https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12229

Gikuju v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 12229 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 12229 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E043 of 2025 DKN Magare, J July 28, 2026 Between George Kigatia Gikuju Appellant and Republic Respondent Judgment 1.This is an appeal against both conviction and sentence from the judgment of Hon. E. Kanyiri (PM) delivered on 9.04.2025 and sentence meted out on 9.07.2025 in Karatina MCSO number 28 of 2019. The Appellant was charged with defilement contrary to Section 8(1) & (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on diverse dates between April, August and September 2019 at [Particulars Withhheld] sub-county within Nyeri County, intentionally and unlawfully caused his penis to penetrate the vagina of JMM, a child aged 16 years. 2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, on diverse dates between April, August and September 2019 at [Particulars Withhheld] sub-county within Nyeri County, intentionally touched the vagina of JMM, a child aged 16 years with his penis. 3.The appellant was arrested on 28.09.2019. He was arraigned on 30.09.2019. He denied the charges. He was granted bond of Ksh. 200,000/= and was released on 3.10.2019. The court heard 4 witnesses and the appellant. Upon witnesses being heard he was convicted and sentenced to 15 years imprisonment. He filed two appeals, being Nyeri HCCRA E038 of 2025 and this appeal, Nyeri HCCRA E043 of 2025. He later withdrew Nyeri HCCRA E038 of 2025. In this appeal, he set 5 grounds of appeal:a.That the learned trial magistrate erred in fact in finding that the prosecution had proved the charge of defilement beyond any reasonable doubt.b.That the learned trial magistrate erred in law and fact in dismissing the defence of the appellant.c.That the learned trial magistrate erred in law and fact in not taking into account the character of the appellant.d.That the learned trial magistrate erred in law and fact in making findings that were against the weight of evidence and thereby occasioned miscarriage of justice prejudicial to the appellant.e.That the sentence of 15 years meted out to the appellant was harsh and excessive in the circumstances. 4.The complainant testified that in 2019, she was in Form 1. She had had turned 18 as at 7.04.2022, when she was testifying. She stated that on 3.04.2019, she had gone shopping at [Particulars Withhheld] shopping centre. The appellant, who was a barber, sent a boy to call her. But when she went there, the appellant told her that he was busy. The appellant told her to go home and when he was done, he was to go and see her at home. The appellant called her and had protected sex. 5.She left. In July 2019, the appellant sent a classmate and they agreed to go to the appellant’s house for sex. In August he sent someone and they went to have sex in the appellant’s house. She stayed until late. Another boy offered to take her home. She went with the boy and found her sister at home. When the sister interrogated her, she ran away to the appellant’s house. The sister interrogated her when she came back and she stated that she was with the appellant. She was taken to hospital and Kiarithaînî Police Post. She was then 2 weeks pregnant. She was born on 14.07.2003. She used to go to the appellant’s house over the weekend where she could stay for 2 days. Further, that during school days she used to escape with him to have sex. 6.On cross-examination, the complainant stated that the appellant was the father of her daughter. She testified that she entered the appellant's house willingly and that she had run away from home to live with him. She further stated that she did not report to anyone that she had been defiled. She also testified that she had engaged in consensual sexual intercourse in 2018, although she did not specify with whom. 7.On re-examination, she clarified that she ran away from home on 21.09.2019 and that she last saw the appellant on the same date, namely 21.09.2019. 8.On cross examination by the court, she stated that the appellant used to see her in school uniforms and that she did not tell the appellant that he was the father. He learnt that he was a father after she was examined. She never told the appellant that he was a father. 9.On further cross-examination, the complainant stated that on the day the appellant first saw her in her school uniform, she had been sent away from school. She further testified that thereafter they would meet over the weekends, when she was not in school uniform. 10.PW2 was Dr. Stephen Nderitu, a holder of a Bachelor of Medicine and Bachelor of Surgery (MBChB). He produced the P3 filled by Dr. Ichaga. He stated that the complainant had unprotected sex with the appellant. He stated that the appellant was 18 years old, and was a boyfriend. From the analysis, she was pregnant somewhere in August 2019. The complainant had consequential sex in 2018. He did not know whether it was with this or another person. 11.The state counsel sought that DNA be carried out. The appellant also sought the same DNA. Before DNA could be carried out, the complainant did not show up. She was to be traced through the Directorate of Criminal Investigation. The investigation officer was also untraceable. 12.PW3 testified that she was the complainant's sister and a hotelier. She stated that on 24.09.2019 she visited their mother. At about 8.00 p.m., the complainant arrived home, stating that she wanted to see off a friend. PW3 was surprised to see her because she had stopped attending school. Upon seeing PW3, the complainant ran away. PW3 informed the area chief that the complainant was no longer attending school despite PW3 having paid her school fees. After searching for the complainant, she found her and disciplined her by beating her. The complainant was then taken to the police station, where, upon being questioned, she disclosed that she had engaged in sexual intercourse with the appellant. They subsequently took her to Karatina Hospital, where it was established that she was approximately two weeks pregnant. 13.On cross-examination, PW3 stated that the incident occurred in 2019. She testified that the complainant was about 16 years old at the time. She further stated that she did not know whether the complainant had told the appellant that she was over 18 years of age. She admitted that she beat the complainant in order to make her disclose where she had been between 21.09.2019 and 22.09.2019. She also stated that the complainant's sister had informed her that the complainant used to visit the appellant's house. 14.The prosecution counsel informed the court that investigating officer indicated that DNA had not been carried out. 15.PW4, No. 100768, PC(W) Priscilla Mareen of Nyandarua Police Station, testified that she was the investigating officer. She stated that she received the report from PW1 and PW3. She also handed over the complainant's P3 Form and PRC Form from Karatina Sub-County Hospital. Accompanied by the complainant, they proceeded to [Particulars Withhheld] Shopping Centre but found the appellant's shop closed. She returned on 28.09.2019, when the complainant identified the appellant. The complainant also mentioned a black jacket which she alleged the appellant had given her. PW4 testified that the complainant stated that the appellant had taken her to his house and forced her to have sexual intercourse. She further stated that in July 2019, the complainant had gone to collect her bag after the appellant had sent for her. 16.PW4 further testified that while they were at the shopping centre, a person approached the complainant and offered to take her home. She produced the complainant's birth certificate as an exhibit. She also testified that when PW3 questioned the complainant about her whereabouts, the complainant ran to the appellant's house. 17.On cross-examination, PW4 stated that the events of 03.04.2018 and 20.07.2019 (the latter date being unclear from the record) were not contained in her statement. She also confirmed that the August school holidays were not covered in her statement. She testified that the complainant was approximately two weeks pregnant when they met her. Regarding paternity, she stated that no DNA analysis was conducted. Although her evidence on this point was not entirely clear. She testified that without DNA testing it was not possible to determine the paternity of the pregnancy. She further testified that the complainant was about two weeks pregnant as at 28.09.2019 and stated that the appellant and the complainant did not have sexual intercourse on 05.09.2019, 06.09.2019 or 07.09.2019. According to her testimony, the pregnancy was attributable to sexual intercourse occurring around 14.09.2019. 18.The appellant was placed on his defence. Section 211 of the Criminal Procedure Code was complied with. Initially, he elected to give sworn testimony with no witness. 19.The appellant testified on oath in his defence. He stated that he worked at a barber shop and knew the complainant as she was one of his customers. He denied ever having had sexual intercourse with her. He further testified that he was arrested while at his place of work and was never informed of the reason for his arrest. He maintained that the complainant had never visited his residence and denied that the pregnancy or the child was his. He expressed his willingness to undergo DNA testing to determine paternity and prayed that such a test be conducted. Notably, the prosecution did not cross-examine the appellant on his evidence. I shall revert to this aspect later in this judgment. 20.The appellant was convicted and he mitigated. The court sentenced him to 15 years imprisonment. Impugned Judgment 21.The court found that the matter was proved beyond reasonable doubt. In a rather hilarious way, the court found that the ‘vagina was absent’. I have a feel that the court was referring to the hymen. On penetration, the court relied on the case of Mohamed v R (2006) 2 KLR 138. The court also relied on the case of AML v Republic [2012] KEHC 2554 (KLR), where, M. Odero J, stated as follows in regard to DNA:The fact of rape or defilement is not proved by way of a DNA test but by way of evidence. 22.The court also relied on the case of Joel Sio Mwasi v Republic [2014] KEHC 1041 (KLR), where Mary Kasango J, posited as follows:25.Precedence shows that medical examination of an accused person under Section 36 (1) of the Sexual Offences Act, 2006 is not mandatory but discretionary on the trial court. In the case of Ahmed Ibrahim Adan v Republic, Garissa High Court Criminal Appeal No. 36 of 2013, [2013] eKLR, Mutuku, J. stated that:“On failure by the court to order for DNA test in respect to the appellant the law Section 36 Sexual Offences Act gives courts discretion to or not to order for this depending on the relevance of this test and the nature of the case.”26.The learned Judge adopted the same position in the case of Abdinsir Guhad Bore v Republic, Garissa High Court Criminal Appeal No. 74 of 2012, [2014] eKLR where he stated as follows:“My understanding of Section 36(1) of the Sexual Offences Act is that it gives the court discretion to order for the medical examination of an accused person in order to gather evidence and to ascertain whether or not the accused person committed an offence.” 23.The court indicated that the people who were informed immediately after the incident corroborated the penetration. She found penetration as proved. This was not correct as the minor did not tell anyone else. 24.On the age, she stated that the birth certificate proved that she was 16 years. On identification, the court relied on the case of R. V.Turnbull [1976] 63 Cr. App. R.132 as a guideline for identification. The court concluded that the incident occurred and found him guilty. Submissions 25.The appellant filed submissions dated 15.12.2025. He set out three issues and addressed the question of penetration. He also stated the court never considered that the evidence of PW1, was narrated to PW3 under coercion both physical and psychological violence. The complainant testified that she ran away to the appellant’s place after the violence. Reliance was placed in the case of Wanjohi v Republic [2025] KEHC 697 (KLR), where the High Court posited as follows:In Dickson Elia Nsamba Shapwata & Another vs. The Republic, Cr. App. No. 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are PW1, or whether they go to the root of the matter. 26.He submitted that the court was fixated with convicting the appellant despite the evidence he gave. He prayed that the appeal be allowed. 27.The respondent filed submissions on 6.05.2026. It was indicated that there were 9 grounds. Unfortunately, they relied on grounds in the withdrawn appeal. Nevertheless, they are closely knit and there are no material differences. They submitted that the first issue is whether the prosecution proved its case beyond reasonable doubt. They submitted that the ingredients for proof of the offence of defilement are:a)Age of the complainant.b)Whether there was improper and unlawful penetration.c)Identification of the assailant, in this case, the appellant herein. 28.They placed reliance on the case of Josphat Muoki Muunda vs Republic [2016] eKLR where the court underscored the essential ingredients of defilement, which were highlighted in Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 as follows:The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant. 29.On the first question, that is whether the age of the complainants was proved, they submitted in the affirmative. They relied on the case of Kaingu Elias Kasomo vs. Republic criminal Appeal No. 504 of 2010, where the Court of Appeal in Criminal stated as follows:Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge, which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 30.The minor testified that she was born on 14.07.2003. Thus in September 2019 she was 16 years old. 31.On penetration, it was submitted that on 21/9/2019, the victim ran away from her home and went to the appellant’s house. PW1 testified that she stayed there for two days and that they had sex with the appellant for those 2 days. Further that on 24/9/2019 PW1 was escorted to hospital and upon examination was found to be 2 weeks pregnant. The P3, PRC and lab request forms were produced as exhibits by PW2. 32.They testified further that the Complainant herein testified that the Appellant inserted his penis in her vagina on diverse dates between April and September 2019. The medical evidence on record produced by PW2, shows that the complainant hymen was torn and was in fact two weeks pregnant and therefore corroborative on penetration. 33.On the identification of the assailant, in this case the appellant herein, it was submitted that the complainant PW1 testified that the appellant namely Gorge who was a barber at [Particulars Withhheld] shopping Centre sent a small boy to call her. She testified that she knew the appellant who had previously shaved her. Further on cross examination by the court, the complainant confirmed that the school she was going was near the appellant’s barber shop. The complainant confirmed that she willingly went to the appellant’s house on many occasions. Put on his defence, the appellant testified that he operated a barbershop, knew the complainant and confirmed that she was a customer who went for hair cut at his barbershop. It was submitted that the complainant was 16 years old. It was submitted that the appellant contended that the prosecution failure to conduct DNA occasioned a gross miscarriage of justice. They submitted that medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Reliance was placed on the case of DOO v Republic [2024] KEHC 426 (KLR), where PN Gichohi, posited as follows:Regarding the Appellant’s grievance that DNA test was not carried out so as to link him with offence of defilement, the Court of Appeal in Robert Mutungi Muumbi v Republic [2015] eKLR held:Section 36(1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved.In George Kioji V. Republic, Cr. App. No. 270 of 2012 (Nyeri), this Court expressed itself thus, on proof of commission of a sexual offence:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 34.They submitted that from the proceeding it is evident that the prosecution made an application for both parties to avail themselves for DNA sampling. In its judgment the trial court noted that DNA could not be undertaken as the victims could not be traced. It was submitted that the court record reflects that the prosecution and the investigating officer were not able to contact the victims for DNA sampling. The prosecution submitted on a matter not on record and that was not testified by any party. It is not possible to verify the same. It cannot form part of the record. 35.They submitted that on crucial witnesses not being called, they relied on the decision of Birgen v Republic [2025] KEHC 2903 (KLR). It was further submitted that DNA was not the only evidence of commission of the offence. It was submitted that this position was fortified by the holding of the Court of Appeal in Wanyonyi v Republic [2015] KECA 607 (KLR), where the court of appeal [DK Maraga, DK Musinga & AK Murgor, JJA]posited as follows:Turning to the question that the appellant was not subjected to a medical examination contrary to the provisions of section 26 of the Sexual Offences Act, in Ali v Republic [2006] KECA 156 (KLR), this Court [RSC Omolo, SEO Bosire & EM Githinji, JJA] stated:[T]he absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or circumstantial evidence. 36.They submitted that in the instant case the victim narrated the diverse dates she went to the appellant’s house and how they had unlawful intercourse hence commission of the offence. The complainant testimony was corroborated by that of the guardian PW3 who inquired where she went for the two days she was away from home. 37.Further Reliance was placed on section 124 of the Evidence Act. They submitted that proof of penetration was supported by medical evidence that penetration had happened and that indeed the complainant was two weeks pregnant. 38.The state submitted that appellant was only sentenced to mandatory minimum. They relied on the case of Tudo v Republic [2024] KEHC 1783 (KLR), where A C Mrima held as follows:This being an appeal against sentence, the Court in Wanjema v Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion. Analysis 39.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. 40.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 [1972] EA 32 at 36, 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. 41.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. 42.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. 43.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. 44.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. 45.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. 46.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. The Law 47.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 48.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 49.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 50.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, in Malindi Criminal Appeal No. 504 of 2010 stated as follows:Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim. 51.The minor was reportedly born on 14.07.2003. The birth certificate was registered on 28.02.2018. The minor was reportedly in form one in 2019. However, this could not be a genuine document as it is dated slightly a few months before the alleged offence. It is not clear, which certificate she used to register for NEMIS long before 2018. It is a bogus certificate. Further, PW3 testified that the complainant had stopped going to school despite fees being paid. Therefore, the complainant lied as to whether she was going to school. In the case of Abraham Kibet Cheruiyot v Republic [2014] KEHC 3693 (KLR), G. W. Ngenye – Macharia, as she then was, held as follows:It is factual that the medical examination report concluded that PW1 had had unprotected penetration that led to the pregnancy. But questions abound as to whether the penetration was occasioned by the Appellant.As regards the age of PW1, I have seen the birth certificate produced as P. Exhibit 2. It shows that PW1 was born on 6th October, 1993, placing her age at about 15 years as at the date of the alleged defilement. While consent to sex is not a defence in a charge of defilement, I need not over emphasize that the prosecution did not prove that it is the Appellant who sired the child.Besides, and with respect, it is suspect why the birth certificate (registered on 6th July, 2009) was obtained too late in the day, specifically with a view to adducing adverse evidence against the Appellant. Save that other evidence discredits the prosecution's case, on account of the late birth registration, I would have found that the complainant's age was not satisfactorily proved. 52.On the issue of the National Education Management Information System (NEMIS), this Court previously observed as follows in Machuki alias ‘Pastor' v Republic [2025] KEHC 18739 (KLR):The final aspect concerns the age of the minor. It is alleged that she dropped out of school in Standard 8 and was born in 2007. However, the birth certificate presented was registered only recently, less than one year before the alleged incident. The Court takes judicial notice that, since 2003, birth registration has been mandatory, for enrolment. Since 2009, it has been compulsory for students to be included in the National Education Management Information System (NEMIS). No explanation has been provided as to why the original birth certificate, which the complainant presumably used previously, was not produced. Failure to produce a previously used birth certificate leads the court to infer that the current one was prepared for the case. This was not a replacement certificate but a new registration in 2021. 53.Secondly, the complaint is alleged to have disappeared, according to the P3, for 2 weeks. However, her evidence was that she disappeared on 21 and 22nd September. Nevertheless, she was 2 weeks pregnant, as per the doctor’s evidence. The offence indicated in the P3 was for those 2 days. The pregnancy is not thus related to the dates the offence is alleged to have occurred. 54.However, she was examined on 23.09.2023, but there was no evidence of inflammation or injuries on the vagina. The evidence she gave the doctors is completely different from what she testified in court. She did not tell the investigating officer regarding August 2019. She did not testify that she was with the appellant for two weeks. What is clear is that she was going to the barber shop. Indeed, her own evidence place a different man as having escorted her on the material time when she was beaten. 55.The court could not use section 124 of the Evidence Act, as there was some boy with her that resulted in the beating from PW3. She was on one side stating that the sex was ‘consensual’ in the loosest term of the word and forced on the other. She allegedly ran away to the appellant’s place. However, from her evidence, the appellant was too busy and could not see her. This piece of evidence is inconsistent with the truth. Why call for someone and refuse to see her? Victoria was said to be in the picture. However, she was not called as a witness. 56.It must be recalled that there is no number of witnesses required to prove a fact. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.” 57.There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called, and the case is wholly, then an adverse inference must be made for failure to call such. In the circumstances of this case, failure to call Mary resulted in a break in the chain of evidence. PW4 placed the appellant away from home on the material day and time. There is no connecting witness. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:The law, as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even though some of those witnesses’ evidence may be adverse to the prosecution's case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution's case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called, his evidence would have tended to be adverse to the prosecution's case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.” 58.The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135, where the court held inter alia:“The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.” 59.In the circumstances, failure to call the boy and Victoria was fatal to the case as the court must make an adverse inference that if she had been called, her evidence would have been adverse to the prosecution. It is difficult to believe the complainant’s evidence. Before I proceed further, I must address the third ground of appeal, that the learned trial magistrate erred in law and fact in not taking into account the character of the appellant. 60.This ground is for summary dismissal. It is not worthy considering. First, section 34 of the Sexual Offences Act, provides as follows regarding Evidence of character and previous sexual history:1.No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.2.Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.3.The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning- a. relates to a specific instance of sexual activity relevant to a fact in issue; b. is likely to rebut evidence previously adduced by the prosecution; c. is likely to explain the presence of semen or the source of pregnancy or disease or any injury the complainant, where it is relevant to a fact in issue; d. is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; or e. is fundamental to the accused's defence. 61.Section 34 (3) was not complied with. Therefore, the court cannot be blamed for not looking at the complainant’s character as the same is irrelevant. 62.The next question is whether the state proved penetration. This can be proved either through direct or circumstantial evidence. Finding of penetration is independent to the question whether the appellant is a perpetrator. The minor stated that she was penetrated. There was a pregnancy that was weeks old. Even if taken to be two weeks old, it brought the pregnancy to 15/09/2019. The penetration was proved but not in relation to the dates of 21st and 22nd September 2019. There was no evidence of penetration on 21.09.2019 and 22.09.2019. However, there was penetration two weeks earlier. There was no clear evidence on penetration in April or August 2019. 63.The next issue is whether the appellant was the perpetrator. From the medical evidence, there was no proof that penetration occurred on the impugned dates. It is also settled that, ordinarily, DNA evidence is not a prerequisite for proving penetration or identifying the perpetrator in sexual offences. However, in the peculiar circumstances of this case, the trial court directed that a DNA test be conducted. That order was never complied with because the complainant subsequently went missing and could not be availed for the examination. A child was born out of the pregnancy she alleges arose from their liaison. 64.The failure to comply with the court's order deprived the court of evidence that could have either implicated or exonerated the appellant. In the absence of any satisfactory explanation for that failure, the court is entitled to draw an adverse inference against the party that bore the burden of availing the evidence. Consequently, the absence of the DNA evidence, coupled with the complainant's disappearance, leaves a significant evidential gap which cannot be cured by speculation. The court can therefore only draw a negative inference from the failure to produce the evidence that it had specifically directed to be obtained. 65.Court is aware that the appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The appellant was arraigned and denied the charges. A plea of not guilty was consequently recorded. He was presumed not guilty until he was convicted. The presumption of innocence was addressed in the Canadian case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada explained the standard of proof as doth:The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt. 66.The implication of the appellant was obtained after PW3 beat the appellant. She did not implicate the person she was with at the time. It is not clear why a stranger could offer to take the complainant home, when she was with another man. The story does not add up. When the appellant testified, he was not cross examined. The evidence was therefore unchallenged. In the case of Macharia v Republic [2023] KECA 1556 (KLR), the court of appeal [F Sichale, LA Achode & WK Korir, JJA] stated as follows:Finally, the appellant complained that his defence was not considered. We have looked at the record. The defence preferred by the appellant was a mere denial as he thought PW1’s mother had framed him because he had excommunicated her from his church. This issue was not raised during cross-examination and it would appear that it was an afterthought. 67.The appellant’s evidence must be taken as unchallenged. The court erred by holding that knowing each other made them lovers. The unchallenged evidence was that PW1 was the appellant’s customer. In the case of Mwanzia Kimwele v Kithome Kubora & another [2021] KEELC 3166 (KLR), E. C. Cherono J, held as follows:In the absence of the Plaintiff and his Counsel to cross-examine the evidence placed before the Court, the defence evidence remained unchallenged and uncontroverted. 68.The next question is the circumstantial evidence. There was nothing placing the appellant and the complaint together. There were contradictions in the complainant’s evidence that did not add up. The medical evidence did not support the version of evidence tendered by the prosecution. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 69.Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 70.The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 71.Circumstantial evidence must point irresistibly to the guilt of the appellant. In the case of Ngui v Republic [supra] was appealed and confirmed in the case of Fappyton Mutuku Ngui v Republic [2014] KECA 570 (KLR), where the court of appeal held as follows:He also argued that a DNA examination was not conducted to link him to the defilement. In our view, such evidence was not necessary and in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who had defiled her.In Aml v Republic [2012] eKLR (Mombasa), this Court upheld the view that:The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.This was further affirmed in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) where the court stated:… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.The evidence of the minor witnesses squarely placed the appellant as the one who defiled PW2. It cannot therefore be said that there was no evidence that would link him to the crime. This ground of appeal is therefore baseless and is accordingly rejected. 72.Circumstantial evidence must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. Kihara Kariuki, Pca, M’inoti & Murgor, JJ.A] Court had this to say on circumstantial evidence:However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. 73.Circumstantial evidence was addressed in the case of Sawe v Republic [2003] KECA 182 (KLR), where the court of appeal [RO Kwach, AA Lakha & EO O'Kubasu, JJA] held as follows:In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of R v Kipkering arap Koske & Another 16 EACA 135 where it held, inter alia, that:In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt”. 74.This is not a case based on suspicion. It is a case for both direct and circumstantial evidence. In the case of Republic v Denis Wamaye Kimemia & another [2019] KEHC 11092 (KLR), Wakiaga J, posited as follows:Whereas there is strong suspicion that the accused persons were involved in the unlawful killing of the deceased, the said suspicion is based on hearsay evidence which is uncorroborated and the court has said over and over again that mere suspicion however strong cannot be a ground for sustaining a conviction in a criminal case as was Stated by the Court of Appeal in Mary Wanjiku V Republic, Criminal appeal no 17 OF 1988 that:Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused freedom and at times life. 75.The question that must be asked is: which version of the complainant's case should the court believe? The inconsistencies in the prosecution's case create reasonable doubt as to the reliability of the complainant's account. Where such doubt exists, the law requires that it be resolved in favour of the accused. The prosecution bears the burden of proving its case beyond reasonable doubt, and where it fails to do so, the accused is entitled to the benefit of that doubt. In the circumstances of this case, the doubts arising from the conflicting versions of the complainant's case must therefore be resolved in favour of the appellant. 76.The court must correctly weigh the defence and the prosecution evidence and came with a rational decision. This was as addressed in the case of Erick Onyango Ondeng’ vs. Republic [2014] eKLR, where the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 77.In this case, the trial court dismissed the defence case out of hand without subjecting it to proper evaluation alongside the prosecution evidence. That approach was erroneous. A trial court is under a duty to consider the defence on its merits and to weigh it against the prosecution's case before reaching a conclusion on whether the prosecution has discharged its burden of proving the charge beyond reasonable doubt. 78.In the circumstances, I find that the conviction was unsafe and cannot be allowed to stand. The prosecution failed to prove its case against the appellant beyond reasonable doubt, and the appellant was entitled to the benefit of that doubt. 79.The court must now address the question of sentence. The appellant was sentenced to 15 years' imprisonment. That sentence is the statutory minimum prescribed for the offence. In the circumstances, there is no basis upon which this court can interfere with the sentence imposed by the trial court. The sentencing discretion of the court under the Sexual Offences Act is circumscribed by the minimum penalties prescribed therein. The sentence meted out was therefore lawful and proper. This particular offence under section 8(1) and (4) of the Sexual Offences Act provides for a mandatory sentence of 15 years imprisonment. The Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 80.In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34(KLR), the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 81.This means that the sentences prescribed under the Sexual Offences Act are not merely suggestive but are binding upon the courts. The sentence imposed upon the appellant therefore would have been lawful had he been found guilty. It is now mute. 82.However, having allowed an appeal on conviction, the issue of sentence is moot. Orders 83.In the circumstances, I make the following orders:a.The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b.The appellant’s name be removed from the register of sexual offenders.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF JULY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX.Judgment delivered through Microsoft Teams Online PlatformKIZITO MAGAREJUDGEIn the presence of: -Mr. Kihara for the StateMr. Maina for the AppellantAppellant presentCourt Assistant – Timothy