REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E001 OF 2025
LEVI INDECHE ALIAS GRAVIAN …………..………………………….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 11 of 2022 on 2 nd August 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) 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, Hon M. Ochieng (SPM) convicted him of the main charge and sentenced him to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement, on 31 st January 2025, he lodged an appeal herein. His Petition of Appeal was dated 24 th January 2025. He set out four (4) grounds of appeal. On 12 th March 2025, he filed Supplementary Grounds of Appeal dated 10 th March 2025. He set out four (4) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 10 th March 2025 and filed on 12 th March 2025 while those of the Respondent were dated 29 th July 2025 and filed on 1 st August 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, Supplementary 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 Trial Court complied with section 200(3) of the Criminal Procedure Code.
b. Whether or not the Prosecution proved its case beyond reasonable doubt; and
c. Whether the sentence meted 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. WHETHER SECTION 200(3) OF THE CRIMINAL PROCEDURE CODE WAS COMPLIED WITH
1. Supplementary Ground of Appeal No (1) was dealt with under this head.
2. The Appellant relied on the holdings in the case Charo Mole V Rep (2010) eKLR where the court quoted the decision in Ndegwa V Republic (1985) KLR 534 where the court highlighted the importance of section 200 of the Criminal Procedure Code.
3. He stated that when the Trial Court took over the matter from its predecessor, he requested for an adjournment as he wished the matter to start de novo but the Trial Court rejected his application on the ground that the Complainant (hereinafter referred to as “PW 1”)could not be traced and Elima Minayo Matano, her grandmother and guardian (hereinafter referred to as “PW 2”) had since passed on. He submitted that it was not true PW 2 was deceased as the Prosecutor had averred.
4. He averred that the Trial Court violated or abandoned the rule of natural justice. He asserted that he was not guaranteed a fair trial because the Trial Court could not gauge the Complainant’s demeanour. He thus urged this court to acquit him. He referred this court to the case of Koome Vs Republic (2005) KLR 575 that set out the principles that should guide the court on a retrial.
5. On its part, the Respondent argued that the Appellant was not prejudiced at all since the Trial Court informed him of his right but then determined that starting the case de novo would lead to a miscarriage of justice as PW 1 and PW 2 were not available.
6. It cited Joseph Kamara Maro v Republic [2014]eKLR where the Court held that Section 200(3) of the Criminal Procedure Code did not oblige the succeeding trial court to start a case de novo but that what was mandatory was for the trial court to inform an accused of his right under the said section.
7. Notably, Section 200(3) and (4) of the Criminal Procedure Code provides that:-
3. Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
4. Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”
8. In the case of Abdi Adan Mohamed v Republic [2017] eKLR , the Court of Appeal held that whether it was convenient to commence the trial de novo, how far had the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice that was likely to be suffered by either the prosecution or the accused person were some of the factors that a trial court was required to take into consideration under Section 200 of the Criminal Procedure Rule.
9. In the instant case, it was not recorded whether the Trial Court informed the Appellant of his rights under Section 200(3) of the Criminal Procedure Code. However, this court noted that the Appellant requested for the case to start de novo leading to believe that the Trial Court informed him of his rights under the said Section.
10. The Prosecution informed the court that PW 1 was not co-operative when they wanted to take a DNA test. It was then that it informed the Trial Court of PW 1’s disappearance and PW 2’s death. The court had ordered for the DNA to be taken in a Ruling that was delivered on 27 th February 2022.
11. While the Appellant was given an opportunity to cross-examine PW 1 and PW 2 and he would not have ordinarily have suffered prejudice if the matter proceeded from where the case had reached, it was the Prosecution’s contention that PW 1 was not co-operative when they wanted to take the DNA test and that she had disappeared that gave this court a lot of unease. PW 3 also said that she could not take the Appellant for DNA testing because PW 1 disappeared. The Trial Court also observed that she had disappeared. It would have been a different issue if it was her whereabouts that could not be traced. Reference to disappearance connoted a negative action that caused this court to entertain doubts as to what had really transpired.
12. It was, therefore, the view of this court that failure to start the case de novo prejudiced the Appellant in light of the assertions by the Prosecution. Such prejudice would have persuaded this court to remit this case for re-trial as the matter was not old. However, as PW 1 could not be traced and PW 1 was deceased, that would not have been a prudent course of action.
13. As circumstances stand, this court had no option but to order for the release of the Appellant herein. However, noting that this court could also be found to have erred, it found it prudent to pronounce itself on the merits or otherwise of the Appeal herein.
II. PROOF OF PROSECUTION’S CASE
14. 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.
15. 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
16. The Appellant did not submit on the issue of age. On the other hand, the Respondent submitted that the Charge Sheet indicated that PW 1 was fourteen (14) years of age at the time of the commission of the offence. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense.
17. It pointed out that PW1 testified that she was fourteen (14) years old and the Investigating Officer No 56659 Sgt Consolata Lugonzo (hereinafter referred to as “PW3”) produced PW 1’s Birth Certificate which indicated that she was born on 7 th October 2006 and, therefore, a minor at the time of the commission of the offence.
18. A perusal of the Birth Certificate that PW 3 tendered as evidence in this case showed that PW 1 was born on 7 th October 2006. The incident took place on 25 th February 2021. This meant that she was about fourteen (14) years four (4) months old at the material time of the incident.
19. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court would have been satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. PENETRATION
20. The Appellant placed reliance on the case of Ndungu Kimanyi vs Republic (1979) KLR 283, where it was held that the witnesses in a criminal case upon whose evidence its proposed to rely should not create an impression in the mind of the court that he is not a straight forward person.
21. He submitted that PW1’s refusal to cooperate and even disappearing with her child to block the DNA test for her born child after being requested by the court and even him dinted her trustworthiness pursuant to section 124 of the Evidence Act. Hence her uncorroborated, contradicted and disputed evidence of penetration by the appellant cannot pass a test of error.
22. He asserted that DNA test was important to link him to the offence especially since she had stated that she had never had any sexual intercourse with any person other than with him. To buttress this point, he cited the case of Eliud Ouma Agwara V Republic (2016) eKLR HCCRA No 16 of 2016 (sic) where this very court opined that the trial court fell into an error when it held that DNA results could never be a defence in an offence of defilement as the court did not properly evaluate and analyse the evidence which the prosecution was relying upon thus as a result the defilement of the complainant she became pregnant meaning the age of the pregnancy and the child should have related to the incident and results should have confirmed the appellant was the father of the child (sic) .
23. His further submissions were that the medical evidence was remote because it was done one (1) year and one (1) month when the child was already four (4) months old. Hence, that evidence could not prove penetration on the material day. He relied on the case of Scoffied Biko Ogweno V Republic, HCRA No 45 of 2015 where the court stated that the only evidence on the issue of penetration was the testimony of PW 1 therein and the DNA test having been carried out after one (1) year and five (5) months after the incident excluded the appellant therein as the biological father of the child and was too remote to connect him to the defilement.
24. He submitted that the Trial court omitted to point out the instances of PW 1’s demeanor that it relied upon in accepting her evidence as was envisage in Section 124 of the Evidence Act and placed reliance on the case of John Cordon Wayner vs Republic & 2 Others [2001] eKLR .
25. He pointed out that the birth notification was not produced to show that the child was born in November 2021. PW1 testified that the child was eleven (11) months while PW1 testified that the child was eleven (11) months PW 2 testified that the child was nine (9) months at the time of testifying. He asserted that if the incident happened on 25 th February 2021 and PW 1 gave birth early November 2021, the child would have been eleven (11) months on 20 th July 2022. He contended that PW 1’s two (2) friends were not called to testify to verify the fact thus turning adverse to the Prosecution’s case.
26. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 was corroborated by PW2, PW3 and PW4 and therefore penetration was proved.
27. PW1 testified that on 25 th February 2021, she was with Gravian (Appellant) at his home and they had sex after which she went home. She stated that after five (5) months, her friends and PW 2 told her to go to hospital to be tested. Her grandmother insisted that she go to hospital. She said that she gave birth in the beginning of November 2021 and that at the time that she testified, the child was eleven (11) months. When she was cross-examined, she asserted that she had never any sexual relations with any other person except with the Appellant herein.
28. PW 2 testified that on 15 th May 2021, she noticed that PW1 was pregnant and when she asked her who was responsible, she told her that it was the Appellant herein. She said that she reported the matter to the Village Elder and together they went to the Appellant’s home and he admitted that he was responsible. She told the Trial Court that the child was nine (9) months but that she could not remember when the child was born. She added that he Appellant would bring soap and milk to PW1 as she continued with school. She said that PW 1 stopped going to school because the Appellant was arrested.
29. The Clinical Officer, Anthony Otieno (hereinafter referred to as “PW4”) testified that PW 1 and PW 2 were presented to him for examination. He stated that PW 1 informed him that she was defiled in February 2021 by her boyfriend and that she gave birth in November 2021. He said that the child was four (4) months old at the time.
30. He told the Trial Court that on vaginal examination, he noted that her hymen was absent, and that because it had taken one (1) year, he requested for a DNA test to be done. He produced treatment notes as evidence in the case herein. When he was cross-examined, he said that he established that PW 1 was defiled from what she told him.
31. In his defence, the Appellant denied having committed the offence and stated that he was framed due to a land dispute with a neighbour, one Joseph Kavuja who went to the police station accompanied by the complainant and claimed that he had impregnated PW 1. He stated that he was in Nairobi at the material time.
32. There was proof of penetration stemming from PW1’s evidence which was corroborated by medical evidence. The fact that she was examined and her hymen was found to be missing and the fact that she got pregnant and gave birth to a child, which was confirmed by PW2, PW3 and PW4 was proof that there was penetration.
33. Ordinarily, failure to conduct DNA was not fatal to the prosecution’s case as was stated in Aml v Republic (2012) eKLR where it was held that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. This is because the question before the Trial Court was whether the Appellant defiled PW 1. Indeed, DNA would not have proven if PW 1 was defiled because it was undisputed fact that she was pregnant. Having been about fourteen (14) years four (4) months old at the material time of the incident, it was evident that she was defiled. The pertinent question that remained was whether the Appellant was responsible or not.
C. IDENTIFICATION
34. The Appellant did not submit of the issue of identification. On its part, the Respondent stated that PW1 testified that it was the Appellant who defiled her. He was well known to her. She knew his name and identified him court. The incident happened during daytime in Appellant’s house therefore, there was no mistake on identity. It stated that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others v Republic, (1976-80)1 KLR 1566, 1568 ,
35. This court noted that PW 1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth.
36. 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) .”
37. 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.
38. PW 1 told the Trial Court that on the material day, she was alone with the Appellant at his home. PW 2 stated that the man would bring soap and milk to PW 1 as she continued with school. It was not clear if this man referred to the Appellant herein.
39. PW 3, however, gave a different account on what transpired on 25 th February 2021. She testified that PW 1 went to visit the Appellant with her two (2) friends. When she got to his house, her two (2) friends left her there and she had sex with him. She said that the Appellant them escorted her and found her friends waiting at the stream. Her further evidence was that PW 1 went home and did not tell anyone what had happened but found out that she was pregnant after about six (6) months. Her further testimony was that PW 1 and PW 2 came to the police station where she asked them why they never reported the case earlier.
40. Notably, PW1 never mentioned that she went to Appellant’s place accompanied by her two (2) friends and that after the act, she was escorted by the Appellant up to the stream where her two (2) friends were waiting for her. This was missing from her evidence. From her account she was alone. The two (2) friends’ names were not mentioned. If at all there were such friends, then they ought to have been called as witnesses as they were crucial to fill all the gaps in the Prosecution’s case.
41. The court took cognisance of Section 143 of the Evidence Act Cap 80 (Laws of Kenya) which provides as provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
42. Although the prosecution retained the right decide the number of witnesses to call to prove a particular fact, failure to call witnesses to fill gaps in its case was detrimental to its case. Where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been in adverse to its case. In this case, failure to call the alleged two (2) friends of PW 1 dealt as fatal blow to the Prosecution’s case.
43. Going forward, this court noted the place of the Appellant’s arrest was critical. PW 1 told the Trial Court that she went to the Appellant’s house after being chased from home and that he was arrested as he took her to the Chief’s place. PW 2 stated that the Appellant was arrested after they reported the matter at the Police Station.
44. To the mind of this court, there were grave contradictions, contradictions, inconsistencies which adversely affected the prosecution’s case. It was therefore the view of this court that identification remained unproved.
45. Indeed, the period between the time PW 1 and the Appellant allegedly had sexual intercourse and when she discovered she was pregnant was inordinately long to connect the Appellant to her pregnancy being the only person she had said she had had sex with. This court could not with certainty determine if indeed it was the Appellant who defiled PW 1.
46. The Prosecution was required to prove each and every ingredients of defilement. It was trite law that if one ingredient was not proved, then the case against an accused person failed. This court found and held that the Prosecution had not proved their case to the required standard,, which in criminal cases was proof beyond reasonable doubt.
DISPOSITION
47. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 24 th January 2025 and filed on 31 st January 2025 and Supplementary Grounds of Appeal dated 10 th March 2025 and filed on 12 th March 2025 were merited and the same be and are hereby upheld. His conviction and sentence be and are hereby set aside and/or vacated as they were both unsafe.
48. It is hereby directed that the Appellant be and is hereby released from custody forthwith unless he be held for any other lawful cause.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA NO E001 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E001 OF 2025
LEVI INDECHE ALIAS GRAVIAN …………..………………………….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 11 of 2022 on 2 nd August 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) 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, Hon M. Ochieng (SPM) convicted him of the main charge and sentenced him to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement, on 31 st January 2025, he lodged an appeal herein. His Petition of Appeal was dated 24 th January 2025. He set out four (4) grounds of appeal. On 12 th March 2025, he filed Supplementary Grounds of Appeal dated 10 th March 2025. He set out four (4) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 10 th March 2025 and filed on 12 th March 2025 while those of the Respondent were dated 29 th July 2025 and filed on 1 st August 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, Supplementary 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 Trial Court complied with section 200(3) of the Criminal Procedure Code.
b. Whether or not the Prosecution proved its case beyond reasonable doubt; and
c. Whether the sentence meted 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. WHETHER SECTION 200(3) OF THE CRIMINAL PROCEDURE CODE WAS COMPLIED WITH
1. Supplementary Ground of Appeal No (1) was dealt with under this head.
2. The Appellant relied on the holdings in the case Charo Mole V Rep (2010) eKLR where the court quoted the decision in Ndegwa V Republic (1985) KLR 534 where the court highlighted the importance of section 200 of the Criminal Procedure Code.
3. He stated that when the Trial Court took over the matter from its predecessor, he requested for an adjournment as he wished the matter to start de novo but the Trial Court rejected his application on the ground that the Complainant (hereinafter referred to as “PW 1”)could not be traced and Elima Minayo Matano, her grandmother and guardian (hereinafter referred to as “PW 2”) had since passed on. He submitted that it was not true PW 2 was deceased as the Prosecutor had averred.
4. He averred that the Trial Court violated or abandoned the rule of natural justice. He asserted that he was not guaranteed a fair trial because the Trial Court could not gauge the Complainant’s demeanour. He thus urged this court to acquit him. He referred this court to the case of Koome Vs Republic (2005) KLR 575 that set out the principles that should guide the court on a retrial.
5. On its part, the Respondent argued that the Appellant was not prejudiced at all since the Trial Court informed him of his right but then determined that starting the case de novo would lead to a miscarriage of justice as PW 1 and PW 2 were not available.
6. It cited Joseph Kamara Maro v Republic [2014]eKLR where the Court held that Section 200(3) of the Criminal Procedure Code did not oblige the succeeding trial court to start a case de novo but that what was mandatory was for the trial court to inform an accused of his right under the said section.
7. Notably, Section 200(3) and (4) of the Criminal Procedure Code provides that:-
3. Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
4. Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”
8. In the case of Abdi Adan Mohamed v Republic [2017] eKLR , the Court of Appeal held that whether it was convenient to commence the trial de novo, how far had the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice that was likely to be suffered by either the prosecution or the accused person were some of the factors that a trial court was required to take into consideration under Section 200 of the Criminal Procedure Rule.
9. In the instant case, it was not recorded whether the Trial Court informed the Appellant of his rights under Section 200(3) of the Criminal Procedure Code. However, this court noted that the Appellant requested for the case to start de novo leading to believe that the Trial Court informed him of his rights under the said Section.
10. The Prosecution informed the court that PW 1 was not co-operative when they wanted to take a DNA test. It was then that it informed the Trial Court of PW 1’s disappearance and PW 2’s death. The court had ordered for the DNA to be taken in a Ruling that was delivered on 27 th February 2022.
11. While the Appellant was given an opportunity to cross-examine PW 1 and PW 2 and he would not have ordinarily have suffered prejudice if the matter proceeded from where the case had reached, it was the Prosecution’s contention that PW 1 was not co-operative when they wanted to take the DNA test and that she had disappeared that gave this court a lot of unease. PW 3 also said that she could not take the Appellant for DNA testing because PW 1 disappeared. The Trial Court also observed that she had disappeared. It would have been a different issue if it was her whereabouts that could not be traced. Reference to disappearance connoted a negative action that caused this court to entertain doubts as to what had really transpired.
12. It was, therefore, the view of this court that failure to start the case de novo prejudiced the Appellant in light of the assertions by the Prosecution. Such prejudice would have persuaded this court to remit this case for re-trial as the matter was not old. However, as PW 1 could not be traced and PW 1 was deceased, that would not have been a prudent course of action.
13. As circumstances stand, this court had no option but to order for the release of the Appellant herein. However, noting that this court could also be found to have erred, it found it prudent to pronounce itself on the merits or otherwise of the Appeal herein.
II. PROOF OF PROSECUTION’S CASE
14. 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.
15. 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
16. The Appellant did not submit on the issue of age. On the other hand, the Respondent submitted that the Charge Sheet indicated that PW 1 was fourteen (14) years of age at the time of the commission of the offence. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense.
17. It pointed out that PW1 testified that she was fourteen (14) years old and the Investigating Officer No 56659 Sgt Consolata Lugonzo (hereinafter referred to as “PW3”) produced PW 1’s Birth Certificate which indicated that she was born on 7 th October 2006 and, therefore, a minor at the time of the commission of the offence.
18. A perusal of the Birth Certificate that PW 3 tendered as evidence in this case showed that PW 1 was born on 7 th October 2006. The incident took place on 25 th February 2021. This meant that she was about fourteen (14) years four (4) months old at the material time of the incident.
19. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court would have been satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. PENETRATION
20. The Appellant placed reliance on the case of Ndungu Kimanyi vs Republic (1979) KLR 283, where it was held that the witnesses in a criminal case upon whose evidence its proposed to rely should not create an impression in the mind of the court that he is not a straight forward person.
21. He submitted that PW1’s refusal to cooperate and even disappearing with her child to block the DNA test for her born child after being requested by the court and even him dinted her trustworthiness pursuant to section 124 of the Evidence Act. Hence her uncorroborated, contradicted and disputed evidence of penetration by the appellant cannot pass a test of error.
22. He asserted that DNA test was important to link him to the offence especially since she had stated that she had never had any sexual intercourse with any person other than with him. To buttress this point, he cited the case of Eliud Ouma Agwara V Republic (2016) eKLR HCCRA No 16 of 2016 (sic) where this very court opined that the trial court fell into an error when it held that DNA results could never be a defence in an offence of defilement as the court did not properly evaluate and analyse the evidence which the prosecution was relying upon thus as a result the defilement of the complainant she became pregnant meaning the age of the pregnancy and the child should have related to the incident and results should have confirmed the appellant was the father of the child (sic) .
23. His further submissions were that the medical evidence was remote because it was done one (1) year and one (1) month when the child was already four (4) months old. Hence, that evidence could not prove penetration on the material day. He relied on the case of Scoffied Biko Ogweno V Republic, HCRA No 45 of 2015 where the court stated that the only evidence on the issue of penetration was the testimony of PW 1 therein and the DNA test having been carried out after one (1) year and five (5) months after the incident excluded the appellant therein as the biological father of the child and was too remote to connect him to the defilement.
24. He submitted that the Trial court omitted to point out the instances of PW 1’s demeanor that it relied upon in accepting her evidence as was envisage in Section 124 of the Evidence Act and placed reliance on the case of John Cordon Wayner vs Republic & 2 Others [2001] eKLR .
25. He pointed out that the birth notification was not produced to show that the child was born in November 2021. PW1 testified that the child was eleven (11) months while PW1 testified that the child was eleven (11) months PW 2 testified that the child was nine (9) months at the time of testifying. He asserted that if the incident happened on 25 th February 2021 and PW 1 gave birth early November 2021, the child would have been eleven (11) months on 20 th July 2022. He contended that PW 1’s two (2) friends were not called to testify to verify the fact thus turning adverse to the Prosecution’s case.
26. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 was corroborated by PW2, PW3 and PW4 and therefore penetration was proved.
27. PW1 testified that on 25 th February 2021, she was with Gravian (Appellant) at his home and they had sex after which she went home. She stated that after five (5) months, her friends and PW 2 told her to go to hospital to be tested. Her grandmother insisted that she go to hospital. She said that she gave birth in the beginning of November 2021 and that at the time that she testified, the child was eleven (11) months. When she was cross-examined, she asserted that she had never any sexual relations with any other person except with the Appellant herein.
28. PW 2 testified that on 15 th May 2021, she noticed that PW1 was pregnant and when she asked her who was responsible, she told her that it was the Appellant herein. She said that she reported the matter to the Village Elder and together they went to the Appellant’s home and he admitted that he was responsible. She told the Trial Court that the child was nine (9) months but that she could not remember when the child was born. She added that he Appellant would bring soap and milk to PW1 as she continued with school. She said that PW 1 stopped going to school because the Appellant was arrested.
29. The Clinical Officer, Anthony Otieno (hereinafter referred to as “PW4”) testified that PW 1 and PW 2 were presented to him for examination. He stated that PW 1 informed him that she was defiled in February 2021 by her boyfriend and that she gave birth in November 2021. He said that the child was four (4) months old at the time.
30. He told the Trial Court that on vaginal examination, he noted that her hymen was absent, and that because it had taken one (1) year, he requested for a DNA test to be done. He produced treatment notes as evidence in the case herein. When he was cross-examined, he said that he established that PW 1 was defiled from what she told him.
31. In his defence, the Appellant denied having committed the offence and stated that he was framed due to a land dispute with a neighbour, one Joseph Kavuja who went to the police station accompanied by the complainant and claimed that he had impregnated PW 1. He stated that he was in Nairobi at the material time.
32. There was proof of penetration stemming from PW1’s evidence which was corroborated by medical evidence. The fact that she was examined and her hymen was found to be missing and the fact that she got pregnant and gave birth to a child, which was confirmed by PW2, PW3 and PW4 was proof that there was penetration.
33. Ordinarily, failure to conduct DNA was not fatal to the prosecution’s case as was stated in Aml v Republic (2012) eKLR where it was held that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. This is because the question before the Trial Court was whether the Appellant defiled PW 1. Indeed, DNA would not have proven if PW 1 was defiled because it was undisputed fact that she was pregnant. Having been about fourteen (14) years four (4) months old at the material time of the incident, it was evident that she was defiled. The pertinent question that remained was whether the Appellant was responsible or not.
C. IDENTIFICATION
34. The Appellant did not submit of the issue of identification. On its part, the Respondent stated that PW1 testified that it was the Appellant who defiled her. He was well known to her. She knew his name and identified him court. The incident happened during daytime in Appellant’s house therefore, there was no mistake on identity. It stated that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others v Republic, (1976-80)1 KLR 1566, 1568 ,
35. This court noted that PW 1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth.
36. 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) .”
37. 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.
38. PW 1 told the Trial Court that on the material day, she was alone with the Appellant at his home. PW 2 stated that the man would bring soap and milk to PW 1 as she continued with school. It was not clear if this man referred to the Appellant herein.
39. PW 3, however, gave a different account on what transpired on 25 th February 2021. She testified that PW 1 went to visit the Appellant with her two (2) friends. When she got to his house, her two (2) friends left her there and she had sex with him. She said that the Appellant them escorted her and found her friends waiting at the stream. Her further evidence was that PW 1 went home and did not tell anyone what had happened but found out that she was pregnant after about six (6) months. Her further testimony was that PW 1 and PW 2 came to the police station where she asked them why they never reported the case earlier.
40. Notably, PW1 never mentioned that she went to Appellant’s place accompanied by her two (2) friends and that after the act, she was escorted by the Appellant up to the stream where her two (2) friends were waiting for her. This was missing from her evidence. From her account she was alone. The two (2) friends’ names were not mentioned. If at all there were such friends, then they ought to have been called as witnesses as they were crucial to fill all the gaps in the Prosecution’s case.
41. The court took cognisance of Section 143 of the Evidence Act Cap 80 (Laws of Kenya) which provides as provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
42. Although the prosecution retained the right decide the number of witnesses to call to prove a particular fact, failure to call witnesses to fill gaps in its case was detrimental to its case. Where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been in adverse to its case. In this case, failure to call the alleged two (2) friends of PW 1 dealt as fatal blow to the Prosecution’s case.
43. Going forward, this court noted the place of the Appellant’s arrest was critical. PW 1 told the Trial Court that she went to the Appellant’s house after being chased from home and that he was arrested as he took her to the Chief’s place. PW 2 stated that the Appellant was arrested after they reported the matter at the Police Station.
44. To the mind of this court, there were grave contradictions, contradictions, inconsistencies which adversely affected the prosecution’s case. It was therefore the view of this court that identification remained unproved.
45. Indeed, the period between the time PW 1 and the Appellant allegedly had sexual intercourse and when she discovered she was pregnant was inordinately long to connect the Appellant to her pregnancy being the only person she had said she had had sex with. This court could not with certainty determine if indeed it was the Appellant who defiled PW 1.
46. The Prosecution was required to prove each and every ingredients of defilement. It was trite law that if one ingredient was not proved, then the case against an accused person failed. This court found and held that the Prosecution had not proved their case to the required standard,, which in criminal cases was proof beyond reasonable doubt.
DISPOSITION
47. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 24 th January 2025 and filed on 31 st January 2025 and Supplementary Grounds of Appeal dated 10 th March 2025 and filed on 12 th March 2025 were merited and the same be and are hereby upheld. His conviction and sentence be and are hereby set aside and/or vacated as they were both unsafe.
48. It is hereby directed that the Appellant be and is hereby released from custody forthwith unless he be held for any other lawful cause.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA NO E001 OF 20252