https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7634

BM v Republic (Criminal Appeal E157 of 2024) [2026] KEHC 7634 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7634 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E157 of 2024 REA Ougo, J May 28, 2026 Between BM Appellant and Republic Respondent (Being an Appeal from the Judgment and Sentence in Bungoma, CMCR (S0) No. E076 of 2022 delivered by Hon. T.K. Ng’etich, Resident Magistrate on 28th November 2024.) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to section 8 (1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that BWM in the month of April 2021 at an unknown date and unknown time in Bungoma West Sub-County within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of RNW, a child aged 17 years. 2.In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars were that in the month of April 2021 at an unknown date and unknown time in Bungoma West Sub-County within Bungoma County, intentionally and unlawfully touched the vagina of RNW, a child aged 17 years with his penis. 3.The Appellant denied the charges in the main and the alternative counts. The matter was heard, and the Prosecution adduced evidence from four witnesses. The Prosecution’s Case 4.PW1 RNW testified that she was a Form 3 student at [Particulars Withheld] Girls, lived with her mother, and was the first-born. She had known the Appellant by name since she was in Form 1. He was a motorcycle rider and lived in Toloso, but they were not at the same school. On 17th December 2020, the Appellant ‘wronged’ her, and in 2021 she went with her mother to the police station because the Appellant had impregnated her. 5.It was her evidence that the Appellant was her boyfriend from the time she was in Form 1. One day he took her on his boda boda to his friend’s house in Kolanyi, near his home, and didn’t tell her what they were going to do there. They had sex for the first time, and she became pregnant. The Appellant removed her clothes and forced her to have sex with him. They then left the house. After one month, she did not have her periods. She did not tell her mother but instead informed the deputy principal when she went to school, who then informed her mother. Her mother took her to Chwele Hospital, where the pregnancy was confirmed, and then they went to the police station. She told the court that she was 18 years old at the time of tendering her evidence, as she was born on 27th September 2004. 6.She further testified that the Appellant was her boyfriend, that she had never slept with another man, and that she gave birth on 10th January 2022. She told the court that if a DNA examination were conducted, the Appellant would be the father, and that she had sex with the Appellant in April 2021, which made her pregnant. She stated that the Appellant had never come to their home. However, his parents came at some point to see her parents, but she was not present. She also gave evidence that the Appellant had never seen the child and had never supported her. 7.PW2 GNWW testified that she lived in Chwele and that the victim was her first-born. She knew the Appellant when the case began but did not know his home. PW1’s teacher called her husband, asking for a parent to go to PW1’s boarding school, so she went to school at her husband’s request. She found out that PW1 was pregnant. When she inquired, PW1 informed her that a man named Bernard had made her pregnant. PW1 was sitting her exams, so she waited for PW1 to finish and then took her to Chwele hospital, where the pregnancy was confirmed. They went to the police station and reported the matter in November 2021. Her husband went with the police to arrest the Appellant, but he ran away. PW1 delivered in January 2021. 8.PW2 further testified that one day, while going to the clinic with the victim and the baby, PW1 showed her the Appellant, who passed them on a motorcycle. She reported this to her husband, who investigated the Appellant and alerted the police for the Appellant to be arrested. She identified the Appellant in court and stated that PW1 was 17 years old at the time of the offence, and she identified her Birth Certificate in court. 9.PW3 No. 92xxx PC Irene Moit, the Investigating Officer, testified that she received a complaint on 22nd November 2021 from the victim, accompanied by her parents. The victim informed her that in April 2021 she met her boyfriend, the Appellant, whom she had been in a relationship with since 2020. They had met at Sengeleti, where the Appellant was a motorcycle rider. The Appellant took her to Kolani village, where he undressed her in a house and defiled her. He thereafter took her back home, and after the incident she did not see the Appellant again. By that time, she was in Form 2. When the minor returned to school, she discovered that she was pregnant. Her parents were called to school, and they then reported the incident. The minor was born on 27th September 2004, and the incident took place in April 2021. The victim narrated that she was defiled on 12th July 2022 at Toloso, and the Appellant was arrested and charged. 10.It was PW3’s further testimony that she escorted the complainant and the Appellant for a DNA test, and the results indicated that the Appellant was the child’s father. She produced the victim’s Birth Certificate (P.Exh1), the DNA report dated 17th January 2023 (P.Exh4) and the Exhibit Memo (P.Exh5). She also identified the Appellant as the person they arrested. 11.PW4 Geoffrey Wanjala Khaemba, a Clinical Officer at Nalondo Medical Centre, Registration No. 10xxx, testified that he completed the victim’s medical documents at Chwele S/C Hospital. On the Out-Patient card, it was recorded as ‘defilement and impregnated’. He stated that the incident occurred in April 2021, when the victim had been in a relationship with the Appellant since 2020. He further stated that the victim was 28 weeks pregnant, other lab tests were normal, and she was referred to antenatal care. He completed her P3 form, noting that the victim had been defiled, was 17 years old, had an absent hymen, and had normal genitalia. He stated that the pregnancy test was positive and that the minor was introduced to the antenatal clinic. He produced her Outpatient Card (P.Exh2) and her P3 form (P.Exh 3). 12.At the close of the Prosecution’s case, the trial court found that the Appellant had a case to answer and placed him on his defence. He elected to tender sworn evidence and to call two witnesses. 13.DW1 BWM, the Appellant, herein testified that he lived in Toloso village and was a farmer. The victim is his cousin, and he denied having a relationship with her. He stated that the teacher who allegedly called the victim’s mother and his alleged friend were never called to testify, and that he was arrested at about 10.30 p.m. on a date he could not recall. A police officer, accompanied by 13 officers, arrested him with the complainant present, and that it was the complainant’s father who pointed him out to the police. He stated that he had never seen the complainant’s child, that the DNA analysis was conducted while the complainant’s mother remained in the office with the analysts, and that he had never seen the report. He also stated that none of the complainant’s belongings were found in his house. 14.On cross-examination, DW1 stated that he had never been informed of the DNA results and that no report had been presented in court. He also asserted that the complainant was his cousin and that he did not know why she named him as the person who defiled her. He further stated that he had not insisted on receiving the DNA results and conceded that the DNA analysis had been carried out. 15.DW2 TKS stated that he lived in Toloso and worked as a farmer. He further stated that the Appellant was a son of his cousin, while the complainant was his granddaughter. He testified that they were all related and that he remembered seeing police officers when they came to arrest the accused, who lived near his house. The complainant was not present at the time, and a civilian pointed out the accused to the police. He denied seeing the DNA report. 16.On cross-examination, he reiterated that the complainant was his grandchild and that the Appellant was also related to him. He said that he did not attend court when the complainant testified, but that he knew her and that there were family disputes over land. He further stated that the Appellant and the complainant were born in the same area. 17.At the conclusion of the trial, the trial court convicted the Appellant of the main charge and sentenced him to 15 years’ imprisonment. 18.Aggrieved by this decision, the Appellant filed the present Appeal by a Petition of Appeal dated 10th December 2024, seeking to set aside the conviction and sentence on the following grounds:1.The learned trial magistrate erred in law and fact by overlooking enormous testimonies uncorroborated contradictions, inconsistencies in the prosecution case.2.The learned trial magistrate erred in law and fact when he convicted the accused person on the charge of defilement on speculations without cogent reasons.3.The learned trial magistrate erred in law and fact when he found the appellant was unremorseful and meted harsh sentence for 15 years and disregarding the testimony and evidence of the accused.4.The learned trial magistrate erred in law and fact when he sustained a conviction on a serious charge that no evidence was led to discharge the heavy burden of proof placed on the prosecution beyond reasonable doubt.5.The learned trial magistrate erred in law and fact when he deliberately failed to find the investigations were skewed, carelessly and poorly conducted hence could not sustain the prosecution case.6.The entire judgment was contrary to the weight of evidence, shallow evasive and inconclusive and was based on the misdirection of the court. 19.The parties took directions to canvass it by way of written submissions. 20.Counsel for the Appellant submitted that the trial court failed to analyse the evidence thoroughly and relied primarily on the complainant’s testimony. Counsel highlighted significant flaws in the prosecution's case, particularly its reliance on DNA evidence, which the Appellant argued did not conclusively prove non-consensual intercourse or establish criminal intent. Furthermore, the medical report in the P3 Form contained no definitive physical evidence of defilement, further undermining the validity of the conviction. 21.Counsel submitted that the Prosecution’s evidence against the Appellant contained many loopholes and was shaky, and that the trial court failed to evaluate the complainant’s evidence and the Appellant’s defence, thereby arriving at a conviction solely on the evidence of the complainant. Counsel further submitted that the danger of relying on a single witness was stated in the case of John Mwangi Kamau v Republic (2014) eKLR. 22.Counsel further submitted that the DNA report and the fact of pregnancy did not prove the offence of defilement, as DNA only proves paternity and not that the intercourse was non-consensual. It was also submitted that the DNA and the fact of pregnancy did not prove that the offence occurred at the time alleged or that the Appellant acted with criminal intent. Counsel cited the case of JOO Verses Republic (2019) eKLR in support of this proposition, and the case of Mark Oiruri Mose Verses Republic (2013) eKLR, where the court held that penetration must be proved beyond reasonable doubt, not the subsequent fact of pregnancy. 23.It was submitted that the P3 form (P.Exh3) showed no visible tears or lacerations, no broken hymen, and no visible discharge to confirm penetration. That, in this case, medical findings were critical in proving this element, as stated in the Court of Appeal case of Kassim Ali verses Republic, and that further, pregnancy is circumstantial evidence, which cannot substitute proof of penetration unless medically connected to the accused. 24.Counsel challenged the production of the DNA report, prepared by the Investigating Officer on behalf of the Government Analyst, who never appeared in court, in breach of the principles laid down in Bungoma High Court Criminal Appeal No. 102 of 2015, Simon Wekesa v. Republic. That Article 50 of the Constitution warns against the court relying on evidence not produced by the maker, as it denies the accused person the right to a fair trial. 25.Counsel also submitted that the Appellant raised during his defence that, when the DNA was taken, the complainant’s mother remained in the office with the analysts, which automatically cast doubt on the DNA. It was their submission that this question, and many others, went unanswered because the Appellant did not have an opportunity to challenge and cross-examine the analyst on his findings. Counsel asserted that the Appellant, in his defence, denied the findings, and the Investigating Officer was not in any position to respond to those issues, since she was not the maker. 26.Counsel submitted that the Prosecution failed to produce the child, allegedly sired by the Appellant, to court, and therefore this amounted to withholding evidence under Section 143 of the Evidence Act. They argued that the Prosecution is not obliged to call a superfluity of witnesses, but where a witness or piece of evidence is central to proving the case, its absence raises adverse inference against the Prosecution. That, in this case, since the state alleged that the complainant delivered a baby as a result of the offence, that baby became critical evidence. 27.It was their submission that failure to produce the alleged child amounted to withholding crucial evidence, as held in Bukenya v Uganda, where the court concluded that failure to call material witnesses raised a presumption that their evidence would be adverse to the prosecution. That failure to bring the child to court as their exhibit created an impression that certain material facts were not disclosed to the court, leaving considerable room for doubt, given that there was no other eyewitness to corroborate the complainant’s testimony. That, further, since the evidence created an impression of doubt and neither the birth notification nor the birth certificate was produced in court to confirm the existence of the child, the Prosecution did not prove its case. 28.It was further submitted that the failure to produce the child, who was central to the prosecution's theory, rendered their evidence unreliable, incomplete, and incapable of supporting a conviction. Accordingly, the prosecution failed to discharge this burden of proof, and the Appeal should be found to have merit and be allowed. 29.On their part, the Respondent filed submissions dated 7th November 2025. Counsel for the Respondent submitted that the Prosecution proved its case beyond all reasonable doubt. On the first ingredient, age, Counsel cited the cases of Francis Omuroni v Uganda (Criminal Appeal No. 2 of 2000) and Richard Wahome Chege v Republic (Criminal Appeal No. 61 of 2014) on proof of age, and submitted that the age of the victim was proven through her testimony, her mother’s evidence, and her Birth Certificate (P.Exh1), which indicated that she was born on 27th September 2024. 30.On penetration, Counsel cited Section 2 of the Sexual Offences Act to define it and the case of Mark Oiruri Mose v R (2013) eKLR, and submitted that the victim’s hymen was missing and that she was 28 weeks pregnant as a result of the defilement. 31.It was submitted that the third ingredient of identification was established by the fact that the Appellant was not a stranger to the victim. The case of Ogeto v Republic (2004) KLR 19 on the aspect of recognition was cited in this regard. 32.Regarding inconsistencies and contradictions, Counsel denied their existence and submitted that, if any, they were minor. It was submitted that the Prosecution witness was truthful and that the Appeal ought to be dismissed. The cases of Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1993 and the Court of Appeal decision in Erick Onyango Ondeng’ v Republic (2014) eKLR were relied upon. Analysis And Determination 33.The duty of a first appellate court was pronounced in the case of David Njuguna Wairimu v Republic [2010] eKLR, where the Court of Appeal stated: -“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 34.From the grounds of appeal, the rival submissions and the entire trial record, the main issues for my determination are: -i.Whether the prosecution proved its case and whether the conviction was safe.ii.Whether the sentence meted was legal and appropriate. i. Whether the prosecution proved its case and whether the conviction was safe. 35.The offence of defilement is premised under Section 8 of the Sexual Offences Act Cap 63A which provides as follows: -8. Defilement1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2.A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.3.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.4.A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 36.To prove the charge of defilement, the Prosecution must establish three ingredients beyond reasonable doubt. These were set out in Dominic Kibet v R [2013] eKLR, it was held thus: -“To prove defilement the critical elements remain to be proof of penetration, the age of the complainant and possible identification of the assailant.”(See also Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 [2015] eKLR). 37.The issue of age was never contested in this case. The victim’s Birth Certificate (P.Exh1) was produced, and I note that the same indicated the date of the victim's birth as 27th September 2024. PW1, the victim herself, and PW2, her mother, testified that she was 17 years old at the time of the offence. Noting that age can be proven by documentary evidence such as a birth certificate/notification or clinic card or through medical evidence or the testimony of a victim or a mother, I find that the same was adequately established in this case. 38.On the second ingredient of penetration, I have considered the provisions of Section 2 of the Sexual Offences, which defines penetration thus: -The partial or complete insertion of the genital organ of a person into the genital organs of another person. 39.To prove penetration, the Prosecution may adduce the sole testimony of the victim under Section 124 of the Evidence Act or the testimony of the victim corroborated by medical evidence. In this case, the Prosecution adduced the victim's evidence. She testified as follows: -“…the Accused and I were friends. He was my boyfriend. One day he took me on his boda and took me to the house of his friend. It was near his home. He opened the door….We went to that house and we had sex. That was the first time we had sex. I got pregnant at that first time. We got into the house, we went into the bedroom…. He removed my clothes and forced me to have sex. We then left, we didn’t sleep there. After one month I did not see my periods. I feared to tell my mother. When I went to school I told the deputy principle who then called my mother to school and told her…” 40.From the above excerpt, the victim’s evidence demonstrates that she had penetrative sexual intercourse with the Appellant. She further averred that, as a result of the incident, she conceived a child and revealed this to her teacher when she returned to school. PW2, the victim’s mother, also confirmed that when she took the victim to the hospital, it was confirmed that she was pregnant. I have considered this evidence, and it is my view that the victim was honest, truthful, and believable. Her evidence remained consistent even upon cross-examination, and there was nothing to suggest any dishonesty. 41.I have further considered the medical evidence from PW4 Geoffrey Wanjala Khaemba, the Clinical Officer who examined the victim and completed her P3 Form. He stated that the victim was 28 weeks pregnant, as confirmed by the medical examination and laboratory results. He also said that although she had normal genitalia, her hymen was absent. He produced her P3 Form and her outpatient card, which I have re-examined and confirmed the findings. 42.Since the victim was found to be pregnant as a result of the ordeal and was already 28 weeks into the pregnancy, I dispense with the issue of her genitalia being normal, as she must have healed by the time she was examined. Pregnancy is not proof of penetration. In Evans Wanjala Wanyonyi v Republic [2019] eKLR the Court of Appeal held: -“An essential ingredient in the offence of defilement is penetration and not impregnation.” 43.In this case, the Appellant sought to suggest that the Prosecution’s evidence of penetration was not cogent because the child in question was not brought before the court, and the Appellant denied ever seeing the child or that penetration occurred. The above-cited case holds that impregnation is not an ingredient of the offence of defilement. While this Court concurs with that position, I note that such a conclusion would apply in a case where an accused person challenges the evidence of penetration on the premise that the minor did not conceive. In the context of this case, it is clear that the victim had sexual intercourse which led to her pregnancy. I find no contrary evidence to this finding and hold that the ingredient of penetration was proved beyond reasonable doubt by the fact of impregnation. 44.I have considered the evidence of identification evidence in this case, which was the evidence of the victim, PW1. She stated that the Appellant was her boyfriend and the person with whom she had had sex on the material date. PW2 also stated that the Appellant was the person shown to her on one occasion when she and the victim were taking the child to the clinic. On their part, DW1 and DW2 stated that they knew the victim and her family, as they were relatives. 45.It is clear that the Appellant was not a stranger to the victim. He stated in his evidence that the victim was his cousin, although he denied knowing or seeing the victim’s child. 46.The question for this Court, however, is whether the Prosecution evidence linked the Appellant to the offence in question. The trial court, in its judgment, also found that the DNA report linked the Appellant to the offence because it confirmed that he was the father of the victim’s child. It was submitted by Counsel for the Appellant that the DNA report could not be relied upon because the victim questioned its authenticity at the time of tendering his defence, when he stated that PW2, the victim’s mother, remained in the examination room when the DNA analysis was conducted. They also challenged the DNA results because they were never produced by the maker. 47.I have considered the admissibility of the DNA results. Section 77 of the Evidence Act provides as follows: -77.Reports by Government analysts and geologists.(1)In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.(2)The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.(3)When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof. 48.In this case, since the DNA report is an expert report, it can only be tendered by a person specialised in conducting DNA reports under Section 48 of the Evidence Act, which states:48.Opinions of experts.(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts. 49.Further to the above, I refer to the case of David Jefwa Kalu v R Cr. Application No. 133/03, where the court held thus: -“Medical evidence if sought to be adduced ought to be so done with propriety and not in such slipshod manner.” 50.The Court of Appeal in Sibo Makovo v R Criminal Appeal NKR No. 39/1996 also cautioned against relying on technical and expert evidence not produced by their makers in the following words“It appears to us that production of P3 forms in courts is not taken seriously and we wish to impress upon trial magistrates to be careful in admitting P3 forms when the maker is not called.” 51.In this case, I find that the trial court erred in relying on the DNA report (P.Exh4) since the said evidence was adduced by the Investigating Officer rather than by the Government Chemist who conducted the analysis. I agree with the Appellant that the failure to call the maker of the document rendered it impossible for him to put questions to the witness. Further, no evidence or reasons were given to explain why the Government Chemist could not be called as a witness. Consequently, I find that the DNA report (P.Exh4) was inadmissible and could not be relied upon. 52.If the only evidence of identification was the DNA evidence, this Court would not have hesitated to set aside the conviction on that ground alone. However, since the Appellant was well known to the victim and he admitted that he also knew the victim as a relative, I find that he was properly identified. 53.Turning to the inconsistencies and the alleged land disputes between the families of the Appellant and the victim, as testified by DW2, I find that, because the land issue did not emerge earlier from the Appellant during cross-examination of Prosecution witnesses, it could not be raised at the point of defence. It appears as an afterthought. 54.Secondly, regarding the issue of inconsistencies, I am guided by the Court of Appeal of Nigeria in the case of David Ojeabuo v Federal Republic of Nigeria (2014) LPELR-22555(CA), where it was held as follows:“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains.” 55.The Appellant contended that there were material contradictions in this case. The only contradictions I noted are two. Firstly, the victim testified that on 17th December 2020 the accused wronged her, and then continued to state that it was in 2021. The second concerns PW3, the Investigating Officer’s evidence, who stated that the victim narrated that she was defiled on 12th July 2022. The charge sheet, on the other hand, states that the victim was defiled in April 2021. PW1 testified to being defiled in April 2021. Although these dates differ, I find that they are mere discrepancies and are not sufficient grounds for quashing the conviction. 56.My conclusion is that the Appellant’s defence was merely a denial and that the Prosecution’s evidence was cogent enough to sustain the trial court’s conviction. I therefore affirm the conviction. ii. Whether the sentence meted was legal and appropriate. 57.In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal held on sentencing as follows: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 58.The sentence of the offence for which the Appellant was convicted with is an offence of not less than 15 years. In considering whether to interfere with the sentence, this Court must consider any illegality or inappropriateness. From the facts of this case, the Appellant and the victim were in a relationship from 2020, when the victim was in Form 1. The trial court also considered the Appellant’s mitigation and the fact that he was a first offender. Consequently, the trial court imposed the sentence prescribed by law. 59.Noting the Supreme Court’s determination in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), I see no reason to interfere with the sentence imposed by the trial court. Accordingly, I uphold the sentence of 15 years’ imprisonment. In the upshot, the appeal lacks merit and is dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:BM/ AppellantRespondent- AbsentMiss Natwati For the AppellantWilkister - C/A HCCRA NO. E157 OF 2024-JUDGEMENT 0