https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1174

JZO v Republic (Criminal Appeal E020 of 2024) [2026] KECA 1174 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KECA 1174 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E020 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA June 19, 2026 Between JZO Appellant and Republic Respondent (Being an appeal against the judgment of the High Court of Kenya at Voi (George Ndulu, J.) delivered on 16th September 2021inCriminal Appeal No. E004 of 2022 Criminal Appeal E004 of 2022 ) Judgment 1.This is a second appeal in which JZO (the appellant) challenges his conviction for the offence of defilement of a child contrary to section 8(2) of the Sexual Offences Act. He is currently serving life imprisonment. 2.The appellant is a grandfather to VA, the complainant. The two courts below believed her testimony that the appellant defiled her on the night of 18th May 2021 at their home at [Particulars Withheld] village while her grandmother (JLA (PW3) was away in Mombasa. In her testimony, she described the assault thus to her grandmother “babu amenifanyia tabia mbaya”. In Court she stated “He put his ‘dud’ on the area I use to urinate. It was painful and I told him to stop.” 3.The victim was examined by Dr. Hathenge who observed that the victim’s hymen was not intact and she had bruises on her Labia Minora. The Police Form 3(P3 Form) prepared by the doctor was produced in evidence on her behalf by Dr. Yusuf Jum (PW4), who also produced an age assessment report in respect of the victim. It was opined that she was 8 years old. 4.In the appeal before us, the appellant contends that both the superior court below and the trial court erred in law by failing to:i.appreciate that the adduced evidence in this matter were framed up and were manipulated from unknown witnesses whose names did appear but never summoned to confirm the same and as such the evidence as adduced cannot form a basis for conviction.ii.find that the evidence in support of the complainant’s medication was questionable because if I (sic) was proved positive, then the minor would have been found the same.iii.appreciate that the entire evidence was full of contradictions, inconsistencies and far-fetched materials to warrant a conviction.iv.appreciate that penetration was not proved to have occurred as required in law.v.find that the no (sic) investigation that was done in this case to warrant this conviction.vi.find that the appellant’s right as stipulated under Article 50(2)(h) of the Constitution was violated. 5.At plenary hearing of the appeal, the appellant appeared in person while learned Prosecution Counsel Mr Kariuki represented the respondent. Both relied on the written submissions filed before the hearing. 6.The appellant argued that both the superior and the trial courts erred in law by failing to appreciate that the evidence was framed up and manipulated from unknown witnesses who were never summoned to testify. Specifically, that PW2, the village elder, was informed by a person named Malian Hodi about the incident, yet he did not testify. Further, that the appellant heeded to summons by PW2 within minutes. He further contended that the evidence of PW2 and PW4, the Investigating Officer, was afterthought evidence because none of the individuals who actually “discovered” the incident provided information at the scene while the public was beating him, and the victim's grandmother (PW3) testified that she was never informed of the matter by the minor. 7.Regarding ground two, the appellant submitted that the courts failed to find that the evidence of the complainant’s medical condition was questionable because, if he was HIV positive, the minor would have also been positive. The medical evidence of the victim only showed a broken hymen with fresh wounds, but no tears. He relied on sections 33 and 77 (ii) and (iii) of the Evidence Act to argue that the trial court should have summoned experts to examine the medical findings, and he challenged the competence of PW1 to testify, citing section 48 of the Evidence Act and the case of Mutonyi & another v Republic [1982] KECA 25 (KLR) to assert that the children's officer was not an expert in mental health compared to the psychiatrist who found that the minor had an intellectual disability. He also argued that the procedure for appointing an intermediary was not properly followed as per the case of M.M v Republic [2014] KECA 441 (KLR), asserting that the intermediary was incompetent, and that the application was made in bad faith. 8.The appellant further contended that the evidence was full of contradictions and inconsistencies, noting that PW1’s first testimony, where she mentioned "mtu mwingine akanishika" and a neighbor doing the same, actually exonerated him. He claimed that the evidence was coached, questioned how a hymen could be broken without visible tears, and highlighted that he was HIV positive while the child remained negative and uninfected months after the incident. 9.The appellant submitted that penetration was not proved as required by law, citing Ben Maina Mwangi v Republic [2006] KEHC 974 (KLR) for the assertion that the medical evidence failed to connect the age of injuries to the time of the offence. Also cited was Benjamin Mugo Mwangi & Another v Republic [1984] KECA 77 (KLR) for the argument that the presence of spermatozoa alone is not conclusive proof of intercourse, and that there was no corroboration for the victim's evidence as required for sexual offences. 10.Finally, the appellant submitted that the investigation was shoddy and failed to warrant a conviction, citing Republic v Silas Magongo Onzere alias Fredrick Namema [2017] KEHC 1213 (KLR); and Stephen Mungai Macharia v Republic [2001] KECA 366 (KLR) to emphasize that the burden of proof rests solely on the prosecution. He argued that the prosecution failed to call necessary witnesses, citing Bukenya & Others v.Uganda [1972] EACA 549, and asserted his right to legal representation under Article 50 (2) (h) of the Constitution and the Legal Aid Act, 2016 was violated, referencing Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR). He concluded by calling into aid the decision of Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR), arguing that he was entitled to the benefit of doubt because the prosecution evidence and his defense, when considered together, did not lead to a “moral certainty of the truth of the charge”. 11.This is a second appeal in which our remit by dint of section 361(1(a) of the Criminal Procedure Code is restricted to matters of law. See Njoroge v Republic [1982] KECA 19 (KLR). 12.At the first appeal before the High Court, the appellant’s grievances were that: the victim was not competent to testify and the appointment of an intermediary witness did not comply with the law; the victim’s evidence was not subjected to cross- examination; penetration was not proved; and the sentence imposed was harsh. We set these out because grounds not taken up at the first appeal cannot be urged in a second appeal absent leave of the second appellate court. The appellant has sought to impermissibly expand the scope of his appeal and we decline the invitation to consider the grounds that his constitutional right to representation was breached; crucial witnesses were not called to testify; and that there was need for a medical explanation to be made on how he could be HIV positive when his victim was not. 13.The appellant has made heavy weather on intermediary evidence supposedly given on behalf of the victim. This argument ignores the fact that, although there was initially an intention to use an intermediary witness as the victim appeared vulnerable in the early stages of the trial, the victim eventually gave her own testimony without need for such assistance. This was after the trial magistrate carried out a voire dire examination in camera and reached the following conclusion:“…she was able to express herself and she is well oriented in time and place.” 14.When the appellant made similar arguments before the High Court, the learned judge held as follows:“In my view, the record was clear that initially PW1 was not able to testify coherently and was stood down. Maybe she was scared. Later she testified, not through an intermediary as the appellant says, but on her own. She was not sworn and not cross- examined.In accordance with the law, the unsworn evidence of PW1 is admissible in evidence but has less weight than that of sworn evidence. The fact that PW1 was not cross-examined did not make her evidence inadmissible. I dismiss that ground.” 15.The grievance is unavailing to the appellant. 16.The second assertion that he was framed up is just as weak. In his defence evidence, he did not allude to such conspiracy at all. Indeed, he never raised this issue with the prosecution witnesses who included PC Yosla Chelagat (PW4), the Investigating Officer. 17.There was evidence of the age of the victim. She gave evidence on how the appellant sexually assaulted her. The appellant was well known to her. He was her grandfather. The findings on the medical examination carried out on her was consistent with defilement. The two courts below believed the totality of this evidence. We have no reason to interfere with those concurrent findings. Indeed, our own reading of evidence leads us to endorse it. 18.We hereby dismiss the appeal. It is unmerited. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.F. TUIYOTT......................................JUDGE OF APPEALDR. K. I. LAIBUTA, CArb FCIArb.......................................JUDGE OF APPEALG. W. NGENYE-MACHARIA......................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR