https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10265

Musiondo v Office of the Director of Prosecutions (Criminal Appeal E051 of 2025) [2026] KEHC 10265 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 10265 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E051 of 2025 RK Ondieki, J June 9, 2026 Between Hussien Musiondo Appellant and ODPP Respondent (Being an Appeal against the Judgment by Hon. J.R. Ndururi (S.P.M.) in Principal Magistrate’s Court at Kimilili Case No. E079 of 2022, Delivered on 9th June, 2025) 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. It is now cast in stone and founded in many jurisprudential decisions so often repeated and yet bear repetition. Woolmington Vs DPP (1935) AC 462, “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.In Bakare Vs State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 4.Back home and in Philip Nzaka Watu Vs Republic [2006] eKLR, it was held that that to find conviction in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014]eKLR, that it is not in doubt that the burden of proof lies with the prosecution. 5.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: - “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.” 6.In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 7.F.M.W. (PW1) told court that between 20202 to 30th December, 2022, the Appellant used to caress her and when she entered class 6, the Appellant went to her home and had sex with her. Thereafter he had sex with the Victim on diverse dates. The last time he had sex with the victim, she did not bathe but she did report to class teacher and was taken to Kimilili Sub County Hospital and the matter was reported to Kimilili Police Station. PW3 Form was issued and treatment notes. Under cross examination she said that her sister Yvone did not record a statement at the Police Station. 8.Mark Barasa (PW2) told court that he participated in the arrest of the Appellant from his house and further arrested another suspect from his hose. The girl was also escorted to the police as she was a child of need and care. Under cross examination, the witness arrested the Appellant but the victim was arrested from the house of the 2nd suspect who was not in court. 9.Virginiah Kahega Agesa(PW3) told court that as head teacher where the victim was schooling, the victim at one time disclosed that the Appellant was molesting her from when she was in class four to class seven. The victim was taken to Kimilili Sub County Hospital for treatment 10.Munyendo Christine (PW4) told court that she examined the victim in respect to sexual assault that took place on 31/10/2022 with no protection. Upon examination, the external genetalia was normal, there were no bruises and the hymen was absent. The victim was examined and found to be 15 years old. The witness produced the P3 Form as Exhibit 1. 11.Corporal Woman Caroline Chebet (PW5) this matter was reported to her and she took the statements and issued a P3 Form the victim and also produced a letter from school to show tat she was 15 years as at the time the offence was committed. The witness narrated what the victim told her and I do not see any need to repeat it. 12.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 30th October, 2022 within [Particulars Withheld] in Kimilili Sub-county within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of F.M.W. a child aged 15 years. 13.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 30th October, 2022 within [Particulars Withheld] in Kimilili sub county within Bungoma County, unlawfully and intentionally did cause his penis to come into contact with the vagina of F.M.W. a child aged 15 years. 14.The Appellant Hussein Mwangale Musiondo in his sworn testimony told court that he has never defiled the victim but he recalls that he was arrested from his house at 9:00pm from his house and on the way, the police arrested another man and a girl and together they were taken to Kimilili Police Station. Under cross examination, the appellant said that the victim is a stranger to him and cannot tell ten reasons why she framed him up. 15.Pamela Namene Wafula(DW2) told court that the appellant is her husband and indeed he was arrested from house on 1/11/2022 from the house in her presence as well as the children. The witness was not aware if the appellant had defiled the victim. 16.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 irregularities on the prosecution witnesses.b.That the learned trial Magistrate erred in law and fact by convicting without summoning crucial witnesses.c.That the learned trial Magistrate erred in law and fact by convicting on poorly investigated matter.d.That the learned trial Magistrate erred in law and fact by convicting by ignoring doctor’s evidence.e.That the learned trial Magistrate erred in law and fact by ignoring mistaken identity.f.That the learned trial Magistrate erred in law and fact by in rejecting his plausible defence. 17.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 18.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent and to set the ball rolling, I find it extremely apposite to drop anchor, so that as I delve into the re-evaluation of the matter, I do not lose my footing. These are guidelines in defilement cases;a.In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed as follows: “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...”b.In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).c.In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.d.Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal had the following to say; In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.” Contradictions, irregularities and failure to call crucial witnesses: 19.The Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it: “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. 20.The allegations by the appellant were that the charge sheet did not state the exact date the offence was allegedly committed. Instead, it states on diverse dates between 2020 and 30th October, 2022. The answer to this allegation is that the offence is alleged to have taken place on diverse dates meaning that the victim did not keep all the dates in mind but one hard fact of life is that she recalls the appellant having defiled her during the material period. The charge sheet is not defective as there is no evidence in the lower proceedings that the appellant did not know the charges he faced. Instead, thereof, he participated fully in the entire trial and even cross examined all the witnesses. The charge is lawful. 21.In respect to contradiction, the only allegation was that the victim said that the appellant pulled her to a banana plantation but she declined. However, the witness further said that there was a house nearby where the offence was eventually committed. I see no contradictions here. 22.In respect to crucial witnesses, the appellant has not mentioned which witnesses were crucial and yet left out by the prosecution. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact and so in Donald Majiwa Achilwa and 2 other Vs R (2009) eKLR , the Court stated that 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 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 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 case. 23.In this appeal, it is not clear to me, what value the evidence of other witnesses would have added to the evidence of PW1, which the court found trustworthy, as well as the medical evidence. In my opinion, other witnesses would have been, peripheral. Mistaken identity/Positive identification of the assailant: 24.It was the evidence of the Victim that the appellant defiled her on several dates between 2020 to 30th October, 2022. Additionally, the victim knew the appellant as baba Joash and a man who hails from the neighbourhood. The appellant on diverse dates that he defiled the victim would at times, give the victim Kshs50/ Kshs100/ Kshs300/ Kshs400 or Kshs500/. The offence took place at different places including the kitchen of the victim’s home in the evenings. This is an excerpt by the victim in her testimony; “I used to meet baba Joash on my way to school in the morning and he used to caress my breasts and, on the buttocks. He used to caress me and then he would either give me fifty shillings or hundred shillings. Baba Joash used to tell me that he loves me more than he loves his wife. When I reached class five, he told me that he did want me. He told me then that he wanted to sleep with me then he would give me Kenya shillings one thousand and then he would buy me a dress for Christmas...’ This is not a mistaken identity. 25.In respect to penetration, in addition to my findings in paragraph 24, the victim was examined three days after the alleged act and the findings of the Clinical Officer in the P3 Form at section C was that there was no visible tear, laceration to labia majora and the hymen was not intact. This is medical proof that defilement had taken place. Age of the Victim: 26.It was a complaint by the appellant that age of the victim was never proved. In the year 2010 and in the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal stated that 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 case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense. 27.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.” ....” 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.” 28.On 23rd November, 2022, the Trial Magistrate conducted a voire dire examination on the subject and several questions were posed to her and subject answered them coherently. In respect to her age, the trial magistrate posed a question; How old are you? The subject answered; I am 15 years old. Finally, the Trial Magistrate recorded; “…though PW1 does not understand the effect of making an oath, she understands the importance of telling the truth. She will therefore give unsworn evidence...” To this extent, the trial Magistrate was convinced that the subject knew the meaning of oath. I make a finding that indeed, the subject was 15 years as at 23/11/2022. Appellant not examined by the Doctor: 29.The other lamentation is that the trial magistrate failed to consider that the Appellant was not examined by a doctor. In the offence of defilement, medical examination of the perpetrator, is not an ingredient that courts consider. If done, well and good. However, it is not compulsory. 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...’’ This ground equally collapses. Disposal:a.The Appeal lacks merit and is hereby, dismissed. DELIVERED VIRTUALLY THIS 9TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, MS MATERE FOR ODPP AND COURT ASSISTANT, AZIZA ABDI.ORDERS ACCORDINGLY.R.K. ONDIEKI.JUDGE.Proe: I seektyped proceedings and the rulingCourt: the ty[ed proceedoinfs and the ruling tob esuppied.