(An appeal from the conviction and sentence in Tawa SPM Court, Sexual Offence Case no. E039 of 2021, Judgment delivered on 22 nd July, 2024 by Hon. L.K. Mwendwa, PM)
1. The Appellant, Samuel Matata Mbisi, was charged with Defilement contrary to Section 8 (1) as read with (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on diverse dates between May, 2021 and 19 th November, 2021 at Uvilani Village at Kalawani Location Mbooni West Sub County within Makueni County, intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of SMM, a girl aged 14 years.
2. In the alternative, the prosecution preferred a charge of committing an indecent act with a child contrary to Section 11 (1) of the aforesaid Act. The particulars are that, the Appellant, on diverse dates between May, 2021 and 19 th November, 2021 at Uvilani Village at Kalawani Location Mbooni West Sub County within Makueni County, unlawfully and intentionally touched the vagina of SMM, a girl child aged 14 years with his penis.
3. The Court delivered a judgment on 21 st May, 2024, in which it found the Appellant guilty as charged in the main count of defilement, and convicted him. Having found him guilty in the main count, the court made no finding as regards the alternative count. It sentenced the Appellant to 20 years imprisonment.
4. The Appellant was dissatisfied with the judgment and appealed against both conviction and sentence. He listed the following grounds of appeal;
1) That the Learned trial Magistrate erred in matters of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him.
2) That the learned trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced.
3) That the learned trial Magistrate erred in matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the Appellant from the commission of the ill-fated offence.
4) That the Honourable Court imposed a sentence of 20 years imprisonment which is manifestly harsh.
5. He requested this Court to allow the appeal, quash the conviction, and set aside the sentence.
6. The Appeal was canvassed by way of written submissions. The Respondents filed their written submissions dated 16 th May, 2025. The same has been considered. The Appellant also filed his submissions. The same has also been considered at length.
Issues for Determination
7. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
8. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
9. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
10. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.”
11. The Complainant, PW3, told the Court that the Appellant took her to where he used to sleep and had sex with her. She described how the defilement happened and stated that she had sex with the Appellant several times. She told the Court that she later got pregnant and delivered in February, 2022. She stated that the Appellant is the father of her child.
12. PW4 was a Clinical Officer of Tawa Sub-County Hospital, who examined the Complainant on 19 th November, 2021. She is the one who filled the P3 Form. She produced the P3 Form, Post Rape Care Form, and treatment cards. She told the court that the external genitalia was normal with whitish discharge, and hymen was broken. She told the court that the pregnancy test was negative. I have seen the said forms. The PRC Form shows that the Complainant’s last intercourse was on 3 rd October, 2021, and that her LMP was on 13 th October, 2021.
13. These are the only witnesses who gave direct evidence on the element of penetration. Having outlined the evidence, the question now is whether, this evidence, proves the element of penetration.
14. The Complainant stated that her last intercourse with the Appellant was on 3 rd October, 2021. She was examined on 19 th November, 2021- which was 46 days after the alleged sexual assault. The medical examination revealed that the external genitalia was normal and that her hymen was broken. It also showed that she had a whitish vagina discharge.
15. Courts have severally held that a broken hymen cannot be used as proof of penetration. The Court of Appeal held this view in the case of P. K.W v Republic [2012] eKLR , where the court observed as follows;
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it, like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen v Manuel Vincent Quintanila [1999] AB QB 769.”
16. The Complainant claimed that her last intercourse with the Appellant was on 3 rd October, 2021 and that it was forceful.
17. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court made useful observations on how to prove penetration in the case of a forceful penetration. It observed as follows;
“The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .”
18. In the instant case, the Court notes that the examination was done 45 days after the alleged forced penetration. Given the lapse of time, the medical report could not have shown elements like blood stains, lacerations, or bruises on the complainant’s genitalia. Accordingly, I find the Complainant’s testimony on penetration was uncorroborated by the medical examination.
19. However, a Court can convict on uncorroborated evidence of a victim of a sexual offence, if the court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
“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.”
20. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
21. Therefore, before I rely on the Complainant’s testimony, I shall first address the issue of whether I am satisfied that she was telling the truth.
22. I note that the Complainant was not consistent on the month when she delivered the baby that she claims that the Appellant is the father. During the hearing, she told the Court that she delivered on February, 2022. However, she gave a different date to the probation officer. In her Victim Impact Statement Report, she stated that she delivered on 14 th November, 2022.
23. One of the issues that crosses the mind of the Court is whether the Complainant was pregnant as of 19 th November, 2021, when she underwent the medical examination. I find this issue important because the Complainant told the court that she delivered in February 2022 (about 3 months after the medical examination) and that the Appellant was the child's father.
24. On this issue, the clinical officer told the Court that, as of 19 th November, 2021, the Complainant was not pregnant (because the pregnancy test turned negative). In addition, in the PRC Form, the Complainant stated that she had her last sexual intercourse on 3 rd October, 2021. She also stated that her LMP was on 13 th October, 2021. Thus, having received her Menstruation Period 10 days after her last intercourse, this medically proves that the Complainant did not conceive on her last sexual intercourse (3 rd October, 2021). Based on this factual analysis, it points to the fact that the Complainant was not pregnant at the time of the examination.
25. This then means that she could not have delivered a baby in February, 2022, which was just less than 3 months after the medical examination. This creates the impression that the Complainant must have misled or lied to the court when she told the court that she delivered a baby on February 2022. She might have lied about the pregnancy with a view to making the Court believe that the said pregnancy was conceived during the time when she alleges to have been defiled.
26. In addition, I also note an inconsistency in the Complainant’s testimony on when she was defiled. She told the police officer who filled the P3 Form that she was defiled on diverse dates between May 2021 and 19 th November, 2021. However, she gave a different version to the medical officer. She told the Medical officer who filled the P3 Form that she was defiled on diverse dates between September 2021 and October 2021.
27. Lastly, the complainant claimed that her last intercourse with the Appellant was on 3 rd October, 2021 and that it was forceful. However, in her testimony, she did not state where this last defilement incident happened. Notably, the details of when (and the time) it happened were not filled in the PRC form. The section of the PRC form intended to be filled with this information was left blank.
28. The Complainant told the court that she had sex with the Appellant several times. She stated that they had sex at the Appellant’s place of work as well as in the forest. However, she did not describe the last incident, which allegedly occurred just 45 days before she recorded her statement with the police. She was 14 years of age when she recorded her statement. This factual analysis creates an impression to the mind of this Court that the Complainant withheld crucial information on her last sexual intercourse with the Appellant, to the extent that she did not tell the Court when (the time), where, and how the defilement happened. Given her age, and the fact that it had happened just 45 days earlier, I am not persuaded that she could not remember such crucial details.
29. The Court notes that the Complainant’s relationship with the Appellant might be very complex. PW2 explained that he took the complainant to the police station because she had absconded from school. It was there that she mentioned she missed school due to the appellant. PW2 also said he called the appellant afterward, which resulted in the appellant’s arrest. Some interesting facts also popped up in the pre-sentencing reports filed in Court. In her Victim Impact Statement Report, the Complainant told the probation officer that her last sexual intercourse with the Appellant was in March, 2022, which resulted in her pregnancy. She told the officer that she gave birth on 14 th November, 2022.
30. On the other hand, the record shows that the Appellant was released on cash bail on 23 rd November, 2021. Therefore, if the complainant’s claims that she had sexual intercourse with the Appellant in March 2022 are true, then it means that she had been seeing and having an affair with the Appellant during the pendency of the trial at the lower Court. Yet, she did not intimate this information to the Court. She did not tell the Court that the child she was talking about was conceived during the pendency of the criminal trial, when the Appellant was out on cash bail.
31. The particulars of the charge were presented quite speculatively. While some flexibility is permitted, it should not be misused to prejudice the accused by withholding precise information about the dates of the alleged offence. The particulars of a charge should not be treated as an open-ended fishing expedition. Clear and specific particulars of the charge are essential. When the evidence suggests a potential form of abuse in the use of date flexibility, the credibility of the witnesses comes into question.
32. In conclusion, I consider the complainant’s trustworthiness to be questionable. Therefore, the court finds no basis to believe her account of the alleged defilement by the Appellant.
33. There being no other evidence to prove the penetration element, I find that the conviction was unsafe.
Disposition
34. The Appeal succeeds.
35. The Conviction for the offense of Defilement in the judgment dated and delivered on 21 st May, 2024 by Honourable L.K. Mwendwa (PM) in the Sexual Offences Case No. E039 of 2021 is hereby quashed, and the sentence is set aside.
36. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
37. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
7 | Page
1. The Appellant, Samuel Matata Mbisi, was charged with Defilement contrary to Section 8 (1) as read with (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on diverse dates between May, 2021 and 19 th November, 2021 at Uvilani Village at Kalawani Location Mbooni West Sub County within Makueni County, intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of SMM, a girl aged 14 years.
2. In the alternative, the prosecution preferred a charge of committing an indecent act with a child contrary to Section 11 (1) of the aforesaid Act. The particulars are that, the Appellant, on diverse dates between May, 2021 and 19 th November, 2021 at Uvilani Village at Kalawani Location Mbooni West Sub County within Makueni County, unlawfully and intentionally touched the vagina of SMM, a girl child aged 14 years with his penis.
3. The Court delivered a judgment on 21 st May, 2024, in which it found the Appellant guilty as charged in the main count of defilement, and convicted him. Having found him guilty in the main count, the court made no finding as regards the alternative count. It sentenced the Appellant to 20 years imprisonment.
4. The Appellant was dissatisfied with the judgment and appealed against both conviction and sentence. He listed the following grounds of appeal;
1) That the Learned trial Magistrate erred in matters of law and fact by failing to find that the whole case was marred by material contradictions and inconsistencies which went to the root of the charges facing him.
2) That the learned trial Magistrate erred in matters of law and fact by failing to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced.
3) That the learned trial Magistrate erred in matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the Appellant from the commission of the ill-fated offence.
4) That the Honourable Court imposed a sentence of 20 years imprisonment which is manifestly harsh.
5. He requested this Court to allow the appeal, quash the conviction, and set aside the sentence.
6. The Appeal was canvassed by way of written submissions. The Respondents filed their written submissions dated 16 th May, 2025. The same has been considered. The Appellant also filed his submissions. The same has also been considered at length.
Issues for Determination
7. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
8. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
9. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
10. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
“19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.”
11. The Complainant, PW3, told the Court that the Appellant took her to where he used to sleep and had sex with her. She described how the defilement happened and stated that she had sex with the Appellant several times. She told the Court that she later got pregnant and delivered in February, 2022. She stated that the Appellant is the father of her child.
12. PW4 was a Clinical Officer of Tawa Sub-County Hospital, who examined the Complainant on 19 th November, 2021. She is the one who filled the P3 Form. She produced the P3 Form, Post Rape Care Form, and treatment cards. She told the court that the external genitalia was normal with whitish discharge, and hymen was broken. She told the court that the pregnancy test was negative. I have seen the said forms. The PRC Form shows that the Complainant’s last intercourse was on 3 rd October, 2021, and that her LMP was on 13 th October, 2021.
13. These are the only witnesses who gave direct evidence on the element of penetration. Having outlined the evidence, the question now is whether, this evidence, proves the element of penetration.
14. The Complainant stated that her last intercourse with the Appellant was on 3 rd October, 2021. She was examined on 19 th November, 2021- which was 46 days after the alleged sexual assault. The medical examination revealed that the external genitalia was normal and that her hymen was broken. It also showed that she had a whitish vagina discharge.
15. Courts have severally held that a broken hymen cannot be used as proof of penetration. The Court of Appeal held this view in the case of P. K.W v Republic [2012] eKLR , where the court observed as follows;
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it, like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen v Manuel Vincent Quintanila [1999] AB QB 769.”
16. The Complainant claimed that her last intercourse with the Appellant was on 3 rd October, 2021 and that it was forceful.
17. In Eliud Muraya Wabuchi v Republic [2020] eKLR , the Court made useful observations on how to prove penetration in the case of a forceful penetration. It observed as follows;
“The evidence of PW3 the clinical officer did not help much. PW3 did not find any lacerations or bruises on the complainant’s genitalia to support PW1’s allegations of forced sex. There would have been presence of bruises or lacerations had there been force. No discharge was found and no blood stains were found even though PW1 said she had bled a lot. One wonders whether indeed there was forceful penetration of PW1 at all. Despite PW3’s findings, he then made a finding that there was penile penetration. In my view, the said finding was without any basis .”
18. In the instant case, the Court notes that the examination was done 45 days after the alleged forced penetration. Given the lapse of time, the medical report could not have shown elements like blood stains, lacerations, or bruises on the complainant’s genitalia. Accordingly, I find the Complainant’s testimony on penetration was uncorroborated by the medical examination.
19. However, a Court can convict on uncorroborated evidence of a victim of a sexual offence, if the court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
“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.”
20. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
21. Therefore, before I rely on the Complainant’s testimony, I shall first address the issue of whether I am satisfied that she was telling the truth.
22. I note that the Complainant was not consistent on the month when she delivered the baby that she claims that the Appellant is the father. During the hearing, she told the Court that she delivered on February, 2022. However, she gave a different date to the probation officer. In her Victim Impact Statement Report, she stated that she delivered on 14 th November, 2022.
23. One of the issues that crosses the mind of the Court is whether the Complainant was pregnant as of 19 th November, 2021, when she underwent the medical examination. I find this issue important because the Complainant told the court that she delivered in February 2022 (about 3 months after the medical examination) and that the Appellant was the child's father.
24. On this issue, the clinical officer told the Court that, as of 19 th November, 2021, the Complainant was not pregnant (because the pregnancy test turned negative). In addition, in the PRC Form, the Complainant stated that she had her last sexual intercourse on 3 rd October, 2021. She also stated that her LMP was on 13 th October, 2021. Thus, having received her Menstruation Period 10 days after her last intercourse, this medically proves that the Complainant did not conceive on her last sexual intercourse (3 rd October, 2021). Based on this factual analysis, it points to the fact that the Complainant was not pregnant at the time of the examination.
25. This then means that she could not have delivered a baby in February, 2022, which was just less than 3 months after the medical examination. This creates the impression that the Complainant must have misled or lied to the court when she told the court that she delivered a baby on February 2022. She might have lied about the pregnancy with a view to making the Court believe that the said pregnancy was conceived during the time when she alleges to have been defiled.
26. In addition, I also note an inconsistency in the Complainant’s testimony on when she was defiled. She told the police officer who filled the P3 Form that she was defiled on diverse dates between May 2021 and 19 th November, 2021. However, she gave a different version to the medical officer. She told the Medical officer who filled the P3 Form that she was defiled on diverse dates between September 2021 and October 2021.
27. Lastly, the complainant claimed that her last intercourse with the Appellant was on 3 rd October, 2021 and that it was forceful. However, in her testimony, she did not state where this last defilement incident happened. Notably, the details of when (and the time) it happened were not filled in the PRC form. The section of the PRC form intended to be filled with this information was left blank.
28. The Complainant told the court that she had sex with the Appellant several times. She stated that they had sex at the Appellant’s place of work as well as in the forest. However, she did not describe the last incident, which allegedly occurred just 45 days before she recorded her statement with the police. She was 14 years of age when she recorded her statement. This factual analysis creates an impression to the mind of this Court that the Complainant withheld crucial information on her last sexual intercourse with the Appellant, to the extent that she did not tell the Court when (the time), where, and how the defilement happened. Given her age, and the fact that it had happened just 45 days earlier, I am not persuaded that she could not remember such crucial details.
29. The Court notes that the Complainant’s relationship with the Appellant might be very complex. PW2 explained that he took the complainant to the police station because she had absconded from school. It was there that she mentioned she missed school due to the appellant. PW2 also said he called the appellant afterward, which resulted in the appellant’s arrest. Some interesting facts also popped up in the pre-sentencing reports filed in Court. In her Victim Impact Statement Report, the Complainant told the probation officer that her last sexual intercourse with the Appellant was in March, 2022, which resulted in her pregnancy. She told the officer that she gave birth on 14 th November, 2022.
30. On the other hand, the record shows that the Appellant was released on cash bail on 23 rd November, 2021. Therefore, if the complainant’s claims that she had sexual intercourse with the Appellant in March 2022 are true, then it means that she had been seeing and having an affair with the Appellant during the pendency of the trial at the lower Court. Yet, she did not intimate this information to the Court. She did not tell the Court that the child she was talking about was conceived during the pendency of the criminal trial, when the Appellant was out on cash bail.
31. The particulars of the charge were presented quite speculatively. While some flexibility is permitted, it should not be misused to prejudice the accused by withholding precise information about the dates of the alleged offence. The particulars of a charge should not be treated as an open-ended fishing expedition. Clear and specific particulars of the charge are essential. When the evidence suggests a potential form of abuse in the use of date flexibility, the credibility of the witnesses comes into question.
32. In conclusion, I consider the complainant’s trustworthiness to be questionable. Therefore, the court finds no basis to believe her account of the alleged defilement by the Appellant.
33. There being no other evidence to prove the penetration element, I find that the conviction was unsafe.
Disposition
34. The Appeal succeeds.
35. The Conviction for the offense of Defilement in the judgment dated and delivered on 21 st May, 2024 by Honourable L.K. Mwendwa (PM) in the Sexual Offences Case No. E039 of 2021 is hereby quashed, and the sentence is set aside.
36. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
37. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
7 | Page