https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6931

JMK v Republic (Criminal Appeal E082 of 2024) [2026] KEHC 6931 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6931 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E082 of 2024 DKN Magare, J May 20, 2026 Between JMK Appellant and Republic Respondent (Being an appeal from the judgment of the trial court, Hon. M. K Mutegi SPM, in Kangema MCSO No. E022 of 2024, delivered on 13.11.2024.) Judgment 1.This appeal arises from the judgment of the trial court, Hon. M. K Mutegi SPM, in Kangema MCSO No. E022 of 2024, delivered on 13.11.2024. The proceedings were done in a very fast lane and conviction and sentence meted out seven days after the court concluded its case. 2.The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 08.09.2024 at unknown time at Mathioya Sub-County within Murang’a County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of NWN, a child aged 2 years 3.There was also 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 08.09.2024 at unknown time at Mathioya Sub-County within Murang’a County of the Republic of Kenya, intentionally and unlawfully touched the vagina of NWN, a child aged 2 years. 4.The Appellant was arraigned in court on 16.09.2024. He denied the charges before C Ndumia SRM where he was advised of his right to counsel. The appellant was not suitable for bond and his matter was thus expedited. the case was listed for hearing on 30.10.2024. The appellant’s wife and mother of the child testified that she is jobless and the appellant is her husband. The child was born on 9.06.2022 and she identified a birth motivation. She was cooking at 1300 hours on 08.09.2024 when she heard her daughter screaming. 5.She went into the house and found the child did not have her trousers on. She saw the appellant zipping his trouser. The minor started shaking heavily. She tried giving the minor tea but she wanted to ‘cucu’. She saw the minor was bleeding from the vagina. She asked for Vaseline which she applied on her. 6.The following day she lied that she was sick and took the minor to hospital. The doctor examined them inro and told her that the minor was defiled multiple times. And did not say anything more. She went to the police station and reported. The duo had stayed together for only 3 months. The appellant was arrested but she did not remember when he was arrested. 7.On cross examination she stated that the appellant threatened to kill her if she told anyone. The following Wednesday, she lied that she was sick and went to hospital with the minor. The appellant had kept threatening the witness. 8.PW2 was corporal Veronica Nthenya of Kirîaînî Police Station. She stated that on 12.09.2024, she received a report of defilement of a 2 years and three months old baby. The baby was escorted to Nyakianga hospital at around 2026 east. The minor was treated and P3 was filled. He visited the scene at 2200 hours east. She found the appellant at home and arrested him. The minor could not speak therefore she recorded the mother’s statement. The baby was defiled on 08.09.2024 but she was only able to report 4 days later due to the threats form the appellant and warnings not to report. 9.After gathering evidence from PW1 and PW3 She charged the appellant. She established the age of the victim though a birth notification indicating the victim was born o 09.06.2022. There was a witness who escorted the mother to Kirîaînî Police Station but she did not trace her. She identified the appellant on the dock. On cross examination, the witness stated that she arrested the appellant at 1030 hours EAST. 10.PW3 was Joel Onyancha, a clinical officer at Muranga County Referral Hospital. He had a diploma in clinical medicine and surgery. He prepared the P3 for the case. The minor was two years and 9 moths. The offence was said to be on 08.09.2024 at unknown time. The patient had changed clothes. There was a reddened and swollen labia majora(outer part) and there were bruises on the vulva(vaginal opening). The hymen was broken but not bleeding. He found the minor to have been defiled. He gave the minor analgesics. Due to lapse in the number of days, she did not except to have active bleeding. Treatment notes were prepared and PRC form filled. these were produced as exhibits 12-4. 11.On cross examination, he stated that the hymen was broken and defilement leads to bruises. It is unclear what the first answer was as it is indicated “it is possible.” 12.The court found the appellant had a case to answer and complied with section 211 of the Criminal Procedure Code. 13.The appellant opted to give an unsworn statement where he stated that he did not defile the minor as he looked at her as a daughter. Earlier her mother had threatened to do something against him as they were always quarreling. The court found the appellant guilty. In mitigation, he stated that the charges were trumped up and he did not defile the minor. The court sentenced him to life imprisonment. He appealed and set forth the following grounds of appeal:a.That, the learned trial magistrate faulted in the points of law and facts by relying on the evidence of the complainant’s mother to convict and sentence appellant herein without observing that the complainant’s mother’s evidence is not protected by the proviso of Section 124 of the Evidence Act from the general rule requiring corroboration of evidence of a single identifying witness. See “(Act 5 of 2003, S. 103, Act no.3 of 2006, Second Sch)” reliance placed on the decision of this Hon. Court in the case law of: Lokori Losioko v Republic (HCCR No. 177 of 2017 at Kabarnet (2018) Eklr Coram: Edward M. Muriithi (j) Judgement Dated And Delivered This 05/12/2018. This Hon. Court is asked to allow this appeal on this single ground.b.That, the learned trial magistrate court erred in law and facts by failing to observe that failure by the prosecution side to avail the complainant in court rendered a blow to the prosecution case because appellant herein was denied the right to cross-examine the complainant. Reliance placed on Section 150 of the criminal procedure code CAP 75 laws of Kenya and the following authorities:i.Gailod Yabwesa_landi v Republic Cr. Appeal No. 26 Of 2018 At Mombasa Court Of Appeal (2019) Eklr (coram: D.k Musinga, S. Gatembu Kairu & A.k MurgorJJA)ii.Bukenya And Others v Uganda(Supra)c.Thus appellant herein be released from custody unless otherwise lawfully held.d.That, the learned trial magistrate court erred in law and facts by failing to observe that the prosecution failed to proof the ingredients of the charge of defilement against the appellant.e.That, the learned trial magistrate court erred in law and facts by failing to note that the instant charge sheet was incurably defective.f.That, the learned trial magistrate court erred in law and facts by failing to note that the entire trial was unfair and the same was miistrial.g.That, the learned trial magistrate court erred in law and facts by failing to learn that the instant prosecution case is malicious prosecution and appellant herein was falsely imprisoned.h.That, the learned trial magistrate court erred in law and facts by failing to note that the prosecution failed to discharge its onus of proof and the instant matter was not proved beyond any reasonable doubt. Submissions 14.The appellant filed undated submissions on 18.11.2025. He lamented that the minor was not brought to the court contrary to section 150 of the Criminal Procedure Code. He submitted that the court was wrong in applying section 124 of the Evidence Act to the mother of the complainant. He relied on the case of Lokori Losioko v Republic [2018] KEHC 742 (KLR). 15.Further reliance was placed on the case of Bukenya & Others v. Uganda [1972] EA 549). He also relied on the case Gailord Yambwesa Landi v Republic [2019] KECA 149 (KLR), where the court of appeal [Musinga, Gatembu & MurgorJJ.A) ] posited as follows:In the case of Nicholas Mutula Wambua v Republic, MSA CRA No. 373 of 2006, this Court cited with approval the decision of the Supreme Court of Uganda in Sula v Uganda [2001] 2 EA 556 thus;“The second point we wish to discuss is whether or not a child witness, who gives evidence not on oath is liable to cross-examination. There appears to be a widespread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined.... It would appear that misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined”.And recently, in the case of Paul Kinyanjui Kimauku v Republic [2016] eKLR, this Court whilst addressing a similar issue further observed thus;“…the record reveals that following the evidence of G that was unsworn, the appellant was not given the opportunity to cross-examine the witness. This was a clear violation of the appellant’s right to a fair trial. Under Article 50(2) of the Constitution, every accused person has a right to a fair trial. This includes the right of an accused person to challenge the prosecution evidence through cross-examination. Therefore, an accused person is entitled to cross-examine any person who testifies as a prosecution witness. This is so even in the case of a minor witness giving unsworn evidence. A witness including a minor witness, unlike an accused person has no right to refuse to answer questions or not to be subjected to cross-examination. Thus, there is a clear distinction between an accused person who opts under Section 211 of the Criminal Procedure Code to give unsworn evidence in his defence, and a minor witness who gives unsworn evidence as the latter must be cross-examined.” 16.He submitted that he was falsely imprisoned, he was framed and the case was am mistrial. 17.The Respondent filed submissions 26.1.2026 that the case was proved beyond reasonable doubt. they submitted that 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. 18.On age they submitted that the minor was 2 years and was born on. 09. 06.2022. They submitted that the mother lied that she was sick and went to hospital. She had stated that the incident occurred on 08.09.2024 at around 1 pm. 19.They submitted that the doctor noted that there was a swollen and reddened labia majora, bruises on the vulva and hymen was broken. They submitted that the perpetrator was recognized since she was a husband. Reliance was placed on the case on the case of MW V Republic (2019eKLR. 20.They submitted that section 124 of the evidence act is as an exemption to the fast and hard rule on corroboration in sexual offences. The medical report corroborated the evidence of the complainant. Reliance was placed on the case of Joseph Ndeto Kimunyu v Republic 2018 KEHC 20121 (KLR), where the court L. Kimaru, as he then was, held as follows:This court is aware that it can convict an accused on the basis of uncorroborated testimony of a victim of sexual violence if it is convinced that the victim is telling the truth. 21.They submitted that the court considered the appellant statement as unsworn and he did not call any witness. They submitted that this was an afterthought. 22.They posited that the life sentence of is proper as it is statutory for a 2-year-old victim. Analysis 23.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 v 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. 24.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 [supra], 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. 25.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. 26.Brennan addressed the standard of proof required in such cases, J 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. 27.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 v. 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. 28.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. 29.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. 30.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 31.The law under which the appellant was charged is provided under Section 8(1) and (2) 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.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 32.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 are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence.d.and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. 33.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 v. 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. 34.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo v. Republic, Malindi, the Court of Appeal in 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. 35.The age of the minor was proved as three years and 2 months. it is not in dispute. The only two elements remaining is whether the appellant was the perpetrator and whether the minor was defiled. 36.The first element is that the defence given does not answer the charge. However, the duty to prove the offence is on the state not the appellant. the appellant stated that the was framed. he maintained this throughout the trial. there was only one identifying witness and grandmother. the said grandmother is said to have provided Vaseline to dela with the bleeding. the difficulty the court faces is that PW1 was not the victim. it was therefore necessary that her evidence be corroborated. 37.There was a single witness who was informed immediately after that is the unnamed grandmother. Her evidence could have corroborated the events. Pw1 informed the treating doctor, 4 days later that the appellant acted suspiciously. She told the court that the appellant was zipping up. The finding of the primary doctor was that the hymen was broken or absent. this needed to be dealt with. the hymen was broken as per the P3. The labia majora was swollen with bruises on the vulva, reddish bruises at that. there were no injuries in the labia minora. during penetration, the labia minora is usually inflamed. this was not the case. 38.The second aspect is the behaviour of the PW1 towards the appellant after allegedly finding the appellant zipping up. There was no reaction or even taking the minor to hospital. She did not even tell the grandmother who was giving her Vaseline. They did not even discuss with the appellant on what he was doing. PW1 waited for 4 days when evidence was no there and reported. the appellant was not caught in flagrante delicto. 39.Dressing up is normal in the house. There was no evidence that the minor was dressed and the appellant removed the dress. the absene of the hymen is not ipso facto evidence of defilement. In the case of PKW v. Republic [2012] eKLR on the issue of the absence of a hymen the court of appeal observed:Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) withwhich most female infants are born.In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse.These include insertion into the vagina of any object capable of tearing it like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen v Manuel Vincent Quintanila [1999] AB QB 769. 40.It is important therefore to conclude whether the absence of the hymen was due to penetration or due to its absence naturally. The doctor did not find any infection despite alleged virginal bleeding 4 days ago. there was thus no evidence that the minor was penetrated. there were bruises on the outer vulva with no active bleeding. PW1 took time before taking the child to hospital and as such it cannot be said that the bruises on the outer vulva were caused by penetration. it is true the medical evidence was to the effect that the bruises could be evidence of penetration. However, this is inconsistent with allegations of bleeding, vaginally. 41.The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another v. Shah and Others [2003] 1 EA 290:“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 42.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 43.Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay v. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo v. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it." 44.The scene of crime and the circumstances were so badly soiled that the court will find it unsafe to find that the defilement occurred. I agree that penetration can be partial or complete. The nature of the injuries are inconsistent with penetration by an adult male of full strength. The PRC is none the wiser. 45.Further, there was a witness, a grandmother in the same compound who could have been called but once bothered to write a statement. Further, the person who took the appellant to the police station and assisted in the arrest disappeared or was not called. this were crucial witnesses. 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.” 46.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 the grandmother to corroborate that the incident occurred resulted in a break in the chain of evidence. There is no corroborating witness. in the case of 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.” 47.The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135, 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.” 48.In the circumstances, failure to call the grandmother and the person who led to the arrest of the appellant 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. 49.Lastly the evidence against the appellant was based on suspicion. Suspicion, however strong, cannot be a ground for conviction. In the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR), the court of appeal [Makhandia, Ouko & Murgor, JJ.A.)] held as follows:Her story fitted their suspicion and that the appellant had the opportunity to commit the crime as urged by Murithi. All this is but suspicion and speculation. This can never be the basis of a conviction. In the case of Michael Mugo Musyoka v Republic (2015) eKLR we observed:“We have looked at the evidence on record, there is no evidence or testimony to prove that there was any contact between the genital organs of the appellant with that of the minor. We are of the considered view that the evidence of PW1 was hearsay and did not carry much weight. We say so because she was not present at the house and did not witness what actually happened. She relied on what her daughter C had allegedly told her. Without the evidence of the said or eye witness we find that the prosecution did not prove that the appellant had intentionally and unlawfully indecently touched the child.......we find that the case against the appellant was based on a mere suspicion. In Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998, this court held 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 the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life”.In our view the evidence of PW1, 3, 5 and 10 as relates to the appellant only helped to advance the suspicion and was not cogent enough to found a conviction. 50.Further in the case of Ndirangu & 3 others v Republic [2026] KECA 775 (KLR), the court of appeal [Mativo, Gachoka & Korir, JJ.A]held as follows:However, all that amounted to suspicion, and as was firmly held by the Court in Sawe v. Republic [2003] KECA 182 (KLR):The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v. Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. 51.The definition of penetration was succinctly captured in the case of Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR), where the court of appeal [WAKI, NAMBUYE & AZANGALALA, JJA)] posited as follows:As for lack of proof of penetration of PW1, neither the Penal Code (supra) under which the offences the appellant faced were laid nor the Criminal Law (Amendment) Act 2003 under which the sentences for those offences were amended define what is meant by penetration, defilement or indecent Act. These have however been defined by Section 2 of the Sexual Offences Act No.3 of 2006 as follows:“Indecent act” means an unlawful intentional act which causes (a) any contact between any part of the body of a person with the genital organs , breast or buttocks of another but does not include an act that causes penetration.” Whereas “Penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person.” Defilement on the other hand is defined in Section 8(1) of the Sexual Offences Act (supra) as: “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement” 52.Therefore, even partial penetration is penetration. however, in this matter, the sole witness alleged that there was bleeding therefore, there was either full or near full penetration. However, the penetration is not borne of the nature and extent of the injuries which are superficial on the outside of the vagina, meaning they are non-penetrative. I do not find that the penetration was proved. 53.the third question was whether there was evidence of identification. PW1 was the wife of the appellant and there could be no possibility of error as the person she saw, f indeed there was such penetration. There was no possibility of error. In the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 54.However, there was no evidence that the appellant committed the offence. the court could not use evidence of PW1 as evidence of the victim. the protection is given only to the victim. the evidence of PW1 should be taken as that of a single identifying witness. that evidence must be weighted thoroughly before being relied on. Section 124 of the Evidence Act provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on suchevidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 55.It thus covers where the evidence is that of the only evidence is that of the alleged victim of the offence. If the court was to rely on the other witnesses, then there has to be legislative intervention. However, all is not lost since even a single identifying witness can have their evidence relied on as stated in the case of Mohamed v Republic [2025] KECA 1528 (KLR), where the court of appeal posited as follows:In the case of Abdulla Bin Wendo & Another v Republic[1953] 20 EACA 166, the Court there addressed the manner in which the evidence of a single identifying witness should be treated and stated:“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known the conditions favouring a correct identification were difficult." 56.Before departing I note that the appellant was not given a fair trial. He was facing a life sentence and tenets of article 50 (2)(g) and (h) were not complied with. the court should not just inform the appellant as an accused the rights, but where a substantive injustice is likely to occur, to direct that legal representation be provided. the said sub Articles provide as follows:(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; 57.the court indicated that the appellant was informed of his wrote to legal representation. it is unclear in which language this was done and what the understanding of the appellant was as this was done simultaneously with the plea. Such procedural lapses that vitiate a trial. The right to be informed of counsel is important but does not vitiate a trial, especially where an accused understands the trial as in this case. It is important that the courts indicate that they have informed the accused of the right to be represented. However, not every failure result in a mistrial. In the case of Manyeso v Republic [2023] KECA 827 (KLR), the court of appeal [P Nyamweya, JW Lessit & GV Odunga, JJA] held as follows:This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated. 58.The above case was appealed and the supreme court in Republic v Manyeso [2025] KESC 16 (KLR) held as follows:similarly, in Gitonga v Republic (Petition 11 of 2017) [2020] KESC 61 (KLR) we faulted the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the courts below. In our determination, we stated as follows:“It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the Constitution in the present appeal was also the subject of interpretation and application at the High Court….”55.Therefore, we agree with the submissions made by the appellant that the Court of Appeal acted ultra vires when it determined in the first instance whether the life sentence imposed upon the respondent was constitutional. In the same vein, this court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been raised and determined by the High Court and cascaded through the proper channels 59.However, given my finding on the paucity of evidence in support of the charge, I do not need to make a finding of mistrial. Having found that the appeal is merited, I do not need to address the question of sentence. Orders: 60.In the circumstances, I make the following orders:a. The Appeal on conviction and sentence is allowed. the sentence is set aside. the appellant is set free unless otherwise lawfully held.b. Right of appeal 14 days.c. The file is closed. DELIVERED, DATED and SIGNED at NYERI on this 20th day of May, 2026. Judgement delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:Appellant presentMr. Kihara holding brief for Mwakio for the ODPPPC Muthama at Murang’a PrisonCourt Assistant – MartinM. D. KIZITO, J.