https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13052

Olumula v Republic (Criminal Appeal E005 of 2026) [2026] KEHC 13052 (KLR) (20 August 2026) (Judgment) Neutral citation: [2026] KEHC 13052 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E005 of 2026 RN Nyakundi, J August 20, 2026 Between Joseph Olumula Appellant and Republic Respondent (Being an appeal arising from Vihiga Senior Principal Magistrate’s Court Sexual Offence Case No. E031 of 2024 and the sentence imposed on 11th March 2025 by Hon. P. K. Kinyua (RM)) Judgment Introduction 1.The Appellant, Joseph Olumula, was arraigned before the Senior Principal Magistrate’s Court at Vihiga in Sexual Offence Case No. E031 of 2024 on a main count of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 13th day of May 2024 at about 1300 hours at [Particulars Withhheld] village, [Particulars Withhheld] location in Emuhaya Sub-County within Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of L. A., a child then alleged to be aged 14 years. 2.In the alternative he faced a count of committing an indecent act with a child contrary to Section 11(1) of the same Act, the particulars being that on the same date, at the same time and place, he intentionally and unlawfully touched the vagina of the said L. A. with his penis. 3.He took plea on 15th May 2024 before Hon. P. Karimi (RM) and denied both counts. He was admitted to bond of Kshs. 200,000/= with a surety of a like amount, which he did not take up. He remained in custody from 15th May 2024 to the conclusion of the trial and thereafter. 4.The Prosecution called seven witnesses. At the close of its case the trial Court, by a ruling delivered on 14th January 2025, found that a case had been established and placed the Appellant on his defence. The Appellant elected to give sworn testimony and called no witness. 5.By a judgment delivered on 24th February 2025 the trial Court convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, having found, on the strength of an age assessment report, that the Complainant was aged 17 and not 14 years. On 11th March 2025 the Appellant was sentenced to fifteen (15) years’ imprisonment, the trial Court directing that account be taken of the time spent in remand from 15th May 2024. 6.The Appellant was granted leave to appeal out of time by Kamau J. on 10th March 2026 in Vihiga High Court Miscellaneous Application No. E079 of 2025. He filed his Petition of Appeal on 11th March 2026 and, on 21st May 2026, Supplementary Grounds of Appeal together with written submissions. The Respondent filed written submissions through Ms. Leina Davies, Prosecution Counsel, for the Director of Public Prosecutions. 7.Both parties elected to canvass the appeal by way of written submissions. I have considered the record of the Trial Court in its entirety, the exhibits, and the submissions of both sides. The Grounds Of Appeal 8.In his Petition of Appeal dated 11th March 2026 the Appellant advanced four principal grounds, namely: that the trial Court erred in law in convicting him when the ingredients of the offence had not been proved beyond reasonable doubt; that it erred in law and fact in relying upon fanciful and remote possibilities; that it erred in law and fact in failing to weigh the conflicting evidence in the Prosecution case; and that it erred in law and fact in failing to appreciate his defence. 9.By his Supplementary Grounds of Appeal dated 19th May 2026 he added three grounds which, in truth, are the substance of his appeal:a.That the trial Court erred in law and in fact in misconstruing the role and purpose of an intermediary under Section 31 of the Sexual Offences Act, with the consequence that the evidence recorded as that of PW1 ought to be rejected pursuant to Article 50(4) of the Constitution of Kenya, 2010;b.That the trial Court erred in law and in fact in failing to find that penetration by the Appellant had not been proved to the requisite standard; andc.That the trial Court erred in law and in fact in its treatment of the age of the Complainant, the dental findings being consistent with a person of 18 years and above. 10.The Appellant prays that the conviction be quashed, the sentence set aside and that he be set at liberty. The Prosecution Case 11.The Prosecution case is basically based on the evidence of PW2 who loosely was declared to be an intermediary but that is not the position in law. She stands in as an independent witness for the prosecution within the facets of the Evidence Act. It is on record that the Complainant gave evidence partially but was later turned down due to the observations made by the trial Court that she had challenges in the flow of communication towards the questions being preferred by the Prosecutor as to the chain of events of the crime. There was a request for the medical report on a mental capacity as a competent witness and on being shared with the Court she had been declared unfit to be a State-Prosecution witness. 12.On 15th August 2024 the trial Court conducted a voire dire examination of the Complainant, L. A. She stated that she was 14 years old, lived at Ilungu with her uncle, aunt, grandmother and grandfather, was in Class Five at [Particulars Withhheld] Primary School, knew that lying was bad and wished to tell the truth. She stated that she did not understand what sworn testimony was, but wished to give sworn testimony. The trial Court admitted her to give sworn evidence. 13.She then testified, in Kiswahili, as PW1. Her evidence in chief, recorded in full, was to the effect that on 13th May 2024 at about 1.00 p.m. she was lying in an open field when her father followed her to the cattle pen; that he had asked her to give him a jembe and followed her there; that he closed her mouth with the back of his hand and, in her words as recorded, “akaingiza kitu yake ndani yangu”; that he had undressed her and she felt pain; that the two of them were alone; that she thereafter left and went back to the field and lay there; that a lady came and asked her what had happened and she told her; “wamenirape”; that the lady was shocked and left her laying in the field; that no one else came; that she did not tell anyone else what had transpired; and that she did not go anywhere else. She added that she went home and her neighbour, who was the lady in the field, told her mother, who was shocked. The record indicates that at one point in her evidence he touched her private parts over her clothes. 14.Immediately upon the conclusion of that evidence in chief, and before any cross-examination, State Counsel applied to stand PW1 down in order to take her for mental assessment. The Appellant did not object. The trial Court allowed the application, recording that PW1 seemed not to be altogether well mentally and ordering that she be taken to Vihiga County Referral Hospital for assessment. 15.On 29th August 2024 the Prosecution informed the Court that a mental assessment dated 26th August 2024 had been done, and applied for leave to have the minor testify through an intermediary, one KH, a sister of the minor. The Appellant did not object. The application was allowed. 16.On 16th September 2024 the Appellant sought to resile from his non-objection, stating that he had been unwell on 28th August 2024 and had not been in a fit state when he consented. The trial Court declined, observing that Section 3 of the Sexual Offences Act permitted the Court, on its own motion or on application, to declare a witness vulnerable, and that on the strength of the mental status report PW1 was declared a vulnerable witness whose testimony would be received through an intermediary 17.The trial Court then conducted a voire dire examination of Keziah Inziani, who stated that she was aged 14 years old, in Grade 5 at [Particulars Withhheld] Primary School, that she knew one should tell the truth and that liars would be burnt, and that she understood what taking an oath meant. She was admitted to give sworn testimony, the trial Court recording that the minor was admitted to give sworn testimony as an intermediary of the alleged victim. 18.Her evidence was thereafter recorded under the heading PW1: Sworn Testimony in Kiswahili Through an Intermediary. She testified that she knew the alleged victim, who was her sister; that on 13th May 2024 at around 9.30 p.m. she was asleep in the house at [Particulars Withhheld] when she heard the Appellant come home and ask after her mother; that the Appellant, whom she identified in Court, is their uncle, being her father’s brother; that her sister was outside the house while she was inside; that the Appellant asked LA to bring him a jembe; that when LA went to get the jembe the Appellant followed her; that she heard the noise of something falling and went to check; that she found the Appellant on top of her naked sister; that he was dressed in white shorts and a yellow shirt; that he ran off dressing when he saw her; that she went and called a neighbour and was advised to inform a village elder, which she did; that her sister told her the Appellant had taken off her clothes and laid on her, and in the words recorded; “alichukua kitu yake ya siri akaiweka ndani ya kitu yangu ya siri”; that her sister was shocked when she found her; that her sister is not of sound mind, which is why she was testifying; that the incident occurred in their compound in the cow pen; that she reported at Ilungu Police Station; and that she was not present when her sister was taken to hospital by their mother. 19.In cross-examination she stated that she was older than her sister; that she was asleep in the house and not in the farm; that the Appellant came asking for his jembe and did not find it; that she did not know the exact distance from the house to the road; that there is a path near their home to the river; that it was around 1.00 p.m.; that neighbours saw the Appellant running off; that she did not speak to the Appellant about the jembe; and that she heard his voice while inside her mother’s bedroom sleeping. On re-examination she stated that the incident occurred at 1.00 p.m.; that she recognized the Appellant’s voice; that they were not on bad terms with him; that she woke up on hearing him speaking to her sister; that the incident took place in the house and not on the road; and that there were no people crossing on the path to the river at the time. 20.PW2, EK, the mother of the Complainant, testified that on 13th May 2024 at 2.00 p.m. she was on her way home, in the company of another relative, when she ran into the Appellant; that he told her he had been at her house looking for his jembe which he suspected her daughters had taken, and that some incident had happened at home for which her daughters were accusing him; that she went home and her daughters told her the Appellant had raped LA , had undressed her and inserted his private organs into her private parts; that KH was the one who informed her; that LA also told her so; that village elders came to her home and were told what had happened and advised that the matter be reported; that her daughter LA is not of very sound mind; that she found LA had been taken to Kima Hospital; that she had no bad relations with the Appellant; that their houses are in the same compound on different sides; that there is a path leading to the river which the Appellant does not use; and that her daughter is 14 years old and still in school. In cross-examination she said the doctor had confirmed her daughter had been defiled and that her daughters had told her what had happened 21.PW3, PA, a village elder of [Particulars Withhheld] village, testified that on 13th May 2024 a County baraza had been held during the day; that he went home at about 6.00 p.m. and found that a woman had come to file a report; that he went to the woman’s home and she informed him that her in-law had defiled her daughter and that she had already taken the daughter to hospital; that he was in the company of three other village elders; that they went to the Appellant’s home and asked him to follow them to the Assistant Chief’s home; that the Appellant complied; that finding that the Assistant Chief had gone to Ilungu Police Post they proceeded to the Police Station and reported; that the Appellant’s home is far from the Complainant’s home; and that he interviewed the alleged victim, who told him the Appellant had defiled her and who called him Baba. In cross-examination he said he had been a village elder since 1995; that his home is 20 metres from the Appellant’s; that he was not present during the alleged incident; that he had told the Appellant that the Assistant Chief was calling him about a phone he had recovered, as a ruse to get him to the Police Station; that he found the Appellant with his wife; and that they came at around 11.00 p.m. 22.PW4, JO, testified that on 13th May 2024 at around 9.00 p.m. he was having supper when PW3 came and informed him of a report and asked him to accompany him; that they went to the Complainant’s home and interviewed her; that she said the Appellant had come borrowing a jembe, and that when she went to get it he accosted her near the cow pen and defiled her; that her sister came and saw him whereupon the Appellant dressed quickly and left; that they proceeded to the Appellant’s home at about 10.00 p.m.; that the Appellant is a neighbour and a Pastor; that they knocked and he opened; that the village elder used a ruse about a recovered phone and the Assistant Chief to get him out of his house; and that they took him to Ilungu Police Station where he was taken into custody. In cross-examination he stated, among other things, that it is three metres from the Appellant’s house to the Police Station. On re-examination he said they went to the Complainant’s house at about 9.30 p.m. and to the Appellant’s home at about 10.00 p.m. 23.PW5, Calvin Amayi Esilaba, a Clinical Officer at Emuhaya Sub-County Hospital, Luanda, holding a Diploma in Clinical Medicine and Surgery obtained in 2014 and a Degree obtained in 2022, testified that he examined the minor and filled the Post Rape Care Form, the P3 form and the treatment notes. He said the survivor had been treated on 13th May 2024 for complaints of alleged defilement; that she was tested for pregnancy, HIV, urinalysis and high vaginal swab; that she tested negative for pregnancy and HIV; that there was presence of leucocytes and epithelial cells in the urine; that in the high vaginal swab test there was presence of pus and epithelial cells; that she appeared normal; that she had a broken hymen, whitish discharge and normal genitalia; that he classified the injuries as harm and concluded that the survivor had been defiled as she was a minor. He produced the Post Rape Care Form, the laboratory results and the P3 form as exhibits. In cross-examination he said he did not recall exactly who came with the survivor; that she walked in normally; that from the laboratory test he opined and concluded that there had been defilement; and that he was told the survivor was 14 years old and indicated the same. 24.PW6, Solomon Akoyo Atola, a brick maker of Wamachese, testified that on 13th May 2024 at around 1300 hours there was a Public Baraza which he attended; that he went home at 6.00 p.m., had supper and slept; that in the night PW3 came with PW4 and informed him that the Appellant, a Pastor in the area, had committed an offence; that he accompanied them to the Complainant’s house where the village elder questioned the survivor’s mother; that they thereafter went to the Appellant’s home and used a ruse to lure him out, PW3 falsely telling him that the owner of a phone he had earlier recovered wished to reward him; that the Appellant went with them voluntarily to the Police Station where he was informed of the complaint; and that at the Station the Complainant, when asked her relation to the Appellant, said he was her father. In cross-examination he said they came to the Appellant’s house at 9.00 p.m., that it was dark and rainy, and that the ruse was used so that the Appellant would be arrested before he fled. 25.PW7, No. 244113 PC Everline Olunga (recorded in the judgment as Omunga) of Ilungu Police Post, the Investigating Officer, testified that on 14th May 2024 at about 2.30 a.m. she was at the Station when PW3, PW4 and PW6, members of the Community Policing Committee, brought the Appellant on an allegation of defilement; that she re-arrested and booked him; that the following day the Complainant came with her mother; that she recorded their statements and sent them to Emuhaya Sub-County Hospital for the P3 form to be filled and for examination; that on receipt of the completed P3 and Post Rape Care Forms she found the Appellant eligible to be charged; that she took him to Embali Police Station for charging and arraignment; and that she took the minor for age assessment at Vihiga County Referral Hospital, the report indicating the minor to be 17 years old. She produced the age assessment report as an exhibit. In cross-examination she stated that the Complainant’s mother did not have any birth certificate with her. 26.The exhibits produced were: the age assessment report dated 1st August 2024 (PEXB 1); the Post Rape Care Form (PEXB 2); the laboratory request and report form together with the laboratory results (PEXB 3); and the P3 form, being the Police Medical Examination Report (PEXB 4). The Defence Case 27.The Appellant gave sworn evidence as DW1 on 3rd February 2025. He testified that he is a casual labourer and a Pastor resident at Wamachesa village; that on 13th May 2024 he left home for Ilungu Primary School as it was the opening day and was there until 10.00 a.m.; that he went home and escorted his wife to the stage as she was leaving for her sister’s; that he had left a jembe near the fence for use in his shamba and found it missing when he came back; that he asked the girl whether she had taken his jembe, that she heard him and gave it back to him, and that he went into the farm; that he went home after farming and in the evening went to check on his hard stones; that his wife returned and he informed her of the jembe incident; that they had supper and slept; that at about 10.00 p.m. he heard people talking outside his home and his name being called; that he opened his door and found the village elder Philip, Silas and Solomon; that the village elder told him the owner of the phone he had recovered and handed over was by the road and wanted to see him; that he called the Assistant Chief on his phone but could not get through; that he tried to reschedule the meeting to the following morning but the village elder was persistent; that they went on foot and got to the Assistant Chief’s compound at around midnight; that they diverted into the Police Station where he was shocked to be accused of raping a child; that the police refused to arrest him at night without the Complainant; that the village elder called the Complainant to the station; that he was arrested and held in custody at around 2.00 a.m.; and that he was later taken to another Police Post without being informed of the charges. 28.In cross-examination he stated that his jembe was taken at around 11.00 a.m. on 13th May 2024 and that the minor brought it to him after he asked for it, whereupon he went to farm; that he asked after his jembe loudly and the girl brought it to him; that no other neighbour responded to his loud call; that his home is near the girl’s home and that she is his niece; that there is a path between their compounds; that he called the girl from the farm where she was tilling while he was on the road, and that she brought the implement to him on the road; and that he never went into the girl’s compound. The judgment and sentence of the trial court 29.The trial Court identified four issues: whether the alleged victim was a child; whether the Appellant committed an act which would cause penetration with the child; whether the Appellant was positively identified; and whether the Appellant committed an indecent act with a child. 30.On age, the trial Court noted the charge sheet, the evidence of the Complainant, the intermediary and the mother, all putting the Complainant at 14 years, and the age assessment report putting her at approximately 17 years. It preferred the age assessment report, held the Complainant to be a child of 17, and concluded that the proper charge ought to have been defilement contrary to Section 8(1) as read with Section 8(4). 31.On penetration, the trial Court relied on the evidence given through the intermediary, the laboratory results, the P3 form and the Post Rape Care Form. It reasoned that the presence of epithelial cells in the urine and the high vaginal swab is indicative of possible penile penetration and or infection, and that the hymen was broken. 32.On identification, the trial Court observed that the parties are kin and know each other. It then posed a series of questions of its own motion: whether the Appellant merely picked his jembe from the alleged victim by the road and spent the rest of the day in his shamba; who could confirm that he was in the shamba after the brief interaction; who the neighbours were that are said to have seen him running off and why they did not testify; and why the relative who was with PW2 did not testify to corroborate her. Having posed those questions, the trial Court did not answer any of them. It proceeded to observe that the case was essentially that of the complainant as stated briefly and the said intermediary was the only witness who allegedly caught the Appellant in the act, and that the Appellant admits having seen the alleged victim on the said date by the road as she brought back the jembe to him. It then found that the interaction placed the Appellant in close proximity to the alleged victim to have been the one who committed the offence, having been caught in the act by PW1. 33.The trial Court invoked the proviso to Section 124 of the Evidence Act, noted the demeanour of the alleged victim’s intermediary, who seemed to be very familiar with the Appellant, and stated that it was inclined to believe the intermediary because the medical officer’s testimony and exhibits corroborated the notion that penetration had occurred. It cited DS v Republic [2022] eKLR. 34.On the defence, the trial Court stated that it had considered the Appellant’s testimony, which was merely a denial of having been in the alleged victim’s home and defiling her, and held that without a concrete alibi for his defence, the corroborated version of events by the Prosecution was more believable. 35.The Appellant was convicted on the main count. The alternative count was not analyzed. On 11th March 2025, having considered the mitigation and a pre-sentence report dated 6th March 2025 which was negative and disclosed community hostility towards the Appellant, the trial Court observed that Section 8(4) prescribes a mandatory minimum of not less than fifteen years by which it was bound, and sentenced the Appellant to fifteen years’ imprisonment. Submissions 36.For the Appellant, it was submitted that Section 31 of the Sexual Offences Act strikes a balance between protecting a vulnerable witness from the trauma of direct confrontation in Court and preserving the accused’s right to a fair trial; that Section 31(7), reinforced by Article 50(7) of the Constitution, conceives of the intermediary as a facilitator of communication between the Court and the witness and not as a substitute witness; and that the trial Court oscillated impermissibly between treating the intermediary’s evidence as her own, when establishing and corroborating penetration and identification, and as the victim’s direct evidence, when addressing age and when conducting the voir dire, thereby violating Article 50(2)(k) of the Constitution. He relied on Maina wa Kinyatti v Republic [1984] eKLR for the proposition that a statement made to a witness by a person not called as a witness is hearsay and inadmissible where the object is to establish the truth of its contents. 37.On penetration, the Appellant submitted that a broken hymen is not conclusive proof of penetration and that the presence of epithelial cells is not concrete evidence of penetration, relying on P.K.W. v Republic [2012] eKLR and on Benard Opiyo alias Jemaa v Republic, Kakamega High Court Criminal Appeal No. 13 of 2019, in which Njagi J. held that the presence of epithelial cells in urine can prove no more than friction in the vagina and is not concrete proof of penetration. He further submitted that PW1, the Complainant, asserted that only the two of them were present, whereas the intermediary asserted that she came upon them, and posed the question as to which of the two accounts is truthful. 38.On age, the Appellant relied on Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, and Hillary Nyongesa v Republic, Eldoret Criminal Appeal No. 123 of 2009, and submitted that the dental finding of a clinically present third molar with completely formed roots is consistent with a person of 18 years and above; that the age of the Complainant was therefore in doubt; and that any sentence meted out was a matter of conjecture. 39.For the Respondent, Mr. Davies submitted that the Prosecution marshalled seven witnesses and proved each ingredient of defilement. On age, she relied on Musyoki Mwakavi v Republic [2014] eKLR for the proposition that age may be proved by medical evidence, a birth certificate, a baptism card, school leaving certificates, the evidence of parents or guardians, or by observation and common sense, and submitted that the age assessment report established the Complainant to be 17 years. On penetration she relied on Section 2 of the Act and on Mohammed Omar Mohammed v Republic [2020] eKLR for the proposition that the Complainant’s own testimony, corroborated by the medical report, is the key evidence in rape and defilement, and submitted that PW5 corroborated the evidence of the victim. On identification she relied on Anjononi & Others v Republic [1976-80] 1 KLR 1566 for the proposition that recognition of an assailant is more satisfactory, more assuring and more reliable than the identification of a stranger, and submitted that there was proper identification as there was prior knowledge of the Appellant. 40.The Respondent further relied on Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, for the ingredients of defilement, and submitted that the Appellant merely denied the allegations without controverting the events of the material day; that the trial Court considered his defence; and, on contradictions, relied on S.O.O. v Republic [2018] eKLR and Dickson Elia Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007 (Tanzania), for the proposition that in evaluating discrepancies, contradictions and omissions a Court should not pick out sentences and consider them in isolation but must decide whether the inconsistencies are minor or go to the root of the matter. She urged that the appeal be dismissed and the conviction and sentence upheld. The Duty Of This Court 41.This being a first appeal, my duty is settled. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that a first appellate Court must reconsider and re-evaluate the evidence adduced before the trial Court and draw its own conclusions, bearing always in mind that it did not see or hear the witnesses. It must not merely scrutinize the evidence to see whether there was some evidence to support the Lower Court’s findings; it must weigh conflicting evidence and draw its own inferences and conclusions. The same principle was restated in Kiilu & Another v Republic [2005] 1 KLR 174. 42.Two related principles govern the substance of the exercise. First, the burden of proving the guilt of an accused person rests upon the Prosecution throughout and never shifts, save in the limited statutory exceptions which do not arise here: Woolmington v DPP [1935] AC 462; Republic v Oyier [1985] KLR 353. Second, the standard is proof beyond reasonable doubt; where a reasonable doubt remains, the accused is entitled to the benefit of it. 43.Where the trial Court has erred in principle, or has taken into account matters it ought not to have taken into account, or has failed to consider matters it was bound to consider, this Court is not merely entitled but obliged to intervene. Issues For Determination 44.Having considered the record and the rival submissions, the issues that fall for determination are:a.Whether the manner in which the evidence of the Complainant was received was lawful, and with what consequences for the record;b.Whether the age of the Complainant was proved to the requisite standard, and whether a conviction under Section 8(4) upon a charge laid under Section 8(3) is sustainable;c.Whether penetration was proved beyond reasonable doubt;d.Whether the Appellant was proved beyond reasonable doubt to be the perpetrator;e.Whether the trial Court properly evaluated the contradictions in the Prosecution case and properly considered the defence; andf.What orders ought to issue. Analysis And Determination Issue (i): The reception of the Complainant’s evidence and the role of an intermediary 45.This is the central question in the appeal, and in my respectful view the trial Court fell into a fundamental error upon it. 46.Article 50(7) of the Constitution of Kenya, 2010 provides that in the interest of justice, a Court may allow an intermediary to assist a Complainant or an accused person to communicate with the Court. The language is deliberate. The intermediary assists the witness to communicate. The intermediary does not communicate in the place of the witness. 47.Section 31 of the Sexual Offences Act gives statutory effect to that idea. It empowers the Court, on its own motion or on the application of a party, to declare a witness other than the accused a vulnerable witness. A child, and a person with mental disabilities, fall within the class. Upon such a declaration the Court may direct that the witness be assisted by an intermediary, that the proceedings be held in camera, or that evidence be received by such other means as will reduce the trauma of testifying by the victim of the offence. The Section further provides that where an intermediary is appointed, examination, cross-examination and re-examination are conducted through the intermediary, whose function is to convey the general purport of questions put to the witness. 48.The architecture is therefore plain. The vulnerable witness remains the witness. She remains the source of the evidence. The intermediary is a conduit or a channel of communication, and nothing more. The cross-examination is not dispensed with; it is mediated. The scheme protects the witness without disturbing the accused’s constitutional entitlement, under Article 50(2)(k), to adduce and challenge evidence. 49.In Kenyan jurisprudence, key judicial decisions addressing the appointment and role of an intermediary for vulnerable witnesses under Section 31 of the Sexual Offences Act and Article 50(7) of the Constitution include M.M. v. Republic [2014] eKLR, JWN v. Republic [2022] KEHC 16999, and Kiio v. Republic [2026] KEHC 1953. These cases emphasize that Courts must formally assess vulnerability, conduct a proper inquiry into the intermediary's expertise, and record explicit reasons rather than making casual or oral appointments. The core legal principles on this issue of intermediary include the Court to make a formal declaration after evaluating that a witness is vulnerable before assigning assistance. In the second aspect of the enquiry for the Court to examine the prospective intermediary expertise, special knowledge of relationship to the witness beforehand. 50.This is what the Court said in NM v Republic [2014] eKLR in so far as Article 50(7) of the Constitution as read with Section 31(2) of the Sexual Offences Act is concerned with regard to the appointment of an intermediary to assist a victim of sexual offences under the Act:It is clear from Sections 31 (2) and 32 that, first and foremost it is the duty of the Prosecution to ascertain the vulnerability of the witness and to apply to the Court to make that declaration before appointing an intermediary. In addition, the Court, as we have earlier observed, can on its own motion, through voire dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the Court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The Court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed. The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the Court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross- examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial Court of any difficulties." 45.What occurred in the Court below bore no resemblance to that scheme. The Complainant was never assisted to communicate with the Court. She never returned to the witness box after 15th August 2024. Instead, her sister Keziah Inziani was sworn in her own right, gave an account of what she herself claimed to have seen and of what her sister had told her, was cross-examined upon that account, and was thereafter treated throughout the judgment as PW1 and as the witness who caught the Appellant in the act. In substance, one witness was permitted to testify in the place of another. That is not an intermediary. That is a substitution. 46.The appointment of an intermediary in Kenya’s Legal system is now settled through the various case law. In the event the appointment of an intermediary suffers some procedural flaws the consequences are serious and they run foul to the fair trial rights under Article 50 of the Constitution. First in my own evaluation the learned Trial Magistrate ought to have conducted an enquiry as to the competence and compellability of the Complainant and victim to the sexual assault case. Secondly, there is a mention indicative and on record that a psychiatric report was called for and the same dated 26th August 2024 happened to be shared with the Court. In a nutshell the mental status examination opined as follows: that the victim/Complainant: Memory- poor in relation to memory of immediate, recent and remritus events and recommendation was signal of, intellectual deficiency. Not mentally fit to stand trial in Court of Law of give evidence. Thirdly, the Complainant on 15th August 2024 testified briefly and thereafter stood down to take a mental assessment. Essentially what followed is a declaration of invoking Section 3 of the Sexual Offences Act in which she was declared a vulnerable witness and one Keziah a minor was admitted to give a sworn testimony as an intermediary of the Complainant/victim. This in my considered view was not an intermediary appointment as envisioned in Article 50(7) of the Constitution as read with Section 3 of the Sexual Offences Act. This witness Keziah was a competent and compellable witness for the State/Prosecution because she was at the scene and therefore, she could not fit into the definition of an intermediary. 47.It is settled law in the common law jurisdiction that evidence stipulated in the law does not necessarily mean oral evidence, there are other recognized medium protocols of presenting amicable evidence by witnesses before a Court of law or independent tribunal. I take cognizance of the fact that we borrowed heavily from the State of India in anchoring our jurisprudence. This includes the Evidence Act just as a pointer the Court in the case of State of Rajasthan v. Darshan Singh: Darshan Lal Criminal Appeal No 870 of 2007 dealt with this cluster of issues like the one facing the Trial Court at the time:“………… When a deaf and dumb person is examined in the Court, the Court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath, on being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs not the interpretation of signs.…….. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that the witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods of head are admissible and such nods and gestures are not only admissible but possess evidentiary value.….. Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.….. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her; it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surroundings but should not have any interest in the case and he should be administered oath.” 45.Who is our Complainant in our jurisdiction in so far as Sexual Offences Act is concerned? This is what Section 2(1) of the Sexual Offences Act speaks to this situation in that “Complainant” is defined to mean:“the Republic or the alleged victim of a sexual offence and in the case of a child or person with mental disabilities, includes a person who lodges a complaint on behalf of the alleged victim where the victim is unable or inhibited from lodging and following up a complaint of sexual abuse” 45.In the instant appeal the record shows the Complainant/victim initially gave evidence in chief but certain cognitive impairments of speech were observed by the Learned Trial Magistrate leading to a decision to stand her down so that some psychiatric test could be documented by the Medical Officer. This ultimately was carried out and the conclusion is as captured in the report that she was not fit to give evidence so what could have been the best cause of action for the Trial Court? I do not think in our Kenya’s legal system a Complainant/victim with a mental illness or intellectual disability and automatically not able to testify his/her case collapses and appropriate rights are also lost for reason of his/her vulnerability. If that were to be the law it will mean discrimination on grounds of illness within the provisions of Article 27(4) of the Constitution. If a Complainant/victim is entirely incapable of testifying any such indictment cannot be withdrawn or dismissed particularly a criminal trial for a sexual offence which can still proceed and result in a conviction based on circumstantial, medical, and forensic evidence. 46.This Court had the advantage of reading and perusing the record in which the Appellant was charged with the offence of defilement of a 14-year-old victim. There is no dispute that the Complainant/victim testified briefly stood down to undergo a psychiatric medical analysis. The report was non-responsive as for her suitability to give evidence before a Court of Law. However, and fortunately for her case there were other independent witnesses who provided the pillar of chronological events which characterized the offence. The only observable mistake from the judgment of the trial Court is the mention of the measure of weight given to the incomplete oral evidence adduced by the Complainant/victim before she was disqualified by the Medical Doctor who carried out the aspect of her competence to give evidence in her own trial. I have in mind in this appeal the medical evidence in the form of a P3 dated 14th May 2024 which established conclusively as follows: normal external genitalia, normal labia, majora and minora, with broken hymen, weapon causing injury blunt object/human body part. 47.First, there is evidence of Keziah a 14-year-old in grade 5 and a sister to the Complainant/victim. She came strongly in her evidence that on the material day being 13th of May 2024 she was asleep on their house when the Appellant came calling their mother. Incidentally according PW1 Complainant/victim was outside the house and the Appellant who happened to the uncle sent her to bring a jembe. The minor who is also a niece to the Appellant innocently so and with obedience of the elder’s picked the jembe took to the Appellant and in a short while PW1 heard some noise or commotion and anxiously went out to check the source only to find him on top of the Complainant/victim who laid down naked. This witness in my view is not intermediary of the Complainant/victim within the constitutional and the Sexual Offences Act as stated elsewhere in this judgment. This testimony of PW1 was circumstantially supported with that of PW5. The other witnesses obviously were summoned after the facts of the incident. 48.It is trite that the evidence of PW1 under Section 43 of the Evidence Act is admissible to dispose of the standard and burden of proof of beyond reasonable doubt in favour of the Prosecution case as stipulated in Section 107(1), 108, 109 & 112 of the Evidence Act. I take as strong view in this case and other cases with similar facts that a child witness, if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words, even in the absence of an oath the evidence of a child witness can be considered under Section 124 of the Evidence Act provided that such witness is able to understand the questions and able to give rationale answers to the issues of the offence. There are only precautions which the Trial Court should bear in mind while assessing and evaluating the evidence of a child witness is that the witness must be credible, reliable and truthful going by his/her demeanor. There is no evidence on record from the defence that PW1 was susceptible to be swayed in the matter of the defilement of her sister. Admittedly, PW1 who at the time of the occurrence of defilement was about 14 years and was the solitary eye witness who saw the Appellant and being an uncle there was no mistaken identity that he was the one she saw lying on top of the Complainant/victim whose body was completely undressed. This appeal must be assessed within the parameters of certainty as to what PW1 told the Court in view of the disqualification of the Complainant/victim by the Medical Doctor who also prepared a report to the Court on the incompetence of her adducing the evidence in Court. This question engaged the Court in Ramakant Rai v. Madan Rai (2003) 12 SCC 355, wherein it was observed:“ 23.A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to (sic) of probability amounts to “proof” is an exercise, the interdependence of evidence and the confirmation of one piece of evidence by another, as learned author says: [see The Mathematics of Proof II: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)].“The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.” 45.The letter and spirit of the law on matters of proof beyond reasonable doubt envisions a reasonable doubt which is free from overall emotional response. If a trial Court holds the view on some existence of doubts in any given indictment that the evidence produced by the Prosecution witnesses, it must be actual and substantial doubt to render the guilty of an accused person questionable. It should be imaginary to review or a merely possible doubt but one which is based on reasons and common sense. The Court in K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355 observed that:“ 9.… “A reasonable doubt”, it has been remarked, “does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons [Salmon, J. in his charge to the jury in R. v. Fantle reported in 1959 Criminal Law Review 584]. As observed by Lord Denning in Miller v. Minister of Pensions [(1947) 2 All ER 372] “Proof beyond a reasonable doubt does not mean proof beyond a 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.” In Khem Karan v. State of U.P. [(1974) 4 SCC 603: 1974 SCC (Cri) 689: AIR 1974 SC 1567] this Court observed:“Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.” 45.This is one case in which the defilement conviction involved a mentally challenged survivor as contextualized by the medical report and one could not fully comprehend the nuances of the sexual assault. This Court has got to emphasize that vulnerable persons like the Complainant/victim to this appeal who was confirmed to be suffering from mental sickness by the Medical Doctor deserves the protection of the law and cannot be exploited by applying the word intermediary to defeat the right to a fair trial. The absence of standard deposition does not automatically benefit the Appellant/ Accused if there is on record forensic or medical evidence together with circumstantial evidence that firmly establishes the crime. 46.This appeal can be properly answered bearing in mind the question of competence which by dint of the medical report can be tested within the parameters of Section 125(1) of the Evidence Act which provides that all persons are competent to testify unless prevented from understanding the questions put to them by reason of tender years, extreme old age, disease whether of body or of mind, or any other cause of the same kind. The trial Court proceeded upon a mental status report dated 26th August 2024 which, on the trial Court’s own account, pronounced the Complainant not mentally fit to testify. From the list of exhibits there seems to be an error on the face of the record in view of the fact that the medical report though taken into cognizance by the Court and the exercise of discretion applied accordingly to stand down the Complainant/victim it appears not to be part of the trial bundle marked as provided for in our procedural policy guidelines. Notwithstanding that position this medical report was part of the evidence shared with the Court and being the one which initiated the medical assessment of the Accused/Appellant as to her fitness to give evidence before a Court of law. It cannot be therefore expunged from the record on technical grounds. 47.The failure of the Investigating Officer to notice the Complainant/ victim intellectual disability or to secure a mental fitness assessment in advance cannot be taken to be fatal to the Prosecution case. It is also clear that the trial Court itself had gone ahead to swear the Complainant/Victim and her competency initially was not in doubt until during the proceedings she started losing the logical manifestation of answering the question from the Prosecution Counsel. 48.There are certain facts to this appeal which are not in dispute. First, the Complainant/Victim and the Accused/Appellant were well known to each other before the alleged incident and in fact she was a niece to the said offender. There can be no mistaken identity as to the sexual assailant. Secondly, that piece of evidence that the Accused/Appellant had gone to their home to procure a jembe which was finally handed over to him by the Complainant/Victim who is also his niece is not disputed. Thirdly, that on the material day one PW1 Keziah who is also a sister to the Complainant/Victim who heard some commotion and stepped out to establish the same only to find their own uncle on top of the victim while she was naked is not also in dispute from the defence. This was an offence committed by the Accused/Appellant against the Complainant/Victim with mental disability. These are the words of the information of the charge sheet as framed by the Prosecution:The Accused was charged of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 13th day of May 2024, at around 1300hrs at Wamacheze village, Ebukuhunza location in Emuhaya sub county of Vihiga county intentionally and unlawfully caused his penis to penetrate the vagina of LA a child aged 14 years. The alternative the Appellant/Accused was charged of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 13th day of May 2024, at around 1300hrs at Wamacheze village, Ebukuhunza location in Emuhaya sub county of Vihiga county intentionally and unlawfully touched the vagina of LA a child aged 14 years with his penis. 45.In essence, this was a defilement against a person suffering from metal infirmity to make it worse a minor aged 14 years and niece to the Accused/Appellant. In Black’s Law Dictionary 10th Edition defines mental illness as follows:“ 1.A disorder in thought or mood so substantial that it impairs judgment, behavior, perceptions of reality, or the ability to cope with the ordinary demands of life- also termed mental disorder, mental dysfunction. 2.Mental disease that is sever enough to necessitate care and treatment for the afflicted person’s own welfare or the welfare of others in the community- also termed mental disease.” The medical report of the Complainant/victim is crystal clear that she was unable to communicate as a witness due to that particular mental disability as assessed by the Medical Officer. 45.On the basis of this incident the crime of defilement was registered against the Appellant. The witnesses who included the clan elders being PW2 the owner of the house where the Appellant was picking the jembe who testified to the effect that he met him and confirmed as coming from her house. The witness who is also the mother to the Complainant/victim and PW1, on arrival at her house was informed that one LA had been raped by the Appellant. That is how the villager swung into action one being PW3, PW4 and PW6 with the view to have the culprit arrested so as to answer to the crime. The Police on receipt of the report commenced on investigation, including sending the victim to the hospital for medical examination. It is after the completion of the investigation a recommendation was made to the DPP to charge the Accused/Appellant for the offence of defiling the Complainant/victim. 46.That does not, however, dispose of the appeal. Keziah Inziani was sworn. She gave direct evidence of what she says she personally saw. She was cross-examined by the Appellant, and re-examined. However, mislabeled her status, her account of her own observations is admissible evidence and must be evaluated on its merits, together with the balance of the Prosecution case. I turn to that task. Issue (ii): The age of the Complainant 45.The ingredients of defilement are settled. In Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, the Court of Appeal identified them as the age of the Complainant, proof of penetration, and positive identification of the assailant. 46.Age is not a formality. In Kaingu Elias Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal held that the age of the victim in a sexual offence is a critical component which must be proved by cogent evidence, because it determines both whether an offence is disclosed and, under Section 8, the sentence that follows. As to the means of proof, the Court of Appeal has accepted, following Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, that age may be proved by a birth certificate, a baptismal card, school records, the evidence of parents or guardians, medical evidence including age assessment, or by observation and common sense. The Respondent’s citation of Musyoki Mwakavi v Republic [2014] eKLR is to the same effect. See also Edwin Nyambogo Onsongo vs Republic (2016) eKLR. 47.The evidence on record as to the age of the Complainant/victim appears to be navigated into two typologies. First, it is the one being driven by the Complainant/victim, her sister PW1 and her mother PW2 who placed age as at the time of the trial to be 14 years old. This was also corroborated by the Clinical Officer who filled the P3 form to assess the nature of injuries suffered during the defilement. The second outrageous came from a medical report dated 1st August 2024 by Brian Keya the dentist who placed the Complainant/victim to be aged 17 years old. 48.The determination and proof of age of a child is a critical element in the Kenya’s legal system particularly criminal matters under the Sexual Offences Act. As appreciated from case law the acceptable proofs of age of a minor are wide and they include optimism card, medical assessment report, oral evidence of parents/guardians or direct testimony from the child as long as she possess sufficient intelligence. 49.Let us not beat about the bush, the birth mother typically holds the most immediate, first hand and legally credible information regarding the biological birth of a child. Therefore, the question of dental formula as being advanced by the dentist in these proceedings cannot host or controvert the evidence of the birth mother. It is a known fact that the gestation period of a human being in a mother’s womb is nine months unless there is evidence of an exception. There are no reasons to doubt the evidence of the Complainant/victim and her biological mother PW3 as to the season, time, day, and year of her birth. The issue of her dental formula as alluded to by the dentist in the instant proceedings cannot carry more evidential weight than that of the biological mother. A forensic dental report in a criminal case only provides age estimation and cannot be exact and, in our case, there is no evidence that the dentist maintained strict evidential standards for his report to be admissible in a Court of Law. Why do I say so, biological dental age does not perfectly align with chronological age, therefore Kenyan Courts ought to establish rigorous guidelines on what this report must contain and how Judges and Magistrates should interpret them. The dental estimation in criminal cases is legally intended to fill an evidentially void and not to replace birth certificates. In the instant appeal there was evidence from the mother of the child and no evidence has been shown that she was wrong in telling the Court that her daughter at the time of the incident was 14 years old. The age assessment by the Medical Doctor/Dentist is through a multifaceted approach. It includes examination of any document that had been represented by guardians or biological parents, interrogation history of the child so as to guide the x-rays taken in rooting for a particular range of age of a minor. The method to allocate age based on the level of tooth maturity cannot be substituted with the primary and the information of her the biological mother of the child which is valid and found to be accurate. 50.From this analysis, the age of the child as given by the mother and herself cannot shift to 17 years. Therefore, the narrative of dental age estimation is not applicable to this case and this Court cannot apply it as criteria to rule against the Prosecution that the element of age was not proved beyond reasonable doubt. Issue (ii): Penetration 45.Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Partial insertion suffices. 46.Once the Complainant’s untested evidence is put aside, the Prosecution’s proof of penetration rests upon two pillars: the account of Keziah Inziani, and the medical evidence of PW5 with the accompanying exhibits. I deal with the medical evidence here and with Keziah’s account under the next issue, since it goes principally to the identity of the perpetrator. 47.I hold that the medical evidence establishes recent injury to the hymen consistent with penetrative activity, in support of the direct evidence from Keziah who saw the Accused/Appellant lying on top of the Complainant/victim while in the state of nakedness. Issue (iii): Whether the Appellant was proved to be the perpetrator 45.The Respondent frames this as a question of identification and relies on Anjononi & Others v Republic [1976-80] 1 KLR 1566. With respect, that authority is beside the point. There was no question of the Complainant or her sister picking out a stranger in difficult conditions. The Appellant is their paternal uncle. He lives in or beside the same compound. He admits that he called for his jembe on the material day and that the Complainant brought it to him. Recognition is not in issue. 46.I am conscious of the Respondent’s submission, founded on S.O.O. v Republic [2018] eKLR and on the Tanzanian Court of Appeal’s decision in Dickson Elia Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007, that a Court should not pick sentences out of context, and that not every discrepancy destroys a Prosecution case. I accept that principle without reservation. Our own Court of Appeal has said the same in Philip Nzaka Watu v Republic [2016] eKLR and in Joseph Maina Mwangi v Republic, Criminal Appeal No. 73 of 1993: in any trial there will be inconsistencies, and the question is always whether they are minor or whether they go to the root of the matter. 47.Applying that very test, the contradictions in this case are not peripheral. They concern the hour at which the offence occurred, the place at which it occurred, whether any third person was present at all, and whether the Complainant made an immediate report to her sister. Those are not details at the margin. They are the case. 48.Finally, the trial Court’s stated basis for its finding of identity must be examined. It reasoned that the Appellant’s admitted interaction with the Complainant placed him in close proximity to her, and therefore that he was the one who committed the offence. Presence and opportunity are not proof of commission. In so reasoning the trial Court was drawing an inference from circumstances, and the law governing circumstantial evidence is exacting. In R v Kipkering arap Koske & Another (1949) 16 EACA 135 it was held that in order to justify a conviction on circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis. The principle was affirmed in Sawe v Republic [2003] KLR 364 and in Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990. Here the Appellant advanced an innocent explanation for his presence, namely that he called for his jembe and that the Complainant brought it to him, and that explanation is corroborated in its essentials by the Prosecution’s own witnesses, who all speak of the jembe. Issue (iv): Section 124 of the Evidence Act, the contradictions, and the defence 45.The trial Court invoked the proviso to Section 124 of the Evidence Act. That proviso permits a Court, in a case involving a sexual offence, to convict upon the evidence of the alleged victim alone, notwithstanding the absence of corroboration, where the Court is satisfied that the alleged victim is telling the truth and records the reasons for that satisfaction. 46.The Trial Court’s reliance on DS v Republic [2022] eKLR does not assist, for that decision holds that Section 124 may be relied on where the testimony of a child is corroborated by evidence. The corroboration relied on here, the medical evidence, corroborates at most that penetrative injury occurred. It does not corroborate the identity of the person who caused it, which is the contested question. 47.I turn to the evaluation of the defence case. The trial Court disposed of it in two sentences. It said the Appellant’s testimony was merely a denial, and that without a concrete alibi for his defence the corroborated version of events by the Prosecution was more believable. Both propositions are wrong in law. 48.An accused person who advances an alibi assumes no burden of proving it. The burden of displacing the alibi, like the burden of proving every other element of the case, rests on the Prosecution and never shifts. That has been the law since Woolmington v DPP [1935] AC 462 and it has been repeatedly applied in this jurisdiction: Karanja v Republic [1983] KLR 501; Kiarie v Republic [1984] KLR 739; Erick Otieno Arum v Republic [2006] eKLR. To require a concrete alibi of an accused person, and to hold the absence of one against him, is to reverse the burden of proof. Issue (v): Conclusion on conviction, the alternative count, and the question of a retrial 45.Standing back and re-evaluating the whole of the evidence as I am obliged to do, I reach the following conclusions. The Complainant was a child. There is credible medical evidence of recent penetrative injury to her genitalia and her age at the time being 14 years old. The evidence went further to establish the identity of the perpetrator being a person well known to them by way of their lineage and bloodline. The landmark case of R v Turnbull [1977] QB 224 is the definitive legal authority across common law jurisdictions regarding disputed eyewitness identification. The Court of Appeal consolidated three appeals Regina v. Turnbull, Regina v. Whitby, and Regina v. Roberts to establish strict guidelines that Judges must follow when a criminal conviction relies wholly or substantially on visual identification. The reliability of identification depends on factors such as: How long the witness observed the suspect. The distance between the witness and the suspect. The quality of the lighting and visibility. Whether there were obstructions during the observation. Amount of Time: How long was the suspect observed? Distance: How far away was the witness? Visibility: What were the lighting and visibility conditions? Obstructions: Were there any obstructions to the view? Known or Seen Before: Was the suspect previously known to the witness? Any Reason to Remember: Was there something distinctive about the suspect? Time Lapsed: How much time passed between the initial observation and subsequent identification? Errors or Discrepancies: Were there inconsistencies in the witness's description? 45.I have considered the evidence on identification and I find no mistaken or error of identity of the Appellant. This is by applying the principles which have been tabulated above in the Turnbull case in striking a balance between utilizing the eye testimony of PW1 and ensuring that the conviction is based on reliable and robust evidence. In a nutshell, Complainant/Victim was defiled and the circumstances from which the conclusion of guilt is to be drawn against the Appellant are fully and conclusively established by the testimony of PW1 and PW2 respectively. The facts and the evidence from PW3, PW4, PW5 and PW6 are consistent only with the hypothesis of the guilt of the Appellant and is alibi defence which can best be described as an afterthought and the foundational parameters of that defence has not dislodged the reasonable explanation of beyond reasonable doubt of the witnesses summoned by the State. 46.The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the Kenya common law requires to be observed in the administration of the substantive criminal law. 47.For those reasons, in accepting this perspective I must approach the facts of the present appeal without excitement, exaggeration or eclipse of a sense of proportion on the major issues which revolved around the discussion tailored towards the final determination being, an intermediary issue, the mental infirmity of the Complainant/Victim, the age assessment from various sources and the Appellant cry in pushing for this Court to accept the alibi defence. Nevertheless, a criminal appeal is a judicial examination of the issues in the case and its purpose is to establish whether the learned trial Magistrate erred in not protecting the innocence and moving towards making a finding of proof of the charge or offence beyond reasonable doubt when indeed there was Prosecution violation of the minimum standard of the due process of the law. 48.Ultimately as noted above I am of the considered view that before the trial Court the case was proven beyond reasonable doubt on all of the elements of defilement contrary to Section 8(1) as read with Section 8(3) of eth Sexual Offences Act. The law should not be seen to sit limply while those who defy goes scot-free and those whose seeks its protection like the Complainant/Victim to this appeal loses hope. It is the constitutional duty of the Courts to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or men. If deficiency in investigations or Prosecution is visible or can be perceived by lifting the veil trying to hide the realities of covering the obvious deficiencies, the Courts have a constitutional duty to deal with the same in iron hand appropriately within the framework of the law. 49.In view of my findings above the appeal on conviction and sentence is dismissed for want of merit. DATED, SIGNED AND DELIVERED AT VIHIGA THIS 20TH DAY OF AUGUST 2026.……………………………………R. NYAKUNDIJUDGE