https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8961

CKK v Republic (Criminal Appeal E081 of 2024) [2026] KEHC 8961 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 8961 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E081 of 2024 DKN Magare, J June 22, 2026 Between CKK Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment of the trial court, Hon. Caroline Ndumia, (Senior Resident Magistrate) in Kangema PMCSO No. E003 of 2024. 2.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, 2006. 3.The particulars of the offence were that on diverse dates between 3.2.2024 and 4.2.2024 at Gakira sub-location, Kamgea sub-county within Murang’a County, the Appellant intentionally and unlawfully touched the breasts and vagina of MPWK, a child aged 10 years. 4.The Appellant was arraigned on 7.2.2024 and he denied the charges. A plea of not guilty was consequently recorded. 5.The trial court considered the case and rendered judgment. The Court found the Appellant guilty and convicted him of the offence of committing an indecent act with a minor. The Appellant was also sentenced to 10 years imprisonment. 6.The Appellant, aggrieved, lodged this appeal. The Petition raised the following material grounds:a.The learned trial magistrate erred in law and fact in not appreciating that the Appellant was not afforded services of counsel.b.The learned trial magistrate erred in law and fact in finding that the Prosecution proved the case beyond reasonable doubt.c.The learned trial magistrate erred in convicting on inconsistent evidence.d.The learned trial magistrate erred in sentencing without considering time spent in custody. Evidence 7.At trial, PW1 was the minor. She was 10 years. On 3.2.2024, the Appellant came home. He told her to remove his gumboots. He touched her breast and private part. Again in the evening of 4.2.2024, the Appellant came. She was washing fishes. He called her and wanted to touch her, but she ran away. He told her to call her sisters. The Appellant called her with her sisters in the bedroom. It was 7, she was 15 years and in Form 2. On 4.2.2024, she came home and found her sister crying. Her sister was PW2. PW2 told her the Appellant wanted to touch her. He tried to defile them. Their mother had neglected them. They went to stay with their father, the Appellant. 8.PW4 was Margaret Muringe. On 4.2.2024, she was informed the Appellant wanted to defile the children. She called the children and advised them to find her at the police station. They were referred to hospital. 9.PW5 was No. 2xxxx PC Kendi Moses of Kangema Police Station. She was the investigating officer. The matter was reported on 5.2.2024. She interrogated PW1. She had reason to believe the Appellant was culpable hence the charges. PW1 identified the Appellant hence the arrest. 10.The Appellant also testified on oath as DW1. He testified that he took himself to the police station. He stated that the witnesses were lying. PW1 was told to lie. The children had stayed with their grandmother and mother. The grandmother brought them to the Appellant. He was framed through returning the children. His estranged wife, Mercy, had framed him. Submissions 11.The Appellant herein filed submissions on 23.9.2025. It was submitted that the ingredients of the offence were not proved beyond reasonable doubt. He quoted section 11(1) of the Sexual Offences Act. If there were any touches, they were in parental care and not criminal since the Appellant was the only parent at the time taking care of the children. 12.On sentence, he submitted that the sentence was excessive. 13.The Respondent filed submissions dated 28.10.2025. It was submitted that the witness testimonies were well corroborated and the Respondent proved the case against the Appellant beyond reasonable doubt. Analysis 14.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 15.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 16.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 17.Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:“The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." 18.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice." 19.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:“382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings." 20.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 21.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. 22.The first appellant court is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:-“1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses." 23.Indecent act under Section 2 of the Sexual Offences Act No. 3 of 2006 is defined as follows:“Indecent act" means any unlawful intentional act which causes— (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will; 24.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 25.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 26.The parameters that were to be proved in cases like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 27.At trial, PW1 testified that the Appellant touched her breasts and private part. The circumstances were that the Appellant came home drunk. He asked her to remove his gumboots. He then touched her breasts and kati kati ya mwili. It was in the bedroom. 28.In this case, age and identification were proved. However, there is an issue as to whether this was a proper case of indecent act. The prosecution was expected to prove indecent act. An indecent act was an act that was sexual in nature. That is why it was usually an alternative charge with other sexual offences like defilement or rape. There ought to have been established contact between the Appellant’s hand and PW1’s right breast not as an act of common assault or parental care but an indecent act with a minor with a criminal intent. This was not proved. 29.PW1 and PW2 were 10 and 12 years respectively. The Appellant was their father and their mother was estranged. They had stayed with their grandmother PW4, but who returned them to their father, the Appellant. If the court had established the prior relationship between the Appellant, his estranged wife and the children herein, it must have realized that there was apprehension and tension within this family. The children were brought to stay with the Appellant but the bond was clearly weak due to the relationship with the mother. The Appellant in his defence which the court finds plausible testified that the mother of the children herein was setting him up. The Appellant ought to have been given the benefit of doubt as he was a clear beneficiary thereof. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR the Judge expressed himself as hereunder:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 30.Regardless, the Respondent had to prove a criminal act. The evidence was circumstantial in nature. The evidence ought to have been inconsistent with the innocence of the Appellant and incapable of explanation upon any other reasonable hypothesis than that of his guilt. That was not the case here. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that:“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused." 31.The Appellant was only liable to serve the sentence of 10 years imprisonment if it was proved that he committed an indecent act with the minor. In this case, no such offence was proved. The Appellant’s defence was credible. He admitted being at the scene of the alleged incident but denied unlawfully touching the complainant’s breasts and genitalia. The charges appear far-fetched and unsupported by the evidence on record. There is therefore no basis for sustaining the conviction. 32.The Defence raised by the Appellant was credible and remained unshaken. Having found that the Appellant ought to have been acquitted in the first place, I find no utility in venturing into the path of the sentence imposed. I set the Appellant free. My findings are that this appeal succeeds. I quash the conviction, acquit the appellant, set aside the sentence and order that the Appellant be and is hereby set free unless lawfully held. Determination 33.I make the following final orders:-a.This appeal succeeds. The conviction is quashed, the sentence is set aside and the Appellant be and is hereby set free unless lawfully held.b.The appellant be removed from the register of sexual offence.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 22ND DAY OF JUNE, 2026.JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Njuguna for the AppellantAppellant presentMr. Vincent Maina for the ODPPPC James Mathai at Murang’a Main PrisonCourt Assistant – MartinM. D. KIZITO, J.