https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8604

**IN THE REPUBLIC OF KENYA** **HIGH COURT MURANG’A** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA NO.088 of 2024.** **BONFACE MIRING'U KINYUA....................................APPELLANT** **VS** **REPUBLIC……………………………………………………PROSECUTION** **JUDGMENT** 1. The Appellant was charged with defilement contrary to section 8(1) as read with 8(2) of the Sexual offences Act No. 3 of 2006. 2. The Appellant was also charged with 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. 3. The accused denied the charge and the prosecution called 5 witnesses who proved the case beyond reasonable doubt and the appellant was found guilty. 4. On the other hand, the appellant opted for an unsworn defence. 5. At the conclusion of the trial, the appellant was convicted of the main count of defilement and sentenced to life imprisonment. 6. Dissatisfied with the conviction and subsequent sentencing, the appellant lodged this appeal. **Appellant’s submissions;** 1. Through the amended petition he raises the following grounds of appeal: 2. THAT the learned trial magistrate erred in law and facts by finding that the burden of proof was discharged while it was not. 3. THAT the learned trial magistrate erred in law by violating the Proviso under section 124 of the Evidence Act. 4. THAT the learned trial magistrate erred in law by violating Section 199 or the Criminal Procedure Code. 5. THAT the learned trial magistrate erred in law by not drawing an adverse inference against the Prosecution evidence for failing to avail critical witnesses and evidence. 6. THAT the learned trial magistrate erred in law by violating Article 50(2)(h) of the Constitution. 7. THAT the learned trial magistrate erred in law by shifting the burden of proof to the appellant in violation of Sections 107 and 108 of the Evidence Act. 8. THAT the learned trial magistrate erred in law by violating Section 169(1) of the Criminal Procedure Code. 9. THAT the learned trial magistrate erred in law by imposing an irregular, disproportionate and excessively harsh sentence that was in violation of Sections 216 and 329 of the Criminal Procedure Code. 10. THAT the learned trial magistrate erred in by not finding that the Prosecution's case was riddled with explicit contradictions, inconsistencies and discrepancies that went to the root of the Prosecution's evidence. 11. THAT the learned trial magistrate erred in law by not finding that PW 1 and PW2 were witnesses who were neither reliable nor credible. 12. The above grounds of appeal shall be canvassed seriatim, with ground (b) and (c) canvassed as a single ground of appeal. 1. Ground one: THAT the learned trial magistrate erred in law and facts by finding that the burden of proof was discharged while it was not. 13. The critical elements for the proof of the areas set out in the case of **John Mutua Munyoki vs. Republic [20171eKLR** wherein the Court stated thus: *"Therefore, in order for the offence of defilement to be committed, the Prosecution must prove each of the above ingredients beyond reasonable doubt".* 1. Appellant does not deny the age of the minor. 2. He bases his submissions on identification and penetration and matters of burden of proof. 3. The appellant herein had been recently employed to work at PW3's farmyard. 4. It is his case that PW1 and PW2 had visited the locus in quo on 27th September 2020, the same day that the alleged ordeal took place, and left on the same day, in the evening. 5. Prior to this visit of 27th September 2020, PW1 does not allege anywhere of ever having had met the appellant, and or visited PW3, which makes the meeting between PW 1 and the appellant a meeting of strangers. 6. He argues that the recollection of PW1 is low and she cannot remember the date she was born as it is clear in her evidence-in-chief. 7. In the case of **Hassan Abdalla Mohammed vs. Republic (2017) eKLR,** the Court stated thus: "Visual identification in criminal cases can cause miscarriage of justice and should be carefully tested". 8. PW 1 testified in court that she was defiled by Boniface. Uniquely though, it was the first time they bumped into each other. 9. On the other hand, PW 1 does not corroborate the evidence of PW3 that they went to church with PW3. 10. The appellant adduces an alibi defence wherein he paints a picture of a man who was busy throughout the day shooting his music videos. 11. What then is left of visual identification, for the cogency in identification, is a weakened strand of a witness whose recollection is very low. 12. In Evidence, **Cases and Materials (J), and in (Buttersworth, 1984)** it was adduced thus: " First, a child's power of observation and memory are less *reliable than an adult. Secondly, children are prone to live in a make-believe world, so that they magnify incidents which happen or invent them completely. Thirdly, they are also egocentric, so that details seemingly unrelated to their world are quickly forgotten by them. Fourthly, because of their immaturity, they are very suggestible and can easily be influenced by adults and other children. ...anxious parents may take a child through a story again and again so that it becomes drilled in untruths. ...Most dangerously, a police officer taking a statement from a child tends to confuse what actually happened with the answers suggested implicitly by the question. A fifth danger is that children have little notion of duty to speak the truth, and they may fail to realize how important it is for it to be in a way evil beyond their years. They may completely invent offences... "* 1. It is his case that given that the Prosecution did not disprove the alibi defence of the appellant, it is his submission that someone out there entered into the compound of PW3 and defiled PW 1, and now that to their mind only the appellant was known to be within the vicinity as a casual laborer, suggestibility played its part in forming the idea that the perpetrator was the appellant. 2. PW2, being an anxious and angry parent took PW I through the storyline again and again so that it became drilled in untruths, and with her immaturity and lack of knowledge on the dangers of not telling the truth, PW 1 played to the tune, not knowing how evil it is beyond her years. 3. Per PW4, the hymen of PW I was freshly broken and she had tenderness of the vulva, with presence of lacerations (bruises) of the vulva at three o'clock, with presence of pus cells on urinalysis. This medical evidence was adduced from the examination done three days later after the ordeal. 4. It would suggest that the injuries on PW 1 three days prior were very painful. 5. PW3's evidence evidence was that she and Waharun a neighbor they were with on the same day of the alleged ordeal did not notice anything odd. 6. For two elderly parents not to notice anything, like, change in walking style, sadness, teary face out of pain, and or inability to walk suggests that the alleged ordeal is a figment of imagination. 7. PW2 assisted PW 1 wear her clothes on their journey back and noticed nothing! A five-year old child penetrated by a 30-year-old man would surely cause injuries that would easily be noticed via the demeanor of any observant person. 8. According to him it is odd that PW 1 was only washed three days later after the alleged ordeal. 9. Why not prior to the journey back to Nairobi?Maybe they were late. Why not the following day? And furthermore, what does her being defiled have to do with her disowning her mother as per PW2 's evidence? 10. Reliance is placed in the case of Henry and Manning V Republic, Criminal appeal No. 59 of 2011 where the court ruled thus:" It has been said again and again that in cases of alleged sexual offenses, it is really dangerous to convict on the evidence of the woman or girl. It is dangerous because human experience has shown that girls and women do sometimes tell an entirely false story which is very easy to fabricate but entirely difficult to refute. Such stories are fabricated for all sorts of reasons and sometimes for no reasons at all". 11. Ground Two and Three: Failure to comply with Section(s) 199 of the Criminal Procedure code and 124 of the Evidence Act. 12. A perusal of the record shows that there is nowhere the learned trial magistrate recorded any instance of demeanor that would be relied as a guide unto credibility of any of the Prosecution witnesses. 13. This omission was fatal, especially paying attention unto the fact that the matter before her was a matter that solely depended on credibility of the Prosecution witnesses. 14. The Proviso to Section 124 of the Evidence Act excludes corroboration in sexual offences in a single condition: That the trier-of-facts find the complainant truthful, and the reasons for belief be recorded in the proceedings. 15. But on reading the judgement of the learned trial magistrate, there is nowhere in his judgement where it is provided that the complainants were truthful, nor was any reason put forward as to finding of PW 1 being truthful. 16. He submits that the above provisions of the law were not adhered to. Ground Four: Unavailability of Critical Prosecution witnesses 1. Blessings, a minor in company of PW 1 prior to the alleged ordeal would have been a star witness in proving identity. 2. Similarly, Waharun, a friend to PW3 with whom PW3 was with in her house would have been a good choice of a witness to corroborate PW3 's testimony that during the alleged ordeal, PW 1 screamed, or that during the arrest, the appellant owned up claiming that he felt aroused on PW I looking at him. 3. Similarly, the arresting officer (PC Osman) and the investigations officer (PC Susan) would have been very good choices for the arresting officer to explain how the appellant was arrested and anything he said during his arrest, and the investigations officer would have shed light on any exhibits, say a panty from PW 1 and or its status during reporting and statement recording. 4. Absent all the above, what was availed to court through the PW5 was nothing more than hearsay on top of hearsay, which in law is not admissible. 5. In the Ugandan case of Bukenya & Another Vs Uganda & Another (1972) EA 54, the court of appeal of eastern Africa did decree that should the Prosecution, which has duty to avail all witness in solem duty to draw from the foregoing draw an avero avail critical witnesses, the court is under an adverse inference against the prosecution’s evidence. 6. He submits that this highly esteemed court has the solemn duty to emcee against the prosecution’s evidence on visual identification and the learned trial magistrate erred in law b violating Article 50 (2) (h) of the constitution. 7. On reading the entire proceedings, and especially the defence of the appellant, one notices a few things which we wish to bring to the attention of this court the language of the court was interpreted into Kikuyu language, a languge that the appellant was conversant with, owing to his semi-literate status. 8. It was not indicated in the record of the proceedings, that the language remained constant (Kikuyu Language) during his defence. 9. The appellant was unrepresented, in a case that cost him his life. 10. The failure to be accorded a state counsel at state expense was never interrogated into by the court, a state institution mandated with delivery of justice. 11. In his cross-examination, his questions did not as much dwell on the substance of the charges, and thus his inability to mount a credible defence. 12. The Constitution of Kenya 2010, the Supreme Law of the land. In Article 50(2) h, the constitution of Kenya 2010 does guarantee every accused person the right to fair trial which includes being granted a probono counsel at state expense if substantial injustice would result. 13. In the case of **David Macharia Nioroge v. Republic, Criminal appeal No. 497 of 2007120111 eKLR**, the Court of Appeal held that substantial injustice" results to persons accused of capital offences" with loss of life" as the penalty if they have no counsel during their trials. It has been said before, but it bears repeating, that the maximum penalty for the offence of Robbery with violence contrary to section 296(2) of the Penal Code is a death sentence. 14. Per the Constitution of Kenya 2010, Article 2(5), international laws make up as laws, and amongst them is the International Covenant on Civil and Political Rights (ICCpr) adapted on 16th December 1966, which provides in Article 14(3)(d) that, legal assistance should be provided to a party where the interest of justice so require and without payment in the case of a party who lacks the means to pay for it". Needless to add that Kenya is a party to this convention having ratified it on 1 May 1972. 15. By the virtue that the appellant was unable to hire a private counsel, it can be inferred that he lacked the means to pay for one. On perusal of the appellant's defence, one realizes that he is a legal layman. He is unable to mount a credible defence. 16. As an indigent, semi-literate and lay-person, the appellant was unable to surmount a credible defence and therefore, the trial court's failure to accord him his constitutional rights to legal representation at state expense caused him to suffer grave injustice. Ground Six: THAT the learned trial magistrate erred in law by shifting the burden of proof to the appellant 1. Reading through the judgement of the learned trial magistrate, one notices that he expected the appellant to bring to court the videos that he recorded during the day of the alleged ordeal bring to court the said Githinji who was a music Producer to corroborate appellant's defence.This is what shifting the burden of proof means according to him. 1. Reading through the script, one notices that the alibi defence was not disproved by the Prosecution. 2. With that failure, the only option was to acquit, not force the appellant to prove his innocence, as he was all along. 3. It is thus his submission that the learned trial magistrate erred in law by shifting the burden of proof to the appellant just because he was out on bond for three years. Ground seven: It is his case that the learned trial magistrate erred in law by violating Section 169(1) of the Criminal Procedure Code. 1. The alibi defence of the appellant was not given due weight: just a dismissal. 2. Similarly, the defence which introduced grudge and malice between him and the complainant's family was not considered. 3. In **David Ochieng & Others v Republic [20141 eKLR,** the Court of Appeal emphatically held that "a trial court must consider the defence put forward by an accused person and weigh it against the prosecution case." The sacred duty of a judicial officer is to pronounce judgment only after weighing all the evidence in the scales of justice without tilting in favor of either side. 4. Had the two plausible lines of thought of the defence considered, the learned trial magistrate would have found out that a rational inference can be derived that what we have on the table is a mistaken-identity scenario. Ground Eight: The Appellant argues that the learned trial magistrate erred in by not finding that the Prosecution's case was riddled with explicit contradictions, inconsistencies and discrepancies that went to the root of the Prosecution's evidence 1. Several contradictions marred the prosecution's case, amongst the many being PW 1, PW2 and PW3 testify that PW 1 had accompanied her mother in a visit to her granny (PW3) on the day of the ordeal. On the other hand, PW4 testifies that the child was living at her grandparents' home (PW3). Why was there need to change the place of origin? Was it not an attempt to strengthen identification through lies? 2. Per PW3, during the alleged ordeal, PW 1 screamed, and another child who was outside screamed. On the other hand, PW 1 does not testify as to screaming. Who is telling the truth? 3. Per the doctor (PW4), PW2 noted some discharge while bathing PW 1. On the other hand, PW2 testified that she it is after much probing and noticing withdrawal symptoms that she probed PW 1 into opening up. Which version is the truth and why was there flip-flopping? 4. Per PW 1, she was told not to share her predicament with her mother by the assailant. On the other hand, PW2 testifies that PW 1 was threatened that should she share her predicament, PW2 would be killed. Finally, PW4 testifies that PW 1 was threatened with harm. Now, amongst the three, who is telling the truth and why is the narrative inconsistent? 5. On one hand, PW3 testifies that: “that she went to church with PW 1, appellant and Blessings.” 6. Why is there no corroboration in any of these aspects or was it just a later invention by PW3? 7. Per PW2, PW 1 kept mentioning Boniface. When did she know his name? And for how long had she(PW1) known the appellant given that this visit on the day of the ordeal was the only one which the Prosecution witnesses referred to, and no other interaction prior with the appellant, keeping in mind that the appellant was recently" employed by PW3? Where is corroboration? 8. Additionally, the medical evidence suggests that the injury was fresh on one hand, and on the other hand suggests that it had pus cells. How is it that an injury is fresh but has pus cells? 9. Finally, the date of the alleged visit and the date of the journey back keeps changing. Per PW2, she and PW 1 visited PW3 on 26 th September 2020 and left for Nairobi on the same day at 1900 Hours. On the other hand, PW3 testifies thatPW2 and PW 1 visited her on 27 th September 2020 and left on 28 th same month and years. 10. In **Wanioka v. Republic 120231 eKLR**, the High Court cogently held: *"It is true that contradictions in the evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case." In this case, the contradictions rupture into the heart of the Prosecution, shaking the credibility and reliability of their evidence to the core.”* 1. He argues that the learned trial magistrate erred in law by not finding that PW1 and PW2 were witnesses who were neither reliable nor credible. 2. In **Nguku vs. Republic, Criminal Appeal No. 186 011983** at Kisumu makes evaluation of credibility the first thing before any further evidence can be evaluated. Now through this lens we must analyse the credibility of PW 1 to the core. 3. There are two lines of thought as to why Prosecution witnesses are both incredible and unreliable. They are thus,the explicit contradictions, inconsistencies and discrepancies in the prosecution's evidence discussed hereinabove. These contradictions make the Prosecution's case rupture at the core, shaking reliability and credibility. 4. PW 1 does not remember the year she was born. It is his case that for a witness who cannot tell the years she was born, it becomes difficult to believe her evidence on the other fronts as there is a real likelihood that it was suggested to her. Ground ten is that the learned trial magistrate erred in law by imposing an irregular, disproportionate and excessively harsh sentence that was in violation of Sections 216 and 329 of the Criminal Procedure Code 1. The learned trial magistrate condemned the appellant only 34 years of age—to a life imprisonment. 2. This sentence, in its harsh extremity, offends the conscience of justice and evokes the words of the Court of Appeal in **Waniema v Republic [19711 EA 493,** where it was held that "an appellate court has jurisdiction to interfere with a sentence if it is manifestly excessive in the circumstances of the case or if the trial court overlooked material factors." 3. Sentencing, as a judicial function, must be tempered with humanity, guided by the triad of retribution, deterrence, and rehabilitation, not vengeance. What justice is served when a youthful offender is judicially entombed until the twilight of his natural life? Why should the gavel fall with such finality upon a 30-year-old soul, extinguishing all hope of reformation? Such a sentence does not serve the ends of justice, but rather reflects an unfeeling rigidity that constitutional jurisprudence seeks to move away from. Indeed, the age of the offender, the possibility of rehabilitation, the absence of prior criminal history, and the circumstances under which the offences were allegedly committed—all these are cardinal factors that ought to have guided the mind of the sentencing court. 4. How does a life prisoner rehabilitate and how is it shown to the society that he has rehabilitated? 5. Section 216 of the Criminal Procedure Code, as well as Section 329 of the same Criminal Procedure Code does provide that mitigation be computed during sentencing. 6. The appellant was a first offender, with no criminal past on his part. Similarly, being young should have been computed. **The Respondent’s Submissions;** 1. It submits that that defilement was proved to the required standards. 2. The ingredients of sexual offences that need to be proved beyond reasonable doubt are: - age of complainant, proof of penetration and positive identification of the accused by the complainant. 3. In respect to the issue of the complainant's age, PWI stated in court that she was 7 years old. This is corroborated by her mother who stated that the complainant was born in 2014 and presented her birth certificate in court. 4. The accused was charged within the parameters of the law in consideration to the offence he had committed. 5. Reliance is placed in the case of **Edwin Nyambogo Onsongo Vs Republic (2016) eKLR** the Court of Appeal held that: - *“The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof". we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. "* 1. 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 organ of another person.* 1. The findings of the clinical officer was that there was defilement hence he concluded that the victim was defiled. 2. It submits that PW4, confirmed that the complainant was taken to hospital on the 20/9/20 and upon being examined she was found to have a freshly broken hymen and she had tenderness of the vulva with foul smelling discharge. There was laceration on the labia majora. 3. Owing to her age, the victim could not be capable of appreciating the nature of what was happening hence she could not have consented to the sex. 4. It submits that it is clear from the record that the perpetrator was employed by the complainant's grandparents. 5. The complainant spent the entire day in the home of the grandparents and she was able to identify him as the perpetrator. 6. It is a case of recognition owing to the time the accused person and the complainant had been together and the accused was positively identified as the perpetrator. 7. The accused did not dispute knowing the complainant in his defence. 8. A trial court is required to consider the entirety of the evidence on record, weigh the prosecution case against the defence and give reasons for accepting or rejecting the defence. 9. The judgment of the trial court expressly summarized the appellant's defence and evaluated it against the prosecution evidence. 10. It is settled law in Kenya that the prosecution is not obliged to call a superfluity of witnesses to prove its case. 11. What is required is the calling of sufficient witnesses to establish the charge beyond reasonable doubt. 12. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that: *"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”* 1. The Court of Appeal in **Bukenya & Others v Uganda [19721 EA 549** held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution. 2. In **Keter v Republic [20071 1 EA 135,** the Court held that an adverse inference can only be drawn where the prosecution deliberately withholds witnesses whose evidence would have been vital and adverse to its case. 3. The Constitution guarantees the right to choose and be represented by counsel, it is also settled law that legal representation is not automatic in criminal trials. 4. Under Article 50(2) (h), State funded legal representation is required only where substantial injustice would otherwise result, which is not the case in this matter. 5. The record does not show that the Appellant applied for legal representation or that he demonstrated inability to conduct his defence due to complexity of the case. 6. The charge was read and explained to him where he responded that it is not true, he participated in the proceedings, and he elected to give sworn evidence, a choice available to him in law. 7. The mere absence of an advocate, without proof of resulting prejudice or substantial injustice, does not render the trial unconstitutional. 8. On the issue of sentence it submits that sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. 9. While exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation. 10. In **Shadrack Kipchoge Kogo V Republic** crim. Appeal no. 253/2003 the Court of Appeal stated: *"Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into an account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred."* **Analysis and determination;** The issues for determination are whether the appeal has merit. **On the issue of identification;** 1. The perpetrator was employed by the complainant a grandparents. She spent the entire day in the home of the grandparents and she was able to identify him. 2. In order to complete the offence, the prosecution has to prove that they there was a penetration. 3. The child testified during cross-examination that she remembers that the accused gave her ten shillings and told her to go and buy a lollipop. 4. After the incident the appellant took the victim back to the grandma house after which she was taken to hospital. 5. On the issue of penetration, PW 4 the clinical officer confirms that the victim was taken to hospital on the 20 July 2020 and upon examination, he found that he had been hymen freshly broken. She had tenderness of the vulva with foul smelling discharge. There was a laceration on the labia majora that he concluded that he had been defiled. On high-vaginal swab microscopy there was the presence of pus cells. 6. The last ingredient that the prosecution had to prove was the age of the victim. PW1 stated in court that she was seven years old. The mother gave evidence to the effect that, she was born in the year 2014. The court has looked at the birth certificate of the child and as read alongside the fact that the appellant does not have any issues with the age of the child. The child falls under the ambit of the Sexual Offences Act. 7. The applicant believes that the conviction and sentence cannot stand given that the prosecution did not call all the witnesses that would have helped prove the offense. He argues that the prosecution failed by refusing to call crucial witnesses. 8. The appellant's claim that the trial magistrate errored in not considering that the crucial witnesses were no summoned. 9. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that: *"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."* 1. The Court of Appeal in Bukenya & Others v Uganda [1972] EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution. 2. This ground lacks merit and same is hereby dismissed. 3. Finally, the appellant argued that he was denied his right and Article 50 of the Constitution since he was not given counsel to represent him. 4. From the record, the court notes that the Appellant did not request to be given an advocate by the [court. He](http://court.he) did not plead illiteracy or indolence as advanced and introduced at the appellate level. The same cannot be sustained. 5. The plea was taken after which the trial commenced in earnest. The court notes that the appellant conducted robust cross examinations of all the witnesses. He thereafter went ahead to tender unsworn evidence after the court explained to him his rights under Section 211 of The CPC. He thereafter proceeded into mitigation. 6. The court notes that there is no prejudice that was suffered by the appellant as a result of the lack of an advocate. 7. The appellant further argues that the court fell into error by shifting the burden of proving alibi on the appellant. 8. He gave unsworn evidence making it impossible for the prosecution to cross examine him or challenge the defence of alibi. 9. A successful defence of alibi is raised to rule out the accused person as the perpetrator of the crime. An accused person who wishes to rely on the defence of alibi must raise it at the earliest opportunity to give the prosecution an opportunity to evaluate as the appellant bears no burden to proof his alibi defence. 10. The Court of Appeal in [**Kiarie –v- Republic**](http://kenyalaw.org/caselaw/cases/view/7861/) **(1984) KLR** stated:- *“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable….”* 1. In [**Victor Mwendwa Mulinge –v- Republic**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/710)**(2014) eKLR** Court of Appeal It stated; *“It is trite law that the burden of proving the falsity if at all of an accused’s defence of alibi lies on the prosecution.”* 1. The argument has no basis. I reject the contention. 2. The court is of the view that the trial court applied its mind to the issue of alibi judicially. **Determination**; 1. The appeal lacks merit and the court finds that the conviction and sentencing were legal. **Order**; The appeal is dismissed. **Dated, signed and delivered virtually at Eldoret this 18th day of June 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**