[2025] KEHC 10665 (KLR)

Kingori v Republic (Criminal Appeal E064 of 2024) [2025] KEHC 10665 (KLR) (22 July 2025) (Judgment)

Neutral citation: [2025] KEHC 10665 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal E064 of 2024

DKN Magare, J

July 22, 2025

Between

Eric Wanjohi Kingori

Appellant

and

Republic

Respondent

Judgment

1. This is an appeal from the sentence of Hon. N. W. Wanja [PM] in Othaya PMCSO No. E006 of 2022. The Appellant was convicted on what is indicated as 20. 10. 2023, which is a public holiday. The appellant was sentenced to 15 years imprisonment hence this appeal. The Appellant was convicted with the offence of defilement contrary to Section 8[1] as read with 8[4] of the Sexual Offences Act.

2. The particulars were that on 08. 07. 2022 at 2300 hours at [particulars withheld] village in Nyeri south Sub-county, within Nyeri County he intentionally caused his penis to penetrate the vagina of S.N.K, a child aged 15 years. The appellant was arrested on 09. 07. 2022.

3. There was an alternative count of indecent act with a child contrary to section 11[1] of the Sexual Offences Act. The particulars were that on 08. 07. 2022 at 2300 hours at [particulars withheld] village in Nyeri south Sub-county, within Nyeri County intentionally touched the vagina of S.N.K, a child aged 15 years with his penis against her will. The last three words are irrelevant for the charge sheet as a child cannot consent to sexual offences. It does not however invalidate the charge.

4. The court then analyzed the evidence and convicted the appellant. The appellant was sentenced to 15 years imprisonment. He raised the following grounds of appeal:a.That the trial magistrate erred in both matters of law and fact by convicting the appellant without considering that the age of the complainant was not proved beyond any reasonable doubt.b.That the trial magistrate erred in law and fact by failing again to find that the complainant had lied to the appellant that she was over 18 years old and her national identity card had burned in the house and also that she was not a student therefore, the defence to charge under section 8[1] as read with section 8[5][a][b] of the Sexual Offences Act was obtained.c.That the trial magistrate erred in law and fact by failing to appreciate that the medical evidence and the elements of the offence charged were not proved beyond reasonable doubt.d.That the trial magistrate erred in law and fact by failing to consider that the complainant told the court that she wanted to be married and she was married while the trial of the case was ongoing.e.That the trial magistrate erred in law and fact by failing to find that the complainant in this case was not a truthful witness, she escaped from school and their home hence her evidence was incredible and unreliable to find conviction.f.That the trial magistrate erred in law and fact by failing to consider that prosecution tendered contradicted and was uncorroborated evidence.g.That the trial magistrate erred in law and fact by rejecting my sworn evidence which was not challenged by the prosecution side without cogent reasons to do so.

Evidence and proceedings 5. The appellant was arrested and arraigned in court on 12. 07. 2022, where he denied both the main count and the alternative count. He was ordered to be released on bond of Ksh. 300,000/=. The state made an application for collection of specimen for analysis together with the recovered specimen. The appellant was also of the same view that DNA test be done at the very first appearance. On 21. 07. 2022, the court was informed that documents had been supplied together with 4 witness statements. The prosecution indicated that samples had been extracted from both the Appellant and the complainant. The matter was mentioned for purpose of supplying DNA results. The prosecution indicated that the same was awaited. A hearing date was to be taken. The appellant indicated that he had nothing to say.

6. On the hearing date the Respondent sought for time to supply the DNA results. The minor disappeared at that point and ordered, strangely to proceed alongside the defilement matter. There were proceedings where the complainant’s mother and the investigating officer testified on the whereabouts of the complainant but no questions or comments were invited from the appellant. The prosecutor then said he had no objection to the investigating officer and the mother being given time. The opinion of appellant was never sought.

7. Subsequently, the complainant was placed in custody of the Ruringu Children’s Home. All the while the Appellant’s voice was missing in the proceedings. The first time the appellant was heard was when he said that he had not read the documentary evidence supplied. The application for adjournment was dismissed. No reason was assigned. No offer was made at this time to comply with Article 50 [2] [g] and [h] of the constitution.

8. The complainant testified that she was 15 years old and she was in form two. She stated that they met on 7. 7.2022 and talked a bit. On 8. 7.2022 she received a message with the word “come”. This message was neither produced or its whereabouts explained. She continued that the duo met until 9. 00 pm when she requested to go home. She was convinced to go home. She stated that they agreed to go to Gikurwe to his house. He left the house and brought chapati and beans, which the complainant ate and slept. They then slept. The Appellant removed her skirt and tights. He spread her legs and inserted his penis into her vagina three times. She stated that the appellant tried to insert the penis into the anus but was unable to. On 09. 07. 2022, she heard a knock on the door. The complainant hid herself under the bed. The Appellant went to open the door.

9. She continued that a lady policewoman came in and handcuffed the appellant. She showed the room, where three policemen entered and searched for the appellant. She went to Waihara police post and then Othaya Level 4 Hospital where P3 was filled. On cross examination, the appellant asked whether the complainant was in school but she stated it is not true that she had dropped out of school. She stated that she had been asked to go to the house and was not forced. She stated that she agreed to have sex with him but was not forced. The appellant was released on bond on 15. 12. 2022.

10. PW2 was a Clinical Officer, Thomas Mwangi. He testified that he had three documents, that is, PR. His main reason for not being in court was that the good doctor was not on duty. PRC was filled by Dr. James Mbao. He stated that the alleged offence is said to have occurred on 08. 07. 2022 at 10. 00 pm. The complainant was examined at 1 pm on 09. 07. 2022. He testified that the Appellant and the complainant had sex on the vagina and the anus using a condom.

11. He continued that the Appellant did not penetrate deep enough - this phrase is unknown to the court. He stated that the complainant stated that she had not changed clothes and had not bathed. On examination there were no physical injuries on her body. The witness proceeded that the vagina had a white discharge. The hymen was not freshly broken and she had no injuries in the anus. She was not put on HIv prevention drugs but was given medicine to prevent infection and pregnancy.

12. On being examined, it was found that her urine had blood, vDRL test was negative. HIv was negative. There was blood in her urine. The P3 stated that injuries were three days old from the date it occurred. There were no lacerations noted and the hymen was absent/broken. She stated that she had had sex with someone else in the primary school. The witness produced the P3. P3 was produced for the Appellant. He was indicated to be 24 years old. No injuries were found on him. Urine test was normal. There were certain statements which cannot be admitted in law but they were allowed in evidence. The PRC had not been supplied but was supplied as the hearing was proceeding. The matter was adjourned to enable him read the same.

13. On the resumed hearing, the witness stated that no spermatozoa was found. The witness stated that there was sexual intercourse with someone else but the time was not indicated.

14. PW3, the complainant’s mother testified that she was a farmer. On 08. 09. 2022, she waited for her daughter, the complainant, in vain. She enquired from the complainant’s cousin, who said that she was speaking on phone to a male person called Eric. The two were arrested and escorted to Waihara Police Station. The complainant stated that the Appellant was her boyfriend. The complainant was born on 06. 05. 2007. She stated that she did not know that the minor had a phone. She stated that Eva was not a witness in this case. The witness stated that the Appellant and complainant were in the same school and as such, the Appellant knew that the complainant was school going. She stated that she did not ask for money to have the case dropped. When the matter was adjourned on 15. 12. 2022, the appellant was released on bond.

15. PW4. Cpl. Susan Chege, testified that on 09. 07. 2022, PW3 reported that her daughter had escaped from home the previous night. She had information that the Appellant was the one with the complainant. They went to the appellant’s home with PC Wilson Kanyi and PW3 to the appellant’s house. They found the complainant under the bed. They arrested the accused and the complainant. The story was a stark contrast with the evidence of the complainant.

16. PW5, PC Hilda Gataka of Othaya Police Station testified that she undertakes gender duties. She was instructed to process two arrested persons; that is the complainant and the Appellant. The duo had been arrested in Gikurwe village. She accompanied Cpl. Susan, PC Muriuki and the accused and the complainant and they went to the accused’s home. They found a used condom in a red wrapper and took it to the government chemist. She produced the wrapper as exhibit 8. The appellant was charged with the offence as the complainant was a child in need of care and protection. She produced clothes by the appellant and complainant. The report was not ready as at 20. 02. 2023.

17. The witness stated that the complainant stated that the condom was used on her. The witness stated that even if the witness said that no condom was used, they forwarded samples to the government chemist and were yet to get the report. The matter was adjourned for the Government Chemist’s report.

18. PW6 Joyce Kihoro, was a Government Analyst. She produced results of her examination of the complainant and the appellant. Her evidence was that the used condom contained Appellant’s semen. The profile from the buccal swab from outside the condom had DNA of the Appellant and complainant. This was produced as exhibit 13.

19. The Appellant testified that he was from Ihuririo and worked as a shamba boy. On 8. 07. 2023 he came from work around 7 pm. They agreed with Paul Wambugu and David Kingori, to look for something to eat. On the way, he met the complainant who was outside their home. The complainant asked for his number as they had not met for a long time. She greeted the two cousins but hugged the accused. She sent a message which the accused replied to. They also updated each other on phone.

20. He also asked her if she had completed school which the complainant answered in the affirmative. The appellant stated that he was not thinking of getting married but she could be a wife if she had completed school. She confirmed she had completed school and even had an ID card. He did not push any further. After 30 minutes, around 9 pm, she came home and found the appellant, the brother and brother in-law. And went straight to the house. The appellant went straight to the house and brought food for them to eat.

21. The Appellant continued that he asked the complainant why she had come. He did not have any business with her. The appellant insisted to know why she came. Finally, they agreed and had consensual sex. Later he realized that the complaint had put her phone on and was communicating with the mother, who knew her whereabouts. He then realized that the complainant had arranged the affair with the mother. She stated that she also wanted to punish the complainant as she was then married. He stated that the complainant had ran away from the beginning of the case as she had arranged with the mother. The complainant indicated that she did not want the mother to be arrested or siblings to be in problems.

22. The Appellant was cross examined thoroughly. He was from the evidence on record, consistent and firm. He stated that he knew the complainant from childhood. He went away. When he came back the complainant had grown. He stated that the complainant told him that she had an ID card but it was burnt with her mother’s things. He did not know that the complainant was in form two. What the complainant stated was that she had completed school. They had spoken on 7. 7.2022 and the complainant came to the house the following day on 8. 7.2022 at 9 pm. The Appellant stated that he did not have time to investigate what the complainant told him but when they spoke, he thought that she was an adult.

23. He stated that he wanted to marry the complainant as she had completed school. According to him, it is the complainant who insisted that they have sex. He stated that the complainant did not scream when they were having sex. When the complainant came to the house, she showed the appellant chats showing they were planning to frame him. At this time they had already had sex. The complainant’s mother was asking for Ksh 300,000/= as compensation.

24. On re-examination, the appellant stated that the complainant had come to their home previously for burial of the appellant’s parents. He did not ask the complainant to come to his house but she insisted on coming. He looked at her adult looking body and her actions.

25. DW2 was Antony Nderitu Kingori, who testified that on 10. 07. 2023, he was in his house [dates appear different]. A lady came and he asked her questions, as to why she had come. He also asked as to whether, she was going to school. He asked the appellant, if he had spoken to the lady. The appellant told the witness that the lady was an adult. He left the house and came to the house later. He continued questioning why they were not in school, if she was a student.

26. The lady stated that the witness stops calling her a student as she was an adult. The mother came with two police men and said ‘mtauza shamba’ as she was talking to the accused. When following up on why they were to sell their land, the complainant’s mother stated that they had her daughter and did not inform the authorities. The witness told the mother that the lady came on her own volition and refused to go.

27. He stated that the appellant was not to blame as the minor brought herself. On cross examination he stated that the complainant was known to him. He came to know her when there was fire at the complainant’s home. The date she came to the home was the first time the complainant was ever in their home. The witness stated that he suspected the complainant was a student and that is why he enquired. He heard her denying being a student and stating that she was an adult. When he interrogated the complainant, the appellant was not present. She stated that the mother had asked for Ksh 50,000/= for the case to end.

28. On re-examination, the witness stated that the complainant came to their home and the accused’s house. He stated that the person looked like a student. The first time she did not respond while the second time she responded that she was an adult. He stated that he did not call the police or report. It was his evidence that the complainant was small bodied.

The Impugned Judgment 29. The court below in a lengthy 58-paragraph judgment found the accused guilty. The court analyzed the evidence and summarized the testimony of each witness superbly. She set out the law regarding defilement. She however, left out the section upon which the appellant was charged.

30. The court also set out the defence in Section 8[5] of the Sexual Offences Act. The court set out properly the ingredients of the offence of defilement as laid in the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013.

31. The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.

32. The court relied on the age assessment report dated 13. 07. 2022. The court placed reliance on the case of Thomas Mwambu Wenyi v Republic [2017] KECA 756 [KLR], where the court of Appeal stated as follows:In the case of Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No.2 of 2000 it was held inter alia that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…

33. The court found that all elements were proved. On the defence, the court found that the complainant and appellant went to the same school and their homes were in a walking distance. The appellant did not follow up to confirm that the complainant had completed school. The evidence of DW1 and DW2 differed on the side. The court found the Appellant deserved 15 years and had regard to 6 months and 17 days the Appellant was in custody.

Submissions 34. The Appellant filed submissions on 07. 11. 2024. They stated that the evidence gave rise to more answers than questions. He stated that on 08. 07. 2023 [should have been 07. 07. 2022], he was at home with two cousins; David Wambugu and David Kingo’ri. They went to Gikaara to look for food for the family. The complainant then sent a message which he replied. Later at 9. 00 pm, the complainant came to their home. She was interrogated by the brother and the Appellant. The complainant wanted to be married but the Appellant was not ready.

35. The Appellant maintained that she was an adult. The appellant relied on Section 8[5] of the Sexual Offences Act. He submitted that the complainant was not straight forward. The court erred in relying on suspicions. Reliance was placed on the case of Sawe v Republic [2003] KLR. The Appellant submitted that he was a 24 year old languishing in jail for a crime he did not commit.

36. He also stated that there was no forceful penetration and hence the sex was consensual. He also submitted that if the matter’s evidence was that the complainant was born on 6. 05. 2007, then she was 17 years. He said that there was no evidence of birth in terms of birth certificate. Reliance was placed on the decision of Langata Dinyo Domokonyang v Republic [2017] KLR, where it was held by Githinji, J as follows:“I also wish to add here that the age of the injuries noted must be brought within the time the offence was allegedly committed, and the absence of hymen is not by itself proof of penetration. In case of Queen v Manuel vincent Quintanilla, 1999 ABQB 769, a Canadian case of which was relied on by the Court of Appeal in PKW v Republic, HCCRA No. 331 of 2008, it was observed that:-“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.”

37. Reliance was also placed on the cases of RKW v Republic [2020] eKLR, P.K.W v Republic [2012] eKLR and Duncan Mwai Gichuhi v Republic [2015] eKLR. He continued that PW6 maintained that he had no way of knowing whether the spermatozoa belonged to the Appellant. The court does not see the necessity of this kind of submission on the face of admission that coitus happened.

38. He relied on the case of Bater v Bater [1950] ALL ER 458,459. He stated that the court disregarded evidence that the complainant’s family was blackmailing the Appellant and was demanding Ksh.50,000/= compensation. He also relied on the case of Martin Charo v Republic [Criminal Appeal 32 of 2015] [2016] KEHC 5619 [KLR] [25 April 2016] [Judgment], where Nyakundi J stated as follows:It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. She seems not to have been complaining about the incident. She had only gone to the appellant's house to have sex and go back home only for her brothers to interfere. She opted to ran away to the appellant's parents' home where they continued having sex for three days. She then decided to go home. She told her father where she was.

39. The Appellant submitted that the Court of Appeal should be cautious where innocent life is at stake. He relied on the case of Juma v Republic [2003] eKLR, where Court of Appeal [Omolo, O’kubasu & Githinji, JJ.A] stated as follows:We wish to point out that in charging a person ….. prosecution must be extremely careful as the consequence of a conviction are serious. Care must be taken when dealing with drafting of charges as it is the life of an individual that is at stake.

40. He submitted that the complainant misbehaved but only the appellant was punished. He stated that there were glaring discrepancies in the case. He lamented that the court disregarded the dictates in H.L. [E] Woolmington v DPP [1935] A.C. 462 pp 481 on the legal burden of proof in criminal matters.

41. He submitted that the court disregarded the fact that the case was entrapment wherein the complainant’s mother was using the same to demand Ksh 50,000/=. He brought to the court’s attention the proceedings at page 93 of the record of Appeal. This will be set out later in this judgment in extensio.

42. The respondent submitted that the main thrust of the Appellant’ case was:a.That the trial magistrate erred in fact and in law in convicting him while evidence and elements of the offence did not meet the threshold required.b.That the trial magistrate erred in fact and in law by failing to consider the defence of the appellant.

43. The Respondent submitted that the issues in the appeal are threefold:a.Whether the elements of the offence of defilement were established to the required standard,b.Whether the appellant’s defence was convincing and considered by the Court,c.Appropriateness of the sentence meted out to the appellant.

44. The respondent submitted that the appellant, in his defence, admitted before the Court that he had sexual intercourse with the victim. The age of the victim was established through a birth age assessment report, which indicated that she was between 15 and 16 years old. The victim had also testified in Court that she was 15 years old and had consistently stated the same during all interviews conducted in the course of investigations, including at the police station and the hospital. This evidence regarding her age was further corroborated by the testimony of the victim's mother.

45. As to the identification of the perpetrator, the appellant was ambushed at his house, where the victim was found hiding under the bed. A used condom was recovered from the scene. DNA analysis confirmed that both the appellant and the victim had used the condom, as it contained DNA traces from both parties. The complainant was categorical in her testimony that she had sexual intercourse with the appellant, a fact which the appellant also admitted in Court.

46. The Respondent submitted that the Appellant raised a defence to the effect that the victim had deceived him that she was of age and was not a student. However, in his testimony, the Appellant stated that he had known the victim since childhood and that she had schooled with his cousins. He further testified that they came from the same village, which placed him in a better position to accurately assess her age. Although the Appellant also claimed that the victim had informed him, through phone chats, that she was not school-going. She had also informed him that she was in possession of a national identity card, the said chats were not produced in court. No plausible explanation was offered for the failure to present this evidence.

47. They submitted that the Appellant’s defence was too weak to displace the overwhelming evidence presented by the State. It was their submissions that the sentence was appropriate. They submitted that the court’s duty was addressed in respect of the principles guiding interference with sentencing by the appellate Court in the case of S v Malgas [117/2000] [2001] ZASCA 30; [2001] 3 All SA 220 [A]; 2001 [2] SA 1222 [SCA]; 2001 [1] SACR 469 [SCA] [19 March 2001], where the Supreme Court of appeal of South Africa [Harms, Marais, Cameron JJA Chetty et Mthiyane AJJA] held that:“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former."

48. The state concluded that the court considers the case of Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003, where the Court of Appeal stated as follows:“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered [see also Sayeka v R. [1989 KLR 306].

Analysis 49. The nature of this appeal raises only two issues, that is:a.Whether the court erred in disregarding the appellant’s defence.b.Whether the state proved its case beyond a balance of probability.

50. There are other auxiliary issues raised but which are not germane to the decision. This includes sentence as a minimum sentence was given. The Respondent rightly relied on the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa [ISLA] & 3 others [Amicus Curiae] [Petition E018 of 2023] [2024] KESC 34 [KLR] [12 July 2024] [Judgment], where the supreme court stated as follows:“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.57. In the Muruatetu case, this court solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital offences, are vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities.

51. In this respect, it will be futile to discuss sentence in a matter where a minimum sentence has been meted out. I shall thus dismiss the appeal on sentence as it adds no value to the determination of the matter.

52. This being a first appeal, this court is under a duty to re-evaluate 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 first hand. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 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 differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

53. 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. In the case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated as follows 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. ”

54. The Appellant was charged with an offence under Section 8 of the Sexual Offences Act. Section 8 of the said Act provides 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.5. It is a defence to a charge under this section if-a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.the accused reasonably believed that the child was over the age of eighteen years.6. The belief referred to in subsection [5][b] is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.7. Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act [Cap. 92] and Children's Act [Cap. 141].8. The provisions of subsection [5] shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.

55. The duty is upon the prosecution to prove its case. At no time does the burden of proof lie of the appellant. The Most oft quoted English decision of by viscount Sankey L.C in the case of H.L. [E] Woolmington v DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that;“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

56. There were four elements that were placed before the court to be determined, that is, whether defilement occurred. This will be in the form of age of the minor, penetration and the Appellant being a perpetrator. The second limb of the list is whether a defence under section 8[5] of the Sexual Offences Act was proved. The last element is subjective. It is not whether any person in the position of the appellant could be deceived. It is that the appellant was actually deceased.

57. The first two elements are straight forward. These are penetration and the appellant being the penetrator. The evidence from PW6 and PW1 together with DW1, the Appellant, was to the effect that the Appellant penetrated the complainant. The complainant came to the Appellant’s house on the material date. The complainant had initially ran away, since she indicated that she took herself to the Appellant’s home. This does not remove the offence of defilement. It however, plays into Section 8[5] of the Sexual Offences Act.

58. The aspect of penetration was proved both by DNA evidence and direct and medical evidence. It is not enough to question prior penetration as that was not on trial. The trial was on the penetration of 08. 07. 2022. Section 2[1] of the Sexual Offences Act defines penetration as doth:The partial or complete insertion of the genital organs of a person into the genital organ of another person.

59. It is thus irrelevant that the penetration was not deep enough as posited by the clinical officer. There was sufficient material to show that there was penetration. It was also shown that the penetration was by the appellant. The next question is the age of the complainant. The complainant testified that she was 15 years old. The mother on the other hand testified that the complainant was born on 06. 07. 2007. This means that the complainant could have thus been 15 years and 2 months at the time of the alleged offence. However, the mother did not produce any evidence in terms of the baptismal card, birth certificate or notification. PW2 Produced the PRC, and two P3 forms. PW4 participated in the arrest of the complainant and the appellant.

60. Proof of age was addressed in the case of JOA v Republic [2019] eKLR where Aburili J stated as follows:Proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.

61. The difficulty the court has is the believability of both the complainant and the mother. Other than the evidence, the court is not blind to the submissions in the proceedings. The Appellant brought to the court’s attention proceedings at pages 93-95 of the record. This court will do an injustice if it does not set out the material parts of the record from page 93 to 95:Prosecutor: The matter is for sentencing. I have received the presentence report and the victim impact statement.Ms Caroline: We did not file the victim impact report since I spoke to the mother who told me the victim has been married and cut off communication with her. I contacted the investigating officer, PC Hilda Gataka who stated that the mother was not truthful. I was left at crossroads.Magistrate14. 11. 2023PC Hilda Gatakaa Mongera. I am aware what is pending in this court is the victim assessment report. The probation officer called me and I gave her contacts of the mother and I am told the mother is in court. I do not know the whereabouts of the victim.venjera Njura- I am the complainant’s mother. I do not know the whereabouts of the complainant. The last I heard she got married. She is also unreachable on phone and I have no way of tracing her.SignedMagistrate20. 11. 2023

62. The court finds it difficult to believe that a person who was a child barely one year earlier was now comfortably married in November 2023. The prosecutor had also formed an opinion that the mother was lying but when called, he confirmed that the complainant was married. If she was 15, in July 2022, she must have been 16 years in November 2023. Something was not adding up.

63. On the face of the evidence, the court had this to say regarding the defence: I am of the considered opinion that the defence is an afterthought and therefore fails. Even the part where the defence stated that the complainant was even married was taken to be an afterthought, even when in fullness of time and on oath, the complainant’s mother testified post judgment that the complainant was married.

64. The evidence thus supports the defence that the appellant believed the complainant that she was over 18 years. The presentence report does not indicate that the appellant admitted to the offence. He had sex with the complainant who deceived him that she was over 18 years. Given that age could not be proved, it is not clear that the complainant was below 18 years.

65. For the court to find that a minor is in a specified age, it must come out in evidence. The prosecution had the mother’s phone where they could easily discount the discussion to frame the Appellant. They did not produce the same. The court below shifted the burden of proof to the appellant. There is no burden to disprove his guilt. He tendered enough evidence that he was deceived and believed. DW2 corroborated the evidence.

66. In this particular matter, age was the linchpin of the case. The mother who gave birth to the child did not find it necessary to produce any evidence of her age. On the other hand, the complainant had already lied on two aspects, that is, how she ended up in the appellant’s home and her age. In her first statement to court she stated that she took herself to the appellant’s house. This changed in evidence. To make matters worse, the appellant testified that the complainant was married by August 2023. This was a time she was supposed to be 15-16 years. The gap between 15- 16 years and 18 years is so narrow that it is imperative that evidence of age be provided. It is different for children of tender years, especially those below 10 years. The court can observe this or even common sense. It does not apply to 15-18 years old who are at the borderline. This raises doubt as to why her birth certificate was not produced. Could it have shown that she was over 18 years? In the case of Republic v Thomas Onyango Ogedi [2020] KEHC 7219 [KLR], Kiarie Waweru Kiarie J, stated as follows regarding inference:“Failure to adduce such crucial evidence may only lead to an inference that had it been adduced, it could have been adverse to the prosecution case. In the case of Bukenya & Others v Uganda [1972] E.A.549, [Lutta Ag. vice President] held:The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”

67. PW5 arrested the complainant and the appellant. She produced exhibits 1-4, being clothes worn by the complainant and the appellant. She produced age assessment dated 13. 07. 2022 as exhibit 12. The said assessment states as follows:Medical SuperintendentOthaya SubcountyDate 13. 07. 2022RE SNKThe above named was brought to our clinic for age assessment on 13. 07. 2022. According to her dentation the last lower molars are not erupted. The x-rays shows that the crown of the last lower molar is starting to form, an occurrence that happens at the age of 15-16 years.[sic]She is between 15 and 16 years.[not signed]Loise MainaCOHO stamped and signedOthaya Subcounty.

68. The court was not informed who Loise Maina was and her qualification. The dentist who performed the examination was not named. This was not a medical report but a letter referenced administration med.sup/osch/ADMIN6. No witness said how the examination was done. It is impossible to know the veracity of the letter. This does not amount to expert evidence. In Parvin Singh Dhalay v Republic [1997] KECA 379 [KLR], it was held that:While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo v George Matata Ndolo [1996] KECA 209 [KLR] Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-“The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

69. The evidence of the other examining doctors from Othaya Sub-county Hospital were produced by PW2 from Othaya Subcounty Hospital. Why was the letter of 13. 07. 2022 not identified by the said clinical officer? Age assessment must be carried out by fully qualified dentist. He must also produce data that the court will examine on the correctness of the determination. In Kaingu Elias Kasumo v Republic Criminal Appeal No. 504 of 2010 the Court stated:“Age of the victim of sexual assault is a critical component. It forms part of the charge which must be proved the same way as penetration in the case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

70. While addressing the question of age assessment, Ali-Aroni J, as she then was, in the case of Hussein Abdi Ibrahim v Republic [2021] KEHC 2439 [KLR], posited as follows:“11. PW1 in his evidence gave two ages 15 years from information which was not supported by evidence and 17 years upon dental examination. The dental formula assessment has scientific backing and since age assessment has bearing on this case, the court will adopt the assessment that has backing and therefore finds as a matter of fact that the victim of the alleged crime was a girl of 17 years."

71. One of the glaring omissions was the failure to lay basis for the absence of identification documents. The assessment was in some letter which had no scientific basis. I find and hold that the court erred in finding that the age of 15 years was proved. The offence was thus not proved in that respect. Indeed, it is not surprising that the complainant who gave vivid evidence, did not remember undergoing age assessment. This purported report must have been an afterthought introduced at the tail end of the case by the investigating officer. No dentist identified or produced this. It was of dubious origin at best and fake at worst. The first question is therefore answered in the negative. The state did no prove the age of the complainant.

72. Since this is not the last court, it is important to address the question of the appellant’s defence. The appellant in his defence stated as follows:a.He believed that the complainant was an adult.b.The complainant tricked him that she was over 18. c.The complainant was framing the appellant.

73. It is on record that the minor faulted herself for taking herself to the complainant’s home. The minor was then confined before giving evidence. Having admitted in court that she took herself to the Appellant’s home, ipso facto, the evidence she gave that the Appellant invited her to his home is false. The witness was in possession of the phone that had the conversation leading to her going to the Appellant’s house.

74. The next question is whether the appellant genuinely believed that the complainant was over 18 years of age. It is not lost on the court that the material date, 8/7/2022, was a Friday, which was a regular school day. Similarly, 7/7/2022, a Thursday, was also a school day. They did not demonstrate that she was attending school on either of those days. In such circumstances, it is conceivable that a 24-year-old might be misled or confused about the complainant's actual age. In this case, she brought herself in the evening at 9 pm to a near stranger. They had just met on 7. 7.2022. From her own evidence the lighting was poor and as such she could not know whether or not the appellant used a condom. It is easy to believe a lie from someone who was not going to school and was actually not in school.

75. The state wrongfully submitted that the Appellant testified that the Appellant’s cousins went to the same school. This are false submissions not based on testimony and evidence. The complainant testified that they first met on 7. 7.2022 at 3. 30 pm. She stated that she knew him from 2019 as a friend and saw him several times in Waihara. She also confirmed that when she went to that home she found cousins cooking chapatis. She did not say at all that the appellant or any of the cousins were in the same school. It is the mother who said that the appellant and complainant went to the same school. The school is unknown. The Appellant indicated that on 8. 7.2023 he had come from work and not school. DW2 testified that none of his cousins schooled at Ihuririo Secondary School. It is also illogical that the state expected the appellant to fill the gaps. If the age difference was 9 years, at what point were they together in Ihuririo secondary school? In Ekiru & another [Criminal Case E010 of 2019] [2024] KEHC 9989 [KLR] [8 August 2024] [Ruling], the court, Nyakundi J, posited as follows:The Court of Appeal of Eastern Africa reinforced the position in the celebrated case of R.T. Bhatt v Republic [1957] EA 332-334 & 335 to define what constitutes a prima facie case at the close of the prosecution case:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.”

76. The complainant was actively misleading not only the appellant, but also the parents by hiding below the bed on the date of arrest. However, the appellant was of a different view. They were walking out when they were arrested. The complainant stated that she had been seeing the appellant in 2019 around Waihara several times. The complainant stated that they met cousins cooking chapatis outside the house. She did not remember that they were in the same school.

77. Both DW1 and DW2 agreed that the complainant came by herself and not that they came together. DW2 interrogated the complainant at length. She maintained that she was an adult. DW2 had to repeat the interrogation. It is therefore clear that the Appellant was deceived by the complainant.

78. The mother introduced one Eva as the person who knew about the issue. PW2 did not even attempt to confirm whether indeed the complainant was in that house. This rends credence to the Appellant’s postulation that he was trapped by the complainant. Though the word used is framed, it cannot be true since the act of penetration occurred. It can only be entrapping into the act.

79. The court discounted section 8[5] on basis that the Appellant knew the complainant earlier. This does not make sense in that, if the two were in the same school, then even if one was in form 1 and another in form 4, then their age difference could only be 4 years. That is 20 and 24. The court reversed the burden of proof and the benefit of doubt. The legal burden is the burden of proof which remains constant throughout a trial. 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.”

80. The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 [1970], at pages 361-64 stated 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.”

81. The Appellant went to a great length to satisfy himself of the age. His evidence was:“That the victim told me that the ID card got burnt in their home together with her mother’s belonging. I did not know that she was a student at … secondary school. I met the victim on 7. 7.2022 and she came to the house on 8. 07. 2022. I thought the complainant was an adult."

82. The court faulted the appellant for not going further. The court relied on the evidence of PW3 to quash the belief held by the appellant. She also relied on the evidence of PW1. However, this was fallacious. The fact that the appellant and complainant went to the same school was brought up by PW3 only. The people going to school did not know this crucial fact. PW1 used to see the appellant several times in 2019. It was not her evidence that they had any form of acquaintance from that year. Her evidence was that they met on 7. 7.2022. He was not cross examined on 2019 incident when the complainant used to see the appellant around Waihara area.

83. Such evidence is unbelievable. The same incident is narrated from a totally different perspective. The appellant indicted that they met in 2022, a day before the penetration incident. When there is doubt, the benefit must be given to the Appellant. The question of the evidence of DW2 must be seen in a different light. If he was the one defiling, then he was to be liable since he did not believe the complainant. Unfortunately, he did not bring these doubts to the brother, DW1. DW2 tendered his evidence as follows:“A lady came and I asked her questions. My table room is attached to the accused’s house. I asked her if she was in school, she did not answer. I also asked the accused if he had spoken with the lady and the accused told me that the complainant had told her that she was not a student. I then left the accused in my house and followed the lady who had entered the accused’s house and continued questioning her on what she was doing in the accused’s house and continued questioning her on what she was doing at the accused’s house and if she was in school. The lady stated that she was not a student and she was an adult and I should desist from calling her a student.”

84. With this lengthy enquiry by the Appellant’s brother, it was beyond doubt that the complainant was determined to maintain that she was an adult. Indeed, the fire incident was referenced as a raison d'être for believing that the fire occurred. The complainant was a master in deception. She used actual incidents to cover her deceit. There can be no explanation for lack of her birth certificate other than the fire. The complainant may have been saying the truth. She may also have been lying. However, the evidence on record shows that she deceived the appellant of her age, if at all she was not over the age of eighteen years.

85. Many a times the constitutional safeguards appear to be a bother to the court. The safeguards in the criminal system arise from the country’s dark history and to avoid wrongful convictions. It is always better to have 10 guilty men walk than jail one innocent man. In JOO v Republic [2015] eKLR, A C Mrima posited as follows on the foregoing altruism:“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.”

86. The accused bears no responsibility to prove his or her innocence as posited by R Nyakundi J in the case of Republic v Safari Katana Lugo [2021] eKLR where he postulated as follows:“The accused bears no responsibility to prove his or her innocence. The answer to this question is simple those who commit crimes against other human beings or their property should be convicted and punished. It also follows that those who do not commit any offence should be acquitted. Most widely quoted maxim is by William Blackstone’s Law Dictionary Reprint 1978 9th edition:“That it is better that ten guilty persons escape, than one innocent suffer.”

87. The courts in the country, must now rigorously enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. In the case of Thomas Patrick Gilbert Cholmondeley v Republic[2008] eKLR, the Court of Appeal stated as follows:“We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: “If you rattle a snake you must be prepared to be bitten by it.” It is the state who has the capacity to deprive individual Kenyans of their rights guaranteed by sections 70 to 82 inclusive of the Constitution. In the recent case of PAUL MWANGI MURUNGAv REPUBLIC , Cr. Appeal No. 35 of 2006, [unreported] this Court, having cited the case of NDEDE v REPUBLIC [1991] KLR 567, delivered itself as follows:-“The appellant in this case had been brought to court some thirty days after his arrest. It was one of those cases which were then called “The Mwakenya cases.” The courts then chose to see no evil and hear no evil, and sought no explanation as to where the accused persons involved in those cases had been before being brought to court. The consequence of the silence on the part of the courts was the infamous “Nyayo house torture chambers. It is a history about which the courts of this country can never be proud of.”We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce against and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers

88. In the case of Paul Munyoki v Republic [2021] KECA 919 [KLR], the Court of Appeal [Ouko, [P], Karanja & Sichale, JJ.A.] addressed the burden of proof in cases where an appellant raises a defence under Section 8[5] of the Sexual Offences Act and held that:“...Where the defence is raised, the court will have to consider the defence, the circumstances including the steps which the accused took to ascertain the age of the complainant. When an accused opts to rely on the defence under Section 5 & 6 of Sexual Offences Act the evidential burden shifts on that accused person to satisfy the above conditions attached to the defence. He has to demonstrate that, it is the child who deceived him to believe that she was eighteen or over, that he believed that the child was over eighteen years and that when all the circumstances are considered it will lead to the conclusion that the belief on the part of the accused was reasonable. What this provision is stating is that the accused who wishes to rely on the defence must lay that basis during the trial. This would give the prosecution an opportunity to interrogate the defence and an opportunity to respond.”

89. In the case of Jonda v Republic [Criminal Appeal 69 of 2021] [2023] KECA 374 [KLR] [31 March 2023] [Judgment], the court of appeal [SG Kairu, P Nyamweya & JW Lessit, JJA] addressed the conjunctive test in section 8[5] while addressing same question as addressed by the same court differently constituted. The net effect is that the current position of the Court of Appeal is that both the requirements of section 8[5][a] and [b] must be present for the defence to make sense. The said court stated as follows:22. This Court [Nambuye, Musinga, & Kiage JJA] held as follows in Eliud Waweru Wambui v R [2019] eKLR on the application of the defence in section 8 [5]:“We think it a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection [6] seems to add a qualification to subsection [5][b] that separates it from the belief proceeding from deception in subsection [5][a]. We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.” Section 8[6] in this regard provides as follows:“[6] The belief referred to in subsection [5][b] is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”23. Our view is that section 8[5] requires a conjunctive as opposed to a disjunctive reading and application, for the reasons that firstly, the word“and” in its ordinary usage is as a conjunction, connecting words, phrases and sentences that are to be taken jointly, and secondly, a departure from this ordinary meaning will have to be required by the purpose of the statute. Therefore, starting with the ordinary meaning and construction of section 8[5], it is our view that the defence therein is available only if, firstly a child makes a deceptive representation that they are an adult that leads to such a subjective belief on the part of the accused person; and, secondly, the accused person demonstrates that reasonable circumstances existed that made him or her form an objective belief that the child was an adult. It is also our view that the absence of the term “reasonable” in section 8[5][a] and its presence in section 8[5][b], and the linkage of the two paragraphs by the conjunction “and”, imports the co-existence of both a subjective and an objective element of the defence that both require to be demonstrated by an accused person.24. In addition, a disjunctive application and interpretation of the word “and” of section 8[5] in our view could not have been intended by the legislature, as it would result in the absurd, unjust and disproportionate situation where the defence is made available to an accused person where a child holds himself or herself out as an adult, even when all surrounding circumstances clearly demonstrate otherwise, and would clearly be contrary to the purpose of the Sexual Offences Act and the mischief the section 8 of the Act seeks to address, which is the protection of children from defilement. Lastly, we also hold the view that the need and rationale for section 8[6] was not to place any qualifications on sub-section [5], but on the contrary, to place an obligation on an accused person to demonstrate that reasonable grounds existed to form a belief that a child was of age, for the defence in section 8[5] to be available.

90. There is no doubt that the complainant led the Appellant to believe that she is over 18 years. That age was not displaced. The court introduced a third test that DW2 did not believe the complainant. That is not the test under section 8[5]. The fact that DW2 viewed the complainant as small bodied does not mean that she was under 18. He believed that she was school going. The complainant had misled both the Appellant and DW2. One believed and another did not. The court faulted the Appellant for not making further enquiry. The prosecution could not prove what other enquiry he needed to carry out.

91. Nevertheless, her age was not proved in this matter. It appears the prosecution concentrated in proving penetration and forgot about age. The evidence on age was fictitious and cannot be used. The defence was also rock solid, even if the court had found the evidence credible. DW2 was in their home when the fire incident occurred. The witness stated that none of the cousins were ever in Ihiririo Secondary School.

92. The defence under section 8[5] of the Sexual Offences Act was proved. The exceptions set out in section 8[8] of the Sexual Offences Act were not shown to apply. These were that there was no evidence that the appellant was related to the complainant within the prohibited degrees of blood or affinity. The finding above entitled the appellant to an acquittal. Every reasonable doubt must be given to accused, not the state. In the case of R v Lifchus {1997}3 SCR 320 the Supreme court of Canada explained the standard of proof as doth:-“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”

93. One question that bothers the court was the determination of PW1 to be defiled, if she was over 18 years. She was subjected to intense questioning by both the Appellant and DW2 but she maintained that she was over 18. State was entitled to rebut some evidence tendered by the appellant, for example when the Appellant testified on 28. 08. 2023, a year later, when the complainant was supposed to be 16 years, the Appellant stated on oath that the complainant was currently married. He was not cross examined on this aspect and no rebuttal evidence was tendered. This rends credence to the defence case that she was over 18 and the Appellant was being entrapped. A reference to Eva was thus false. If she existed she should have been called to show the link, otherwise the scheme to trap the complainant was more believable. Even the communication between PW1 and PW3 showing entrapment was not followed up. Failure to call Eva must be presumed that had that evidence been called, it would have been against the state. In Republic v Sagirai [Criminal Case E049 of 2022] [2023] KEHC 938 [KLR] [26 January 2023] [Judgment], Wendoh J, posited as follows:Section 143 of the Evidence Act provides that a fact can be proved by the evidence of a single witness unless a statute requires otherwise. As held in Bukenya & others v Uganda [1972] EA 549 that where important witnesses are not called by the prosecution; to testify, the court may draw on inference that the evidence of that important witness may have been adverse to the prosecution case. In Donald Majiwa Achilwa & 2 others v Reublic [2009] eKLR, the court said: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.”

94. It is unnecessary to address the question of sentence in view of the findings. The appeal is accordingly allowed.

95. Before departing, the court must take great exception that the court did not find it necessary to address the need for legal representation of the Appellant and to inform the Appellant of that right. From questions the Appellant was asking, it was clear that he was to be greatly prejudiced from the lack of legal representation. The one disturbing aspect of this case was the right to legal representation. The right is provided under Article 50[2][g] and [h] of the Constitution. The same provides as follows:[2]Every accused person has the right to a fair trial, which includes the right-[g]to choose, and be represented by, an advocate, and to be informed of this right promptly;[h]to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

96. The Legal Aid Act No 6 of 2016 operationalizes Article 50[2][g] and [h] of the , therefore, Article 50[2][g] and [h] of the Constitution and the Legal Aid Act . The preamble to the Legal Aid Act states as follows:An Act of Parliament to give effect to articles 19[2], 48, 50[2][g] and [h] of the Constitution to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for legal aid, and for the funding of legal aid and for connected purposes.

97. The Act deals with access to justice, by providing legal aid services to indigent persons in Kenya. This provides for inclusion, non-discrimination and protection of marginalized groups. Sections 3 and 4 of the Legal Aid Act are particularly to the point. They provide as follows:3. The object of this Act is to establish a legal and Object of Act. institutional framework to promote access to justice by-a.providing affordable, accessible, sustainable, credible and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution;b.providing a legal aid scheme to assist indigent persons to access legal aid;c.promoting legal awareness;d.supporting community legal services by funding justice advisory centers, education, and research; ande.promoting alternative dispute resolution methods that enhance access to justice in accordance with the Constitution.4. In the performance of the functions and the exercise of the powers conferred on the Service under this Act, the Service shall be guided by-a.the national values and principles of governance set out in Article 10 of the Constitution;b.the values and principles of the public service set out in Article 232 of the Constitution;c.the principles of impartiality, gender equality and gender equity;d.the principles of inclusiveness, non-discrimination ande.protection of marginalized groups;f.the rules of natural justice; andg.the provisions of any treaty or convention ratified by Kenya, relating to the provision of legal aid.

98. In the case KO v Republic [Criminal Appeal E026 of 2021] [2023] KEHC 18310 [KLR] [2 June 2023] [Judgment], W. Musyoka posited as follows:“15. The other ground is on the trial, conviction and sentence being illegal, unconstitutional and null and void. I am not clear about what he has in mind. I have looked through the proceedings, and I note that article 50[2][g][h] of the Constitution was not complied with. Article 50[2][g][h] of the Constitution is about the constitutional right to legal representation by an Advocate of one’s choice. These provisions are about being entitled to legal representation by an Advocate of one’s choice, or at State expense, in case of being indigent, and being informed of those rights, in either case. Article 50[2][g][h] makes it a fair trial right for an accused person to be informed of his right to choose an Advocate to represent him in the proceedings; and where he cannot afford one, to have one assigned to him, if substantial injustice would otherwise occur. The provision places a burden on the trial court, before it commences the trial, to ensure that the accused person is informed of his rights, including that to appoint an Advocate of his own choice, and where he cannot afford one, to have one assigned to him at State expense. Whether or not an accused person can afford to instruct an advocate of his own choice, is a matter to be addressed when he is first arraigned.16. Regarding whether substantial injustice would otherwise arise, it would appear that in any case where the accused faces a charge where his liberty is likely to be taken away for a long time, substantial injustice could arise, if he does not have the benefit of legal representation. Incest committed on minors attracts a mandatory penalty of life in jail, according to section 20 of the Sexual Offences Act, subject, to Philip Mueke Maingi& others v Director of Public Prosecutions & another Machakos HC Petition No E017 of 2021 [Odunga, J] and Edwin Wachira & 9 others v Republic Mombasa HC Petition No 97 of 2021 [Mativo, J].17. The appellant was charged with gang rape, contrary to section 10 of the Sexual Offences Act, where the punishment is pretty stiff, if the victims are minors, for it attracts a minimum of 15 years, and a maximum of life. That penalty clearly points to substantial injustice occurring, where the accused could face a long jail term, should he be convicted, and should attract the benefit of article 50[2][g][h] of the Constitution, particularly where the accused person is indigent. The severity of the charge and the penalty should be the trigger for the trial court to inform the accused of those rights, and to especially consider whether the accused would have capacity to defend himself, in terms of being capable of conducting his own defence, or to instruct an Advocate of his own choice.19. Section 43 of the Legal Aid Act imposes a duty on the court, before whom an unrepresented person is presented in court, especially for plea-taking, to comply with article 50[2][g][h] of the Constitution, by informing that person of his right to legal representation of his own choice, and where substantial injustice is likely to arise, to inform him of his right to be assigned an advocate by the state, and where the accused is found to require such aid, to inform the National Legal Aid Service to provide legal aid service to the accused person. According to section 43[1A] of the Legal Aid Act, in determining whether substantial injustice is likely to occur, the court should take into account the severity of the charge and sentence, the complexity of the case, and the capacity of the accused to defend himself.

99. The court had a duty to inform the accused person of their rights under Article 50[2][g] and [h] of the Constitution. Upon doing so, it was further obligated to assess—or to put in place mechanisms for assessing—whether the accused required legal aid from the National Legal Aid Service. These steps are prerequisites for a fair trial and are conditions precedent before any trial can proceed.

100. These rights are not optional since they are constitutional imperatives commanded by the Constitution. Accordingly, trial courts have a duty to ensure full compliance. Failure to comply with these requirements ought to automatically render the subsequent trial null and void for violation of the Constitution. In this matter all these prerequisite were not done. Perusing the proceedings, it is clear that substantial injustice occurred by failure to follow the said article of the constitution. The Appellant was not informed of the said right promptly. The success of this appeal was not on the basis of the strengths of the defence mounted but the weakness of the prosecution case. Otherwise, the court will have declared the trial a mistrial.

101. The duty to inform on legal representation is a continuous one. The duty does not cease once the accused appoints counsel. Where counsel is even absent the court is under duty to enquire whether the accused persons were still being represented and inform then the right to counsel. In a case where substantial injustice may occur, as in this case where the appellant was semi-illiterate, the duty was even more profound. In the case of Ngetichv Republic [Criminal Revision 001 of 2023] [2023] KEHC 20155 [KLR] [13 July 2023] [Ruling], R Nyakundi, J, posited as follows;“That decision which vitiated the right to legal presentation of the accused persons under Article 50 [g] of the Constitution in the cause of the proceedings remains a mirage. In this respect it was incumbent upon the session magistrate to enter into an inquiry as whether the accused persons were still being represented by the learned counsel Mr. Magut and if not so, whether there was need for them to engage another legal counsel to take over the proceedings. It’s apparent from the record that during this session the learned magistrate went ahead to decline an adjournment giving room to the DPP an opportunity to prosecute the charge against the accused persons without legal representation. It is noteworthy that the record fails to indicate whether the accused persons had elected to act in person. Nevertheless, the proceedings on 1/9/2021 proceeded without reference to the right on legal representation."

Determination 102. The consequence of the foregoing is that the court makes the following orders:a.The appeal on conviction is allowed. The conviction and sentence are set aside. The Appellant is set free unless otherwise lawfully held.b.The file is closed.

DATED, SIGNED AND DELIVERED AT NYERI ON THIS 22ND DAY OF JULY, 2025. Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:-Mr. Kimani for the StateAppellant presentCourt Assistant – MichaelM. D. KIZITO, J.