https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12342

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL APPEAL NO E031 OF 2024** **COLLINS KIPSANGA……..………………..……………………………. APPELLANT** **VERSUS** **REPUBLIC…………………………………………………………………RESPONDENT** **(Being an Appeal from the Judgment of Hon M. Ochieng (SPM) delivered at Hamisi in the Senior Principal Magistrate’s Court in Sexual Offence Case No E059 of 2023 on 9th July 2024)** **JUDGMENT** **INTRODUCTION** 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. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2. The Trial Court, Hon M. Ochieng(SPM) convicted him of the main charge and sentenced him to twenty (20) years’ imprisonment. 3. Being dissatisfied with the said Judgment, the Appellant lodged the present appeal. His Petition of Appeal dated 28th August 2024 was filed on 5th September 2024. He set out five (5) grounds of appeal. He filed Supplementary Grounds of Appeal dated 24th October 2025 on 29th October 2025, raising another five (5) grounds of appeal. 4. His Written Submissions were dated 24th August 2025 and filed on 29th October 2025 while those of the Respondent were dated 8th December 2025 and filed on 17th December 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. **LEGAL ANALYSIS** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 2. This was aptly stated in the case of **Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123** where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 3. Having considered the Grounds of Appeal, the Appellant’s Submissions and the Respondent’s Submissions, and the evidence adduced before the trial court, this court identified the following issues for determination: - 1. **Whether the Appellant’s right to fair trial was infringed upon;** 2. **Whether the Prosecution proved the charge of defilement against the Appellant beyond reasonable doubt; and** 3. **Whether the sentence imposed by the trial court was lawful and warranted in the circumstances;** 4. The court considered the said issues under separate and distinct heads. 5. **RIGHT TO FAIR TRIAL** 6. Supplementary Ground of Appeal No (4) was dealt with under this head. 7. The Appellant contended that his right to a fair trial under Article 50(2)(j) of the Constitution had been violated because he was not supplied with the Prosecution’s evidence. He added that the Trial Court did not confirm if he had received the same. The Respondent did not address itself to this issue. 8. The proceedings indicated that when he took plea on 16th October 2023, the Appellant was supplied with Witness Statements and was informed of his right to legal representation of his own choice. 9. When the matter came up for hearing for the first time on 3rd January 2024, the Appellant indicated that he was ready to proceed and in fact cross-examined the Complainant (hereinafter referred to as “PW 1”). He never raised the issue of him not being furnished with the Witness Statements. He only raised the issue of not having been supplied with the Witness Statements for the first time in his Supplementary Grounds of Appeal. His right to fair trial was, therefore, not infringed upon. 10. In the premises foregoing, Supplementary Ground of Appeal No (4) was not merited and the same be and is hereby dismissed. 1. **PROOF OF PROSECUTION’S CASE** 2. Ground of Appeal Nos (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (1), (2) and (3) were dealt with under this head as they were all related. 3. In determining whether the Prosecution had proved its case to the reasonable doubt, this court considered the ingredients of the offence of defilement. 4. It is settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of **George Opondo Olunga vs Republic [2016] eKLR**. This court dealt with the same under the following distinct and separate heads. 5. **AGE** 6. The Appellant did not submit on PW 1’s age. On the other hand, the Respondent averred that PW 1’s age was proved beyond reasonable doubt. It relied on the particulars in the Charge Sheet which indicated that she was aged fourteen (14) years at the time of the offence. It further submitted that PW 1 informed the Trial Court of her age which was confirmed by the Birth Certificate that PC Vivian Opicho, the Investigating Officer No 332771(hereinafter referred to as “PW 4”) produced as an exhibit in this case. 7. According to the Birth Certificate, PW 1 was born on 29th November 2009. The incident was said to have occurred on diverse dates between 4th January 2023 and 13th October 2023. She was, therefore, aged fourteen (14) years and eleven (11) months at the date of the alleged last defilement. 8. The Trial Court did not, therefore, err when it determined that PW 1 was a minor aged between twelve (12) and fifteen (15) years. 9. **IDENTIFICATION** 10. Ground of Appeal No (3) and Supplementary Ground of Appeal No (3) were dealt with together as they were related. 11. The Appellant argued that the Trial Court failed to properly consider his defence. He argued that his sworn statement raised reasonable doubt and that the Prosecution evidence contained material contradictions and inconsistencies. He submitted that PW 1 did not identify his house to her mother, Esther Wambui (hereinafter referred to as “PW 2”) or to the police, the place where she alleged she had sex with him on 4th January 2023. 12. He was emphatic that he did not know her and he could not, therefore, have penetrated a person he did not know. He averred that PW 1 was arrested after having spent time with her friend Kevin in Nandi. He averred that it was this same Kevin that PW 2 had alleged told her that PW 1 was in his house. 13. He, therefore, submitted that the Prosecution failed to prove that he was the person who committed the offence. He was emphatic that the evidence linking him to the offence was unreliable and insufficient to sustain a conviction. 14. On its part, the Respondent submitted that the evidence against the Appellant was based on recognition. It argued that PW 1 knew him before the incident and had interacted with him for a considerable period. It relied on the case of **Anjononi & Others vs Republic (1976-80) 1 KLR 1566** where it was held that recognition of an assailant was more reliable than identification of a stranger. 15. It submitted that the Trial Court properly considered the Appellant’s defence and correctly found it did not displace the Prosecution’s evidence. It maintained that any contradictions in the Prosecution’s case did not go to the core of its case and that the variance did not in itself distort or dislodge the commission of the offence by the Appellant herein. 16. The court re-evaluated PW 1’s evidence and noted that she referred to the Appellant by his name. Her evidence was that on 4th January 2023 she was playing with her friends when the Appellant approached her on a motorcycle and requested her to accompany him. She testified that she went to his house where he prepared food and she ate. She stated that she told him that she wanted to go home and he took her back home. 17. She added that she went back to his home in Nandi on 20th September 2023 but she did not find him and stayed with his grandmother, Phyllis, for two (2) days. She told the Trial Court that the Appellant’s friend came and told him that he had been arrested. It was her evidence she had sexual intercourse with the Appellant for the first time on 4th January 2023 but did not do so again. 18. When she was cross-examined, she said that the Appellant’s friend, Kevo, was not her friend. She added that Kevin was her friend who lived in Nandi. She also contended that when she did not find the Appellant on 20th September 2023, she stayed “na uyo mama” (with that woman). 19. PW 2 testified that when police called her and told her they had PW 1, when she asked her where she was, PW 1 told her that “anaishi na Mama mwengine”( She was staying with another woman). She said that Kevo was not arrested because of PW 1’s case. 20. PW 5 told the Trial Court that PW 1 informed her that the Appellant was her boyfriend and that they had sexual intercourse on 4th January 2023. When she was cross-examined, she said that the Appellant was arrested by members of the public and brought to the Police Station. 21. The Trial Court was satisfied that PW 1 knew the Appellant before the incident because she spent time with him on 4th January 2023 from 3.00 pm until the following day and that he was the one who defiled her. She observed her demeanour and struck her to have been a reliable and truthful witness. 22. This court noted that the Trial Court determined that the Appellant’s recognition by PW 1 was through recognition. However, this court took a contrary view of PW 1. She did not appear honest to this court and her evidence was contradictory. At one point she stated that Kevo was not her friend and again said that Kevin was his friend from Nandi. 23. There was also a gap in the Prosecution evidence of how investigations established that the Appellant and the said Phyllis were related so that it could be concluded that indeed PW 1 was found in the Appellant’s grandmother’s home. Going further, PW 1 said that she was staying at a woman’s house. There was no indication who this woman was. If indeed that was the truth, it was evident that PW 1 was not found in the Appellant’s house. 24. This court was also not clear how PW 1 managed to trace the Appellant’s home in Nandi if she had only been there on 4th January 2023. She did not also explain how she knew the Appellant or how his friends found it necessary to go and tell her that the Appellant had been arrested. 25. In view of the inconsistencies, gaps and contradictions, PW 1 did not strike this court to have been truthful. This court, therefore, came to the conclusion that the familiarity and/or relation, if any, between PW 1 and the Appellant was not clear to this court. 26. In the premises foregoing, Ground of Appeal No (3) and Supplementary Ground of Appeal No (3) was merited and the same be and are hereby allowed. 27. **PENETRATION** 28. Ground of Appeal Nos (1) and (2) and Supplementary Grounds of (1) and (2) were related and were dealt with under this head. 29. The Appellant submitted that penetration, which was an essential ingredient of the offence of defilement, was not proved beyond reasonable doubt. He argued that the medical evidence was unreliable due to the delay in examination and that the Prosecution failed to produce DNA evidence linking him to the offence. He relied on the case of **P.K.W vs Republic [2012] eKLR** and submitted that absence of hymen could not automatically be taken as proof of penetration. 30. The Respondent contended that penetration was proved through PW 1’s evidence, which was corroborated by the medical evidence that the Clinical Officer, Antony Otieno (hereinafter referred to as “PW 3”), adduced as evidence in this matter. It relied on the case of **Mohammed Omar Mohammed vs Republic [2020] eKLR** where it was held that in order to prove penetration in rape and defilement cases, , , the court relied on the evidence of the complainant which was corroborated by medical evidence. 31. It further submitted that Section 2 of the Sexual Offences Act defined penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 32. Notably, the burden of proof remained with the Prosecution throughout the trial and never shifted to the Appellant. Article 50(2)(i) and (l) of the Constitution of Kenya, 2010 was clear that an accused person had the right to remain silent and not to give self-incriminating evidence. 33. Article 50(2)(i) of the Constitution of Kenya provides as follows:- **“Every accused person has the right to a fair trial, which includes the right to remain silent, and not to testify during the proceedings.”** 1. Article 50(2)(l) of the Constitution of Kenya states that:- **“Every accused person has the right to a fair trial, which includes the right to refuse to give self-incriminating evidence.”** 1. This court also had at the back of its mind that every accused person was presumed innocent until proven guilty according to law. In this respect, Article 50(2)(a) of the Constitution of Kenya provides that:- **“Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.”** 1. This court also had due regard to Sections 107(1) and 108 of the Evidence Act Cap 80 (Laws of Kenya) which placed the burden of proving the facts in issue upon the party who asserted them. The burden of proof also lay on the person whose case would fail if the opposing side did not adduce any evidence. This tied in well with Article 50(2)(l) of the Constitution of Kenya which stipulated that an accused person retained the right not to adduce any incriminating evidence against him. 2. In particular, Section 107 (1) of the Evidence Act states that:- **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. Further, Section 108 of the Evidence Act provides as follows:- **“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”** 1. The principle that the burden of proving the guilt of an accused person rested with the prosecution was affirmed by the Court of Appeal in the case of **Woolmington vs Director of Public Prosecutions [1935] AC 462**. 2. The court also considered Section 124 of the Evidence Act, which confirmed that a conviction in sexual offence cases could be based solely on the evidence of the complainant where the court believed the complainant and recorded reasons for such belief. The said Section 124 of the Evidence Act states as follows:- **Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:** **Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.** 1. Having said so, in the case of **Fappyton Mutuku Ngui vs Republic [2022] eKLR**, the Court of Appeal was clear that although the evidence of a complainant in a sexual offence could sustain a conviction, such evidence had to be carefully examined to ensure that it met the required standard of proof. A complainant’s evidence, especially in sexual offences was required to establish all the ingredients of the offence beyond reasonable doubt because it was more often than not one person’s word against the other. 2. Evidently, the Charge Sheet indicated that the offence occurred on diverse dates between 4th January 2023 and 13th October 2023. PW 1 told the Trial Court that she only had sexual intercourse with the Appellant on 4th January 2023. PW 3 did not indicate the exact date that he examined her. He, however, indicated that he filled the P3 Form on 13th October 2023. He observed that her hymen was not intact and that she had a whitish discharge. Notably, there was no evidence that was present before the Trial Court linking medical findings to the act involving the Appellant on 4th January 2023 which was the only day she said she had sexual intercourse with the Appellant herein. 3. It was clear that PW 1’s evidence was at variance with the medical evidence, and the particulars of the Charge Sheet. This discrepancy and inconsistency in PW 1’s evidence created doubt in the mind of this court as to what really transpired between her and the Appellant herein. She was fourteen (14) years with no particular mental challenges at the alleged time the offence was said to have been committed. Hence, her evidence was expected to have been consistent and cogent. 4. Upon re-evaluating the Appellant’s defence that was stated to be a denial *vis-a-vis* the inconsistencies in the Prosecution’s evidence, doubt was raised in the mind of this court as to whether the Appellant committed the offence as had been alleged. It was evident that evidence relating to penetration did not sufficiently connect him to the offence. If he defiled PW 1 as was alleged, then the Prosecution did not present a water-tight case to sustain a conviction against him. 5. This court found and held that Prosecution failed to establish beyond reasonable doubt that the Appellant was responsible for the defilement within the period stated in the Charge Sheet. 6. In the premises foregoing, Ground of Appeal Nos (1), (2) and (3) and Supplementary Grounds of (1), (2) and (3) were merited and the same be and are hereby allowed. 7. **SENTENCE** 8. Ground of Appeal No (4) and Supplementary Grounds of Appeal No (5) were dealt with under this head. 9. In view of the finding that the Prosecution did not prove its case against the Appellant herein beyond reasonable doubt, this court would not have analysed the submissions on the sentence that was meted out against the Appellant herein. However, bearing in mind that this court could also be found to have been wrong on appeal, it found it prudent to pronounce itself on the sentence that was meted out against the Appellant herein. Ground of Appeal No (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (5) were, therefore, considered under this head as they were both related. 10. The Appellant had challenged the sentence that was imposed on him by the Trial Court on the ground that although the Trial Court had stated that it had considered the period he spent in custody, it failed to expressly direct that the sentence should run from the date of arrest. 11. On the other hand, the Respondent submitted that the sentence that was imposed by the Trial Court was lawful and should be upheld. It, however, conceded that the period spent in custody ought to have taken into account in accordance with Section 333(2) of the Criminal Procedure Code. 12. The Appellant herein was convicted of defilement contrary to Section 8(3) of the Sexual Offences Act which provides that: - **“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.”** 1. The Trial Court would not have erred in sentencing the Appellant to twenty (20) years’ imprisonment as that is what was provided by the law. It would not have interfered with the sentence that was meted out as its hands would have been tied regarding exercising its discretion to reduce the Appellant’s sentence. Indeed, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case **Joshua Gichuki Mwangi vs Republic (2022) eKLR** and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. 2. Going further, the proceedings showed that the Appellant was arrested and charged on 13th October 2023. He was subsequently convicted and sentenced on 27th August 2024. The Trial Court was, therefore, required to expressly consider the period the Appellant had spent in custody before sentence. This was in line with Section 333(2) of the Criminal Procedure Code, Cap 75 (Laws of Kenya) that provides that: - **“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code:** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”** 1. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** reiterated that Section 333(2) of the Criminal Procedure Code imposed a mandatory obligation upon sentencing courts to take into account the period an accused person had spent in custody before sentence. The Court observed that this requirement ensured fairness and proportionality in the administration of criminal justice. 2. However, since this court had already found that the Prosecution had not proved its case against the Appellant beyond reasonable doubt, the question of computation of the sentence or application of Section 333(2) of the Criminal Procedure Code did not arise herein, for further determination. 3. In the premises foregoing, Ground of Appeal Nos (4) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (5) would have been merited and upheld. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was dated 28th August 2024 was filed on 5th September 2024 was merited and the same be and is hereby allowed as both the conviction and sentence were unsafe. The effect of this decision is that the conviction of the Appellant for the offence of defilement be and is hereby quashed and the sentence of twenty (20) years’ imprisonment imposed by the Trial Court be and is hereby set aside and/or vacated. 2. It is hereby directed that the Appellant be and is hereby released from custody forthwith unless he be otherwise lawfully held. 3. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **29th** day of **July** 2026 **J. KAMAU** **JUDGE**