https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10286

Ngunzo v Republic (Criminal Appeal E032 of 2025) [2026] KEHC 10286 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10286 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E032 of 2025 KL Kandet, J July 10, 2026 Between Jackson Mutisya Ngunzo Appellant and Republic Respondent (Being an appeal on conviction only from the judgement delivered on 3rd June 2025 by Hon Jalan’go in Criminal Case No. S.O E011 of 2023 at the Chief Magistrate’s Court at Tawa) Judgment 1.The Appellant, Jackson Mutisya Ngunzo, was charged before the Senior Principal Magistrate's Court at Tawa with the offence of Attempted Defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006, and in the alternative, with Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The charge arose from an incident alleged to have occurred on 14th August 2023 at Tawa town. 2.The Accused was arraigned in court on 21st August 2023 and denied both the main and the alternative count. Interpretation was conducted in Kamba. The Accused was admitted to bail on a bond of Kshs.200,000 with surety of similar amount. A surety in the person of Julius Mutie Kivindu, a farmer from Kyala and uncle to the Accused, appeared on 21st September 2023 and offered a land title Kiteta/Kiambwa/1197 valued at over one million shillings. The surety was approved and the title deed deposited in court pending hearing and determination. 3.Pretrial directions were made on 24th August 2023: hearing was scheduled for 5th October 2023, with virtual mention on 6th September 2023 and witness statements to be filed by close of business on 24th August 2023. When the matter came up for hearing on 5th October 2023, witness statements were confirmed to have been supplied to the Accused. The Prosecution indicated it had two witnesses while the Accused stated he also had two witnesses. 4.The matter was subsequently transferred to Hon. S. Jalangó, Senior Principal Magistrate, before whom all the substantive hearing took place. The Prosecution called four witnesses. PW1 was the complainant, a minor identified as BMM, who at the time of the alleged incident was 13 years of age. PW2 was John Vaati Mutinda, a boda boda operator from Kanyamoni Village. PW3 was I.P Daniel Ndirangu (Service No. 241010), Deputy OCS at Tawa Police Station, who took over from Inspector Okoth. PW4 was Corrine Wausi, a Clinical Officer based at Tawa Sub-County Hospital who had examined the complainant. 5.At the close of the prosecution case, the court, on 11th February, 2025, ruled that the prosecution had established a prima facie case against the accused and placed him on his defence. Section 211 of the Criminal Procedure Code was explained to the Accused in Kiswahili. The Accused elected to give unsworn evidence and stated he had no witnesses. The Defence Case was heard on 4th March 2025. 6.On 13th May 2025, Judgment was delivered and the accused was found guilty of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. 7.On 3rd June 2025, the accused was sentenced to five (5) year’s imprisonment. He was informed of his right of appeal. 8.Aggrieved by the conviction, the Appellant filed the present appeal raising the following grounds of appeal:a.That the learned trial Magistrate erred in both fact and law by failing to consider that the prosecution did not proof the ingredients of defilement beyond reasonable doubtb.That the learned trial Magistrate erred in law and Evidence 9.PW1 (complainant), a Class 6 pupil at [Particulars Withheld] School in Machakos and resident of Tawa, testified that on the evening of 14th August 2023, at around 8:00 pm, she was at Tawa town walking with her uncle (James Kamwantha). Schools were closed. The uncle left her but she saw a motorbike belonging to her other uncle, John Vaati. She sat on it and waited. While waiting, the accused came and greeted her. The Accused appeared drunk and smelling of beer. He dropped his wallet and asked her to pick it up, then led her behind Dallas Bar. He subsequently grabbed her hand, and forcefully removed her trousers, dropped them to her knees, and placed his phone in her trouser pockets. The Accused then dropped and unzipped his trousers. PW1 screamed. They both fell down in the process.PW1’s uncle (John) and other people went to the scene and recued PW1.The Accused/Appellant was arrested. The incident was reported at Tawa Police Station where PW1 was examined. The clothes she wore on the day of the incident were at home at the time of her testimony. 10.During cross-examination by the Accused, PW1 confirmed she did not know the Accused person before the incident. 11.PW2, John Vaati Mutinda, a boda boda operator from Kanyanyoni Village, testified that he was at Tawa Market at Chambers Bar on the evening of 14th August 2023 at around 7:00 pm. He had been called to Dallas Bar. When he stepped out, he found (PW1) near his motor bike. She was looking for her uncle and thus sought for his assistance. He left and upon return he could not find her. He heard s shout, went and found the accused’s trousers dropped to the knees.PW1 told him the Accused had tried to defile her. The Accused was arrested and later charged. PW2 confirmed the victim is his niece. 12.On cross examination, PW2 stated that he was not in the club with PW1.There were other people in the club but were not called as witnesses. He denied taking the Accused’s phone. He also stated that he is the one who reported the incident to the police. 13.PW3, I.P Daniel Ndirangu (No. 241010), served as the Deputy OCS at Tawa Police Station. He had taken over from Inspector Okoth who had left for studies. He confirmed the incident occurred on 14th August 2023 and that it was a case of attempted defilement. He testified that I.P Okoth got information from members of the public that the Accused had tried to defile a child near Dallas Bar. The Accused had lured the complainant behind the bar by dropping his wallet and asking her to avail it to him.PW1 followed him behind the bar. The accused had also given his mobile phone (Inifix) to the minor. He thereafter removed the minor's trousers, pointed his penis to her anus. The minor screamed. and shouted. Members of public and the uncle came to minor’s rescue. A P3 form was filled and the accused was arrested and charged. 14.On Cross-examination, PW3 admitted he was not the previous investigating officer. He confirmed the Investigating Officer recorded his statement and that the truth was recorded. He acknowledged that the Investigating Officer's statement was the same as that of other witnesses. 15.PW4 Corrine Wausi, a Clinical Officer at Tawa Sub-County Hospital, testified that she filled the P3 Form for the complainant, aged 14 years, on 28th August 2023. She found the patient calm, with clothes clean and no tears. The head, neck, thorax and abdomen were normal. On genital examination, the genitalia was normal with no injuries and no discharge noted. She produced the P3 Form as Exhibit No. 2. On cross examination PW4 stated that she did not find anything abnormal during examination of the complainant. 16.After the close of the prosecution case, the Court on 11.2.2025, ruled that the prosecution had established a prima facie case against the accused person and consequently he was placed on his defence. 17.DW1, Jackson Mutisya Ngunzo (Accused), elected to give unsworn evidence. He told court that he did electrical works and was a resident of Tawa and Wote. 18.DW1 testified that on Monday 14th August 2023, he was in a club with his friends. At around 9:00 pm he was drunk. He left the club and blacked out. He further stated that a person called Vaati came and suddenly his phone was snatched from him and that he was slapped. 19.DW1 further testified that he went back to the club and demanded to know who took his phone. He was told that his friend took the phone and went away. He went home and told his wife that one Vaati assaulted him and stole his phone. He declined to report the incident to the police. His wife advised him to report to the police. The following day he went to Wote but did not find Vaati. 20.The Accused was stated that he was later arrested and told a case of attempted sodomy was reported against him. He was placed in cells. He denied ever meeting the complainant, denied the report, and asserted that PW2 (Vaati) had stolen his phone and framed him. Appellant's Submissions 21.The Appellant, filed written submissions raising four main grounds of appeal. 22.Ground One: Failure to prove ingredients of defilement beyond reasonable doubt: The Appellant submitted that the trial magistrate erred in both fact and law by convicting on evidence that the prosecution did not prove the ingredients of attempted defilement beyond reasonable doubt. He contended that the complainant's account was not corroborated, and that there was neither direct nor circumstantial evidence linking him to the commission of the offence. 23.Ground Two: Failure to consider unprocedural litigation by the prosecution: He pointed out that witness statements were supplied only to the Accused person and not to the court at the time they were due, and that the prosecutor supplied them viva voce in court — which the Appellant characterized as a departure from proper procedure. He specifically cited the sentiments of a prosecutor who wanted to prey and prejudice the appellant, and drew the court's attention to the prosecutor's statement in page 5 of the proceedings, that he "did not have witness statements," with the only answers he received from page two through to page five being supplied by the prosecutor's obligation to the accused person. 24.Ground Three: Convicting on evidence riddled with contradictions and inconsistencies and accused going through the whole trial process without witness statements: This ground was argued together with Ground Two. The Appellant submitted that the absence of properly filed and exchanged witness statements prior to hearing rendered the trial procedurally defective and prejudicial. 25.Ground Four: Exoneration by defence witnesses: The Appellant submitted that the trial magistrate erred in both fact and law by not considering cogent sworn defence evidence which exonerated the Accused from the charges without giving cogent reasons for rejecting it. He contended the defence evidence, establishing he was robbed, slapped and his phone taken, was credible and was not adequately weighed against the prosecution's case. 26.The Appellant cited the legal principle that a court should approach each appeal on the basis of the evidence available to it, re-evaluate it and draw its own conclusions rather than simply rubberstamping the magistrate's findings. He cited the case of Selle v. Associated Motor Boat Co. [1968] EA 123 to buttress this position. 27.The Appellant cited the case of David Mwangirwa v Republic [2017] Court of Appeal to argue that a law considered unjust, unreasonably restrictive, ineffective or even illegitimate may be termed a 'bad law', and that applying it without discretion or consideration of common good could amount to a failure of justice. 28.Regarding the evidence of PW2, the Appellant questioned whether the complainant in PW2's testimony had her anus touched by the accused, and whether the accused touched the complainant's private parts at all. He contended there was no evidence the accused touched either the complainant's penis (sic) or hands, and that PW2's evidence was so disorienting that the court went ahead to find evidence where none existed. Respondent's Submissions 29.The Respondent, through the Principal Prosecution Counsel Makueni County, opposed the appeal in its entirety and prayed that the conviction and sentence be upheld. 30.On Ground 1 (failure to prove the ingredients of the offence beyond reasonable doubt): The Respondent submitted that the prosecution proved the elements of the offence beyond reasonable doubt. Citing the definition of an indecent act under Section 2 of the Sexual Offences Act, namely any unlawful intentional act causing contact between any part of a person's body and the genital organs, breasts or buttocks of another, but not amounting to penetration, the Respondent submitted that PW1's evidence that the Appellant grabbed his hand and forced him to remove his trousers, and thereafter removed PW1's trousers by force and dropped them between the knees, squarely met this definition. The Respondent further pointed to PW1's evidence that he shouted as the Appellant dropped his own trousers, having unzipped, and that PW2 came to PW1's rescue (Page 6 of the proceedings). 31.The Respondent placed considerable weight on the evidence of PW2, who confirmed that he heard a shout, went to the scene and found the Appellant touching PW1, he found PW1's trousers dropped to the knees and that "the accused touched her private parts" (Page 11, line 19). The Respondent submitted that the Appellant was not only caught with his trousers down but was also found touching PW1's private parts, which in the Respondent's view constituted clear proof of an indecent act under Section 11(1) as defined by Section 2 of the Sexual Offences Act. 32.On Grounds 2 and 3 (contradictions, inconsistencies, and trial proceeding without witness statements): The Respondent submitted that the Appellant was supplied with witness statements and evidence in advance, in line with Article 50(2)(j) of the Constitution of Kenya, 2010, which guarantees an accused person the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. 33.The Respondent set out the procedural history: on 21st September 2023, the court directed the prosecution to supply witness statements to the Accused before close of business on that day (Page 3, line 17), and the matter was thereafter fixed for hearing on 5th October 2023. On 5th October 2023, prior to commencement of the hearing, the prosecution informed the court that the witness statements had been supplied to the Accused person. The Respondent noted that the Appellant first denied having witnesses’ statements but later confirmed he had two witness statements (Page 5, lines 3-5), and that the hearing proceeded on the basis of this confirmation, with PW1 then testifying. 34.The Respondent submitted that at no point did the Appellant: (a) raise the issue of missing witness statements or evidence; (b) seek an adjournment to enable him to obtain the witness statements; (c) cite the prosecution for contempt of court orders for failure to supply the witness statements as directed; or (d) object to the introduction and production of evidence on grounds of non-disclosure or ambush. The Appellant had all statements supplied to him, effectively proceeded with the trial, cross-examined witnesses, presented his evidence, and made legal arguments based on documents supplied by the prosecution before commencement of the trial. 35.On Ground 4 (failure to consider the Appellant's defence which allegedly exonerated him): The Respondent reproduced the Appellant's unsworn defence: that suddenly his phone was snatched from him, that he was slapped, that he went back to the club and demanded to know who took his phone, that he was told a friend had taken his phone and went away, that he went home and told his wife that Vaati took his phone and assaulted him, and that his wife told him to report to the police but he declined (Page 29, lines 12-18). 36.The Respondent submitted that the Appellant's defence, that he was framed by PW2 to cover up the theft of his phone, lacks basis for three reasons. First, the Appellant claimed his phone was snatched but did not know who took it, was later told a "friend" had taken it, yet he did not reveal the identity of either his informer or the friend who allegedly took his phone. Second, the Appellant neither reported the theft nor the assault against him, and in fact declined to report the incident, raising doubt as to the truth and veracity of the theft claim. Third, the Appellant did not avail any of his "friends" from the club who allegedly witnessed the theft and assault to corroborate or support his evidence. On this basis, the Respondent submitted that the Appellant's defence lacks merit. 37.On the authority cited: The Respondent relied on David Musenge Sande v Republic [2018] KEHC 6013 (KLR), where the court agreed with the State that it was the responsibility of an appellant to have requested an adjournment to enable him obtain witness statements at his own cost, once the trial court had made an order directing supply of the same. 38.The Respondent concluded that the trial was fair and procedural, that the evidence was consistent and corroborated, satisfying the elements of the offence of Indecent Act contrary to Section 11(1) of the Sexual Offences Act, and that the Appellant was lawfully convicted and sentenced. The Respondent prayed that the conviction be upheld and the appeal dismissed. Analysis 39.This is a first appeal. The duty of the first appellate court is to analyze and re-evaluate the evidence that was before the trial court and itself come to its own independent conclusion on that evidence, without overlooking or necessarily endorsing the magistrate's findings or conclusion at the trial. The appellate court must bear in mind that it did not have the advantage of seeing and hearing the witnesses testify or the advantage of observing the demeanor of witnesses. In the case of Okeno v Republic [1972] EA 32 it was held as follows;“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. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (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 finding and conclusion; 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. 434).” 40.The Court of Appeal also set out the duty of a first appellate court in the case of Abok James Oderat/a AJ Odera &Associates -V- John Patrick t/a Machira &Co. Advocates [2013] Eklr, where it stated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 41.In the instance case, this court has carefully re-evaluated, re-assessed and re-analyzed the evidence and proceedings before the trial court. 42.The Appellant was charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No 3 of 2006. The Accused was further charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. 43.The trial Court, after considering the evidence adduced by the prosecution, found the accused not guilty of the offence of attempted defilement of a child and acquitted him under Section 215 of the Criminal Procedure Code. 44.The accused was however found guilty of committing an indecent act with a child and convicted accordingly. The appeal before this court is against the said conviction alone, based on the grounds discussed herein above. 45.At this point, I must point and find that the first ground of appeal, to the extend that it challenges the trial court’s failure to consider ingredients of defilement in this case, to be irrelevant. 46.With regard to the offence of committing an indecent act with a child, Section 2 of the Sexual Offences Act defines an indecent act to mean an unlawful intentional act which causes,a)any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetrationb)exposure or displays of any pornographic material to any person against his or her will. 47.From the foregoing the prosecution was expected to lead evidence to demonstrate, without doubt that the Accused person indeed committed an indecent act against the complainant who was 14 years old, according to the chargesheet. 48.I have reviewed the evidence on record, particularly that of the complainant, PW1 and PW2.The complainant testified that he followed the accused person behind the bar and that it was dark behind the bar. He further stated that the accused grabbed his hands and removed his trousers by force and dropped them between the knees.PW1 screamed. His uncle, PW2 and other people arrived at the scene and rescued him. The entire evidence of PW1 does not mention that the accused person’s body, at any stage of their encounter came into contact with his genital organs, breasts or buttocks. 49.PW2, in his evidence stated that when he got to the scene, he found the accused person touching the child’s private parts. The allegation that PW1’s private parts were touched, was introduced by PW2. This prosecution witness did not specify which private parts the accused was touching. It would appear that the trial court imported words into the complainant’s evidence by stating that the accused removed his trouser and touched his anus. At no point did the complainant in his evidence state that the accused touched his anus. 50.The finding of the trial court that the accused touched the annus of the complainant is not supported by the evidence on record. The alleged corroboration by PW2 cannot arise for reason that PW2 was the originator of such allegations and therefore he could not be corroborating his own evidence. Indeed, the issue of the complainant being touched in the anus appeared for the first time in the trial court judgment. 51.In the foregoing therefore, I make a finding that the prosecution did not satisfactorily proof the specific ingredients of the offence of committing an indecent act with a child as provided for under Section 2 of the Sexual Offences Act, to support the conviction by the trial court. 52.Courts have consistently held that the evidence of a minor complainant, when found credible, may sustain a conviction for sexual offences. In Republic v Waweru [2021] eKLR, the court affirmed that corroboration, while desirable, is not a legal requirement and that the court may convict on the uncorroborated testimony of a single witness where it is satisfied as to the truthfulness of such evidence. In the present case, PW1 did not allege that the accused’s body came into contact with his genital organs, breasts or buttocks. This account was narrated by PW2, who despite being at the scene, could not specify which part of the complainant’s body was touched by the accused person. 53.The Appellant raised concerns regarding contradictions in the evidence and the conduct of the trial without prior supply of witness statements, citing the prosecutor's position on page 5 of the proceedings. 54.On a careful re-reading of the record, however, the Respondent's narration of the procedural history is borne out. On 21st September 2023 the trial court directed the prosecution to supply witness statements to the Accused before close of business that day, and the matter was fixed for hearing on 5th October 2023. When the matter came up for hearing, the prosecution confirmed that the statements had been supplied to the Accused. The Accused, who had initially indicated he had no witnesses, then confirmed he had two witness statements of his own (page 5, lines 3-5). The hearing then proceeded with PW1's testimony. 55.This court agrees with the Respondent that the Appellant did not, at any stage of the trial, raise an objection regarding non-supply of witness statements, did not seek an adjournment to obtain them, did not seek to have the prosecution cited for non-compliance with the court's directions, and did not object to the production of any evidence on grounds of ambush or non-disclosure. The Appellant, cross-examined each prosecution witness, including PW1, PW2, PW3 and PW4, and was able to put his defence, including the theft and assault narrative, to the witnesses and to the court. 56.The decision in David Musenge Sande v Republic [2018] KEHC 6013 (KLR) is instructive and directly applicable. There, the High Court agreed with the State's position that it was the responsibility of an appellant who claims to be disadvantaged by non-supply of witness statements to seek an adjournment, at his own cost, if necessary, to obtain such statements once the trial court has made an order for their supply. The Appellant in this matter took no such step. A complaint on procedural unfairness raised for the first time on appeal, where no such complaint was made at the trial and where the trial proceeded to conclusion without objection, will rarely succeed. As was observed in Mwangi v Republic [1984] KLR 595, the question is always whether, taking the proceedings as a whole, the accused received a fair trial and the standard of proof beyond reasonable doubt was met on the evidence actually led, not whether every procedural step was perfect. In this case I make a finding that the accused person was accorded a fair trial. 57.As to the alleged inconsistencies in the prosecution case, the Appellant stated that PW3 was not the original investigating officer and had taken over the file from Inspector Okoth. PW3 candidly admitted this fact under cross-examination. This is, at most, a minor gap that goes to the weight of PW3's evidence regarding matters within Inspector Okoth's personal knowledge, but it does not undermine the evidence of PW1 and PW2, upon which the conviction substantially rests. 58.The Accused gave unsworn evidence denying any encounter with the complainant and attributing the prosecution to a vendetta by Vaati, who he alleged had stolen his phone and assaulted him, matters he said he reported to his wife but declined to report to the police (page 29, lines 12-18). The Respondent's submission on this issue is persuasive. The Appellant did not know who took his phone, was told only that an unnamed "friend" had taken it, did not identify either the informer or the friend, declined to report the alleged theft and assault to the police despite his wife's advice to do so, and called none of the "friends" who were allegedly present at the club to corroborate any part of these accounts. An unsworn statement carries less weight than sworn testimony, and where it is as unsubstantiated and internally unsupported, it cannot reasonably raise a doubt sufficient to displace the evidence of PW1 and PW2. 59.It is trite law that the prosecution bears the burden of proving its case beyond reasonable doubt and that this burden never shifts to the accused. However, as was stated in Woolmington v DPP [1935] AC 462, a principle long applied in Kenyan criminal law, it does not follow that bare or unsubstantiated denials by an accused are sufficient to create reasonable doubt once the prosecution has discharged its burden. In the instant case the accused has raised pertinent issues that have poked doubts in the prosecution case. 60.Having regard to the totality of the evidence, this court finds that the prosecution failed to discharge this burden. Determination 61.Having re-evaluated the evidence on record and having considered the rival submissions of both parties, this court makes the following findings:a.That the prosecution failed to establish, beyond reasonable doubt, that the Appellant committed an act amounting to an indecent act with a child on 14th August 2023 at Tawa town, within the meaning of Sections Section 2 and 11(1) & (2) of the Sexual Offences Act No 3 of 2006.b.The trial court wrongly convicted the appellant on the alternative count of committing an indecent act with a child, against the weight of evidence on record. Disposition 62.For the foregoing reasons, this court finds merit in the appeal. The appeal against conviction is hereby allowed in its entirety, and the judgment of the trial court dated 13th May 2025 and sentence imposed on 3rd June 2025 respectively, are hereby set aside. 63.The appellant is forthwith set free unless lawfully held. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 10TH DAY OF JULY,2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Appellant In Person From Machakos Main PrisonMs Musango For The StateCourt Assistant: Jael Nossim