https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8886

Bakero v Republic (Criminal Appeal 44 of 2015) [2026] KEHC 8886 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8886 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal 44 of 2015 JN Njagi, J June 19, 2026 Between Mohamed Abdalla Bakero Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. S.M. Nyaga, RM, in Garsen Principal Magistrate’s Court Sexual Offence Case No. 247 of 2014 delivered on 29/9/2015) Judgment 1.The appellant was convicted of two counts of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. The particulars of the offence in count 1 were that on 19th December 2014 in Tana Delta sub county within Tana River County, he intentionally caused his penis to penetrate the vagina of HA (herein referred to as the complainant/victim in count 1), a girl aged 16 years. 2.The particulars of the offence in count 2 were that on the same day and at the village as in count 1 he intentionally caused his penis to penetrate the anus of HMM (herein referred to as the complainant/victim in count 2), a boy aged 10 years. 3.The Appellant was sentenced to serve life imprisonment on each of the counts. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per the Appellant`s amended grounds of appeal are that:1.The learned trial magistrate erred in both law and fact in failing to consider that the charge under section 8(1) as read with Section 8(2) of the Sexual Offence Act No. 3 of 2006 was defective.2.The learned trial magistrate erred in both law and fact by convicting the Appellant on shoddy medical evidence.3.The learned trial magistrate erred in both law and fact by relying on contradictory evidence.4.The learned trial magistrate erred in both law and fact by relying on fabricated evidence.5.The learned trial magistrate erred in both law and fact by not considering that the prosecution did not call some crucial witnesses in the case.6.The learned trial magistrate erred in both law and fact by not considering the Appellant`s unchallenged defence evidence.7.The learned trial magistrate erred in both law and fact by denying the Appellant constitutional rights to fair trial and imposed an unconstitutional sentence. Case for prosecution 4.The case for prosecution is that the two complainants hailed from the same village and were attending the same primary school. The victim in count 1 was at the material time aged 10 years and was in class 3 while the victim in count 2 was aged 12 years and was in class 7. That on the material day they were separately herding their family livestock within the vicinity of their village. 5.It was the evidence of the complainant in count 1 (PW1 in the case) that she was herding her family livestock in the company of other 2 children when at around 12.30 pm they were approached by the Appellant who was unknown to her. He ordered them to sit down. The other children complied but she refused to comply. The Appellant held her, beat her up and squeezed her throat. The other children ran away. The Appellant carried her to a nearby forest. He threatened to kill her if she screamed. He removed her dress and underpants. He removed the kikoi that he was wearing around his waist and remained in a T-shirt. He laid her on the ground and inserted his penis into her vagina. She tried to shout but he covered her mouth. She bled from her vagina. He detained her in the forest until darkness entered. He then took her to his home and handed her over to a woman he claimed was his mother. He went away. The woman introduced her to a man who she said was father to the Appellant. The woman washed the dress that she was wearing that was blood stained and gave her another dress to wear. The man said to be father to the Appellant took her to the chief, PW6. The Appellant was arrested on the following day and she identified him at Odha police post. 6.The complainant in count 2 (PW2 in the case) testified that he was herding goats not far from his village. That at around 4.30 pm the Appellant approached him and asked him whether he had seen a stray lamb. He answered him that he had not. The Appellant walked away. He then went back and knocked him to the ground, stripped him naked and removed his (complainant`s) clothes. He inserted his penis into his anus. He struggled with him and managed to run away. The Appellant followed him and hit him with a club. He penetrated him into his anus again. After he had finished, he hit him with a club and warned him not to disclose to anybody what had happened. The appellant walked away. The complainant was left in pain. He walked home and reported to his father PW4. He was taken to Ngao hospital and they reported at Odha police post. It was the evidence of the witness that he knew the Appellant before the date of the incident. 7.The father to the complainant in count 1, PW5, testified that he received a report from children who were grazing that his daughter had been defiled and abducted by the Appellant. He and other villagers went to the scene of the attack and looked for his daughter but they did not find her. He returned home. At night of the material day, he was called by the chief who told him that his daughter had been taken to him. On the following morning he went and found his daughter at the home of the chief. She was in new clothes that were stained in blood. They took her to hospital and then to the police. It was his evidence that his daughter was aged 10 years. He identified her birth certificate during the hearing. 8.The father to the complainant in count 2, PW4, testified that he on that day returned home at 5pm where he found the complainant in count 2 with injuries on the head, throat and lips. He told him that he had been beaten and defiled by Bakero, the Appellant. An elders meeting was convened where it was said that the assailant had escaped with the complainant in count1. They entered the forest in search of the Appellant but they did not find him. On the following day the area chief went and picked his son and took him to hospital together with the complainant in count 1. He PW5 received information that the Appellant was at Marafa village. He reported to the police. They went and arrested him. During the hearing he identified his daughter`s birth certificate. 9.The chief PW6 testified that on the evening of 19/12/2014 at around 7pm he was at his home when he received a report from some young men that the Appellant had defiled a child and taken her to his home. That at 9pm the brother to the Appellant brought the girl to his home. The girl spent the night at his home. On the following day her father PW5 went and picked her and took her to the police. 10.Both complainants were examined by a clinical officer PW3 of Ngao sub county hospital on 20/12/2014. It was the evidence of the witness that he found the complainant in count 1 with pain on the neck and had problems swallowing food, pain on the chest, tender abdomen and a wound on the right-hand elbow joint. She had bruises on her genitalia with stains of blood, broken hymen and something resembling spermatozoa. He found the complainant in count 2 with a bruised anal entry that was tender and painful and with stains of blood. He filled P3 forms for both complainants and formed the opinion that they had been penetrated. During the hearing of the case in court, he produced the P3 forms as exhibits, P.Exh.1 and 2 respectively. 11.The case was investigated by PC Patrick Njiru PW7 of Odha Police Patrol Base. It was his evidence that the cases were reported at the police base by the fathers to the 2 complainants PW4 and PW5 on 20/12/2014 at 10 am. The Appellant was arrested by the police with assistance of members of the public. He recorded statements of witnesses and issued P3 forms to the two complainants. He charged the Appellant with the offences. 12.It was the evidence of the investigating officer that the children initially stated that they were aged 10 years but their birth certificates were later produced that indicated that the complainant in count 1 was born on 17/3/2005 and the complainant in count 2 was born on 28/12/2003, thus placing their ages at 9 years and 10 years respectively. During the hearing in court the investigating officer produced the birth certificates of both complainants as exhibits, P.Exh.7 and 8 respectively. Defence Case 13.The Appellant when placed to his defence stated in an unsworn statement that the father to the complainant in count 1, PW5, is his in-law. That he PW5 had sold his 3 cows. He, the Appellant reported at Odha Police Post but the police did not record his report. The case was heard by elders under the chief PW6. PW5 agreed to pay him, but he never paid him. 14.It was further evidence of the Appellant that on the 20/2/2014 he was sleeping at the home of his uncle at Marafa village when he was arrested by PW5 and other members of public. PW5 took his wallet containing his money of Kshs.8500/=. He also took his mobile phone, belt and knife. PW5 beat him with a club. He said that the case over defilement is fabricated by PW5 due to the dispute over his cattle. 15.The appeal was disposed of by way of written submissions. Appellant`s submissions 16.The appellant submitted that the birth certificates were not before court when the complainants and their parents testified in the case and the same were introduced when the witnesses were recalled to identify the documents. He wondered whether the evidence was not fabricated so as to fix him. 17.The Appellant submitted that the witnesses gave contradictory evidence about the complainant`s clothes. That the complainant testified that the mother to the appellant washed her and washed the dress that she was wearing at the time of the incident and gave her other clothes to wear. That she later changed this evidence and said that the mother to the Appellant brought her clothes to change at the chief`s home and she carried away her blood-stained clothes. The Appellant submitted that the two versions created doubt as to whether the complainant was a credible witness. 18.The Appellant submitted that the prosecution failed to call crucial witnesses who were mentioned in the case - his mother and his father. That his mother was accused of tampering with evidence in the case and his father was said to have taken the complainant to the chief. He said that the children who were said to be in the company of the complainant in count 1 when they were grazing goats were not called to testify in the case. He submitted that failure to avail the witnesses without reason left unresolved gaps in the case for the prosecution. 19.It was submitted that the sentence to life imprisonment was unconstitutional as it deprived the court of a chance to consider his mitigation. Respondent`s submissions 20.The Respondent on the other hand submitted that the ingredients of the offence of defilement were proved. That the ages of the complainants were proved by the birth certificates produced in the case. That penetration was proved by the evidence of the complainants as supported by the evidence of the clinical officer PW3. That the complainant PW1 said that she had been seeing the appellant gazing in the locality. That she stayed with him for long time for her to recognize him. That the father to the Appellant reported to the chief that the appellant had taken PW1 to his father`s home and the father took the child to the chief. 21.It was submitted that the Appellant`s defence of alibi was not brought up during prosecution case and it was therefore a mere afterthought. That though the Appellant alleged that the case was fabricated by the father to PW1 as a result of a fall out over sale of livestock, there would have been no reason for the complainant in count 2 and his father to fabricate the case against the Appellant. That that notwithstanding, the clinical officer, the chief and the investigating officer were independent witnesses in the case. Therefore, that the defence evidence was baseless and ought to be dismissed. Analysis and determination 22.This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyse it and come to its own conclusion while at the same time bearing in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record, See Okeno v R (1972) EA 32. 23.I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties. The issues for determination are whether the ingredients of the offence of defilement were proved against the Appellant. 24.The three elements of the offence of defilement are proof the age of the complainant/victim, proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013. 25.The trial court in its judgment found that the respective ages of the complainants were proved by the birth certificates produced in the case. That penetration was proved by the evidence of the two complainants which evidence was supported by the clinical officer. Therefore, that penetration was proved. The court further found that the complainant PW1 positively identified the Appellant at the police station and before court. The court held that the two witnesses were truthful. That there was no contradiction in their evidence. That the defence assertion that the case was fabricated was baseless. 26.Indeed, the birth certificates produced in the case proved the respective ages of the complainants to the required standard of beyond reasonable doubt. The age of the complainant in count 1 was proved at 9 years while that of the complainant in count 2 was proved at 10 years. 27.On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 28.PW1 narrated in detail how she was penetrated into her vagina by a person unknown to her. PW2 narrated how he was penetrated into his anus by a person known to him. The clinical officer PW3 found PW1 with bruises in her genitalia, a broken hymen and other bodily injuries. He found PW2 with bruises and tenderness on the anal orifice with blood stains at the said place and other bodily injuries. The clinical officer estimated the injuries to have been one day old. In view of the evidence of two witnesses and the findings of the clinical officer, there was no doubt that PW1 was penetrated into her vagina by a certain person while PW2 was penetrated into his anus by a certain person. The question was whether the complainants identified the appellant as the person who defiled them. 29.It was the evidence of PW1 that she was attacked and defiled at 12.30 pm. That her attacker detained her until darkness entered when he took her to the home of his mother. 30.PW2 on the other hand testified that he was attacked and defiled at 4.30 pm. 31.The Appellant was convicted on the basis of identification by the two complainants. The law is that before the court can convict on the evidence of identification it must be satisfied that the evidence is free from the possibility of error. In Francis Karuiki and 7 others vs. Republic Cr. Appeal No 6 of 2001 [200] eKLR it was held that;“The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.” 32.The complainants in their respective testimonies said that they were attacked during the day. PW1 said that the Appellant attacked and defiled her at 12.30pm and he detained her until darkness entered. PW2 said that the Appellant attacked and defiled him at 4.30 pm. If then the Appellant was with the PW1 from 12.30 pm till nightfall, how did he attack PW2 on the same day at 4.30 pm? This can only mean that the Appellant was not the same person who attacked PW2. If on the other hand the court were to accept the evidence of PW2 that the Appellant was the person who attacked him at 4.30pm, it would mean that he is not the same person who attacked PW1 as at that particular time, PW1 was being detained in the forest by her attacker. Either way one of these two witnesses was not telling the truth. The trial court did not consider this aspect of the case. 33.Both complainants were attacked separately. They were therefore single identifying witnesses in their cases. It is trite law that a court before convicting on the evidence of a single identifying witness should warn itself of the danger of basing a conviction on such evidence. In Roria vs Republic (1967) EA 583 the Court of Appeal stated at page 584 that:“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.” 34.In Kiilu & Another v Republic [2005] eKLR, the Court of Appeal held that;“Subject to well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect of identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances, what is needed is some other independent evidence, whether it be circumstantial or direct, pointing to guilt, from where a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can be safely accepted as free from possibility of error.” 35.In view of the disparity between the evidence of the two complainants, it was necessary for the trial magistrate to warn himself of the danger of convicting on the evidence of single identifying witnesses. The magistrate did not do so in this case and thus misdirected himself on a point of law. 36.Though PW2 said that he knew the Appellant before the date of the incident, he did not say how he knew him and for how long. It was his evidence in cross-examination that he was told the name of the Appellant by a friend he did not name in court. He did not clarify whether this was before or after the attack. In view of this I am not satisfied that PW2 knew the Appellant before the date of the attack. 37.PW1 said that she identified the Appellant at the police station. It was thus incumbent for an identification parade to be conducted in order to test whether PW1 could identify the appellant or not. In the absence of an identification parade, the witness was only trying to identify the appellant from the dock. In Gabriel Kamau Njoroge v. Republic [1982-88] IKAR 1134 the Court of Appeal stated the following on evidence of dock identification:“Dock identification is generally worthless and the court should not place much reliance on it unless this has been preceded by a properly conducted identification parade. A witness should be asked to give the description of the accused and the police should then arrange a fair identification parade. 38.Similarly, in Walter Amolo –vs- Republic (1991) 2KAR 254 the same court held:“…..visual identification must be treated with the greatest care and ordinary dock identification alone should not be accepted unless the witnesses have in advance given description of the assailants and identified the suspects on a properly conducted parade…..” 39.Having doubted that PW2 knew the Appellant before the date of the incident, this ought to have been tested in an identification parade. The purported identification of the appellant by the two complainants was not credible. 40.In view of the foregoing, the defence tendered by the Appellant was not completely dislodged by the prosecution. The Appellant was entitled to the benefit of doubt. 41.The upshot is that I find the appeal to be merited. Consequently, the conviction entered by the trial court is quashed and the sentence set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present at G.K. Prison MalindiCourt Assistant - Rahma