https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10352

Wanyonyi v ODPP (Criminal Appeal E152 of 2024) [2026] KEHC 10352 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 10352 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E152 of 2024 RK Ondieki, J July 7, 2026 Between Hosea Wanyonyi Appellant and ODPP Respondent (Being an Appeal against the Judgment by Hon. R.K. Langat (SPM) in Senior Principal Magistrate’s Court at Sirisia Case No. E037 of 2024, Delivered on 19th November, 2024) Judgment 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. In Woolmington Vs DPP (1935) AC 462, that throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner…. the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 2.In the famous case of Miller Vs Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt 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. 3.The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 where it was held that the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. 4.N.N.B. (PW1) told court that on diverse dates between 2022-21st May, 2024 she had sex with the Appellant on several occasions and that he did not use condom. They used to play sex at night and sometimes during the day at his uncle’s place. Consequently, she became pregnant. The victim relied on the Birth certificate, treatment notes PRC Form and P3 Form in evidence. Under cross examination, the Appellant went to her home once. 5.Emily Nanjala (PW2) told court that on 8th March, 2024 at about 1pm he went out to fetch water and to his surprise, he met Mose in the kitchen where the victim used to sleep, but he fled. Come in the morning, he told the mother to the victim and the victim was taken to the Cheptais sub-county hospital. Under cross examination, the witness said that he found the Appellant in his house. 6.Reuben Kibiso(PW3) told court that he met the Appellant and the Victim and as he approached them, the appellant held him by his neck and as struggle ensued, the victim fled. The matter was reported at Kaptanai Police Post and Chesikaki Police Station. 7.Joab Kipongo (PW4) told court that he examined the victim on 23/5/2024 with a history to have had sexual intercourse with one Hosea in 2022. Upon examination, he noted palpable mass on the abdomen, normal female genetalia, no lacerations/ bruises on genetalia, normal labia majora/minora and hymen was absent, whitish discharge from vagina. On laboratory examination, pregnancy was test was positive, VDR negative, epithelia cells seen and pus cells seen. The witness made an impression that it was a defilement case with urinary tract infections. Under cross examination, the witness said that DNA will determine partenity. 8.Albert Wafula (PW5) told court that he is a Deputy Head Teacher where the victim was schooling and come May, June and July, the victim was missing from school. Later, he was asked by the principal to testify in court. The witness further said that the fees account for the victim is active. The victim had not been suspended from school 9.Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were, on diverse dates between 2020 to 21st May 2024 at Chenyiny Village, Chesikaki Sub Location Cheptais Sub-County within Bungoma County, you intentionally caused your penis to penetrate the vagina of N.N.B. a child aged 13 years. 10.In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were; on diverse dates between 2020 to 21st May 2024 at Chenyiny Village, Chesikaki Sub Location Cheptais Sub-County within Bungoma County, you intentionally caused your penis to touch the vagina of N.N.B. a child aged 13 years. 11.The Appellant Hosea Wanyonyi in his unsworn statement told court that he is in dark as to the charges and that he did not impregnate the victim in this case. 12.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by convicting him with riddled discrepancies and uncorroborated evidence.b.That the learned trial Magistrate erred in law and fact by misconstruing a hostile witness from a refractory witness.c.That the learned trial Magistrate erred in law and fact by convicting on discredited evidence of the Victim.d.That the learned trial Magistrate erred in law and fact by convicting with multiple evidential gaps in respect to penetration.e.That the learned trial Magistrate erred in law and fact by convicting and yet the prosecution failed to prove their case beyond reasonable doubt. Analysis and Determination: 13.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. 14.In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court stated that the critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant. 15.In the year 2016, the Court of Appeal had this to say on proof of age of the Victim in the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that 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. Whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.a.Contradictions and unreliable evidence: 16.The Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. 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. Emphasis supplied. 17.The lamentation by the Appellant was that the P3 Form and PRC Form are not in harmony. Whereas the P3 Form indicate the presence of epithelial cells, the PRC form does not indicate its presence. Secondly, whereas the P3 Form states the absence of laceration, bruises, the PRC Form indicates there was redding of labia majora and minora. Thirdly, the appellant said that the testimony of the Victim was not reliable. 18.My answer to this segment of the complaint is that the victim said that the Appellant is her neighbour besides being her boyfriend for a long time. On the diverse dates set out in the charge sheet, they played sex, severally. This evidence was not shaken under cross examination and instead, it is recorded “my father found me and you. He beat you. You came home once.” That was all under cross examination. I find no merit in this complaint and it collapses. Hostile Witness: 19.Section 163 (1) (c) of the Evidence Act, Cap 80 Laws of Kenya provides for impeachment of the credibility of the witness including proof of former statements whether written or oral inconsistent with any part of the evidence which is liable to be contradicted. In Mahati Bin Ruadiha Vs. Rex (1938) 5, EACA 52, the defunct Court of Appeal for Eastern Africa in dealing with section 155 of the Indian Evidence Act, 1872 which was pari materia with section 163 (1) of the Evidence Act said at page 53, that ssection 155 of the Indian Evidence Act provides that the credit of a witness may be impeached by the adverse party or, with the consent of the Court, by the party who calls him by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. The proper procedure is to apply for leave to treat then witness as hostile, prove and put in the former statements and then put to the witness the passages which are alleged to be inconsistent with the evidence given by the witness at the trial. It is essential that the witness should be given an opportunity of explaining the alleged inconsistencies as it sometimes happens that apparent inconsistencies are capable of completely satisfactory explanation if serious and substantial inconsistencies are proved the effect is to render the witness unworthy of the belief and not to make what he said in the former statement available as evidence at the trial. 20.This explanation is captured in the case of Shiguye Vs Republic (1975) EA 191, the forerunner of the Court reiterated that the effect of declaring a witness as a hostile witness is to render his entire evidence untrustworthy. The Court stated at page 192 that aafter having declared Shizya a hostile witness, the effect would be that Shizya was an unreliable witness, whose evidence would not be accepted by a court. All parts of the evidence of a witness declared hostile would be rejected as untrustworthy, not only some parts. The purpose of having a witness declared hostile by the party who calls him, is to discredit him completely. 21.Back to the case at hand, the reasons why the witness was stood down was her testimony trajectory, which I wish to revisit; “I am in Form One. I reside at Chebinyiny. I do not know the accused. We did not do anything. I recorded statement. I do not know what is recorded. I am pregnant. I do not know how old. I do not know the father of the child. We had been doing games meeting. He is not the one. I have not gone for…” 22.However, when she was recalled, the witness did testify and all her testimony was in harmony with the medical evidence. So that, a hostile witness is one who has refused completely to testify in line with the statement already recorded. For this case, the witness had not graduated into a hostile witness for the prosecution to declare her, as such. The fact that she testified without hesitation as disclosed in the proceedings is evidence enough, there was an attempt to tamper with her testimony, which was short lived. Additionally, flowing from the decisions I have set out, it is not a walk in the park to declare a witness as a hostile witness. All the steps set out in decisions aforementioned must be satisfied. Voire dire examination. 23.It is a requirement under Section 19 of the Oaths and Statutory Declarations Act that voire dire examination must be carried out on children of tender age. The said provision states that where in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed on sufficient intelligence to justify the reception of the evidence, and is possessed of sufficient intelligence of justify the reception of the evidence, and understands the duty of speaking the truth. 24.Section 2 of the Children’s’ Act defines who a child of tender years is, as “a child under the age of 10 years”. The Act is not, however, explicit that this age accrues to exception to conducting a voire dire examination to children under the age of 10 years. Indeed, only the case law has settled this question, generally holding that for purposes of conducting a voire dire examination, a child of tender years is one below the age of 14 year. 25.InAml Vs Republic [2012] KEHC 2554 (KLR), the court held that on the first ground the Appellant submits that the failure by the trial magistrate to conduct a voire dire examination on the complainant rendered her evidence inadmissible and was thus fatal to the prosecution case. The term ‘voire dire’ is a French term and literally means ‘tell the truth’. The law requires that a voire dire examination be conducted on a child of tender years before his/her evidence is received in court. The purpose of such an examination is to enable the trial court determine firstly whether the child in question comprehends the nature and effect of an oath and secondly whether that child understands the importance of telling the truth. As I have stated earlier the law requires that a voire dire examination be conducted only on a child of tender years. A child of tender years is taken to mean any child aged 14 years or below. 26.The Court of Appeal in Patrick Kathurima Vs Republic [2015] eKLR held that the requirement of voire dire examination resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of Section 19 of Cap 15. I am aware that Section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, Cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes. 27.The Subordinate court proceedings show that before the victim testified, the following is recorded after voire dire examination was conducted; “…I reside at Chebinyiny village. I am 14 years old. I go to school. I attend Kaptanai Secondary School form one. I go to church. I am saying the truth.” The court thereafter recorded; “the minor to give sworn.” To my understanding, the trial magistrate was convinced that the victim knew the meaning of oath and so she was sworn. But importantly, there is a condition as settled by decisional law, that the Appeal must give allowance on the duty of the appellate court. A case in point is the famous case of Okeno V. Republic [1972] EA 32 where it was held that the first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala VS. R. (1975) EA 57). 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. Emphasis supplied. DNA Test: 28.The general principle of law, whether criminal or civil, is that each case is determined on its own circumstances, touch and context. The factual matrix of this case is rather straight forward. The victim was credible in her testimony. She said that the Appellant was his neighbour and a boyfriend. He defiled her several occasions at his uncle’s house, on day time and in other occasions, at night. There was no evidence of any other committing the offence. To this much therefore, and in view of the offence of defilement, DNA test was not necessary. I am not alone in this holding. In the case of Martin Nyongesa Wanyonyi Vs Republic (2015) eKLR, the Court held; “…as such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded...’’ 29.Disposal:a.The Appeal lacks merit. It is dismissed. DELIVERED VIRTUALLY THIS 7TH JULY, 2026 IN THE PRESENCE OF THE PROSECUTOR FOR ODPP AND CHRISTINE- COURT ASSISTANT.Orders Accordingly.HON: R.K. ONDIEKI.JUDGE.Proe: I seektyped proceedings and the rulingCourt: the ty[ed proceedoinfs and the ruling tob esuppied.