https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11280

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCRA/E023/2024 DANIEL OTIENO ORACHA VS THE REPUBLIC JUDGMENT ***(Being an Appeal against conviction only, arising from the orders, decisions, findings, and judgment of Hon. J. Oanda (SPM) for the offence of defilement contrary to section 8(1) as read with 8(3) of the SOA No. 3 of 2006 Dated 18.04.2024*** # INTRODUCTION * 1. This is an Appeal from the Judgment by the learned Magistrate, Hon. J. Oanda on 18th April, 2024 at Winam in SOA. No. 3 of 2006: Republic vs. Daniel Otieno Oracha. 2. The Accused/Appellant herein was charged with defilement contrary to section 8(1) as read with Section 8 (3) of the Sexual Offence Act No. 3 of 2006. The particulars of the charge were that on 21st day of June 2022 at Nyamasaria area, Kolwa Central Sub-location in Kisumu East Sub-County within Kisumu County intentionally and unlawfully caused his penis to penetrate the anus of G.O a child aged 13 years. 3. In the alternative charge, the accused was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Act No. 3 of 2006: Daniel Otieno Oracha on the 21st day of June 2022 at Nyamasaria area, Kolwa Central Sub-location in Kisumu East Sub-County within Kisumu County intentionally touched the anus of G.O a child aged 13 years with your penis. 4. After the accused entered a plea of not guilty, the prosecution called eleven witnesses while the defense called 3 witnesses. 5. Through its judgment dated 18th April 2026, the trial court analyzed the evidence produced and relied upon by both the prosecution and the accused. The trial court placed reliance on Section 8 (1) and Section 11(1) of the Sexual Offences Act while bringing out the ingredients of age of the complainant, proof of penetration, and positive identification of the assailment as the specific elements of defilement which were highlighted in the case of ***Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013.*** 6. On the aspect of penetration, the trial court relied on the medical examination by the Clinical Officer, PW9 which established that the complainant had redness and inflammation on his anal area, an indication that he had been defiled. Reliance was also placed on PW6 evidence, the receptionist of the facility who confirmed that accused and the complainant went to the facility at 6pm, took a room in which they entered and the complainant left earlier than the accused person. The trial court also relied on the CCTV footage and photos produced which indicated that the accused and the complainant were at the facility at the time the defilement is said to have taken place. The court also considered the fact that in his defence, the accused did not dispute the fact that he was at the facility with the boy, except for him the boy had gone there having been sent by the mother. The court therefore held that it was satisfied that the accused was at the scene, together with the complainant and that during the time, he penetrated him from behind, and that all important aspect of penetration had therefore been proven beyond reasonable doubt. 7. On the aspect of age, the trial court relied on ***Simon Kiprotich Rotich v.*** ***Republic [2021] eKLR,*** which highlighted the importance of the age of the victim as; defilement is a sexual offence against a victim and that age of a child can be used as an aggravating factor for purposes of determining the sentence. Similarly, the court relied on ***Hillary Nyongesa v. Republic (Eldoret Criminal Appeal No. 123 of 2000*** where it was stated that age is a critical aspect in sexual offences that it has to be conclusively proved, and in Adam Daktari Konoyo v. Republic [2019] eKLR, it was stated that “*age of the complainant is on of the critical ingredients of the offence of defilement which must be proved by the prosecution beyond reasonable doubt*.” * 1. The court further placed reliance on the evidence of the investigation officer PW11, who informed the court that during her investigations, she got hold of the minor’s birth certificate, which was duly produced as Exp p3, and it indicated that the minor herein was born on the 9th May, 2009. The court therefore found that the aspect of age has thus been conclusively been proven beyond reasonable doubt as required. 2. On the third limb, of proper identification, the trial court indicated that, from the evidence presented, it was not in doubt that the minor herein, being a neighbor, was known to accused person. He was not a stranger and the incident took place during the day. On his part, the accused had admitted that he was well known to both the minor and mother, who he said was his girlfriend (Mpango wa Kando). The other children who were with the minor informed the court that it was the accused herein, who went with the complainant. From the evidence, the trial court was satisfied that the accused was properly identified and that he was not mistaken for any other person. 3. The trial court also stated that, on the accused defence, he attributed his woes to the minor’s mother who he said was the estranged girlfriend who threatened him. His two friends stated that they were drinking together at the same place and stated that they didn’t see the minor and accused that day. They did not see the other girlfriend, Adhiambo who accused himself said was in the facility as from 2pm, the fact that was confirmed by the facility receptionist, PW6, if they did not see the said Adhiambo, then there are chances that they were not in a position to see who was with and who was not with accused on the material date. Therefore, the accused found their defence as an after-thought and dismissed the same. 4. Upon the trial court carefully considering the evidence on record and submissions from both parties, it pronounced as follows, *“From the entire evidence on record, I find that the charge facing accused herein has been proven as against him beyond reasonable doubt as required. He is thus guilty as charged and is convicted accordingly under section 215 CPC.* 5. In the sentence, the learned magistrate pronounced as follows, *“I have considered accused plea on mitigation, He is definitely a first-time offender but the offence is serious, that which calls for deterrent sentence. Accused person chose to prey on a young male child and yet he had been with his girl-friend in the same family on the same day. I therefore order that he be sentenced to fifteen (15) years in imprisonment.* 6. The Accused, being dissatisfied with the outcome in the trial court, filed an Amended Ground of Appeal dated 13th November 2025. The Appellant raised the following grounds; 1. *That the trial magistrate erred in both law and facts in conducting proceedings that violated the rights of the Appellant as per the provisions of the law of Kenya, hence null and void.* 2. *That the trial magistrate erred in law and in fact in considering evidences that were full of contradictions and without analyzing the same as required by the law.* 3. *That the trial magistrate faulted both in law and fact by putting into considerations the prosecution’s electronic and digital devices evidences that contravened section 78A of the Evidence Act Cap 80 Laws of Kenya.* 4. *That the trial magistrate erred in law and in fact by failing to appreciate that the prosecutions failed to prove their case beyond reasonable doubt as required in law under section 107 (1) of the Evidence Act Cap 80 Laws of Kenya.* 5. *That the trial magistrate erred in law and in fact in considering extraneous factors while convicting the appellant.* 6. *That the trial magistrate failed to put into consideration the circumstances surrounding this case as a fourth aspect in defilement cases as provided under section 33 of the SOA No. 3 of 2006 for the sake of justice.* 7. *That the trial magistrate failed to weight the evidences on record* *and unlawfully rejected my defense that was never shaken by the prosecution.* * + 1. *That the trial magistrate failed in law by acting bias in relying on the prosecution evidences that were full of inconsistencies and discrepancies while delivering his judgment.* 1. This is the first appellate court and as held in the matter if ***Okeno v R (1972) EA 32, the Court of Appeal for East Africa*** laid down 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 conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.* # SUBMISSIONS BY BOTH PARTIES ## Appellants Submissions 1. The Appellant solely submitted on the issue that the prosecution did not prove their case beyond reasonable doubt as required by the law. The Appellant submitted that the prosecution failed to prove its case beyond reasonable doubt and that there was no direct evidence linking him to the offence. He argued that he was wrongly placed on his defence merely to fill gaps in the prosecution's case. While acknowledging that the trial court found a prima facie case and subsequently convicted him after finding the charge proved beyond reasonable doubt, he contended that the evidence on record did not meet the required legal standard. 2. The Appellant further submitted that proof beyond reasonable doubt does not mean proof beyond all doubt, relying on *Miller v Minister of Pensions (1947) 2 All ER 372* for the principle that a conviction can only stand where the evidence leaves no more than a remote possibility in favour of the accused. He also cited *Pius Arap Maina v Republic (2013) eKLR*, arguing that any material evidential gaps in the prosecution's case must be resolved in favour of an accused person. He relied on **Section 107(1) of the Evidence** **Act**, submitting that the burden of proving the alleged facts rested entirely on the prosecution. He further cited *Burunyi & Another v Uganda CRA No. 1968 EA 123,* arguing that a court should not stage-manage or build a case for the prosecution but should determine the matter solely on the evidence presented. 1. Regarding the charge of defilement under **Sections 8(1) and 8(3) of the Sexual Offences Act**, the Appellant submitted that the prosecution was required to prove: (i) penetration, (ii) the age of the complainant, and (iii) the proper identification of the accused. He argued that identification could only arise after the first two ingredients had been established. The Appellant further urged the appellate court to consider **Section 33 of the Sexual** **Offences Act,** relying on *Absolom Amboka Okila v Republic (2020) eKLR,* and submitted that, in addition to the three ingredients of defilement, the surrounding circumstances of the case ought to be considered in evaluating the evidence. 1. Lastly, the Appellant contended that the prosecution failed to prove any of the required elements, maintaining that its evidence was marred by discrepancies and inconsistencies. While citing *Ahmad Abolifathi Mohammed & Another v Republic (2018) eKLR*, he acknowledged that circumstantial evidence can be sufficient to prove a case but argued that, in the present case, the evidence did not satisfy the required standard of proof. ## Penetration 1. The Appellant submitted that the prosecution failed to prove penetration. He argued that PW8 merely produced the memo form and Government Analyst's report after receiving anal and buccal swabs but failed to establish whether the swabs analyzed originated from the Appellant. He further contended that PW8 relied on the PRC Form and P3 Form to conclude that penetration had occurred, yet PW9 admitted in cross-examination that the redness and inflammation around the complainant's anus could have been caused by factors other than penetration, and that no sperm was recovered from the anal swab. The Appellant therefore maintained that redness and inflammation alone were not conclusive proof of penetration. 2. Relying on ***Hughes (1841) 9 C & P 752****,* ***R v DPR (2013) EWHC 945 (Admin)****,* ***Alex Chemwolo Sikalong v Republic (2018) eKLR****,* ***Oiyango Otieno, Azangalala and Kantai JJA in Mark Oiruri v Republic, CRA No.*** ***295 of 2012 [2013] eKLR****, and* ***Miller v Minister for Pensions (1947) All ER 373***, the Appellant submitted that penetration was not proved to the required standard of proof beyond reasonable doubt. He further argued that the DNA evidence did not prove penetration because PW8 confirmed that no seminal fluid was detected from the orange boxer. ## Medical and DNA evidence of Y-Filers 1. The Appellant challenged the DNA evidence produced by PW8 and PW9, arguing that although no seminal fluid was recovered from the orange boxer, the Government Analyst still reported a Y-filer match with the buccal swab taken from him. He submitted that neither PW8 nor PW9 explained how the Y-filer profile was generated in the absence of seminal fluid or accounted for the alleged sample from the boxer. 2. He further argued that the DNA report lacked the certification required under section 77(3) of the Evidence Act, rendering it unreliable and incapable of authenticating the Government Analyst's findings. The Appellant consequently alleged that PW8 and PW9 fabricated or manipulated the DNA evidence in order to secure his conviction and urged the appellate court to reject the DNA evidence. ## Circumstances surrounding this case 1. The Appellant submitted that the trial court failed to properly consider the surrounding circumstances of the alleged offence as required under section 33 of the Sexual Offences Act. Citing ***Absolom Amboka Okila v Republic (2020) eKLR***, he argued that the surrounding circumstances constitute an essential evidentiary consideration in determining whether a sexual offence occurred. 2. He contended that PW1's account was fabricated because: PW1 failed to recall the date of the alleged offence.; PW1 never reported the incident to persons in the bar, the lodging or even a watchman; The alleged clothes, including the orange boxer, were not availed.; PW1 failed to state the room number, the time, or the duration spent in the room.; There were no signs of sperm or anal tears despite the allegation of defilement. 3. The Appellant further relied on ***Section 124 of the Evidence Act*** *and* ***OKK v Republic (2021) eKLR****,* arguing that PW1's testimony ought to have been carefully re-evaluated because it was inconsistent and unreliable. He submitted that PW1 misperceived and distorted events and that his evidence suffered from inaccuracies and inadequate recollection. 1. He also relied on ***People v Sandoval, 314 NE 2d 417-418 (N.Y. 1974)****,* submitting that evidence affecting a witness's credibility is admissible where it bears on honesty and integrity. The Appellant further referred to PW2's evidence that PW3 had allegedly reported being taken to a hotel where gel was applied to his buttocks before escaping, and submitted that PW4 and PW5 found no injuries on PW3's anus while PW6 testified that the Appellant never booked a room with the complainant. ## The CCTV Footage analysis 1. The Appellant submitted that PW10, the forensic examiner from the DCI, concluded that the alleged offence was not clearly captured on the CCTV footage. He argued that the footage only showed the Appellant and the complainant partially and did not depict them entering any room together. 2. Relying on Section 78A of the Evidence Act and ***Republic v Mark Lloyd Stevenson (2016) eKLR,*** the Appellant argued that the CCTV footage did not satisfy the legal requirements governing admissibility of electronic evidence because no certificate authenticating the electronic record or its production process was produced. He therefore submitted that the CCTV footage could not lawfully form the basis of his conviction. ## The Grudge between the Appellant and PW5 1. The Appellant submitted that PW5 harbored a grudge against him arising from an earlier disagreement and thereafter sought to implicate him in the offence. He argued that this previous disagreement demonstrated bias and affected the credibility of PW5's evidence. 2. In support of this argument, he relied on ***Elikana Ouma Namale v Republic, Court of Appeal No. 32 of 2013 (UR)***, submitting that where evidence discloses the existence of a grudge, the court must carefully evaluate such evidence before relying upon it to convict an accused person. ## Investigations 1. The Appellant submitted that the investigations leading to his prosecution were founded on far-fetched evidence which violated his constitutional rights. He therefore urged the appellate court to reject the prosecution's evidence and find that the conviction was unsafe. 1. The Appellant concluded by urging the appellate court to allow the appeal, quash or vary the conviction, and grant such further or other orders as the court deemed fit and just. ## Respondent’s Submissions 1. The Respondent (Prosecution) submitted that their case was that the Appellant subjected a minor, G.O (PW1) to anal sexual intercourse (defilement). They called 10 witnesses including the complainant (PW1), relatives, a hotel receptionist, clinical officer, and forensic/DNA experts. 2. They submitted that the defence was a denial and a claim of fabrication and that the trial court having heard and evaluated all the evidence found that the prosecution proved their case beyond reasonable doubt and entered a conviction. Therefore, in their submissions, the Respondent argued their case based on those findings and addressed the Appellant’s grounds as follows: ## The applicable legal framework 1. The Respondent submitted that the applicable law was **Section 8(1) of the Sexual Offences Act, No. 3 of 2006**, which created the offence of defilement, while **Section 8(3)** prescribed a minimum sentence of fifteen years' imprisonment where the complainant was between the ages of twelve and fifteen years. 1. The Respondent further submitted that the prosecution had proved all the essential ingredients of the offence of defilement beyond reasonable doubt, namely, penetration, the age of the complainant, and the positive identification of the Appellant as the perpetrator. 2. On the applicable standard of proof, the Respondent referred to *Miller v* *Minister of Pensions [1947] 2 All ER 372* on the meaning of proof beyond reasonable doubt but submitted that the authority was largely inapplicable to the present appeal because it principally concerned military pension claims and the application of the standard of proof in civil proceedings rather than criminal trials. ## Response to the Appellant’s Grounds of Appeal **Ground 1: Violation of Appellant’s rights/nullity of proceedings** 1. The Respondent submitted that the Appellant merely alleged violation of his rights under the laws of Kenya without identifying the specific constitutional provisions infringed or demonstrating how the alleged violations prejudiced the trial. 2. Further, it was submitted that a party alleging violation of rights bears the burden of proving both the violation and its causal connection to the outcome of the trial, and not every procedural irregularity vitiates a conviction unless it occasions a failure of justice. However, since no failure of justice was demonstrated, the proceedings were not rendered a nullity. ## Ground 2: Contradictory evidence not properly analyzed 1. On the Appellants submission that the trial magistrate considered evidence full of contradictions, the Respondent submitted that minor inconsistencies and contradictions in the prosecution's evidence were normal and did not, by themselves, render a conviction unsafe. Relying on *Nziku v Republic [1982–88] 1 KAR 103*, the Respondent submitted that only contradictions which went to the root of the prosecution case affected the credibility of the evidence. It was contended that the inconsistencies identified by the Appellant were merely peripheral and did not undermine the prosecution's case. 2. The Respondent further submitted that the trial court was best placed to assess the credibility of the witnesses having had the benefit to observe their demeanor during trial, and that its findings ought not to be disturbed unless they are shown to be perverse. ## Ground 3: Electronic and digital evidence (CCTV) 1. The Appellant contended that the CCTV evidence was inadmissible as it contravened Section 78A of the Evidence Act Cap 80 Laws of Kenya. In response, the Respondent submitted that the Appellant's contention was misplaced, as the conviction had not been founded solely on the CCTV footage but on the cumulative evidence of the complainant (PW1), corroborated by the medical evidence, and the DNA evidence, with the CCTV footage serving only as supplementary, and its exclusion even if warranted would not have affected the verdict. 2. The Respondent further submitted that PW10, a forensic expert, had analyzed the CCTV footage and testified on its contents, and that the Appellant's challenge related only to the weight to be attached to the footage rather than its admissibility, the two being distinct legal concepts. It was further argued that, even if the CCTV evidence were excluded, the remaining prosecution evidence was sufficient to prove the offence beyond reasonable doubt. ## Ground 4: Failure to prove the case beyond reasonable doubt 1. The Respondent submitted that penetration was proved beyond reasonable doubt through the following strands of evidence: Evidence of penetration 1. The Respondent submitted that the prosecution proved the element of penetration through the direct testimony of PW1, the medical evidence, and DNA evidence. It was submitted that PW1 testified that the Appellant took him to a hotel room and subjected him to anal sexual intercourse. Relying on Section 124(2) of the Evidence Act, the Respondent argued that a conviction could properly be founded on the complainant's evidence alone where the court believed the complainant to be truthful, and that the trial court had found PW1 to be a credible witness upon observing him in the witness box. 2. The Respondent further submitted that PW9's medical examination revealed redness and inflammation in PW1's anal region, findings which corroborated PW1's account despite the Appellant's contention that the injuries could have been caused by Hepatitis B or other causes. Nevertheless, the Respondent submitted that the medical evidence need not be conclusive in isolation, it must be considered alongside all other evidence. It was further argued that the Appellant's reliance *on Hughes (1841) and R(D) v DPP [2013] EWHC 945 (Admin*) was misplaced in light of Kenyan law and the facts of the case. 3. Additionally, the Respondent submitted that DNA analysis established that the male DNA profile recovered from PW1's anal swab matched the Appellant's DNA, thereby providing highly probative evidence of penetration. The Respondent contended that the Appellant's objections regarding consent to DNA sampling and the rank of the officer who directed the sampling were merely procedural, and that any procedural irregularity would affect only the weight of the evidence and not its admissibility. 4. It was further submitted that reliance on **Article 50(4) of the Constitution** and **Sections 122A and 122C of the Penal Code** was misconceived because DNA sampling in sexual offence investigations was governed by the Sexual Offences Act and the applicable regulations. Regarding the absence of seminal fluid on the orange boxer shorts, the Respondent submitted that ejaculation was not an essential ingredient of penetration under Section 2 **of the Sexual Offences Act,** and that the DNA recovered from the anal swab independently established penetration. ## Age of the complainant 1. The Respondent submitted that the prosecution sufficiently proved the complainant's age. Relying on *Edwin Nyambogo Onsongo v Republic (2016) eKLR,* as cited in *Kivuti v Republic [2024] KEHC 14412 (KLR)*, the Respondent submitted that age could be established through documentary evidence, medical evidence, oral testimony of the complainant, parents or guardians, or any other credible evidence. 2. It was further submitted that the Appellant had not specifically challenged the complainant's age and that the prosecution had sufficiently established that PW1 fell within the age bracket contemplated under **Section 8(3) of the Sexual Offences Act.** Identification of the Appellant 1. The Respondent submitted that the Appellant was positively identified by PW1, who knew him personally. It was further submitted that the DNA evidence independently corroborated PW1's identification of the Appellant as the perpetrator. **Ground 5: Extraneous factors in the conviction** 1. The Respondent submitted that the Appellant's allegation that the trial court relied on extraneous matters was vague, unsupported, and devoid of particulars. It was argued that the trial court confined itself strictly to the evidence on record and did not take into account any irrelevant or extraneous considerations in reaching its determination. ## Ground 6: Section 33 of the Sexual Offences Act 1. The Respondent submitted that the trial court fully considered the surrounding circumstances of the case, including the evidence of the hotel receptionist (PW6), PW4, PW5, and the other prosecution witnesses. The Respondent further submitted that *Absalom Amunga Okita v Republic [2020] eKLR* did not support the Appellant's case because, although the decision emphasized the need to consider the surrounding circumstances, those circumstances in the present case including the DNA evidence, the medical findings, and PW1's consistent testimony strongly pointed to the Appellant's guilt. **Ground 7: Failure to weigh the defense evidence** 1. The Respondent submitted that the trial court had properly considered the Appellant's defence but correctly found it to be a mere denial that was incapable of raising reasonable doubt in the face of the overwhelming prosecution evidence. It was further submitted that a bare denial did not automatically create reasonable doubt where the prosecution's evidence was cogent and credible, and that the trial court was therefore entitled to reject the defence. ## Ground 8: Bias by the trial magistrate 1. The Respondent submitted that the allegation of judicial bias was wholly unsubstantiated. It was argued that bias had to be demonstrated through specific conduct evidencing partiality, yet the Appellant had failed to identify any such conduct. According to the Respondent, the judgment reflected a careful, balanced, and impartial evaluation of all the evidence before the trial court. Reliability and credibility of the complainant (PW1) 1. The Respondent submitted that the inconsistencies identified by the Appellant relating to PW1's recollection of the exact date of the offence, the manner of reporting, and his demeanor after leaving the hotel were minor peripheral discrepancies that could not affect the substance of his evidence. It was argued that child victims of sexual offences commonly exhibit inconsistencies on peripheral details while remaining consistent on the central facts. 2. The Respondent further submitted that PW1's evidence was independently corroborated by medical and DNA evidence, particularly the DNA match between the Appellant and PW1's anal swab, making the allegation that PW1 fabricated the complaint untenable. It is also argued that PW2 and PW3 confirmed PW1's first report, which was consistent with his subsequent testimony. Any embellishment in later accounts is said to affect only the weight of the evidence and not its admissibility or overall credibility. On the alleged grudge between the Appellant and PW5 1. The Respondent submitted that the Appellant's allegation that the prosecution was motivated by a grudge between him and PW5 is a bare assertion unsupported by credible evidence. The Responded argued that, even if a prior disagreement existed, it did not negate the independent corroborative evidence comprising the DNA results, medical findings, and PW1's testimony. The Respondent further contended that the Appellant's reliance on *Elikana Ouma Namale v Republic, Court of Appeal No. 32 of 2013 (UR)* was misplaced, as that decision required evidence of a grudge to be weighed rather than treated as automatically defeating the prosecution's case. In the present case, the alleged grudge is said to be outweighed by the objective scientific evidence. 1. The Respondent also submitted that *Elikana Ouma Namale v Republic* is distinguishable because sexual offence cases are governed by the provision to Section 124 of the Evidence Act, which permits a conviction based solely on the complainant's evidence where the court records reasons for believing the complainant to be truthful. Accordingly, it is argued that a mere allegation of a grudge does not invalidate the complainant's evidence unless it is shown to have materially affected the credibility and truthfulness of the testimony. ## Powers and duty of the High Court on Appeal 1. The Respondent submitted that under Section 379 of the Criminal Procedure Code, the High Court has power on a first appeal to confirm, reverse or vary the decision of the trial court. It was further submitted that an appellate court should exercise restraint before interfering with findings of fact made by a trial court that had the advantage of seeing and hearing the witnesses. Reliance was placed on *Okeno v Republic [1972] EA 32* for the principle that a first appellate court must re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not observe the witnesses testify. The Respondent maintained that upon such re-evaluation, the conviction would be upheld. 2. In conclusion, the Respondent submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, namely penetration, the complainant's age, and the Appellant's identification. It was argued that the conviction was firmly supported by the DNA evidence, medical evidence, and the complainant's direct testimony. The Respondent further contended that the grounds of appeal were vague, unsubstantiated, and devoid of merit, and that the trial court properly applied the law and the rules of evidence. It was also submitted that the sentence of fifteen (15) years' imprisonment was the statutory minimum under Section 8(3) of the Sexual Offences Act and was therefore not amenable to reduction. 3. The Respondent prayed that the appeal be dismissed in its entirety, that the Appellant's conviction for defilement under Section 8(1) as read with Section 8(3) of the Sexual Offences Act be upheld, that the sentence of fifteen (15) years' imprisonment be affirmed, and that the court grant any other orders it deemed just and appropriate. # ISSUES FOR DETERMINATION 1. Whether the Appellant's trial was conducted in violation of his constitutional and statutory rights, thereby rendering the proceedings a nullity. 2. Whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. 3. Whether the trial court properly admitted and relied upon the electronic and DNA evidence 4. Whether the trial court properly evaluated the entire evidence, including the Appellant's defence, and whether the conviction was based on extraneous considerations or judicial bias. # ANALYSIS ON THE ISSUES FOR DETERMINATION ## Issue 1: Whether the Appellant's trial was conducted in violation of his constitutional and statutory rights, thereby rendering the proceedings a nullity. 1. The Appellant contended that the proceedings before the trial court violated his constitutional and statutory rights, thereby rendering the trial a nullity. The Respondent opposed the ground, submitting that no specific violation had been identified or proved and that no prejudice had been demonstrated. 2. The right to a fair trial under Article 50 of the Constitution is fundamental and non-derogable under Article 25(c). However, a party alleging a violation of that right must identify the specific right infringed and demonstrate how the alleged violation occasioned prejudice or resulted in a miscarriage of justice. 3. Upon re-evaluating the record, I find that the Appellant actively participated in the proceedings. He cross-examined the prosecution witnesses, was placed on his defence after the trial court found that a prima facie case had been established, gave sworn testimony and called two witnesses in his defence. The proceedings do not disclose any procedural irregularity or denial of an opportunity to challenge the prosecution's case. 4. Beyond the general allegation that his rights were violated, the Appellant neither identified the constitutional or statutory provisions allegedly infringed nor demonstrated how the alleged violation affected the fairness of the trial. In the absence of such evidence, this court finds no basis for declaring the proceedings a nullity. 5. Accordingly, I find that the Appellant has failed to establish that his constitutional or statutory rights were violated during the trial, and this ground of appeal therefore fails. ## Issue 2: Whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. 1. The Appellant was charged in count I with the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act. Section 8(1) provides that *any person who commits an act which causes penetration with a child is guilty of the offence of defilement.* 2. In determining whether the offence was proved, the court must consider whether the prosecution established all the essential ingredients of the offence. In the case of ***Charles Wamukaya Karani v Republic Crminal Appeal No. 72 of 2013***, the court held that, “*the central ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant”* ## Age 1. With regard to age, the Appellant did not specifically dispute that the complainant was thirteen years old. The trial court relied on the complainant's birth certificate, produced as Exhibit P3, which showed that he was born on 9th May 2009. The alleged offence occurred on 21st June 2022, placing the complainant at thirteen years of age. 1. This court has independently examined the birth certificate together with the evidence adduced during trial and finds that the prosecution conclusively established the complainant's age. In the case of *Hadson Ali Mwachongo v Republic* ***[2016] eKLR***, the court held that a birth certificate constitutes sufficient documentary proof of age. Consequently, I find that the prosecution proved the first ingredient of the offence beyond reasonable doubt. ## Penetration 1. The principal challenge raised by the Appellant relates to proof of penetration. He argued that the medical evidence merely established redness and inflammation around the complainant's anus, which PW9 admitted could have resulted from causes other than penetration. He further contended that no spermatozoa or seminal fluid was recovered and that the DNA evidence did not conclusively establish penetration. 2. The Respondent, on the other hand, relied on the complainant's testimony, the medical findings and the DNA evidence to submit that penetration was sufficiently proved. It was further argued that ejaculation is not an essential ingredient of penetration under Section 2 of the Sexual Offences Act. 3. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs or anus of another person. Accordingly, proof of ejaculation or the presence of seminal fluid is not a statutory requirement for establishing penetration. In *Fappyton Mutuku Ngui v Republic* ***[2014] eKLR***, the Court of Appeal held that even the slightest penetration is sufficient to prove this ingredient. 4. Upon re-evaluating the evidence, this Court notes that PW1 gave a direct account of the alleged sexual assault and stated that the Appellant subjected him to anal sexual intercourse after taking him into a lodging room. His testimony was corroborated by PW9, whose examination revealed redness and inflammation around the anal region. Although PW9 conceded during cross-examination that such injuries could arise from other causes, that concession did not negate the medical findings but merely required the Court to consider them alongside the totality of the evidence. 1. It is also settled that penetration need not be proved by medical evidence alone. Under the proviso to Section 124 of the Evidence Act, a court may convict on the evidence of the complainant alone in a sexual offence if it records reasons for believing the complainant to be truthful. Similarly, in *Mohamed v Republic* ***[2006] 2 KLR 138***, the Court held that corroboration is no longer a mandatory requirement in sexual offences where the court is satisfied that the complainant is truthful. In the present case, the complainant's evidence was not only found to be credible by the trial court but was also supported by medical and forensic evidence. 2. The prosecution further relied on forensic evidence indicating that the male DNA profile generated from the complainant's anal swab matched the Appellant's DNA profile. While the Appellant questioned the manner in which the DNA profile was generated in the absence of seminal fluid, the absence of semen did not, of itself, disprove penetration. The evidential weight and admissibility of the DNA evidence shall be considered separately under the issue relating to scientific evidence. 3. Having considered the complainant's testimony together with the medical findings and the forensic evidence, I am satisfied that the prosecution established penetration within the meaning of Section 2 of the Sexual Offences Act. ## Identification of the Accused 1. The Appellant also challenged his identification as the perpetrator. However, the evidence on record shows that the complainant knew the Appellant prior to the incident as they were neighbors. This was therefore a case of recognition rather than identification of a stranger. 2. In *Anjononi & Others v Republic* ***[1980] KLR 59***, the Court of Appeal held that recognition is generally more satisfactory and more reliable than identification of a stranger because it depends upon the witness's prior knowledge of the accused. In the present case, the complainant's recognition of the Appellant was further reinforced by the evidence of PW6, who confirmed that both the Appellant and the complainant entered the lodging facility together on the material day. The Appellant himself admitted that he was at the premises with the complainant, although he offered an innocent explanation for the complainant's presence. 3. In those circumstances, this court finds no basis for interfering with the trial court's finding that the Appellant was positively identified as the person who was with the complainant at the material time. Contradictions and Surrounding Circumstances 1. The Appellant further submitted that the prosecution case was undermined by inconsistencies relating to the complainant's recollection of the date of the offence, failure to report the incident to persons in the bar, the lodging or even a watchman, failure to identify the room occupied, the absence of the alleged clothing exhibits and the lack of anal tears or sperm. He also urged the Court to consider the surrounding circumstances under Section 33 of the Sexual Offences Act. 2. Upon re-evaluation of the evidence, I am not persuaded that the inconsistencies identified by the Appellant were material enough to discredit the prosecution's case. Most of the discrepancies related to peripheral matters rather than the central question of whether the complainant was sexually assaulted and by whom. In *Nziku v Republic* ***[1982–88] 1 KAR 103***, the Court held that only contradictions which go to the root of the prosecution's case are capable of rendering a conviction unsafe. I find that the discrepancies relied upon by the Appellant fall within the category of minor inconsistencies which do not affect the substance of the prosecution's evidence. 3. As regards the surrounding circumstances under Section 33 of the Sexual Offences Act, the trial court considered the evidence placing the Appellant and the complainant together at the lodging facility, the complainant's account of the incident, the medical findings and the forensic evidence before reaching its conclusion. I am therefore satisfied that the surrounding circumstances were adequately considered in determining whether the offence had been proved. 4. Having independently reviewed the entire record as required of a first appellate court, I am satisfied that the prosecution proved each of the essential ingredients of the offence of defilement beyond reasonable doubt. The conviction was therefore supported by the evidence on record, and this ground of appeal is without merit. ## Issue 3: Whether the trial court properly admitted and relied upon the electronic and DNA evidence 1. The Appellant submitted that the trial court erred in admitting and relying on the CCTV footage and the DNA evidence. He contended that the CCTV footage contravened Section 78A of the Evidence Act because no certificate authenticating the electronic record or the process by which it was produced was tendered. He further argued that the DNA evidence was unreliable since no seminal fluid was recovered, the Government Analyst's report lacked certification under Section 77(3) of the Evidence Act, and the prosecution failed to explain how a Y-filer DNA profile was generated in the absence of seminal fluid. 2. The Respondent submitted that the Appellant had misconstrued the role of the CCTV evidence. It was argued that the conviction was not founded solely on the CCTV footage but on the cumulative effect of the complainant's testimony, the medical evidence and the DNA evidence, with the CCTV footage merely corroborating the prosecution's case. The Respondent further submitted that any procedural objections to the DNA evidence affected only the weight to be attached to the evidence and not its admissibility. ## Electronic (CCTV) evidence) 1. Section 78A of the Evidence Act provides that electronic and digital evidence shall not be denied admissibility merely because it is in electronic form, provided that the integrity and reliability of the manner in which it was generated, stored or communicated are established. The purpose of the provision is to ensure that electronic evidence placed before the court is authentic and reliable. 2. The Appellant argued that no certificate accompanied the CCTV footage and therefore the footage ought to have been rejected. However, the record shows that PW10, a forensic examiner attached to the Directorate of Criminal Investigations, analyzed the CCTV footage and testified on its contents. The Appellant did not demonstrate that the footage had been altered, manipulated or otherwise rendered unreliable. 3. In *Republic v Mark Lloyd Stevenson* ***[2016] eKLR***, the court observed that electronic evidence must be authenticated before being relied upon by a court. The question, therefore, is not merely whether the evidence was electronic in nature, but whether its authenticity and integrity were sufficiently established. 4. Upon re-evaluating the record, I find that the CCTV footage did not itself depict the commission of the offence. Rather, it placed the Appellant and the complainant at the lodging facility on the material day, thereby corroborating other prosecution evidence. Consequently, even assuming that there were procedural deficiencies in the production of the footage, such deficiencies would not, in the circumstances of this case, have been sufficient to vitiate the conviction, which was not founded solely upon that evidence. **DNA evidence** 1. The Appellant further challenged the DNA evidence on the grounds that no seminal fluid was recovered, that the Government Analyst's report lacked certification under Section 77(3) of the Evidence Act, and that the prosecution failed to explain how the Y-filer DNA profile matched the Appellant in the absence of semen. 2. The evidence on record shows that PW8, the Government Analyst, analyzed the samples submitted for examination and prepared a forensic report linking the DNA profile obtained from the complainant's anal swab to the Appellant. PW8 was called as a witness, produced the report in evidence and was extensively cross-examined by the Appellant regarding the findings and the analytical process employed. 1. Section 77 of the Evidence Act permits the production of reports prepared by Government Analysts and other designated experts as evidence in criminal proceedings. Where the maker of the report attends court, produces the report and is available for cross-examination, the concerns relating to certification are substantially addressed since the opposing party has the opportunity to challenge both the report and the methodology employed. 2. The Appellant's principal complaint was that no seminal fluid was recovered from the orange boxer shorts. However, the absence of seminal fluid does not necessarily negate the presence of male DNA nor does it disprove penetration. Whether the prosecution sufficiently explained the forensic findings goes to the weight of the expert evidence rather than its admissibility. 3. Expert evidence, like all other evidence, is not binding upon the court but must be weighed together with the entire body of evidence. In the present case, the trial court did not rely on the DNA evidence in isolation but considered it alongside the complainant's testimony, the medical findings and the evidence placing the Appellant and the complainant together at the material time. 4. Upon independently reviewing the record, I find no basis for holding that either the CCTV evidence or the DNA evidence was improperly admitted. The trial court was entitled to consider both forms of evidence together with the rest of the prosecution's case and to determine the weight to be attached to each. I therefore find that this ground of appeal is without merit. ## Issue 4: Whether the trial court properly evaluated the entire evidence, including the Appellant's defence, and whether the conviction was based on extraneous considerations or judicial bias 1. The Appellant submitted that the trial court failed to properly evaluate the evidence on record, unlawfully rejected his defence, relied on extraneous matters in convicting him, and exhibited bias in favour of the prosecution. He further contended that the trial court failed to consider his defence that the complaint was motivated by a grudge between him and PW5. 2. The Respondent submitted that the trial court carefully analyzed both the prosecution and defence evidence before reaching its decision. It was argued that the Appellant's defence amounted to a mere denial which did not raise any reasonable doubt, and that the allegations of extraneous considerations and judicial bias were vague, unsupported and not borne out by the record. 3. As a first appellate court, this court is under a duty to re-evaluate the entire evidence and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32. 4. The record shows that the learned trial magistrate considered the prosecution evidence alongside the Appellant's sworn defence and the testimony of his two witnesses. The trial court addressed the Appellant's contention that he had been framed by the complainant's mother following the breakdown of their relationship and found that the defence did not displace the prosecution's evidence placing him together with the complainant at the material time. The fact that the trial court rejected the defence does not, of itself, demonstrate that it failed to consider it. 5. The Appellant also argued that the prosecution case was motivated by a grudge between him and PW5. While evidence of an existing grudge is a relevant consideration, it is not conclusive unless it is shown to have materially affected the credibility of the witnesses or the reliability of the prosecution's case. ***In*** *Elikana Ouma Namale v Republic****, Court of Appeal No. 32 of 2013 (UR)***, the court held that evidence of a grudge must be carefully weighed alongside the entirety of the evidence. In the present case, the alleged grudge was not supported by independent evidence capable of displacing the prosecution's case. 6. The Appellant further alleged that the trial court relied on extraneous considerations and was biased against him. Allegations of judicial bias are serious and must be supported by cogent evidence demonstrating that the court approached the case with a closed mind or failed to act impartially. Upon reviewing the judgment and the proceedings, I find no indication that the learned trial magistrate considered matters outside the evidence on record or conducted the proceedings in a manner suggestive of bias. Rather, the judgment reflects a reasoned evaluation of the evidence and the applicable law. 7. Having independently re-evaluated the entire record, I am satisfied that the trial court properly considered both the prosecution and defence evidence before arriving at its conclusion. I find no basis for interfering with its findings on the grounds that it failed to evaluate the defence, relied on extraneous considerations or was actuated by judicial bias. This ground of appeal therefore fails. # DISPOSITION 1. Upon a careful re-evaluation of the entire evidence on record, I find that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt. The complainant's age was conclusively established by documentary evidence, penetration was proved through the complainant's testimony, the medical findings and the forensic evidence, and the Appellant was positively identified as the perpetrator through the evidence of recognition, corroborated by the testimony of PW6, the CCTV footage and the DNA evidence. 2. I further find that the trial court properly admitted and evaluated the electronic and DNA evidence, duly considered the Appellant's defence alongside the prosecution's case, and arrived at a conclusion supported by the evidence on record. The alleged contradictions were not material, and the claims of violation of the Appellant's constitutional rights, reliance on extraneous considerations and judicial bias were not established. Consequently, I find no basis for interfering with either the conviction or the sentence imposed by the trial court. 3. Consequently, 1. I find that the Appeal is devoid of merit. 2. The Appeal is hereby dismissed in its entirety. 3. The conviction for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is hereby upheld. 4. The sentence of fifteen (15) years' imprisonment imposed by the trial court is hereby affirmed. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Criminal Date: 2026-07-24 11:01:28