(From the original matter in S.O. Case No. 36 of 2020 at Makueni Law Court, judgment delivered on 22nd May 2025 by Hon. A. Ndung’u, Principal Magistrate)
1. Willy Mande, 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.
2. The particulars of the offence are that on 22nd June 2020, at Kyanduma village, in Kibwezi Sub-County within Makueni County, he intentionally and unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of S.M, a girl aged 15 years. He was sentenced to sixteen (16) year’s imprisonment.
3. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. Aggrieved by the trial court’s decision, the Appellant, in his petition of appeal, prays that the conviction be quashed and the sentence be set aside. He raised the following twelve grounds for appeal:
(a) That he pleaded not guilty to the charges.
(b) That the trial magistrate grossly erred in both law and facts by relying on suspicious and fictitious evidence of PW1 and without noticing that PW1 was subjected to duress thus incriminating the appellant.
(c) That the trial magistrate erred in law and facts by relying on hearsay evidence adduced by complainant’s mother; in that there was a family dispute between the complainant’s mother and the appellant, where the appellant’s mother promised to ‘make a revenge’, thus the charges against the appellant were born out of malice and ill-will.
(d) That the trial magistrate erred in both law and facts by convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubt without the benefit of properly conducted DNA tests required under Section 2 of the Sexual Offences Act, to ascertain whether or not the accused was linked with committing the alleged offence.
(e) That the trial magistrate gravely erred in both law and fact in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the appellant.
(f) That the learned trial magistrate erred in law by shifting the burden of proof to the appellant and further ignoring his defence without proper evaluation.
(g) That the learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough to warrant a conviction.
(h) That the trial court erred in law and fact without observing that there were no substantive investigations by the Investigating Officer (I.O) thereby basing the conviction on mere allegations and fabrication; In that the I.O failed by not visiting the scene of the crime. He acted in malafides while handling the matter.
(i) That the trial court erred in law and fact by shifting the burden of proof to the appellant; and that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defence.
(j) That the trial magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence therefore arriving at an erroneous decision.
(k) That the Appellant is very much remorseful before the Honourable High Court. He prays for leniency and that the entire judgment and the sentence imposed be set aside and to set him at liberty.
(l) That the trial court erred in law by failing to find that the trial offended and contravened the Appellant’s Right to Fair Trial in accordance with Article 50 of the Constitution.
The Evidence
5. The complainant, S.M aged 16 years (born on 10.03.2005), testified as PW1. She stated that she was on her way home at 6:00 P.M from Musau’s (a neighbour) residence when she saw the Appellant walk behind her. He suddenly held her by the neck, covered her mouth when she was about to scream, took her into a bush, removed her skirt, biker and pants, unzipped his trouser and inserted his penis in her vagina as she was forcefully laid on the ground. She stated that despite struggling and asking him to leave her alone, the Appellant did not stop. PW1 stated that a young man by the name Musau, found the Appellant defiling her. The Appellant then lied to Musau that he was asking PW1 questions and left. Musau and PW1 then went to report the defilement to PW1’s mother, who told her not to take a shower. They then went to the police station at Nthongoni on the next day.
6. PW2 identified herself as Rose Mombo, a clinical officer at Mtito Andei Sub-County Hospital, and said that she filled the P3 form on 24/06/2020 for PW1, estimated age 15 years old at the time. She stated that in the aftermath, the state of PW1’s clothes which were a white blouse and a black skirt were not torn, but the inner clothes were blood stained. As for PW1’s general medical history, she was in good general good condition. The general appearance was not intoxicated, no injuries to the head, neck, thorax, abdomen, upper and lower limbs. The estimated age of injury to the genitalia was 2 days. The degree of injury was harm and the nature of offence was defilement. On examination of the genitalia, what was found was broken hymen, tenderness over vaginal wall, and brownish discharge over outer genitalia. PW2 also produced the PRC and stated that she also had a lab report showing the results of the treatment done.
7. PW3, NO. 105614 P.C. Jackline Kajuju, the investigation officer confirmed that on 23/06/2020, she was at Mtito Andei Police Station. She stated that she was called by the OCS Mtito Andei Police Station informing her of a reported defilement case and asked her to investigate. She stated that she interrogated PW1, the complainant, who informed her that on 22/06/2020 at 8:00 P.M, she was at home with her mother and sister. When she went outside to get water, she saw the Appellant who signalled to her, and she went to hear what he had to say. The Appellant than took her to a bush, told her that he wanted to have sex with her, and forcefully removed her clothes, lowered his trousers and defiled her despite PW1 refusing. In the act, a boy that PW1 studies with showed up, after which the Appellant stood up, dressed and left. She dressed, went home and reported to her mother who told her not to shower. On 23/06/2020, they made a report at Nthongoni Police Post, and PW1 was taken to hospital by PC Nyambura at Nthongoni Police Post. The complainant was 15 years old then (born on 10/05/2005). The birth certificate then marked as MF4 marked as Pexb.4.
8. PW4, Joseph Musau Kyuma, stated that on 22/06/2020 at around 6:00 P.M. he was at home preparing to go to the shops when he saw the Appellant (pointing at him) having slapped a female student, who he identified as the complainant since they schooled together at Kithingisyo Primary School. PW4 further stated that when the Appellant saw him, he asked the complainant to hide in the bush. PW4 walked past them and saw the Appellant and the complainant half naked. He pretended to walk past and hid due to his suspicions that the Appellant was going to do something to the girl. After a few minutes, he walked back to find the Appellant on top of the complainant, defiling the complainant (both half naked). He asked the Appellant what he was doing and the answer was “kumpima” referring to the complainant. The following day he went to the girl’s house and informed her mother, PW5, what he’d seen, who also wanted to see the scene of the alleged offence, which he took her to. He stated that PW5 instructed him to call one “Uncle Mwanzui Muasya”. The village elder one Mutiso Wala was also called. The Uncle’s children also wanted to see the scene of the alleged offence, and he took them. The appellant was questioned and denied the offence, while the complainant confirmed the offence, both in each other’s presence. The appellant was escorted to Nthongoni Police Station, where PW4 also recorded his witness statement.
9. PW5, PW1’s mother, identified the Appellant, stating that he was known as Willy back home. She knew him since the mother to the appellant’s wife is a sister to PW5’s father. She saw the appellant for a year only since he resided elsewhere. However, his wife resided at PW5’s home for that year, and the appellant visited for that cause, and stated that he lived with her for a year with his wife and children. She stated that on 22/06/6060, at 8:00 P.M, she was at home when the complainant arrived home and explained that she was late to return home due to the appellant defiling her, and having told her that if she screamed, he would put a bottle in her mouth. She stated that she called Musau (PW4) since PW1 had told her that he witnessed the incident, to which he confirmed. PW4 went to her residence the following morning to confirm PW1’s story. Thereafter, they went to the Police Station, then the hospital. Before leaving for the police, PW5 told PW4 to call one “Uncle Mwanzui” to see what was happening. She was also taken to the scene of the alleged offence by PW4.
10. PW6, Mutiso Wala, identified himself as a village elder at Kyanduma Village. He identified the appellant as a neighbour within the village. He stated that the appellant’s wife came to the village first, after which the appellant joined her and they bought a parcel of land and settled. He had thus known the appellant’s wife for 4-5 years prior to the incident. He stated that on 23/06/2020, he was called by the appellant and was informed that there were issues relating to Ann Muthini (PW5) and told him to proceed to PW5’s residence. He stated that on arrival, he found PW5 and the appellant, and PW5’s family accompanied by the complainant arrived a few minutes later. The appellant told him of the claim by PW5 that he had defiled the complainant. After asking PW5, she told him that Musau (PW4) witnessed the incident, who was present at that moment and confirmed the same to him. PW6 satted that he told them to go to Nthongoni Police Statuion for action to be taken, where he recorded his statement. In cross-examination, the appellant claimed that PW6 was the one who called him and not the other way around. There was no re-examination.
11. DW1, the Appellant, stated that on 23/06/2020, he left home and went to a surveyors’ meeting. After a short walk, he stated that he heard a youth by the name Mutinda Mwanzui calling him, who then told him that his father had sent for him. He then said that he would pass by after the surveyors’ meeting. He went to PW5’s homestead, where she questioned him o n why he was found by the side of the road with the complainant. He was then told that this information was relayed by PW4. He stated that he returned his phone and called the village elder, and then called for the complainant to ask for an explanation on the matter. The village elder arrived after a 30-minute wait, and he suggested that matters on children be taken to the Chief’s office. PW4 was called and they went to the Chief’s office’s “askaris”. At 5:00 P.M he was taken for a HIV test, and at 6:40 P.M, he was taken by a motor vehicle from Mtito Andei Police Station, which took him to the second police station wher he spent the night. On 24th on Wednesday, PW4, Mutinda Mwanzui, and PW5 came, and his family also arrived at another time to bring him food. He stated that the allegations were not true. He stated that PW1’s statement that she was sent t a neighbour’s house (PW4’s house) which was 5 steps from her home, and that she was subsequently defiled showed that he was framed since it was a short distance between the two houses. He also brought up PW1 telling the court that she was received at Nthongoni and not Mtitio Andei. The appellant told the court that he had a son in school at Kitise who had not proceeded to college and was his dependant. He also stated that he had two other children, one who had sat for their KCPE and another in CBC but had not continued with school, except one who was taken in by neighbours. He then prayed that the court look at both sides.
Appellant’s Submissions Dated 14th October 2025
GROUNDS 1, 2 & 3
Trial Court Erred in Law and Facts in Relying on Suspicious and Fictitious Evidence
12. It is the Plaintiff’s contention that the learned trial Magistrate erred in both law and facts by relying on hearsay evidence without noting that the complainant was subjected to duress thus incriminating the appellant.
13. The appellant states that it is trite law that the burden of proof always rests on the prosecution. It is not the duty of the accused to prove their innocence. Any reasonable hypothesis of innocence is on the prosecution and always remains on the prosecution. It is a burden which never shifts to the party accused.
Ground 4 and 5
The Trial court failed in convicting the appellant on mere allegations and presumptions
14. The Appellant also states that the learned trial Magistrate erred in both law and fact by holding the testimonies of prosecution witnesses as truthful and free from doubt without the benefit of properly conducted DNA tests required under Section 2 of the Sexual Offences Act, to ascertain whether or not the accused was linked with committing the alleged offence
15. The Appellant submits that it was wrong for the trial court to pass the verdict to convict on the matter founded on mere allegations and hearsay. It is necessary before drawing the inference of the accused guilt based on circumstantial evidence to be sure that there are no other co-existing circumstances that would weaken the inference. The evidence adduced by the Investigating Officer was insufficient, fabricated and lacked probative values to justify a conviction.
16. The Appellant further submits that there was no evidence of any strangulation nor any injury that the complainant had sustained on her body or genital organs. All the tests done as per the P3 form were normal, thus the medical evidence adduced does not support the claim by the prosecution witness.
Ground 6 and 7
The Trial court failed to test the evidence of prosecution witnesses and caution the circumspection
17. The Appellant states that the trial court erred in both law and fact by failing to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough and lacked probative value to warrant a conviction.
18. In his submission that the evidence adduced by the prosecution was insufficient, the Appellant provides the meaning of ‘proof beyond reasonable doubt’ as explained by Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, which was as thus: “…proof beyond reasonable doubt does not mean proof beyond shadow of doubt…”
19. The Appellant also submits that the accused is entitled to a benefit of doubt, not as a matter of grace and concession, but as a matter of right.
Ground 8,9 & 10
Failing by shifting the burden of proof and not observing that there was no substantive investigation
20. The Appellant submits that the Investigating Officer (I.O) did a shoddy job. There were no fingerprints or anything found and produced before court linking the Appellant with the commission of the alleged offence. The Appellant further states that the I.O acted in malafides when handling the matter and that the evidence adduced was to nail down the Appellant due to family grudges.
21. The Appellant submits that the burden of proof always rests on the prosecution side and that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defence.
22. The Appellant states that during cross-examination, PW1 stated that she was feeling pain in her genital organs. On the contrary, the medical practitioner noted that there were no tears, no evidence of forceful penetration, and finally no evidence of healing wounds or lacerations were ever found on PW1’s genitalia. The appellant references the case of Bernard Kyalo Mayoli v Republic, Criminal Appeal No. 138 of 2017, where his Lordship Justice Kariuki stated in the case (SUPRA) that hymen is a fragile and delicate tissue which can be broken easily on its own or by minor bacterial infection (candidiasis). He avers that no evidence was tendered to show whether the victim was indecently touched.
23. The appellant also cited the case of the Supreme Court of Canada in R v Lichfus (1997), which contained provisions on presumption of innocence.
24. The appellant further submitted that the trial court failed to note that the prosecution failed to prove its case as required by law and also failed to scrutinize and evaluate the evidence therefore arriving at an erroneous decision. The court deliberately overlooked the fact that the witness gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross examination of the defense counsel, which was biased and in favour of the prosecution. The court also contravened Article 47 of the Constitution.
25. The Appellant implores the court to find that the prosecution did not prove their case beyond reasonable doubt that since they did not conduct the DNA test to ascertain whether the appellant was linked to the commission of the alleged offense. It is his view that the DNA test would have sufficed as the concrete hammer to nail the appellant since doubts abounded as to whether the appellant committed the offense or if it was someone else. He states that justice must balance for all parties.
26. The appellant cites the case of Pius Arap Maina v Republic (2013) eKLR (Criminal Appeal No 247 of 2011), where the court noted that:
“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be in favour of the accused.”
27. The appellant submits that wrongful convictions have terrible and irreparable impact on the innocent defendant sent to prison. The phenomenon of wrongful conviction has broad implications. Not only is the wrongfully convicted individual unjustly robbed of their freedom, but their family is dramatically impacted as well.
28. In the case of J.O.O v Republic (2015) eKLR, it was held that:
“Whereas a court of law is always called upon to make decisions or inferences on some set of circumstances, such court should endeavour to make such decisions or inferences on the basis of available evidence as adduced before it and it ought to be slow in making assumptions not supported by facts as tendered before court.”
29. The appellant also invokes the holding in Bukenya & Others v Uganda {1972} EA 549:
“The state of the evidence tendered with all of its inconsistencies means that the appellant’s complaint that some vital witnesses were not called is also not idle. It is of course trite that there is no number of witnesses required to prove a fact. See Section 143 of the Evidence Act. However, it has long been the law that when prosecution calls evidence that is barely adequate, then failure to call vital witnesses may entitle the court to draw an inference that had such witnesses been called, their evidence would have been adverse to the prosecution’s case.”
Ground 11 and 12
30. The appellant submits that the sentence imposed/meted against the appellant was manifestly draconian, excessively punitive and oppressive based on facts and circumstances of the alleged offence and contravened the provisions of Article 47 of the Constitution of Kenya. He further submits that his constitutional rights were contravened by the trial court since he was not supplied with relevant documents such as the birth certificate of the complainant hence violating his rights.
31. The appellant concludes his submissions by praying that the honourable court is persuaded by the above arguments to hold the present appeal in favour of the appellant herein. In default of any acquittal, may this court exercise its discretion in finding that the evidence on record falls short of what is required to support conviction. It is the submission by the appellant that the court will give into effect the mitigation of the appellant, re-analyze and re-evaluate the entire evidence and find that it was unsafe to convict the appellant.
32. The appellant therefore prays that the honourable court finds merit in his submission, quashes the conviction and sets aside the sentence in the interest of justice.
Respondent’s Submissions Dated 18th March 2026
33. In response to the written submissions filed by the Appellant, Principal Prosecution Counsel for the Office of the Director of Public Prosecution Makueni Law Courts, on behalf of the Respondent herein, drew and filed written submissions.
34. After considering the twelve grounds of appeal raised by the appellant, the respondent has formulated three grounds for their submissions:
a. Whether the prosecution proved its case against the appellant beyond reasonable doubt.
b. Whether there are contradictions or inconsistencies in the evidence that would render the conviction unsafe.
c. Whether the sentence was harsh and excessive.
Ground 1
35. On whether the prosecution proved its case against the Appellant beyond reasonable doubt the Respondent submits that it is trite law that the ingredients for the offence of defilement, that the prosecution must prove beyond reasonable doubt to secure a conviction are: age of the victim, penetration and identity of the perpetrator.
36. Age. PW1, the complainant, stated in evidence that she was 16 years old. The incident happened on 22nd June 2020 when she was 15 years old. PW3, the Investigating Officer, testified in court and stated that the complainant was 15 years at the time of the offence. She produced a birth certificate which showed that the complainant was born on 10th March 2005, thus she was 15 years at the time. It is the respondent’s submission therefore that the prosecution proved beyond reasonable doubt that the complainant was a child aged 15 years.
37. Penetration. PW1 states in evidence that on 22nd June 2020 at about 6:00 P.M, she was from a neighbour’s home, namely Musau Juma (PW4), when the appellant trailed her from behind, held her by the neck, and laid her down in the bush against her will then removed her clothes. He opened his trouser, removed his penis and lay on top of her on the ground, after which he defiled her by inserting his penis into her vagina. While defiling her, PW4 walked by and saw the appellant defiling her and that is when the appellant stood up and left. The following day, they went to Nthongoni Police Station, she was taken to the hospital thereafter, and later referred to Mtito Andei Hospital where the medical documents were filled. The respondent submits that PW4 corroborated PW1’s evidence by stating that on 22/06/2020 at about 6:00 P.M, he left his home going to the shopping centre and saw the appellant with the complainant at a footpath bushy on both sides. PW4 hid behind a bush where the appellant could not see him. After some time, he walked back and found the appellant half naked and on top of PW1 defiling her on the ground. He asked the appellant what he was doing with a school girl and he replied that he was measuring her (“kumpima”).
38. The respondent further submits that PW2, the clinical officer from Mtito Andei Sub-County Hospital testified that an examination of PW1’s genitalia showed: broken hymen, tenderness over vaginal wall, and stains of blood, conclusive evidence that she was defiled. She produced the P3 form and the PRC form as PEX1 and PEX2. Accordingly, from the evidence of PW1 as corroborated with PW2 and PW4, the respondent submits that the prosecution sufficiently proved the element of penetration.
39. Identity of the perpetrator. The respondent submits that the offence happened at 6:00 P.M, in broad daylight. PW1 stated that the appellant is well known to her, a neighbour. PW4 stated that the saw the appellant in the act of defiling PW1. PW5 testified that her daughter informed her that she had been defiled by the appellant. PW6 testified that PW1 and PW4 informed him that the appellant is the one that defiled the complainant. The appellant gave sworn evidence denying the offence alluding that he had been framed. However, the trial court who had the occasion to listen to the witnesses and observe their demeanor concluded that PW1 was truthful and the prosecution witness evidence was consistent. He disregarded the appellant’s defence stating that it did not displace nor controvert the prosecution’s case.
40. The therefore submit that the prosecution proved beyond reasonable doubt that the appellant was the perpetrator, and in totality proved beyond reasonable doubt the offence of defilement against the appellant.
Ground 2
a. On whether there are contradictions or inconsistencies in the evidence that would render the conviction unsafe, the Respondent refers to the case of Phillip Nzaka Watu v Republic [2016] eKLR, where the court observed that:
“…when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and nature and extent of the discrepancies and inconsistencies in question.”
41. The Respondent cited the case of Khisa v Republic (Criminal Appeal 262 of 2019) [2025] KECA 486 (KLR), where the Court of Appeal stated as follows:
20. The court's duty is to determine whether there were contradictions and inconsistencies in the evidence to the extent that a reasonable person would be left in doubt as to whether the charge was proved, or whether the contradictions are so material that the trial court ought to have rejected the evidence. However, as was held by the Uganda Court of Appeal held in Twehangane Alfred vs Uganda, [2003] UGCA, 6, it is not every contradiction that warrants rejection of evidence. The question is whether the alleged inconsistencies and contradictions are grave and point to deliberate untruthfulness of the witnesses.
21.Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. Having evaluated the evidence tendered by the parties and applying the tests discussed above, we are persuaded the cited discrepancies/ contradictions viewed in totality of the evidence and the appellant’s defence did not affect the credibility of the prosecution witnesses. As was held in Phillip Nzaka Watu vs. Republic (supra), when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail.
42. The Respondent submits that the two cases cited above are to the effect that no two witnesses cannot give the exact similar story, and that there has to be some variation in evidence based on human recollection differences. Therefore, slight variations which do not go to the root of the matter are excusable.
43. The Respondent states that there were minor contradictions such as: PW1 stated that PW4 informed the mother of the incident the same day, while PW4 and PW5 stated that PW4 relayed the information on the incident to PW5 the following day. Such inconsistencies are minor, trivial and do not affect the credibility of PW1’s testimony, hence not fatal to the prosecution case. As such, the Respondent submits that it does not render the conviction unsafe.
Ground 3
44. Whether the sentence was harsh and excessive. The respondent refers to Section 8(3) of the Sexual Offences Act which provides that “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.” The Appellant in this case was sentenced to 16 years which was both a lenient and unlawful sentence. It is therefore the Respondent’s submission that the sentence was neither harsh nor excessive.
45. In the upshot, the Respondent prays that the Honourable Court dismiss the appeal in its entirety and uphold both the conviction and the sentence.
Analysis and Determination
46. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal, the evidence contained therein together with the written submissions. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyse the entire evidence that was placed before the trial court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This duty of a first appellate court was authoritatively stated by the Court of Appeal in Okeno v Republic [1972] EA 32, where the Court observed as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is n
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1. Willy Mande, 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.
2. The particulars of the offence are that on 22nd June 2020, at Kyanduma village, in Kibwezi Sub-County within Makueni County, he intentionally and unlawfully caused his male genital organ (penis) to penetrate the female genital organ (vagina) of S.M, a girl aged 15 years. He was sentenced to sixteen (16) year’s imprisonment.
3. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. Aggrieved by the trial court’s decision, the Appellant, in his petition of appeal, prays that the conviction be quashed and the sentence be set aside. He raised the following twelve grounds for appeal:
(a) That he pleaded not guilty to the charges.
(b) That the trial magistrate grossly erred in both law and facts by relying on suspicious and fictitious evidence of PW1 and without noticing that PW1 was subjected to duress thus incriminating the appellant.
(c) That the trial magistrate erred in law and facts by relying on hearsay evidence adduced by complainant’s mother; in that there was a family dispute between the complainant’s mother and the appellant, where the appellant’s mother promised to ‘make a revenge’, thus the charges against the appellant were born out of malice and ill-will.
(d) That the trial magistrate erred in both law and facts by convicting on mere allegations and presumptions and holding the testimonies of the prosecution witnesses as truthful and free from doubt without the benefit of properly conducted DNA tests required under Section 2 of the Sexual Offences Act, to ascertain whether or not the accused was linked with committing the alleged offence.
(e) That the trial magistrate gravely erred in both law and fact in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the appellant.
(f) That the learned trial magistrate erred in law by shifting the burden of proof to the appellant and further ignoring his defence without proper evaluation.
(g) That the learned trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough to warrant a conviction.
(h) That the trial court erred in law and fact without observing that there were no substantive investigations by the Investigating Officer (I.O) thereby basing the conviction on mere allegations and fabrication; In that the I.O failed by not visiting the scene of the crime. He acted in malafides while handling the matter.
(i) That the trial court erred in law and fact by shifting the burden of proof to the appellant; and that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defence.
(j) That the trial magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence therefore arriving at an erroneous decision.
(k) That the Appellant is very much remorseful before the Honourable High Court. He prays for leniency and that the entire judgment and the sentence imposed be set aside and to set him at liberty.
(l) That the trial court erred in law by failing to find that the trial offended and contravened the Appellant’s Right to Fair Trial in accordance with Article 50 of the Constitution.
The Evidence
5. The complainant, S.M aged 16 years (born on 10.03.2005), testified as PW1. She stated that she was on her way home at 6:00 P.M from Musau’s (a neighbour) residence when she saw the Appellant walk behind her. He suddenly held her by the neck, covered her mouth when she was about to scream, took her into a bush, removed her skirt, biker and pants, unzipped his trouser and inserted his penis in her vagina as she was forcefully laid on the ground. She stated that despite struggling and asking him to leave her alone, the Appellant did not stop. PW1 stated that a young man by the name Musau, found the Appellant defiling her. The Appellant then lied to Musau that he was asking PW1 questions and left. Musau and PW1 then went to report the defilement to PW1’s mother, who told her not to take a shower. They then went to the police station at Nthongoni on the next day.
6. PW2 identified herself as Rose Mombo, a clinical officer at Mtito Andei Sub-County Hospital, and said that she filled the P3 form on 24/06/2020 for PW1, estimated age 15 years old at the time. She stated that in the aftermath, the state of PW1’s clothes which were a white blouse and a black skirt were not torn, but the inner clothes were blood stained. As for PW1’s general medical history, she was in good general good condition. The general appearance was not intoxicated, no injuries to the head, neck, thorax, abdomen, upper and lower limbs. The estimated age of injury to the genitalia was 2 days. The degree of injury was harm and the nature of offence was defilement. On examination of the genitalia, what was found was broken hymen, tenderness over vaginal wall, and brownish discharge over outer genitalia. PW2 also produced the PRC and stated that she also had a lab report showing the results of the treatment done.
7. PW3, NO. 105614 P.C. Jackline Kajuju, the investigation officer confirmed that on 23/06/2020, she was at Mtito Andei Police Station. She stated that she was called by the OCS Mtito Andei Police Station informing her of a reported defilement case and asked her to investigate. She stated that she interrogated PW1, the complainant, who informed her that on 22/06/2020 at 8:00 P.M, she was at home with her mother and sister. When she went outside to get water, she saw the Appellant who signalled to her, and she went to hear what he had to say. The Appellant than took her to a bush, told her that he wanted to have sex with her, and forcefully removed her clothes, lowered his trousers and defiled her despite PW1 refusing. In the act, a boy that PW1 studies with showed up, after which the Appellant stood up, dressed and left. She dressed, went home and reported to her mother who told her not to shower. On 23/06/2020, they made a report at Nthongoni Police Post, and PW1 was taken to hospital by PC Nyambura at Nthongoni Police Post. The complainant was 15 years old then (born on 10/05/2005). The birth certificate then marked as MF4 marked as Pexb.4.
8. PW4, Joseph Musau Kyuma, stated that on 22/06/2020 at around 6:00 P.M. he was at home preparing to go to the shops when he saw the Appellant (pointing at him) having slapped a female student, who he identified as the complainant since they schooled together at Kithingisyo Primary School. PW4 further stated that when the Appellant saw him, he asked the complainant to hide in the bush. PW4 walked past them and saw the Appellant and the complainant half naked. He pretended to walk past and hid due to his suspicions that the Appellant was going to do something to the girl. After a few minutes, he walked back to find the Appellant on top of the complainant, defiling the complainant (both half naked). He asked the Appellant what he was doing and the answer was “kumpima” referring to the complainant. The following day he went to the girl’s house and informed her mother, PW5, what he’d seen, who also wanted to see the scene of the alleged offence, which he took her to. He stated that PW5 instructed him to call one “Uncle Mwanzui Muasya”. The village elder one Mutiso Wala was also called. The Uncle’s children also wanted to see the scene of the alleged offence, and he took them. The appellant was questioned and denied the offence, while the complainant confirmed the offence, both in each other’s presence. The appellant was escorted to Nthongoni Police Station, where PW4 also recorded his witness statement.
9. PW5, PW1’s mother, identified the Appellant, stating that he was known as Willy back home. She knew him since the mother to the appellant’s wife is a sister to PW5’s father. She saw the appellant for a year only since he resided elsewhere. However, his wife resided at PW5’s home for that year, and the appellant visited for that cause, and stated that he lived with her for a year with his wife and children. She stated that on 22/06/6060, at 8:00 P.M, she was at home when the complainant arrived home and explained that she was late to return home due to the appellant defiling her, and having told her that if she screamed, he would put a bottle in her mouth. She stated that she called Musau (PW4) since PW1 had told her that he witnessed the incident, to which he confirmed. PW4 went to her residence the following morning to confirm PW1’s story. Thereafter, they went to the Police Station, then the hospital. Before leaving for the police, PW5 told PW4 to call one “Uncle Mwanzui” to see what was happening. She was also taken to the scene of the alleged offence by PW4.
10. PW6, Mutiso Wala, identified himself as a village elder at Kyanduma Village. He identified the appellant as a neighbour within the village. He stated that the appellant’s wife came to the village first, after which the appellant joined her and they bought a parcel of land and settled. He had thus known the appellant’s wife for 4-5 years prior to the incident. He stated that on 23/06/2020, he was called by the appellant and was informed that there were issues relating to Ann Muthini (PW5) and told him to proceed to PW5’s residence. He stated that on arrival, he found PW5 and the appellant, and PW5’s family accompanied by the complainant arrived a few minutes later. The appellant told him of the claim by PW5 that he had defiled the complainant. After asking PW5, she told him that Musau (PW4) witnessed the incident, who was present at that moment and confirmed the same to him. PW6 satted that he told them to go to Nthongoni Police Statuion for action to be taken, where he recorded his statement. In cross-examination, the appellant claimed that PW6 was the one who called him and not the other way around. There was no re-examination.
11. DW1, the Appellant, stated that on 23/06/2020, he left home and went to a surveyors’ meeting. After a short walk, he stated that he heard a youth by the name Mutinda Mwanzui calling him, who then told him that his father had sent for him. He then said that he would pass by after the surveyors’ meeting. He went to PW5’s homestead, where she questioned him o n why he was found by the side of the road with the complainant. He was then told that this information was relayed by PW4. He stated that he returned his phone and called the village elder, and then called for the complainant to ask for an explanation on the matter. The village elder arrived after a 30-minute wait, and he suggested that matters on children be taken to the Chief’s office. PW4 was called and they went to the Chief’s office’s “askaris”. At 5:00 P.M he was taken for a HIV test, and at 6:40 P.M, he was taken by a motor vehicle from Mtito Andei Police Station, which took him to the second police station wher he spent the night. On 24th on Wednesday, PW4, Mutinda Mwanzui, and PW5 came, and his family also arrived at another time to bring him food. He stated that the allegations were not true. He stated that PW1’s statement that she was sent t a neighbour’s house (PW4’s house) which was 5 steps from her home, and that she was subsequently defiled showed that he was framed since it was a short distance between the two houses. He also brought up PW1 telling the court that she was received at Nthongoni and not Mtitio Andei. The appellant told the court that he had a son in school at Kitise who had not proceeded to college and was his dependant. He also stated that he had two other children, one who had sat for their KCPE and another in CBC but had not continued with school, except one who was taken in by neighbours. He then prayed that the court look at both sides.
Appellant’s Submissions Dated 14th October 2025
GROUNDS 1, 2 & 3
Trial Court Erred in Law and Facts in Relying on Suspicious and Fictitious Evidence
12. It is the Plaintiff’s contention that the learned trial Magistrate erred in both law and facts by relying on hearsay evidence without noting that the complainant was subjected to duress thus incriminating the appellant.
13. The appellant states that it is trite law that the burden of proof always rests on the prosecution. It is not the duty of the accused to prove their innocence. Any reasonable hypothesis of innocence is on the prosecution and always remains on the prosecution. It is a burden which never shifts to the party accused.
Ground 4 and 5
The Trial court failed in convicting the appellant on mere allegations and presumptions
14. The Appellant also states that the learned trial Magistrate erred in both law and fact by holding the testimonies of prosecution witnesses as truthful and free from doubt without the benefit of properly conducted DNA tests required under Section 2 of the Sexual Offences Act, to ascertain whether or not the accused was linked with committing the alleged offence
15. The Appellant submits that it was wrong for the trial court to pass the verdict to convict on the matter founded on mere allegations and hearsay. It is necessary before drawing the inference of the accused guilt based on circumstantial evidence to be sure that there are no other co-existing circumstances that would weaken the inference. The evidence adduced by the Investigating Officer was insufficient, fabricated and lacked probative values to justify a conviction.
16. The Appellant further submits that there was no evidence of any strangulation nor any injury that the complainant had sustained on her body or genital organs. All the tests done as per the P3 form were normal, thus the medical evidence adduced does not support the claim by the prosecution witness.
Ground 6 and 7
The Trial court failed to test the evidence of prosecution witnesses and caution the circumspection
17. The Appellant states that the trial court erred in both law and fact by failing to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight enough and lacked probative value to warrant a conviction.
18. In his submission that the evidence adduced by the prosecution was insufficient, the Appellant provides the meaning of ‘proof beyond reasonable doubt’ as explained by Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, which was as thus: “…proof beyond reasonable doubt does not mean proof beyond shadow of doubt…”
19. The Appellant also submits that the accused is entitled to a benefit of doubt, not as a matter of grace and concession, but as a matter of right.
Ground 8,9 & 10
Failing by shifting the burden of proof and not observing that there was no substantive investigation
20. The Appellant submits that the Investigating Officer (I.O) did a shoddy job. There were no fingerprints or anything found and produced before court linking the Appellant with the commission of the alleged offence. The Appellant further states that the I.O acted in malafides when handling the matter and that the evidence adduced was to nail down the Appellant due to family grudges.
21. The Appellant submits that the burden of proof always rests on the prosecution side and that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not on the weakness of his defence.
22. The Appellant states that during cross-examination, PW1 stated that she was feeling pain in her genital organs. On the contrary, the medical practitioner noted that there were no tears, no evidence of forceful penetration, and finally no evidence of healing wounds or lacerations were ever found on PW1’s genitalia. The appellant references the case of Bernard Kyalo Mayoli v Republic, Criminal Appeal No. 138 of 2017, where his Lordship Justice Kariuki stated in the case (SUPRA) that hymen is a fragile and delicate tissue which can be broken easily on its own or by minor bacterial infection (candidiasis). He avers that no evidence was tendered to show whether the victim was indecently touched.
23. The appellant also cited the case of the Supreme Court of Canada in R v Lichfus (1997), which contained provisions on presumption of innocence.
24. The appellant further submitted that the trial court failed to note that the prosecution failed to prove its case as required by law and also failed to scrutinize and evaluate the evidence therefore arriving at an erroneous decision. The court deliberately overlooked the fact that the witness gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross examination of the defense counsel, which was biased and in favour of the prosecution. The court also contravened Article 47 of the Constitution.
25. The Appellant implores the court to find that the prosecution did not prove their case beyond reasonable doubt that since they did not conduct the DNA test to ascertain whether the appellant was linked to the commission of the alleged offense. It is his view that the DNA test would have sufficed as the concrete hammer to nail the appellant since doubts abounded as to whether the appellant committed the offense or if it was someone else. He states that justice must balance for all parties.
26. The appellant cites the case of Pius Arap Maina v Republic (2013) eKLR (Criminal Appeal No 247 of 2011), where the court noted that:
“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be in favour of the accused.”
27. The appellant submits that wrongful convictions have terrible and irreparable impact on the innocent defendant sent to prison. The phenomenon of wrongful conviction has broad implications. Not only is the wrongfully convicted individual unjustly robbed of their freedom, but their family is dramatically impacted as well.
28. In the case of J.O.O v Republic (2015) eKLR, it was held that:
“Whereas a court of law is always called upon to make decisions or inferences on some set of circumstances, such court should endeavour to make such decisions or inferences on the basis of available evidence as adduced before it and it ought to be slow in making assumptions not supported by facts as tendered before court.”
29. The appellant also invokes the holding in Bukenya & Others v Uganda {1972} EA 549:
“The state of the evidence tendered with all of its inconsistencies means that the appellant’s complaint that some vital witnesses were not called is also not idle. It is of course trite that there is no number of witnesses required to prove a fact. See Section 143 of the Evidence Act. However, it has long been the law that when prosecution calls evidence that is barely adequate, then failure to call vital witnesses may entitle the court to draw an inference that had such witnesses been called, their evidence would have been adverse to the prosecution’s case.”
Ground 11 and 12
30. The appellant submits that the sentence imposed/meted against the appellant was manifestly draconian, excessively punitive and oppressive based on facts and circumstances of the alleged offence and contravened the provisions of Article 47 of the Constitution of Kenya. He further submits that his constitutional rights were contravened by the trial court since he was not supplied with relevant documents such as the birth certificate of the complainant hence violating his rights.
31. The appellant concludes his submissions by praying that the honourable court is persuaded by the above arguments to hold the present appeal in favour of the appellant herein. In default of any acquittal, may this court exercise its discretion in finding that the evidence on record falls short of what is required to support conviction. It is the submission by the appellant that the court will give into effect the mitigation of the appellant, re-analyze and re-evaluate the entire evidence and find that it was unsafe to convict the appellant.
32. The appellant therefore prays that the honourable court finds merit in his submission, quashes the conviction and sets aside the sentence in the interest of justice.
Respondent’s Submissions Dated 18th March 2026
33. In response to the written submissions filed by the Appellant, Principal Prosecution Counsel for the Office of the Director of Public Prosecution Makueni Law Courts, on behalf of the Respondent herein, drew and filed written submissions.
34. After considering the twelve grounds of appeal raised by the appellant, the respondent has formulated three grounds for their submissions:
a. Whether the prosecution proved its case against the appellant beyond reasonable doubt.
b. Whether there are contradictions or inconsistencies in the evidence that would render the conviction unsafe.
c. Whether the sentence was harsh and excessive.
Ground 1
35. On whether the prosecution proved its case against the Appellant beyond reasonable doubt the Respondent submits that it is trite law that the ingredients for the offence of defilement, that the prosecution must prove beyond reasonable doubt to secure a conviction are: age of the victim, penetration and identity of the perpetrator.
36. Age. PW1, the complainant, stated in evidence that she was 16 years old. The incident happened on 22nd June 2020 when she was 15 years old. PW3, the Investigating Officer, testified in court and stated that the complainant was 15 years at the time of the offence. She produced a birth certificate which showed that the complainant was born on 10th March 2005, thus she was 15 years at the time. It is the respondent’s submission therefore that the prosecution proved beyond reasonable doubt that the complainant was a child aged 15 years.
37. Penetration. PW1 states in evidence that on 22nd June 2020 at about 6:00 P.M, she was from a neighbour’s home, namely Musau Juma (PW4), when the appellant trailed her from behind, held her by the neck, and laid her down in the bush against her will then removed her clothes. He opened his trouser, removed his penis and lay on top of her on the ground, after which he defiled her by inserting his penis into her vagina. While defiling her, PW4 walked by and saw the appellant defiling her and that is when the appellant stood up and left. The following day, they went to Nthongoni Police Station, she was taken to the hospital thereafter, and later referred to Mtito Andei Hospital where the medical documents were filled. The respondent submits that PW4 corroborated PW1’s evidence by stating that on 22/06/2020 at about 6:00 P.M, he left his home going to the shopping centre and saw the appellant with the complainant at a footpath bushy on both sides. PW4 hid behind a bush where the appellant could not see him. After some time, he walked back and found the appellant half naked and on top of PW1 defiling her on the ground. He asked the appellant what he was doing with a school girl and he replied that he was measuring her (“kumpima”).
38. The respondent further submits that PW2, the clinical officer from Mtito Andei Sub-County Hospital testified that an examination of PW1’s genitalia showed: broken hymen, tenderness over vaginal wall, and stains of blood, conclusive evidence that she was defiled. She produced the P3 form and the PRC form as PEX1 and PEX2. Accordingly, from the evidence of PW1 as corroborated with PW2 and PW4, the respondent submits that the prosecution sufficiently proved the element of penetration.
39. Identity of the perpetrator. The respondent submits that the offence happened at 6:00 P.M, in broad daylight. PW1 stated that the appellant is well known to her, a neighbour. PW4 stated that the saw the appellant in the act of defiling PW1. PW5 testified that her daughter informed her that she had been defiled by the appellant. PW6 testified that PW1 and PW4 informed him that the appellant is the one that defiled the complainant. The appellant gave sworn evidence denying the offence alluding that he had been framed. However, the trial court who had the occasion to listen to the witnesses and observe their demeanor concluded that PW1 was truthful and the prosecution witness evidence was consistent. He disregarded the appellant’s defence stating that it did not displace nor controvert the prosecution’s case.
40. The therefore submit that the prosecution proved beyond reasonable doubt that the appellant was the perpetrator, and in totality proved beyond reasonable doubt the offence of defilement against the appellant.
Ground 2
a. On whether there are contradictions or inconsistencies in the evidence that would render the conviction unsafe, the Respondent refers to the case of Phillip Nzaka Watu v Republic [2016] eKLR, where the court observed that:
“…when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and nature and extent of the discrepancies and inconsistencies in question.”
41. The Respondent cited the case of Khisa v Republic (Criminal Appeal 262 of 2019) [2025] KECA 486 (KLR), where the Court of Appeal stated as follows:
20. The court's duty is to determine whether there were contradictions and inconsistencies in the evidence to the extent that a reasonable person would be left in doubt as to whether the charge was proved, or whether the contradictions are so material that the trial court ought to have rejected the evidence. However, as was held by the Uganda Court of Appeal held in Twehangane Alfred vs Uganda, [2003] UGCA, 6, it is not every contradiction that warrants rejection of evidence. The question is whether the alleged inconsistencies and contradictions are grave and point to deliberate untruthfulness of the witnesses.
21.Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. Having evaluated the evidence tendered by the parties and applying the tests discussed above, we are persuaded the cited discrepancies/ contradictions viewed in totality of the evidence and the appellant’s defence did not affect the credibility of the prosecution witnesses. As was held in Phillip Nzaka Watu vs. Republic (supra), when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail.
42. The Respondent submits that the two cases cited above are to the effect that no two witnesses cannot give the exact similar story, and that there has to be some variation in evidence based on human recollection differences. Therefore, slight variations which do not go to the root of the matter are excusable.
43. The Respondent states that there were minor contradictions such as: PW1 stated that PW4 informed the mother of the incident the same day, while PW4 and PW5 stated that PW4 relayed the information on the incident to PW5 the following day. Such inconsistencies are minor, trivial and do not affect the credibility of PW1’s testimony, hence not fatal to the prosecution case. As such, the Respondent submits that it does not render the conviction unsafe.
Ground 3
44. Whether the sentence was harsh and excessive. The respondent refers to Section 8(3) of the Sexual Offences Act which provides that “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.” The Appellant in this case was sentenced to 16 years which was both a lenient and unlawful sentence. It is therefore the Respondent’s submission that the sentence was neither harsh nor excessive.
45. In the upshot, the Respondent prays that the Honourable Court dismiss the appeal in its entirety and uphold both the conviction and the sentence.
Analysis and Determination
46. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal, the evidence contained therein together with the written submissions. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyse the entire evidence that was placed before the trial court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This duty of a first appellate court was authoritatively stated by the Court of Appeal in Okeno v Republic [1972] EA 32, where the Court observed as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is n
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