the proof of age of the complainant. Further the appellant submitted that the evidence of PW1 indicated that there was penetration contrary to the finding of the doctor who said there was no penetration but an attempt to penetrate. He wondered why he was not charged with defilement going by the evidence of the complainant. He argued that the whole case was a frame up. He further wondered why the complainant’s mother was never called to testify. He questioned the credibility of the prosecution witnesses and especially the complainant and PW3 whom she said were not aware of what was being investigated. He faulted the trial court for disregarding his defence and especially that there existed a grudge between him and the mother of the complainant.
The respondent on its part submitted that the case was proved as required. It was submitted that the prosecution proved all the ingredients of the offence of attempted defilement to wit the ingredients of defilement except penetration as required. It was submitted that the complainant and PW3 were categorical that the appellant attempted to defile the complainant but the same was not actualized as the complainant cried during the attempt prompting he appellant to release her. reliance was placed on the case of Bungoma HC Criminal Appeal No. 176 of 2016. The respondent maintained that the prosecution evidence was consistent and corroborative and the appellant cannot allege any contradictions.
This being a first appeal, it is trite that the duty of this court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision without overlooking the fact that it did not have the chance to hear and see the witnesses testify in court. This cardinal principle was laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court independently to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Further to the foregoing, it must be remembered that the prosecution bears the burden to prove the charges against an accused person beyond reasonable doubt. Therefore, the issues for determination in this case are:
a) Whether the prosecution proved its case against the appellant beyond reasonable doubt;
b) Whether the appellant’s defence raised any doubt on the prosecution’s case; and
c) Whether the sentence imposed is lawful.
In this case the appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act which provides:
“9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.
From the foregoing provision, the prosecution was required to prove the ingredients of defilement save for penetration. In other words, the prosecution is required to prove, firstly the age of the complainant, attempted penetration and identification of the assailant.
In the instant case, the prosecution produced birth certificate showing that the complainant was born on 9 th May, 2011. The offence is alleged to have been committed 5 th March, 2021. Simple arithmetic puts the age of the complainant at approximately 9 years. It therefore follows that the age was proved as required.
On the positive identification of the appellant as the assailant, there is no dispute that the complainant knew the appellant as her uncle being brother to her father. It was also the evidence of PW3 that the appellant was her father. Further PW4 in his testimony knew the appellant as his brother. Therefore, chances of mistaken identity are very remote. The prosecution therefore proved the element of identification of the appellant as required.
This appeal therefore lies on whether there was attempted penetration. In other words, the prosecution must show that there was failed defilement in the sense that the complainant was not penetrated but there was attempt to penetrate. The prosecution must led evidence to show the overt act that the assailant with intent took steps to penetrate the victim. The Black’s Law Dictionary 10 th Edition defines attempt to mean:
“An overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime.”
In the instant case, the trial court relied on the evidence of PW1 and PW3 who stated that the appellant called the complainant to the house and she came out crying. The complainant in her evidence said that the appellant undressed her and also removed his pants. He tried inserting his penis into her vagina but she felt pai and started crying. The trial court believed the evidence of the complainant which it found was corroborated by that of PW3. The trial court was alive to the provisions of Section 124 of the Evidence Act which requires no corroboration in evidence of a minor provided the court is satisfied that the minor is telling the truth and the reasons for so believing being recorded in the trial court judgment. In this case it is incumbent to point out that both the complainant and PW3 were minors. The trial court judgment does not seem to have record of reasons why it believed the evidence of the two minors. I am not persuaded that the finding of the trial court in believing the evidence of the two minors was based on any reasons. I state so because, it is clear from the evidence of PW4 that he was informed of the incident by his wife the mother of the complainant. The appellant in his defence alluded to grudges with the complainant’s mother. The trial court apart from stating what the appellant stated in his defence, it appears did nothing to apart from stating that it found the defence of no relevance to the case. I disagree with trial court for reason that had the complainant’s mother who informed PW4 of the incident been called as a witness, probably the alleged grudge alluded to by the appellant would have come out clearly. Much as the prosecution is not bound to call as many witnesses as possible, I find that the evidence of the complainant’s mother was crucial in this case and failure to call her as a witness draws adverse inference to the prosecution case. Further to the foregoing and in as much as medical evidence may not be necessary in a case of attempted defilement, I find it curious that the investigating officer upon relying on the finding of the doctor who concluded that there was no penetration, he found it not necessary to call him as witness in view of the evidence of PW1 who stated that the appellant attempted to insert his penis into her vagina. This is because the complainant said she felt pain when the appellant attempted to defile her suggesting that indeed the appellant tried to insert her penis into the complainant’s vagina hence possibility of injuries on her genitalia.
All the foregoing raises doubt on the prosecution case and that doubt must be decided to the benefit of the appellant. In the circumstances I entertain doubt on the prosecution case and consequently I find the appeal merited and the same is allowed. The appellant is hereby acquitted and set free unless otherwise lawfully held.
Dated, signed and delivered virtually this 17 th day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Shimo Medium G.K Prison
Ms. Mutua for the respondent appearing virtually
Ms. Otwo Court Assistant appearing virtually from Milimani Law Court
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