REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E045 OF 2024
SALIM DIYA ZCHANZU ……………………….………………………….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 34 of 2021 on 18 th September 2023)
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 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19th December 2024. He set out four (4) substantive grounds of appeal. On 28th July 2025, he filed Supplementary Grounds of Appeal dated 24th July 2025. He set out five (5) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 24th July 2025 and filed on 28th July 2025, while those of the Respondent were dated 5th September 2025 and filed on 10th September 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, 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 Prosecution proved its case beyond reasonable doubt;
b. Whether or not, in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF THE PROSECUTION’S CASE
9. Grounds of Appeal Nos (1), (2), and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3), and (4) were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant did not submit on this issue. On its part, the Respondent submitted that the Charge Sheet indicated that the age of the Complainant (hereinafter referred to as “PW4”) was twelve (12) years of age at the time of the commission of the offence. It pointed out that the Birth Certificate that was produced by No 68301 PC Zakayo Bundotich (hereinafter referred to as “PW5”) showed that PW 4 was born on 14th March 2009 and, therefore, a minor at the time of the commission of the offence.
13. 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.
14. A perusal of the Birth Certificate that was produced by PW 5 showed that PW 4 was born on 14th March 2009. The incident took place between 20th and 21st May 2021. She was about twelve (12) years and about two (2) months old at the material time of the incident.
15. 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 was satisfied that PW4’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
16. In his submissions, the Appellant submitted that PW 4 testified that she met a motor rider she did not know before, whereas Roseline Matete (hereinafter referred to as “PW1”) and PW 4’s step-mother testified that PW 4 told her that she slept at Salim's home. He averred that PW 4 also stated that she had seen him once. He averred that Obino Tai (hereinafter referred to as “PW3”), the Clinical Officer, told the court that PW 4 told him that she was picked by an unknown person who took her to his home and defiled her. He argued that it was illogical for PW 4 not to have disclosed the name of her defiler to PW 3, which showed that she was not truthful.
17. He referred to the cases of Ndungu Kimani vs Republic (1979) and Ramkrishnan Denkerrai Pandya vs Republic 1957 EACA 102, where the common thread was that the evidence of a witness was not to have contradictions and inconsistencies to create an impression in the mind of the court that such a witness was not a straightforward person.
18. He further placed reliance on the case of Richard Aspella vs Republic App. NO. 45 OF 1981 C.A (eKLR citation not given), where it was held that two contradictory statements could not be admitted in a court of law because either one was the truth and the other was not, or both might not be true.
19. On its part, the Respondent submitted that the Appellant was properly identified since PW 4 told the court that she met him and he introduced himself to her as Salim. It contended that he asked her to board the motorcycle, which she did, and took her to his house, where he defiled her twice.
20. It pointed out that Victor Mangono (hereinafter referred to as “PW 2”) testified that Kevin, a neighbour, informed him that the Appellant had a “dame” and that he went to the Appellant’s house to see the “dame.” It, therefore, averred that the Appellant was placed at the scene by PW 2, who also confirmed seeing PW 4, her mother, and Police Officers at the Station.
21. It further argued that the Trial Court also noted PW 4’s demeanor while she was testifying in court and found her to have been a truthful witness. It averred that since her evidence was consistent and unchallenged, the Trial Court believed that she was telling the truth. It was emphatic that the inconsistencies did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offence.
22. It relied on the case of S.O.O v Republic [2018] eKLR, where the court reiterated the position as was held in Dickson Elia Nsamba Shapwata & Another vs The Republic, CR. APP. NO. 92 OF 2007, where it was held that the court was to decide whether inconsistencies and contradictions were minor or whether they went to the root of the matter.
23. A perusal of the proceedings shows that PW 4 told the court that on 20th May 2021, at around 7.00pm, she met the Appellant, who introduced himself to her. She told the Trial Court that he asked her to board his motorcycle and promised to take her home, but instead he took her to his house in the Gambogi area. Roseline Matete (hereinafter referred to as “PW 1”) confirmed that PW 4 told her that she had slept “kwa kina Salim” (at Salim’s place).
24. PW 2 explained how he went to see for himself the “dame” that the Appellant had after, one Kevin informed him that the Appellant had a dame. He averred that he asked the Appellant if the “dame” who was PW 4 herein had an Identity Card (ID) and the Appellant responded in the affirmative.
25. Even though PW 3 testified that the minor informed him that she was defiled by someone unknown to her, there was sufficient evidence that PW 4 positively identified the Appellant. They spent the night together. This was sufficient time for her to have recognised him. PW 2 also confirmed having seen PW 4, who was accompanied to the Appellant’s house by her mother at the Appellant’s place. PW 5 also confirmed that PW 2 assisted them in arresting the Appellant. This court was satisfied that the Appellant was identified and there could not have been any mistaken identity. Identification was by way of recognition.
C. PENETRATION
26. The Appellant argued that PW 3 could not tell the probable type of weapon causing injury and could not assess the degree of injury that PW 4 sustained. He added that although PW 3 stated that PW 4’s hymen was perforated, he could not tell whether it was fresh or longstanding. He pointed out that PW 4 failed to describe the act that caused penetration since the penile shaft was not mentioned. He was emphatic that her evidence did not corroborate that of PW 3.
27. He relied on the case of P.K.W vs Republic (2012) eKLR, where the court held that the hymen could be broken by factors other than sexual intercourse, and in some cases, some girls were not born with a hymen.
28. He placed reliance on the case of Wendoh vs Republic (1953) 20 EA 166, amongst other cases where it was held that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. He submitted that Kevin, who was mentioned by PW 2, was not called, and the rider whom PW 4 alleged to have helped her. He argued that the rider was the only witness who could have told the court where he met PW 4, in what state PW 4 was, and whether she told him who her defiler was. He stated that failure to avail these witnesses occasioned a miscarriage of justice to him.
29. On the other hand, the Respondent rehashed PW 3’s and PW 4’s evidence in its Written submissions. It was emphatic that penetration was proved through their evidence, which was corroborated by the documents PW 3 produced as exhibits in the case.
30. It cited 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.
31. It further referred to Section 143 of the Evidence Act Cap 80 (Laws of Kenya), which provides that no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact. It placed reliance on the case of Keter vs Republic (2007) E. A. 135, where it was held that the prosecution was not obliged to call superfluity of witnesses, but only such witnesses as were sufficient to establish the charge beyond any reasonable doubt.
32. It submitted that the prosecution had the discretion to determine the witnesses it wished to call and could only be faulted if it failed to call crucial witnesses. It was emphatic that it called all crucial witnesses.
33. According to PW 4, the Appellant wore a condom and had sex with her twice. He stated that she bled and felt some pain. PW 3 testified that he examined her on 21st May 2021 and noted that she was bleeding. He observed that there was fresh blood, the hymen was perforated, and urinalysis showed epithelial and pus cells. He, however, pointed out that there were no lacerations on the labia majora and minora. He concluded that there was defilement. He produced treatment notes, PRC Form, and P3 Form as exhibits in the case herein. PW 5 confirmed that PW 4 was taken to the Station by a good Samaritan who noticed her walking style.
34. Notably, the proviso of Section 124 of the Evidence Act states Cap 80 (Laws of Kenya) 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) .”
35. 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 another's.
36. Section 143 of the Evidence Act 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.”
37. Indeed, there was no requirement that the Prosecution had to call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the Prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
38. In his sworn evidence, the Appellant stated that he was at the farm when two (2) people approached him and told him that he was required at the Gambogi Police Post. He denied knowing PW 4. During cross-examination, his father, Ali Chanzu Mustafu (hereinafter referred to as “DW 2”) told the Trial Court that he was not with the Appellant on the material dates.
39. Although the Appellant denied committing the offence, it was evident that PW 4’s evidence that she was defiled on the material night was corroborated by PW 3’s medical evidence and that of PW 2, who confirmed having seen her with the Appellant on the material night. His alibi evidence was weak as DW 2 could not vouch for his whereabouts on the night of 20th and 21st May 2021.
40. It was the view of this court that the evidence that was adduced by the Prosecution outweighed the evidence that the Appellant tendered in the Trial Court and was sufficient to have formed a basis for conviction. Indeed, this court found and held that the Prosecution proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt.
41. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3) and (4) were not merited, and the same be and are hereby dismissed.
IV. SENTENCE
42. Ground of Appeal No (4) of the Petition of Appeal and Supplementary Ground of Appeal No (5) were dealt with under this head.
43. Although the Respondent submitted on the legality of the sentence that was meted upon the Appellant, his concern was that the Trial Court did not order that his sentence from the date that he was arrested. The Appellant submitted that he was arrested on 11th June 2021 and was convicted and sentenced on 18th September 2023. The court did not, therefore, analyse the Respondent’s submissions on the legality or otherwise of the sentence.
44. Suffice it to state that having been found to have defiled a child of twelve (12) years, the sentence of twenty (20) years was lawful as that is what was prescribed in Section 8(3) of the Sexual Offences Act Cap 63A (Laws of Kenya), which provides as follows:-
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
45. The Respondent did not oppose Appellant’s prayer for the sentence to run from the date of his arrest under Section 333(2) of the Criminal Procedure Code. He referred this court to the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR, where it was held that courts must take into account the period that the accused spent in custody during trial while sentencing them. It.
46. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:-
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis court) ” .
47. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
48. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
49. The Charge Sheet showed that the Appellant was arrested on 11th June 2021. Although he was granted bond, it appeared that he was unable to raise the same. He was sentenced on 18th September 2023. The Trial Court did not take this period into account while meting out the sentence on the Appellant herein.
50. In the premises foregoing, Ground of Appeal No (4) of the Petition of Appeal and Supplementary Ground of Appeal No (5) were merited, and the same be and are hereby allowed.
DISPOSITION
51. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 19 th December 2024 and filed on 20 th December 2024 and Supplementary Grounds of Appeal dated 24 th July 2025 and filed on 28 th July 2025 were partially successful. His conviction and his sentence be and are hereby upheld as they were both safe.
52. However, for the avoidance of doubt, t he period that the Appellant remained in custody between 11 th June 2021 and 17 th September 2023 be and is hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
53. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E045 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E045 OF 2024
SALIM DIYA ZCHANZU ……………………….………………………….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 34 of 2021 on 18 th September 2023)
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 20th December 2024, he lodged an appeal herein. His Petition of Appeal was dated 19th December 2024. He set out four (4) substantive grounds of appeal. On 28th July 2025, he filed Supplementary Grounds of Appeal dated 24th July 2025. He set out five (5) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 24th July 2025 and filed on 28th July 2025, while those of the Respondent were dated 5th September 2025 and filed on 10th September 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal, 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 Prosecution proved its case beyond reasonable doubt;
b. Whether or not, in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF THE PROSECUTION’S CASE
9. Grounds of Appeal Nos (1), (2), and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3), and (4) were dealt with under this head as they were all related.
10. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
11. It is now settled that the ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and identification of the perpetrator, as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
12. The Appellant did not submit on this issue. On its part, the Respondent submitted that the Charge Sheet indicated that the age of the Complainant (hereinafter referred to as “PW4”) was twelve (12) years of age at the time of the commission of the offence. It pointed out that the Birth Certificate that was produced by No 68301 PC Zakayo Bundotich (hereinafter referred to as “PW5”) showed that PW 4 was born on 14th March 2009 and, therefore, a minor at the time of the commission of the offence.
13. 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.
14. A perusal of the Birth Certificate that was produced by PW 5 showed that PW 4 was born on 14th March 2009. The incident took place between 20th and 21st May 2021. She was about twelve (12) years and about two (2) months old at the material time of the incident.
15. 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 was satisfied that PW4’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
16. In his submissions, the Appellant submitted that PW 4 testified that she met a motor rider she did not know before, whereas Roseline Matete (hereinafter referred to as “PW1”) and PW 4’s step-mother testified that PW 4 told her that she slept at Salim's home. He averred that PW 4 also stated that she had seen him once. He averred that Obino Tai (hereinafter referred to as “PW3”), the Clinical Officer, told the court that PW 4 told him that she was picked by an unknown person who took her to his home and defiled her. He argued that it was illogical for PW 4 not to have disclosed the name of her defiler to PW 3, which showed that she was not truthful.
17. He referred to the cases of Ndungu Kimani vs Republic (1979) and Ramkrishnan Denkerrai Pandya vs Republic 1957 EACA 102, where the common thread was that the evidence of a witness was not to have contradictions and inconsistencies to create an impression in the mind of the court that such a witness was not a straightforward person.
18. He further placed reliance on the case of Richard Aspella vs Republic App. NO. 45 OF 1981 C.A (eKLR citation not given), where it was held that two contradictory statements could not be admitted in a court of law because either one was the truth and the other was not, or both might not be true.
19. On its part, the Respondent submitted that the Appellant was properly identified since PW 4 told the court that she met him and he introduced himself to her as Salim. It contended that he asked her to board the motorcycle, which she did, and took her to his house, where he defiled her twice.
20. It pointed out that Victor Mangono (hereinafter referred to as “PW 2”) testified that Kevin, a neighbour, informed him that the Appellant had a “dame” and that he went to the Appellant’s house to see the “dame.” It, therefore, averred that the Appellant was placed at the scene by PW 2, who also confirmed seeing PW 4, her mother, and Police Officers at the Station.
21. It further argued that the Trial Court also noted PW 4’s demeanor while she was testifying in court and found her to have been a truthful witness. It averred that since her evidence was consistent and unchallenged, the Trial Court believed that she was telling the truth. It was emphatic that the inconsistencies did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offence.
22. It relied on the case of S.O.O v Republic [2018] eKLR, where the court reiterated the position as was held in Dickson Elia Nsamba Shapwata & Another vs The Republic, CR. APP. NO. 92 OF 2007, where it was held that the court was to decide whether inconsistencies and contradictions were minor or whether they went to the root of the matter.
23. A perusal of the proceedings shows that PW 4 told the court that on 20th May 2021, at around 7.00pm, she met the Appellant, who introduced himself to her. She told the Trial Court that he asked her to board his motorcycle and promised to take her home, but instead he took her to his house in the Gambogi area. Roseline Matete (hereinafter referred to as “PW 1”) confirmed that PW 4 told her that she had slept “kwa kina Salim” (at Salim’s place).
24. PW 2 explained how he went to see for himself the “dame” that the Appellant had after, one Kevin informed him that the Appellant had a dame. He averred that he asked the Appellant if the “dame” who was PW 4 herein had an Identity Card (ID) and the Appellant responded in the affirmative.
25. Even though PW 3 testified that the minor informed him that she was defiled by someone unknown to her, there was sufficient evidence that PW 4 positively identified the Appellant. They spent the night together. This was sufficient time for her to have recognised him. PW 2 also confirmed having seen PW 4, who was accompanied to the Appellant’s house by her mother at the Appellant’s place. PW 5 also confirmed that PW 2 assisted them in arresting the Appellant. This court was satisfied that the Appellant was identified and there could not have been any mistaken identity. Identification was by way of recognition.
C. PENETRATION
26. The Appellant argued that PW 3 could not tell the probable type of weapon causing injury and could not assess the degree of injury that PW 4 sustained. He added that although PW 3 stated that PW 4’s hymen was perforated, he could not tell whether it was fresh or longstanding. He pointed out that PW 4 failed to describe the act that caused penetration since the penile shaft was not mentioned. He was emphatic that her evidence did not corroborate that of PW 3.
27. He relied on the case of P.K.W vs Republic (2012) eKLR, where the court held that the hymen could be broken by factors other than sexual intercourse, and in some cases, some girls were not born with a hymen.
28. He placed reliance on the case of Wendoh vs Republic (1953) 20 EA 166, amongst other cases where it was held that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. He submitted that Kevin, who was mentioned by PW 2, was not called, and the rider whom PW 4 alleged to have helped her. He argued that the rider was the only witness who could have told the court where he met PW 4, in what state PW 4 was, and whether she told him who her defiler was. He stated that failure to avail these witnesses occasioned a miscarriage of justice to him.
29. On the other hand, the Respondent rehashed PW 3’s and PW 4’s evidence in its Written submissions. It was emphatic that penetration was proved through their evidence, which was corroborated by the documents PW 3 produced as exhibits in the case.
30. It cited 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.
31. It further referred to Section 143 of the Evidence Act Cap 80 (Laws of Kenya), which provides that no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact. It placed reliance on the case of Keter vs Republic (2007) E. A. 135, where it was held that the prosecution was not obliged to call superfluity of witnesses, but only such witnesses as were sufficient to establish the charge beyond any reasonable doubt.
32. It submitted that the prosecution had the discretion to determine the witnesses it wished to call and could only be faulted if it failed to call crucial witnesses. It was emphatic that it called all crucial witnesses.
33. According to PW 4, the Appellant wore a condom and had sex with her twice. He stated that she bled and felt some pain. PW 3 testified that he examined her on 21st May 2021 and noted that she was bleeding. He observed that there was fresh blood, the hymen was perforated, and urinalysis showed epithelial and pus cells. He, however, pointed out that there were no lacerations on the labia majora and minora. He concluded that there was defilement. He produced treatment notes, PRC Form, and P3 Form as exhibits in the case herein. PW 5 confirmed that PW 4 was taken to the Station by a good Samaritan who noticed her walking style.
34. Notably, the proviso of Section 124 of the Evidence Act states Cap 80 (Laws of Kenya) 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) .”
35. 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 another's.
36. Section 143 of the Evidence Act 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.”
37. Indeed, there was no requirement that the Prosecution had to call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the Prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
38. In his sworn evidence, the Appellant stated that he was at the farm when two (2) people approached him and told him that he was required at the Gambogi Police Post. He denied knowing PW 4. During cross-examination, his father, Ali Chanzu Mustafu (hereinafter referred to as “DW 2”) told the Trial Court that he was not with the Appellant on the material dates.
39. Although the Appellant denied committing the offence, it was evident that PW 4’s evidence that she was defiled on the material night was corroborated by PW 3’s medical evidence and that of PW 2, who confirmed having seen her with the Appellant on the material night. His alibi evidence was weak as DW 2 could not vouch for his whereabouts on the night of 20th and 21st May 2021.
40. It was the view of this court that the evidence that was adduced by the Prosecution outweighed the evidence that the Appellant tendered in the Trial Court and was sufficient to have formed a basis for conviction. Indeed, this court found and held that the Prosecution proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt.
41. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2), (3) and (4) were not merited, and the same be and are hereby dismissed.
IV. SENTENCE
42. Ground of Appeal No (4) of the Petition of Appeal and Supplementary Ground of Appeal No (5) were dealt with under this head.
43. Although the Respondent submitted on the legality of the sentence that was meted upon the Appellant, his concern was that the Trial Court did not order that his sentence from the date that he was arrested. The Appellant submitted that he was arrested on 11th June 2021 and was convicted and sentenced on 18th September 2023. The court did not, therefore, analyse the Respondent’s submissions on the legality or otherwise of the sentence.
44. Suffice it to state that having been found to have defiled a child of twelve (12) years, the sentence of twenty (20) years was lawful as that is what was prescribed in Section 8(3) of the Sexual Offences Act Cap 63A (Laws of Kenya), which provides as follows:-
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
45. The Respondent did not oppose Appellant’s prayer for the sentence to run from the date of his arrest under Section 333(2) of the Criminal Procedure Code. He referred this court to the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR, where it was held that courts must take into account the period that the accused spent in custody during trial while sentencing them. It.
46. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:-
“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody (emphasis court) ” .
47. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
48. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
49. The Charge Sheet showed that the Appellant was arrested on 11th June 2021. Although he was granted bond, it appeared that he was unable to raise the same. He was sentenced on 18th September 2023. The Trial Court did not take this period into account while meting out the sentence on the Appellant herein.
50. In the premises foregoing, Ground of Appeal No (4) of the Petition of Appeal and Supplementary Ground of Appeal No (5) were merited, and the same be and are hereby allowed.
DISPOSITION
51. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 19 th December 2024 and filed on 20 th December 2024 and Supplementary Grounds of Appeal dated 24 th July 2025 and filed on 28 th July 2025 were partially successful. His conviction and his sentence be and are hereby upheld as they were both safe.
52. However, for the avoidance of doubt, t he period that the Appellant remained in custody between 11 th June 2021 and 17 th September 2023 be and is hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
53. It is so ordered.
DATED and DELIVERED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCRA NO E045 OF 20242