Mwandi v Director of Public Prosecution (Criminal Appeal E098 of 2023) [2026] KEHC 5226 (KLR) (24 April 2026) (Judgment)

Mwandi v Director of Public Prosecution (Criminal Appeal E098 of 2023) [2026] KEHC 5226 (KLR) (24 April 2026) (Judgment) Neutral citation: [2026] KEHC 5226 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E098 of 2023 S Mbungi, J April 24, 2026 Between Michael Lau Mwandi Appellant and Director Of Public Prosecution Respondent (Being an Appeal against the Judgment and Sentence of Hon. M. Sudi delivered in Kandara PM’s Court Case No. Criminal SO 22 of 2019 on 15th August 2023) Judgment 1.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. The particulars of the charge were that on diverse dates between 24th and 31st December, 2018, within Gatanga Subcounty in Murang’a County, the accused person intentionally and unlawfully caused his penis to penetrate the vagina of DAA, a child, aged 13 years. 2.He 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. The particulars were that on diverse dates between 24th and 31st December, 2018, within Gatanga Subcounty in Murang’a County, the appellant intentionally touched the vagina of DAA, a child aged 13 years, with his penis. 3.The Appellant pleaded not guilty to both charges and the case then went to full trial. The prosecution called seven witnesses whereas the defence called seven witnesses. Facts at Trial 4.PW1 was DAA. After voire dire examination by the court, PW1 testified under oath and stated that during the December 2018 school holidays, the appellant asked her to be his girlfriend, and she agreed thinking it was a normal request. The appellant then asked her what boyfriends and girlfriends do, and when she was unable to answer, he told her that they "do sex." Regarding the first incident of defilement, she testified that one day while she was at home and had put her sister to sleep, the appellant called her to his office. He threatened that if she told her parents, he would strangle her. He then ordered her to remove her clothes and lie on a table in the OB office. He removed his clothes, stood between her legs, and inserted his penis into her vagina. When he finished, he told her to dress up and go and wipe herself, and she saw blood and felt pain, which had never happened to her before. She returned to the house. 5.The complainant further testified about a second incident that on another occasion, the appellant returned from the market. Her sister L asked the appellant for his phone to check Facebook, and he gave it to her. The appellant then asked PW1 to go and clean his house. She went and started cleaning. The appellant left and later returned to find her cleaning. He told her to undress and lie on the bed. He removed his clothes and did sex to her. That when he heard footsteps of L approaching the house to bring back his phone, he stopped and told her to dress quickly. PW1 then continued cleaning the house and later returned home. She also testified that on another occasion when her mother left for the market at about 10 am, she was fetching water and bathed. The appellant was seated on a cemented place near a water tank. As she was leaving, the appellant met her at the gate and asked that they go to the bush, pleading with her and giving her Kshs. 30, but she declined. 6.The complainant further told the court that on another day, the appellant took her to the OCS's office. That he told her to undress and lie on the table. That he then removed his clothes, stood between her legs, and did sex to her. He then showed her how sperms look like as they came out of his penis. She also testified that on one occasion, while she was behind the house playing with her siblings, the appellant came and started taking photos of the other children. That he then asked her if she could take photos of her private parts, to which she agreed. That she went to the toilet, took photos of her naked body including her breasts and vagina, and gave the phone back to the appellant. She further stated that after Christmas, the appellant asked her what she wanted, and she said Kshs. 50. He did not give it to her that day but started giving her money in January. 7.On cross-examination, the complainant affirmed that she told the OCS everything she could remember and maintained that the acts occurred six times in different places: sometimes in the OB office, sometimes in the OCS office, and once in the appellant’s house. She confirmed that the incidents started in December before schools opened and that she had never had sex with anyone before the appellant. She admitted that she forgot to tell the OCS about the appellant giving her sister his phone but maintained that nobody coached her on what to tell the court. Upon re-examination, she clarified that the appellant did sex to her seven times in total, though she could not recall the specific dates, and that the acts took place in the OB office, the OCS office, and the appellant’s house. 8.PW2 was JOA, the complainant's father and a Police Officer stationed at Kituamba Police Station, testified that the appellant was his colleague who reported to the station in September 2018. He stated that his daughter was born on 22nd December 2006 and that during the December 2018 school holidays, she began suffering from unusual bouts of illness. Between 12th January and 17th January 2019, she was admitted at Kilimambogo Hospital for asthma attacks, and again from 8th February to 13th February 2019. That on the night of 16th February 2019, she suffered another asthma attack that did not respond to medication, and she appeared mentally disturbed. When he pressed her to disclose what was ailing her, she told him she was dying and wished to tell the truth before her death. She then disclosed that the appellant had defiled her seven times between 24th December 2018 and 7th February 2019, with six occasions taking place in the OCS's office and one in the appellant's house. PW2 immediately informed the OCS, Ziporah Kilonzo, who came to the station and recorded statements. The complainant was taken to Thika Level 5 Hospital, where a PRC form confirmed defilement. PW2 testified that the appellant was arrested on 21st February 2019. 9.On cross-examination, PW2 confirmed that he was the appellant's superior officer and that on 24th December 2018, both of them were on standby due to Christmas festivities while the third officer, PC Kimwei, proceeded on leave from 26th December 2018. He maintained that the appellant was on duty during the festive season and that the Constable on duty had access to the keys to the cells, the OB office, and the OCS office. He acknowledged that the appellant visited the complainant in hospital without his knowledge and gave the children Ksh 200, which he found suspicious. He admitted that he was bitter about the OCS's slow action between 18th and 21st February and that he involved the media. He reaffirmed that the complainant told him the first defilement occurred on 24th December 2018 and the last on 7th February 2019. 10.PW3 was BOA, the complainant's mother, who testified that on 16th February 2019, her daughter was admitted at Kilimambogo Hospital due to asthma attacks. When she prodded the complainant to explain what was wrong, the complainant disclosed that the appellant had defiled her. She stated that PW1 informed her that the appellant would call her to the OCS's office, remove her undergarments, defile her, and threaten her, and that she bled as a result. The appellant also gave the complainant money to keep the secret. PW3 reported the matter to the OCS, and the complainant was subsequently taken to Thika Level 5 Hospital, where defilement was confirmed. She told the court that the appellant had reported to the Station about three months before the incident and had stored his belongings in her house. Due to delayed police action, she involved the media. 11.On cross-examination, PW3 confirmed that she signed her daughter's statement while at the hospital, not at the Police Station. She stated that the complainant told her she went to the appellant's house after he called her. She acknowledged that at the time of the incidents, there were only two officers at the Post because one was on leave. She maintained that she involved the media because the OCS continued to host the appellant even after learning of the defilement. On re-examination, she clarified that she spoke to her husband to restrain him from taking the law into his own hands, as he was very angry due to the lack of action. She stated that after the media got involved, the DCIO arrested the appellant. 12.PW4 was LA, her evidence as captured by the trial court. She testified that she was at Kituamba Police Station during the December 2018 holidays. She stated that while the complainant was admitted in hospital, she heard her utter words to the effect that “uncle stop touching me down there,” which prompted her to inquire further and said that the person she was referring to as uncle was her Dad’s workmate at Kituamba. She asked her if the uncle had been bothering her, she also asked her if the uncle had sex with her, she said No. PW4 further testified that she had on several occasions seen the complainant in the company of the appellant and going to his house. She also stated that the appellant visited the complainant in hospital without the knowledge of the parents and gave her money. 13.PW5, Dr. Maina Wachira, a Clinical Officer at Thika Level 5 Hospital, testified that he filled the P3 form on 21st February 2019. Upon genital examination, he found that the complainant had a vaginal tear at the 3 o’clock position with inflammation, reddening, and swelling, and that her hymen was broken. He opined that the probable weapon used was a penile shaft, consistent with repeated penetration. He assessed the degree of injury as grievous harm. On cross-examination, he conceded that the P3 form was filled some time after the incidents and that he did not examine the appellant. He maintained, however, that ninety percent of a diagnosis in such cases comes from the history provided by the patient. On re-examination, he reiterated that the findings were consistent with the history of repeated defilement. 14.PW6, CIP Ziporah Kilonzo, the former Officer Commanding Station at Kituamba, testified that on 17th February 2019, the complainant’s mother called her with an urgent matter. Upon arrival, the mother informed her that the appellant had defiled her daughter seven times between 27th December 2018 and 8th February 2019. She found the complainant very sick, breathing with difficulty, and unable to talk properly. She accompanied the complainant to Thika Level 5 Hospital, where the complainant later confirmed that the appellant had defiled her. She stated that the DCIO later took over the investigation and that she moved the appellant to Ithanga Police Post for his safety. She later served him with an interdiction letter. On cross-examination, she confirmed that the appellant was given leave to collect his items shortly after reporting and that he also attended a burial in 2019, though she could not recall the exact dates. She stated that she was not the Investigating Officer. 15.PW7, PC Elizabeth Muasya, the Investigating Officer from DCI Gatanga, testified that she visited the complainant at Thika Level 5 Hospital, where the complainant was admitted with chest pains and an asthma attack. The complainant told her that between 24th December 2018 and 8th February 2019, the appellant lured her into sexual acts, inserted his penis into her vagina, gave her money, and threatened her. On one occasion, the appellant strangled her in the OCS’s office. PW7 produced the complainant’s Birth Certificate showing she was born on 22nd December 2006. She arrested the appellant on 21st February 2019. On cross-examination, she admitted that the charge sheet did not capture the 8th February 2019 date, though she maintained that omission did not negate the occurrence of the incident. She also conceded that the appellant was not booked in the OB or Cell Register upon arrest. She denied any media pressure and stated that the appellant’s phone was confiscated because the complainant alleged he showed her pornographic material. 16.That marked the close of the prosecution case. Having considered the evidence adduced, the trial court held that a prima facie case had been established against the accused person and he was accordingly put on his defence. Defence Case 17.DW1 was the appellant. He testified that he had been a Police Officer since 1994 and had been interdicted following the present charges. He denied the offence in its entirety, contending that he had been falsely implicated. He testified that between 18th December and 28th December 2018, he was on official leave at his home in Makueni, as allegedly recorded in the Occurrence Book (OB). He further testified that between 28th December and 31st December 2018, three officers were present at the station and that he was never alone. He also stated that he attended a burial between 2nd February and 9th February 2019. It was his evidence that he first became aware of the allegations through media reports and that the matter was subsequently investigated by the DCIO. He denied ever being taken to the cells or to Kirwara Police Station. He further alleged that Cpl A, the complainant’s father, bore a grudge against him and had at one time threatened to shoot him. He stated that the OB and Cell Register were not availed to him, asserting that the police were deliberately withholding evidence. In cross-examination, he conceded that he had no documentary or other tangible evidence to demonstrate that he was away from the Station on the material dates, and further admitted that he had no independent witness to confirm that he made any OB entry relating to his alleged absence. 18.DW2 was Paul Muinde Katiku, who stated that he was a student residing in Makueni and that he knew the appellant as a friend and neighbour. He testified that on or about 18th December 2018, the appellant was at his home in Makueni and that on 24th December 2018 he went for Christmas celebrations at the appellant’s home. He further stated that the appellant returned to work on or about 26th December 2018. However, he was unable to recall events relating to February 2019. 19.DW3 was James Maina Nduku. He stated that he resided at Ndula, Kilimambogo, and worked as a shopkeeper. He testified that he knew the appellant and that on 18th December 2018 he was with him as the appellant was heading home, and that he later saw him again on 24th December 2018. He further testified that on 2nd February 2019, the appellant informed him that he was travelling for a burial and gave him Kshs. 500/= as bus fare, after which he proceeded for the burial and returned on 6th February 2019. 20.In cross-examination, DW3 stated that he had seen the appellant at home on 18th December 2018 but was not certain of other dates. He confirmed that he saw the appellant again on or about 27th December 2018 but could not account for his movements thereafter. He candidly admitted that he was not present during the period when the offence was alleged to have been committed and was therefore unable to speak to the appellant’s whereabouts during the entire material period. 21.That marked the close of the defence case. Upon considering the entirety of the evidence on record, the trial court, in its judgment delivered on 15th August 2023, found the appellant guilty, convicted him, and sentenced him to fifteen (15) years’ imprisonment. The Appeal 22.Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal vide a memorandum of appeal dated 18th August 2023 citing the following grounds:a.That the Honourable learned Magistrate erred and misdirected herself in law and facts when she found that the prosecution had proved its case beyond reasonable doubt despite the evidence adduced by the prosecution having had glaring contradictions and inconsistencies.b.That the Honourable learned Magistrate erred in law and facts when she found that the defence of the appellant was not fool proof thereby shifting the burden of proof to the appellantc.That the Honourable learned Magistrate erred when she gave the prosecution witnesses’ testimony undeserved weight even where it was clear from the proceedings that the same was insufficient to sustain a conviction against the appellant.d.That the learned Honourable Magistrate erred in facts and law when she failed to appreciate that the prosecution’s failure to disclose and produce evidence as ordered by the court created a doubt as to the authenticity of its case which fact should have been decided in favour of the appellant.e.That the Honourable learned Magistrate erred in law when she failed to appreciate that the appellant’s right to fair hearing was violated by the conduct of the prosecution and that in such circumstances, there should be construed a benefit of doubt in favour of the appellant.f.That the Honourable learned Magistrate erred in law and facts when she in so many instances to be pointed out at the hearing, filled gaps in prosecution’s case with her own assumptions which did not flow from the evidence of the witnesses.g.That the learned Honourable Magistrate erred when she failed to appreciate that the appellant had proved his defence of alibi and find in his favourh.That the learned Honourable Magistrate erred when she found that the police had intention of bungling the case if it were not for pressure from the media. To the contrary, the Magistrate should have found that the appellant was charged as a result of unjustified and unfounded media reports which led to manufacturing and creation of evidence against the appellant.i.That the learned Honourable Magistrate erred and misdirected herself when she convicted the appellant without sufficient evidence to prove the same. 23.The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 21.11.2024. At the time of writing this judghment, no submissions have been filed by the respondent in the court file, nor on the CTS. Appellant’s Submissions 24.In his written submissions, the appellant contended that the conviction was unsafe and ought to be quashed on account of inconsistencies, contradictions, and procedural irregularities which, in his view, undermined the integrity of the trial process. The appellant first challenged the validity of the charge sheet, submitting that it was defective and inconsistent. He argued that the charge sheet was amended during the trial by altering the applicable statutory provisions, yet the judgment referred to a different provision altogether, thereby creating uncertainty as to the exact offence he was called upon to defend. He relied on the decision in Yongo v Republic [1983] eKLR for the proposition that a charge must be clear and unambiguous, and submitted that the inconsistencies in the charge sheet prejudiced his defence and rendered the trial unsafe. 25.On the element of penetration, the appellant submitted that the same was not proved beyond reasonable doubt. He contended that the complainant’s testimony was vague and failed to clearly describe the act of penetration as defined under section 2 of the Sexual Offences Act. He argued that the complainant’s use of general terms created ambiguity as to whether penetration actually occurred. In that regard, he relied on Mark Oiruri Mose v Republic [2013] eKLR and Pius Arap Maina v Republic [2013] eKLR, for the proposition that proof of penetration must be clear, cogent and unequivocal. 26.The appellant further impugned the medical evidence, submitting that it was unreliable and riddled with inconsistencies. He argued that the injury noted at the 3 o’clock position was unusual for penetration-related trauma and raised doubt as to its cause. He also pointed to the delay in medical examination and contradictions in the testimony of PW5 as to whether he personally examined the complainant. It was his contention that these inconsistencies undermined the probative value of the medical evidence. He relied on Jepchirchir Chesang v Republic [2014] eKLR to argue that contradictory medical evidence should not form the basis of a conviction. 27.The appellant also challenged the credibility of the complainant, submitting that her evidence was inconsistent and unreliable. He pointed out that the complainant gave varying accounts as to the number of times she was defiled, initially stating six times and later seven times. He further argued that part of the evidence suggested that the alleged acts may have occurred while the complainant was asleep, thereby raising the possibility of confusion or external influence. He relied on Paul Mboya v Republic [2013] eKLR to submit that material inconsistencies in a complainant’s testimony cast doubt on the truthfulness of the allegations. 28.On the issue of access and opportunity, the appellant submitted that the prosecution failed to demonstrate that he had access to the OCS office where some of the alleged incidents were said to have occurred. He argued that the evidence showed that the keys to the office were in the custody of the complainant’s father and that, as a newly posted officer, he could not freely access the premises. He further contended that there was evidence that he had been away from the Station during part of the material period, thereby casting doubt on his alleged involvement. 29.The appellant also relied heavily on his defence of alibi, submitting that the same was not effectively rebutted by the prosecution. He argued that he had provided a detailed account of his whereabouts during the material period, which was corroborated by his defence witnesses, and that the prosecution failed to disprove the alibi beyond reasonable doubt. In support of this submission, he relied on Karani v Republic [1985] eKLR, which emphasizes that the burden lies on the prosecution to disprove an alibi. 30.Further, the appellant submitted that the prosecution failed to call crucial witnesses, including the complainant’s siblings, and failed to produce key exhibits such as photographs allegedly taken using his mobile phone. He argued that the absence of such evidence created gaps in the prosecution’s case. He relied on Muiruri v Republic [1988] eKLR for the proposition that failure to call material witnesses or produce critical evidence may weaken the prosecution’s case. 31.The appellant also raised concerns regarding the manner of his arrest and the conduct of investigations. He submitted that there was no proper documentation of his arrest, including absence of entries in the Occurrence Book or Cell Register, which raised doubts about the integrity of the investigative process. He relied on Alfred Mutua v Republic [2017] eKLR to argue that procedural irregularities in arrest and investigation may vitiate a conviction. 32.Finally, the appellant submitted that the complainant’s evidence may have been influenced by external pressure, particularly from her family. He pointed to the father’s conduct in urging the complainant to disclose her “problems” as suggestive of undue influence, thereby raising concerns as to the voluntariness and reliability of her testimony. Analysis and Determination 33.This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion 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 conclusion 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.I have considered the lower court proceedings, the judgment of the trial court, the grounds of appeal, and the submissions filed by the parties. In my view, the issues that fall for determination are:i.Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt.ii.Whether the appellant’s defence, including the defence of alibi, raised reasonable doubt.iii.Whether the conviction was safe in light of the alleged inconsistencies, procedural irregularities, and the conduct of the trial.iv.Whether the sentence imposed was lawful and appropriate. Issue i : Whether the Prosecution Proved the Offence of Defilement Against the Appellant Beyond Reasonable Doubt 35.The appellant was charged under section 8(1) as read with section 8(3) of the Sexual Offences Act. The essential ingredients of the offence of defilement which the prosecution must prove beyond reasonable doubt are well settled, namely:(i)the age of the complainant;(ii)proof of penetration; and(iii)the identity of the perpetrator. 36.On the issue of age, the Court of Appeal in Kaingu Elias Kasomo v Republic [2013] eKLR held that age may be proved by a Birth Certificate, the evidence of a parent or guardian, or medical evidence.The evidence of PW2, the complainant’s father, coupled with the production of the Birth Certificate, established that the complainant was born on 22nd December 2006. The alleged offences occurred between December 2018 and February 2019, placing her squarely within the age bracket contemplated under section 8(3) of the Act. This evidence was not challenged. In the present case, there was both documentary and oral evidence, which I find to have been credible and sufficient. I therefore find that the age of the complainant was proved beyond reasonable doubt. 37.On the question 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. The complainant (PW1) gave a detailed account of how the appellant removed her clothes and inserted his penis into her vagina on several occasions. 38.That evidence was corroborated by the medical findings of PW5, the Clinical Officer, who observed a torn hymen, inflammation, swelling, and a vaginal tear at the 3 o’clock position. He opined that the injuries were consistent with repeated penetration and assessed the degree of injury as grievous harm. 39.I am satisfied that penetration was proved beyond reasonable doubt. 40.On the issue of identification, this was a case of recognition. The complainant knew the appellant as a Police Officer working with her father and referred to him as “uncle.” The Court of Appeal in Anjononi & Others v Republic [1980] eKLR held that recognition is more reliable than identification of a stranger 41.The appellant also challenged the charge sheet as defective. While it is true that the charge sheet underwent amendment and there may have been some inconsistency in the statutory provisions cited, the law under section 382 of the Criminal Procedure Code is that no finding or sentence shall be reversed on account of any error unless it has occasioned a failure of justice. From the evidence on record this discrepancy did not prejudice the Appellant, he was clear of the charges facing him and actively participated in proceedings. Issue ii: Whether the Appellant’s Defence, Including the Defence of Alibi, Raised Reasonable Doubt 42.The appellant’s principal defence was one of alibi, namely that he was away in Makueni between 18th and 28th December 2018 and later attended a burial in February 2019. This defence was supported by DW2 and DW3. 43.The law regarding alibi is well settled. Once an accused raises an alibi, the burden remains on the prosecution to disprove it. In Kiarie v Republic [1984] KLR 739 and Karani v Republic [1985] eKLR, the court held thus:“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."However, the alibi must be weighed against the totality of the prosecution evidence. 44.The defence of alibi when raised early enough in the proceedings like in this case, it is the role of the prosecution to displace the same. The appellant maintained that he was not at the station on the dates it is alleged he committed the offence. He Sought the production of the OB of the station, even the court gave orders for the production of the OB records, but the Investigating Officer failed to produce, the question is why did the Investigating Officer refuse to produce the OB, perhaps the records on the OB could have vindicated the appellant. The trial court should have inferred an adverse interpretation on this aspect. Issue iii: Whether the Conviction was Safe In Light of the Alleged Inconsistencies, Procedural Irregularities, and Conduct of the Trial 45.The appellant pointed to several inconsistencies, including the number of times the complainant was defiled and certain aspects of the medical evidence. 46.The discrepancy as to whether the acts occurred six or seven times does not affect the substance of the offence. What is material is that acts of penetration occurred. Moreover, the offence of defilement need not be predicated on the exact number of times the act was committed. The law requires proof of the essential ingredients of the offence, namely the age of the complainant, penetration, and the identity of the perpetrator. Once these elements are established to the required standard, a single act of penetration is sufficient to found a conviction. In Fappyton Mutuku Ngui v Republic [2012] eKLR, the Court of Appeal succinctly stated that:“...it matters not how many times the offence was committed; once penetration is proved, the offence of defilement is complete.”Accordingly, the variance in the number of alleged incidents is not material, does not occasion any prejudice to the appellant. 47.The complainant when first confronted by her sister PW4 she said that the Uncle ‘’Appellant’’ never harassed her and when asked whether she had sex with her she said No, only later to change her story and say he defiled her 7 times in the OCS Office, in his house and the bush. The trial court did not address this bit of evidence. There being no any eye witness it is essentially the word of the complainant against the word of the accused. This contradiction was not explained. 48.It is settled law that not every inconsistency is fatal to the prosecution case. In Twehangane Alfred v Uganda [2003] UGCA 6, the court held that minor discrepancies which do not go to the root of the case will not vitiate a conviction. Similarly, in Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR) , the Court of Appeal held that minor contradictions and discrepancies in the evidence of prosecution witnesses, unless they go to the root of the prosecution case, do not render the conviction unsafe. The court in Kitsao Katana Yeri v Republic [2019] KEHC 5540 (KLR) further stated that inconsistencies, unless satisfactorily explained, would usually but not necessarily result in the evidence of a witness being rejected; it is only material contradictions that go to the substance of the prosecution's case that would warrant the quashing of a conviction. 49.The complainant contradicted herself materially when she told her sister that the Appellant did not have sex with her and later she said he had sex with her seven times. This is a major contradiction which goes to the root of the prosecution's case. The court cannot rule out undue influence on her, given the alleged grudge between her father and the appellant. 50.This taken together with the accused defence of alibi, makes the conviction of the Appellant unsafe and I therefore quash the conviction and set aside the sentence. The Appellant is set free unless lawfully held. 51.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED ONLINE AT KAKAMEGA THIS 24TH DAY OF APRIL, 2026.S. N. MBUNGIJUDGEIn the presence of:-CA: Velma.Mr. Kaguru for the Appellant - present online.Mr. Mwakio for the ODPP - present online.