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JMM v Republic (Criminal Appeal E115 of 2023) [2026] KEHC 8962 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8962 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E115 of 2023 DKN Magare, J June 23, 2026 Between JMM Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. J. Irura (Senior Principal Magistrate) in Kigumo PMCSO No. E011 of 2022.) Judgment 1.This appeal arises from the Judgment of the trial court, Hon. J. Irura (Senior Principal Magistrate) in Kigumo PMCSO No. E011 of 2022. 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 on 11.2.2022 at [Particulars Withheld] within Muranga South sub-county of Murang’a County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JWK, a child aged 6 years. 2.He was charged with 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 on 11.2.2022 at [Particulars Withheld] within Murang’a South sub-county of Murang’a County, the Appellant intentionally and unlawfully touched the vagina of JNK, a child aged 6 years with his Penis. 3.The Appellant was arraigned on 16.2.2022 and he denied the charges. A plea of not guilty was consequently recorded. He was released on bond on 2.06.2022. 4.The trial court considered the case and rendered judgment. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to 30 years imprisonment. 5.The Appellant, aggrieved, lodged this appeal. The Petition of Appeal raised the following grounds:a.The learned trial magistrate erred in convicting the Appellant when the prosecution did not prove the offence of defilement beyond reasonable doubt.b.The learned trial magistrate erred in law and fact in failing to find that the charge was defective in nature.c.The learned trial magistrate erred in law and fact in failing to find that the case of the prosecution was marred with inconsistencies and contradictions.d.The learned trial magistrate erred in law and fact in giving 50 years imprisonment that was excessive and harsh.e.The learned trial magistrate erred in fact and law in failing to consider the defence that there was a grudge. Evidence 6.At trial, PW1 was the minor. She gave unsworn testimony after voire dire found she was not intelligible enough. She gave an unsworn testimony. According to her, she was to join PP2 at [Particulars Withheld] Primary School. The Appellant gave her a sweet and took her to his house. He removed her panty. He lifted her leg. He did not remove his trouser. He removed his thing used for urinating. He put it in her kasusu. Her mother was not home. She was with N. It was day time. N told her grandmother. She had told N what had happened. Her grandmother took her to hospital. That is the first time he did bad manners to her. 7.On cross examination, PW1 testified that the Appellant took her to his house, although she could not recall the specific day of the week on which the incident occurred. She further stated that the Appellant gave her a sweet from his pocket. She stated that she did not scream. 8.PW2 was MW, the mother of PW1. She testified that in January 2022, she left PW1 in the care of her mother, who is PW1's grandmother. She subsequently got married in February 2022. On a Friday, she went and picked up PW1 from her grandmother's home. On the following Sunday, PW1 informed her that she had been defiled by the appellant who is her grandfather. The appellant is a brother to the witness’s father, that is PW2’s uncle. Consequently, on Monday, PW2 made a report at Kambiti Police Post. 9.On cross examination she stated that she made a report that the appellant defiled her daughter and then the appellant turned against her mother as the witness had given birth to her out of wedlock. She stated that the appellant took pangas and threatened the mother since they were born out of wedlock. She denied having a grudge over land. 10.PW3 was EK. She was grandmother to PW1 and mother to PW2. She recalled that in February 2022, she went to work with her husband. Her daughter NN remained home with PW1. She returned in the evening and NN told her that her uncle had done bad manners to PW1. She asked the husband to call the brother as they checked the daughter. She checked the child and indeed the child had been defiled. They had no money and therefore she planned to go and work. When she came back, she found that PW2 had taken the minor. PW3 called PW2 and informed her that the minor was defiled. PW2 came home and quarreled with the appellant and indicated that she was going to report. The appellant told PW2 to report and stated that PW3 had gotten children out of wedlock and brought them to PW3’s husband. Neighobours gathered after the quarrel. They went to the police station and reported. She stated that the two had a land dispute which was there for four years, over an access road. The dispute has since stopped. 11.PW2 had gone with PW1 so she called her on Sunday to return her. She returned her on Monday. On cross examination, she stated that she called PW1 and confirmed that she had been defiled. She never asked the appellant that they have an affair. 12.PW4 was Julian Wambui, a Clinical Officer. She examined PW1 on 14.2.2022. She came limping. She was in pain. No spermatozoa was seen. Red blood cells were seen. Urine had pus cells showing there were bacteria. Hymen was not intact. There was blood on the outer genitalia. Vagina and anus were normal. She filled P3 and PRC Form produced in court. On cross examination, PW1 had blood in her private parts. The vagina was normal and anal area was normal. The child was referred to Murang’a Level 5.On cross examination she stated that the minor indicated that she was defiled by a neighbour. 13.PW5 was No. 2xxx1 Cpl. Elizabeth Mwanga. The matter was reported on 14.2.2022. On 10.2.2022, PW2 had taken PW1 to PW3. On 11.2.2022, the child was defiled. She interrogated the witnesses, recorded statements and based on the available documents, she formed an opinion that the Appellant was culpable for the offence hence the arrest and prosecution. She arrested the Appellant around 6.30 pm. She stated that the minor was referring to the appellant as grandfather Muli. The appellant was an uncle to the complainant’s mother. She testified on cross examination that the clinical officer confirmed that the minor was defiled. She interrogated the minor’s grandmother who confirmed the defilement. 14.The appellant was placed on his defence. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give unsworn statement. 15.The Appellant testified that it was not true that he defiled PW1. According to him, land dispute caused him to be framed. PW3 fixed him because he declined to her sexual advances. They called officers when he was in his shamba with his wife. All the evidence stated was untrue. Submissions 16.The Appellant filed submissions. They are dated 19.9.2024. He submitted that penetration was not proved beyond reasonable doubt. Reliance on evidence that hymen was broken was erroneous. 17.He also submitted that there were family wrangles. There was a grudge due to disagreements about land and this is what landed him in court through false allegations of defilement. He submitted that the law on defilement was settled in the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, where 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 18.He submitted that there were unresolved conflicts, grudges, jealousy, competition, lack of communication. He relied on the cited Miller v Minister of Pensions (1942) AC(infra), to submit that there was no proof beyond reasonable doubt. 19.The Respondent also submitted via the submissions dated 7.4.2025 that all the ingredients of the offence being defilement and penetration was proved beyond reasonable doubt. The minor, it was submitted was defiled and positively identified the Appellant. They did not cite any authority. The case of the Appellant on the existence of a grudge was submitted to be an afterthought. Analysis 20.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 21.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. 22.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. 23.Brennan J, addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 24.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 25.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. 26.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. 27.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 carry a lifelong stigma and can only be justified based on indisputable evidence. 28.The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. I note this to be in error as PW1 was said to be 11 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows:(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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 29.The first appellate court is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:-1.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.2.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. 30.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 31.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. 32.The parameters that were to be proved in cases such like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 33.The Appellant lamented about there being inconsistencies in the prosecution witnesses. Inconsistencies and discrepancies in evidence were addressed in the case of Dickson Elia Nsamba Shapwata & Another vs. The Republic, Cr. App. No. 92 of 2007 by the Court of Appeal of Tanzania, as follows:In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter. 34.The parties must always distinguish between minor inconsistences and material inconsistencies. Minor inconsistencies are what in the legal maxim, known as de minimis non curat lex. The law and the courts recognize that human memories differ, and such discrepancies do not necessarily destroy a witness's credibility. Material inconsistences, on the other hand go to the root of the elements of the case. In defilement they go to identity, sequence of events, elements of the offence among other. Contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 35.The question before me in this appeal, is whether the prosecution’s case was so riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 36.It was the primary duty of the trial court, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. Having evaluated the evidence, I do not see any major contradiction. The Court of Appeal [Githinji, Musinga & M’Inoti, JJ.A] in the case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32).It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.It appears to us a point so basic that we should not have to keep repeating it to counsel time and again: at the heart of our appellate system is the self evident and eminently rational proposition that questions of fact must be settled at the lower levels of the judicial system and that as the cases progress through the higher levels, the focus must be on issues of law. It would negate and undermine value addition in our appellate system if all that the second appellate court did was to once again reconsider and re-evaluate the evidence with a view to identifying any possible minute and insignificant inconsistencies. The second appellate court cannot simply deal with issues of fact in exactly the same way as the trial and the first appellate courts.In BONIFACE KAMANDE & 2 OTHERS VS REPUBLIC, Crim. App. No 166 of 2004, this Court emphatically expressed itself thus:“On a second appeal to the Court, which is what the appeals before us are, we are under legal duty to pay proper homage to the concurrent findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based or if there was evidence, that it was of such a nature that no reasonable tribunal could be expected to base any decision on it.”Earlier in M’RIUNGU VS REPUBLIC (1983) KLR 455 the Court had strongly expressed the same view in these terms:“Where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”. 37.At trial, the court conducted voire dire and established PW1 did not understand the significance of oath. Her evidence on what transpired was that she was with one NN. No one found it useful to call NN as a witness. She was in the locus in quo. She knew what transpired or did not. She is the one who reportedly reported to PW3. There is no number of witnesses to prove a case. This is accordance with Section 143 of the Evidence Act (Cap 80 Laws of Kenya) which 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.” 38.The question of a superfluity of witnesses was addressed in the case of Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR), where the court of appeal [S.E.O. Bosire, P.N. Waki, J.W. Onyango Otieno] held as follows: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. (See Bukenya & Others v. Uganda [1972] EA 549). 39.This was also the position held in the case of Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR), where the court of appeal [S.E.O Bosire, E.M. Githinji and J.W. Onyango Otieno] held as follows:Bukenya v. Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt. 40.Failure to call NN must be construed adversely to the prosecution. On the other hand, the minor indicated that the appellant removed her panty, lifted her leg, and did bad manners. He then inserted his thing used to urinate, into her kasusu. Kasusu definitely meant the vagina as the trial court recorded that it was the vagina while referring to kasusu. However, this was not borne out of medical evidence. PW4, the Clinical Officer also supported the case by finding that there was blood and pus cells in the vagina. The treatment notes and the P3 form recorded these findings. PW4 formed the opinion that PW1’s vagina was penetrated. There were no other injury in the outer vagina. 41.Secondly, the treatment records from Makuyu Health Centre differ from the findings at Murang'a Level 5 Hospital regarding the minor's condition. The minor was provisionally diagnosed with kidney hydronephrosis. Medically, hydronephrosis is a condition in which one or both kidneys become swollen due to a backup of urine. It occurs when urine cannot drain normally from the kidneys into the bladder, usually because of a blockage, obstruction, or backward flow of urine.1 It is etymologically derived from water and kidney.1hydronephrosis. (n.d.) Gale Encyclopedia of Medicine. (2008). Retrieved June 23 2026 from https://medical-dictionary.thefreedictionary.com/hydronephrosis 42.Exhibit 3 indicated that the minor was walking in pain. However, there is no mention in it on the condition of the vagina. This then takes us to the PRC and P3. In the P3, the clothes were indicated not torn or bloody. They were dusty. The child was indicated to be defiled by an uncle. Unfortunately, the appellant was a grandfather. It is clear the information came from the niece, not the minor who was a grandchild. On the P3, it is indicated that bruises seen and a bloody discharge. However, the PRC differed with the P3 like the sun and moon. It indicated that the hymen was perforated and nothing more. There were no physical injuries. The outer vagina was normal, hymen was not intact, and anus was normal. It indicated that the child remembered that she screamed and penetration done. 43.The difficulties that exist is that the evidence of PW4 is not borne out of the documents she produced. There were no injuries in the outer genitalia and the there was no physical injuries. It is therefore not true that there was blood in the out genitalia. The oral evidence cannot be used to change written evidence. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation, and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it. 44.In Gerald Dworkin, Odgers' Construction of Deeds and Statutes (5th edn, Sweet & Maxwell 1967), the learned author at p. 106 states as follows:“Parol Evidence and written documents. It is a familiar rule of law that no parol evidence is admissible to contradict, vary or alter the terms of a deed or any written instrument. The rule applies as well as deeds as to contracts in writing. Although the rule is expressed to relate to parol evidence, it does in fact apply to all forms of extrinsic evidence.As it stands this is not a rule of interpretation but of law, and means that the interpretation of the document must be found in the document itself with the addition if necessary of such evidence as we have previously seen is admissible for explaining or translating words and expressions used therein” 45.Consequently, the medical evidence does not support the defilement. However medical evidence is not necessary to prove defilement. The appellant took issue with medical evidence. Medical evidence is not a necessity for proof of the offence of defilement. Penetration was not just from the medical record, but from the account by the minor. In the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, the court held as thus:Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.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. 46.The medical evidence does not support penetration. There was no inflammation or tears in the inner vagina. I give room that section 2 provides for partial and complete penetration. However, the evidence was not that the appellant stopped on the way. The nature of injuries do not support penetration. In addressing the question of experts, the court of appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. 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. 47.These were expert evidence. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in Shah and Another vs. 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. 48.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. 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. 49.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 vs. Republic [1997] eklr; [19951998] 1 EA 29, where it was held that:It is now trite law 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 vs. 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. 50.However, in a case like this where the only link to alleged defilement is a perforated hymen, it is not enough. First, if the perforation was within three days, it ought to have been fresh. This was not indicated. In the case of P.K.W v Republic [2012] KECA 103 (KLR), the court of appeal held as follows:15.In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified? Is hymen only ruptured by sexual intercourse?16.Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the 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 natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769.17.In this case the doctor who examined the complainant child was not asked whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. As we have pointed out the complainant child aged only six behaved normally after the alleged defilement. That together with her mother’s behavior, issues that the two lower courts do not seem to have addressed their minds to, has raised doubt in our minds as to the guilt of the appellant. In other words the concurrent findings of the two lower courts are not fully supported by the evidence on record. Consequently we have no option but to give the appellant the benefit of doubt. 51.The doctor was evasive on the question of the perforation. The clinical officer introduced the aspect of blood that they did not cover. The blood discharge was not accompanied by any bruises. I am unable to understand, why the complainant was not treated of the same complainant when she was referred to Murang’a Level 5. She was treated for kidney hydronephrosis. 52.The other aspect that is troubling is that the appellant was aged 40 years. He is said to have penetrated. However, PW3 did not bother to tell PW2 that defilement happened. PW2 were quarreling with the appellant over issues of filial affinity instead of dealing with the defilement. It is not possible that the minor did not undergo excruciating pain for the three days to warrant being taken to hospital immediately. 53.Where there are trivial discrepancies and contradictions which were not fundamental as to cause prejudice to the Appellant as human nature is not memory-proof. In the case of Kibor v Republic [2022] KECA 1269 (KLR), the court of appeal [PO Kiage, J Mohammed & M Ngugi, JJA] held as follows regarding discrepancies:34.This Court in Joseph Maina Mwangi v Republic CA No 73 of 1992 held that:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 3 & 2 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.”35.We find that the trial court correctly held that there were minor and inconsequential discrepancies that did not go to the root of the prosecution case and the trial court was right in treating them as such. In the end, we are in agreement with the trial court that the appellant, with malice aforethought, was responsible for the death of the deceased. 54.Section 382 of Criminal Procedure Code referred above provides as follows: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 otherproceedings 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. 55.The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held:‘‘…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. 56.Consequently, age herein was proved by the production of the birth notification. The birth notification stated that PW1 was born on 8.2.2016 and so was 6 years 3 days old. The birth notification was proper and credible analyzed with the surrounding evidence and circumstance. I have no basis to interfere with the discretion of the trial court who, based on the birth notification and the projection by the medical report applied the age of 6 years. The court exercised discretion in accordance with the law. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains. 57.Therefore, the prosecution evidence left no doubt in my mind that the Appellant did not commit the offence herein. The minor was aged 6 years. It may be true that the appellant had issues with the adults in the game. The minor indicated that the appellant did not remove his trouser. How did he remove his penis without removing the trouser? 58.The defence by the defendant is not an afterthought. The court was under duty to examine the appellant’s unsworn statement whatever its value. It cannot be dismissed upfront. The evidence was that they had a land dispute with PW3 for four years but the same had now stopped. When did this stop? Was it after filing of this matter? PW2 stated that there was no land dispute. This was of course false given that the mother admitted the dispute. The defence of a grudge was raised from the beginning in cross examination of all the witnesses. It does not however cover the evidence of the minor. It is only that the medical evidence did not show defilement in view of the contradictions. 59.On the issue of identification, I note that identification was by recognition and was equally not a disputed fact that the Appellant was known to PW1 as her uncle. The Appellant’s defence was only that the allegations were not true and were based on a grudge steered by a land dispute. The only question remaining for determination was whether appellant was identified or recognized. The appellant was a great uncle to the minor. The minor recognized him. This was not seriously contested. The complainant recognized the appellant as a person known to her. The appellant himself did not question the identification. Recognition was addressed in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where 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). 60.The net effect is that the appeal is allowed. It is not necessary to deal with sentence. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held. Determination 61.In the circumstances, I make the following orders:a.The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b.The appellant’s name be removed from the register of sexual offenders.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI THIS 23RD DAY OF JUNE THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Muriuki for the StateAppellant presentPC Peter Ngina at Nyeri Maximum PrisonCourt Assistant – Martin