1. The accused person, Peter Lawrence Michira, faced two counts of child stealing contrary to section 174(1)(a) of the Penal Code. The particulars of the first count were that on 16th August 2020 at Ekerenyo Market, Boisanga One Sub-Location in Nyamira North Sub-County within Nyamira County, he unlawfully enticed and forcibly took away JO, a child aged four years, from the lawful custody and care of his mother, Alice Nyamoita, with intent to deprive her of such custody.
2. In the second count, the accused was alleged to have, on the same date and at the same place, unlawfully enticed and forcibly taken away RN, a child aged three years, from the lawful custody and care of his mother, Alice Nyamoita, with intent to deprive her of such custody.
3. The accused also faced a charge of trafficking in persons contrary to section 3(1)(b) as read together with section 4(3) of the Counter Trafficking in Persons Act No. 8 of 2010. It was alleged that on 16th August 2020 at Ekerenyo Market, Boisanga One Sub-Location in Nyamira North Sub-County within Nyamira County, he abducted RN, a child aged three years, from the custody of his mother, Alice Nyamoita, and trafficked the child to an unknown place within the Republic of Kenya for purposes of illegal adoption.
4. PW2, Alice Nyamoita Makere, narrated that prior to 16th August 2020 she lived at Ekerenyo together with her two young children, J.O. and R.N. According to her testimony, the Appellant approached her and informed her that there were white sponsors who were willing to support the children’s education and provide them with a better future. She stated that the Appellant persistently persuaded her until she eventually agreed and entrusted the children to him. However, shortly thereafter, the Appellant switched off his mobile phone and disappeared together with the minors. PW2 testified that she became alarmed by the Appellant’s disappearance and immediately informed her parents about the incident. After all attempts to trace him and recover the children proved unsuccessful, she proceeded to Ekerenyo Police Station and reported the matter. In support of her testimony, she produced before the trial court the birth certificates of J.O. and R.N. as exhibits.
5. PW1, James Nyarondia Momanyi, testified that on 25th September 2020, he accompanied the complainant, whom he described as his brother’s daughter, to Ekerenyo Police Station to make a report concerning the disappearance of her children. He stated that investigations were subsequently commenced and that he later learnt that the Appellant had been arrested as the main suspect in connection with the disappearance of the minors.
6. PW3, No. 111051 PC Kimwele, testified that upon receiving the complaint and acting on the report made by PW2, investigations were undertaken leading to the arrest of the Appellant. He thereafter caused the Appellant to be charged with the offences before the court.
7. In his defence, the Appellant denied all the allegations levelled against him. He maintained that the charges had been fabricated against him and insisted that he had never taken the children away.
8. Upon evaluating the evidence placed before it, the trial court convicted the Appellant on Count II relating to child stealing involving R.N. and sentenced him to serve five years imprisonment.
9. Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal challenging the decision of the subordinate court on grounds that the learned trial magistrate relied on contradictory evidence, shifted the burden of proof to the Appellant, relied on hearsay evidence, convicted him on insufficient evidence, failed to appreciate the discrepancies appearing in the charge sheet, and imposed a harsh and excessive sentence.
10. The appeal was canvassed through written submissions dated 08th May 2026 filed by Mong’are & Co. Advocates on behalf of the Appellant. Counsel submitted that the charge sheet was defective because it contained two separate counts both designated as “Count Two,” thereby creating confusion regarding the exact offence facing the Appellant.
11. Counsel further submitted that the learned trial magistrate only addressed Count I and Count II relating to child stealing and failed to address the second Count II relating to trafficking in persons.
12. Having considered the Petition of Appeal, the record of appeal, the evidence tendered before the trial court, the judgment of the subordinate court, and the submissions filed on behalf of the Appellant, the following issues arise for determination:
1) Whether the charge sheet was defective.
2) Whether the prosecution evidence was credible and sufficiently corroborated to sustain a conviction.
3) Whether the prosecution proved the case against the Appellant beyond reasonable doubt.
11. On the first issue, counsel for the Appellant submitted that the charge sheet was defective because it contained two separate counts both designated as “Count Two,” thereby creating confusion as to the exact offence facing the Appellant. Counsel further submitted that whereas the Appellant was charged with two counts of child stealing and one count of trafficking in persons, the trial court only addressed Count I and Count II relating to child stealing and failed to address the second Count II relating to trafficking in persons. Counsel relied on Benard Ombuna v Republic [2015] eKLR and Peter Ngure Mwangi v Republic [2014] KECA 405 (KLR) for the proposition that a defective charge sheet becomes fatal where it prejudices the accused person in understanding the case facing him or in preparing his defence.
12. I have carefully examined both the charge sheet and the judgment of the trial court. The record confirms that the Appellant faced two counts of child stealing and a further count of trafficking in persons. However, the trafficking charge was erroneously described in the charge sheet as a second “Count Two,” thereby creating duplication in numbering of the counts. I also note that the learned trial magistrate in the judgment only addressed Count I and Count II relating to child stealing and did not address the second Count II relating to trafficking in persons.
13. Nevertheless, I am satisfied that the irregularity did not occasion prejudice to the Appellant. The judgment of the subordinate court clearly shows that the Appellant was convicted only on Count II relating to child stealing involving R.N. and not on the second Count II relating to trafficking in persons. Similarly, the sentence imposed related solely to the offence of child stealing.
14. Applying the principles set out in cited cases, I find that although the charge sheet contained duplication in numbering of the counts and the trial court failed to address the trafficking count in its judgment, no miscarriage of justice was occasioned to the Appellant and the defect remained curable under section 382 of the Criminal Procedure Code.
15. On the second and third issues, counsel for the Appellant submitted that the prosecution evidence was not credible, that PW1’s evidence remained hearsay, and that PW2’s evidence was wholly uncorroborated.
16. Counsel for the Appellant argued that the prosecution failed to adduce sufficient and independent evidence linking the Appellant to the offences. It was submitted that the prosecution case contained material inconsistencies and was not supported by crucial evidence or testimony from key witnesses, thereby rendering the case speculative and based largely on assumptions and inferences.
17. Counsel relied on In re Winship 397 U.S. 358 (1970), where the United States Supreme Court underscored the importance of proof beyond reasonable doubt in criminal proceedings as a safeguard against wrongful convictions. Counsel submitted that the prosecution evidence in the present case fell below that standard since the conviction was based on assumptions rather than proven facts. Reliance was also placed on Moses Nato Raphael v Republic [2015] eKLR, in which the Court of Appeal held that any reasonable doubt arising from the evidence must be resolved in favour of the accused person. Counsel argued that the inconsistencies and gaps in the prosecution case created substantial doubt which ought to have benefited the Appellant.
18. Counsel further cited Miller v Ministry of Pensions (1947) 2 All ER 372, where Lord Denning explained that proof beyond reasonable doubt requires a high degree of probability, though not proof beyond the shadow of doubt. Counsel submitted that the prosecution failed to attain that threshold as no independent evidence connected the Appellant to the alleged offences. Lastly, counsel relied on Christine Nthenya v Republic [2024] KEHC 12854, where the court emphasized that a conviction can only be sustained upon credible evidence establishing a prima facie case. Counsel submitted that the trial court erred by convicting the Appellant in the absence of corroborative evidence supporting the prosecution case.
19. I have carefully reconsidered and re-evaluated the evidence on record in light of the foregoing principles. The prosecution case rested substantially on the evidence of PW2 who stated that she voluntarily handed over the minors to the Appellant after he informed her that there were sponsors willing to educate them.
20. The learned trial magistrate observed in the impugned judgment that there was no apparent reason why the complainant would falsely implicate the Appellant if he was not the person who took away the minors.While that observation may have appeared plausible, it effectively shifted focus from the legal burden resting upon the prosecution to speculative considerations concerning the complainant’s possible motive for fabrication.
21. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords held that throughout the web of English criminal law one golden thread is always to be seen, namely that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt and that burden never shifts save in a few statutory exceptions. The prosecution was therefore required to affirmatively establish through credible and cogent evidence that the Appellant unlawfully took, enticed away, or detained the minors. The absence of an apparent motive to falsely implicate the Appellant could not, without more, cure the evidentiary gaps in the prosecution case nor substitute the requirement for proof beyond reasonable doubt. This is particularly so because the complainant’s account remained wholly uncorroborated by any independent evidence linking the Appellant to the alleged offence.
22. Section 174(1)(a) of the Penal Code provides that any person who, with intent to deprive any parent, guardian or other person having lawful care or charge of a child under the age of fourteen years of the possession of such child, forcibly or fraudulently takes or entices away, or detains the child, commits the offence of child stealing. It was therefore incumbent upon the prosecution to establish through credible evidence that the Appellant unlawfully took, enticed away, or detained the minors with the requisite criminal intent.
23. The prosecution case principally rested on the evidence of PW2 who alleged that the Appellant caused the disappearance of the minors from her custody after informing her that there were sponsors willing to educate them. However, no independent witness testified to having seen the Appellant leave with the minors, no documentary or electronic evidence was tendered to demonstrate communication or movement of the children, and the investigations undertaken by the prosecution did not disclose where the minors were allegedly taken or under what circumstances they disappeared. The complainant’s account therefore remained wholly uncorroborated.
24. In the circumstances of this appeal, the prosecution evidence did not attain the threshold of proof beyond reasonable doubt required in criminal proceedings. The evidentiary gaps and absence of corroborative material created reasonable doubt which ought to have been resolved in favour of the Appellant. The conviction entered against the Appellant was therefore unsafe.
25. Consequently, the appeal is hereby allowed. The conviction for child stealing contrary to section 174(1)(a) of the Penal Code is quashed and the sentence of five years imprisonment set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.
2. In the second count, the accused was alleged to have, on the same date and at the same place, unlawfully enticed and forcibly taken away RN, a child aged three years, from the lawful custody and care of his mother, Alice Nyamoita, with intent to deprive her of such custody.
3. The accused also faced a charge of trafficking in persons contrary to section 3(1)(b) as read together with section 4(3) of the Counter Trafficking in Persons Act No. 8 of 2010. It was alleged that on 16th August 2020 at Ekerenyo Market, Boisanga One Sub-Location in Nyamira North Sub-County within Nyamira County, he abducted RN, a child aged three years, from the custody of his mother, Alice Nyamoita, and trafficked the child to an unknown place within the Republic of Kenya for purposes of illegal adoption.
4. PW2, Alice Nyamoita Makere, narrated that prior to 16th August 2020 she lived at Ekerenyo together with her two young children, J.O. and R.N. According to her testimony, the Appellant approached her and informed her that there were white sponsors who were willing to support the children’s education and provide them with a better future. She stated that the Appellant persistently persuaded her until she eventually agreed and entrusted the children to him. However, shortly thereafter, the Appellant switched off his mobile phone and disappeared together with the minors. PW2 testified that she became alarmed by the Appellant’s disappearance and immediately informed her parents about the incident. After all attempts to trace him and recover the children proved unsuccessful, she proceeded to Ekerenyo Police Station and reported the matter. In support of her testimony, she produced before the trial court the birth certificates of J.O. and R.N. as exhibits.
5. PW1, James Nyarondia Momanyi, testified that on 25th September 2020, he accompanied the complainant, whom he described as his brother’s daughter, to Ekerenyo Police Station to make a report concerning the disappearance of her children. He stated that investigations were subsequently commenced and that he later learnt that the Appellant had been arrested as the main suspect in connection with the disappearance of the minors.
6. PW3, No. 111051 PC Kimwele, testified that upon receiving the complaint and acting on the report made by PW2, investigations were undertaken leading to the arrest of the Appellant. He thereafter caused the Appellant to be charged with the offences before the court.
7. In his defence, the Appellant denied all the allegations levelled against him. He maintained that the charges had been fabricated against him and insisted that he had never taken the children away.
8. Upon evaluating the evidence placed before it, the trial court convicted the Appellant on Count II relating to child stealing involving R.N. and sentenced him to serve five years imprisonment.
9. Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal challenging the decision of the subordinate court on grounds that the learned trial magistrate relied on contradictory evidence, shifted the burden of proof to the Appellant, relied on hearsay evidence, convicted him on insufficient evidence, failed to appreciate the discrepancies appearing in the charge sheet, and imposed a harsh and excessive sentence.
10. The appeal was canvassed through written submissions dated 08th May 2026 filed by Mong’are & Co. Advocates on behalf of the Appellant. Counsel submitted that the charge sheet was defective because it contained two separate counts both designated as “Count Two,” thereby creating confusion regarding the exact offence facing the Appellant.
11. Counsel further submitted that the learned trial magistrate only addressed Count I and Count II relating to child stealing and failed to address the second Count II relating to trafficking in persons.
12. Having considered the Petition of Appeal, the record of appeal, the evidence tendered before the trial court, the judgment of the subordinate court, and the submissions filed on behalf of the Appellant, the following issues arise for determination:
1) Whether the charge sheet was defective.
2) Whether the prosecution evidence was credible and sufficiently corroborated to sustain a conviction.
3) Whether the prosecution proved the case against the Appellant beyond reasonable doubt.
11. On the first issue, counsel for the Appellant submitted that the charge sheet was defective because it contained two separate counts both designated as “Count Two,” thereby creating confusion as to the exact offence facing the Appellant. Counsel further submitted that whereas the Appellant was charged with two counts of child stealing and one count of trafficking in persons, the trial court only addressed Count I and Count II relating to child stealing and failed to address the second Count II relating to trafficking in persons. Counsel relied on Benard Ombuna v Republic [2015] eKLR and Peter Ngure Mwangi v Republic [2014] KECA 405 (KLR) for the proposition that a defective charge sheet becomes fatal where it prejudices the accused person in understanding the case facing him or in preparing his defence.
12. I have carefully examined both the charge sheet and the judgment of the trial court. The record confirms that the Appellant faced two counts of child stealing and a further count of trafficking in persons. However, the trafficking charge was erroneously described in the charge sheet as a second “Count Two,” thereby creating duplication in numbering of the counts. I also note that the learned trial magistrate in the judgment only addressed Count I and Count II relating to child stealing and did not address the second Count II relating to trafficking in persons.
13. Nevertheless, I am satisfied that the irregularity did not occasion prejudice to the Appellant. The judgment of the subordinate court clearly shows that the Appellant was convicted only on Count II relating to child stealing involving R.N. and not on the second Count II relating to trafficking in persons. Similarly, the sentence imposed related solely to the offence of child stealing.
14. Applying the principles set out in cited cases, I find that although the charge sheet contained duplication in numbering of the counts and the trial court failed to address the trafficking count in its judgment, no miscarriage of justice was occasioned to the Appellant and the defect remained curable under section 382 of the Criminal Procedure Code.
15. On the second and third issues, counsel for the Appellant submitted that the prosecution evidence was not credible, that PW1’s evidence remained hearsay, and that PW2’s evidence was wholly uncorroborated.
16. Counsel for the Appellant argued that the prosecution failed to adduce sufficient and independent evidence linking the Appellant to the offences. It was submitted that the prosecution case contained material inconsistencies and was not supported by crucial evidence or testimony from key witnesses, thereby rendering the case speculative and based largely on assumptions and inferences.
17. Counsel relied on In re Winship 397 U.S. 358 (1970), where the United States Supreme Court underscored the importance of proof beyond reasonable doubt in criminal proceedings as a safeguard against wrongful convictions. Counsel submitted that the prosecution evidence in the present case fell below that standard since the conviction was based on assumptions rather than proven facts. Reliance was also placed on Moses Nato Raphael v Republic [2015] eKLR, in which the Court of Appeal held that any reasonable doubt arising from the evidence must be resolved in favour of the accused person. Counsel argued that the inconsistencies and gaps in the prosecution case created substantial doubt which ought to have benefited the Appellant.
18. Counsel further cited Miller v Ministry of Pensions (1947) 2 All ER 372, where Lord Denning explained that proof beyond reasonable doubt requires a high degree of probability, though not proof beyond the shadow of doubt. Counsel submitted that the prosecution failed to attain that threshold as no independent evidence connected the Appellant to the alleged offences. Lastly, counsel relied on Christine Nthenya v Republic [2024] KEHC 12854, where the court emphasized that a conviction can only be sustained upon credible evidence establishing a prima facie case. Counsel submitted that the trial court erred by convicting the Appellant in the absence of corroborative evidence supporting the prosecution case.
19. I have carefully reconsidered and re-evaluated the evidence on record in light of the foregoing principles. The prosecution case rested substantially on the evidence of PW2 who stated that she voluntarily handed over the minors to the Appellant after he informed her that there were sponsors willing to educate them.
20. The learned trial magistrate observed in the impugned judgment that there was no apparent reason why the complainant would falsely implicate the Appellant if he was not the person who took away the minors.While that observation may have appeared plausible, it effectively shifted focus from the legal burden resting upon the prosecution to speculative considerations concerning the complainant’s possible motive for fabrication.
21. In Woolmington v Director of Public Prosecutions [1935] AC 462, the House of Lords held that throughout the web of English criminal law one golden thread is always to be seen, namely that it is the duty of the prosecution to prove the prisoner’s guilt beyond reasonable doubt and that burden never shifts save in a few statutory exceptions. The prosecution was therefore required to affirmatively establish through credible and cogent evidence that the Appellant unlawfully took, enticed away, or detained the minors. The absence of an apparent motive to falsely implicate the Appellant could not, without more, cure the evidentiary gaps in the prosecution case nor substitute the requirement for proof beyond reasonable doubt. This is particularly so because the complainant’s account remained wholly uncorroborated by any independent evidence linking the Appellant to the alleged offence.
22. Section 174(1)(a) of the Penal Code provides that any person who, with intent to deprive any parent, guardian or other person having lawful care or charge of a child under the age of fourteen years of the possession of such child, forcibly or fraudulently takes or entices away, or detains the child, commits the offence of child stealing. It was therefore incumbent upon the prosecution to establish through credible evidence that the Appellant unlawfully took, enticed away, or detained the minors with the requisite criminal intent.
23. The prosecution case principally rested on the evidence of PW2 who alleged that the Appellant caused the disappearance of the minors from her custody after informing her that there were sponsors willing to educate them. However, no independent witness testified to having seen the Appellant leave with the minors, no documentary or electronic evidence was tendered to demonstrate communication or movement of the children, and the investigations undertaken by the prosecution did not disclose where the minors were allegedly taken or under what circumstances they disappeared. The complainant’s account therefore remained wholly uncorroborated.
24. In the circumstances of this appeal, the prosecution evidence did not attain the threshold of proof beyond reasonable doubt required in criminal proceedings. The evidentiary gaps and absence of corroborative material created reasonable doubt which ought to have been resolved in favour of the Appellant. The conviction entered against the Appellant was therefore unsafe.
25. Consequently, the appeal is hereby allowed. The conviction for child stealing contrary to section 174(1)(a) of the Penal Code is quashed and the sentence of five years imprisonment set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.