https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12460

Kioko v Republic (Criminal Appeal E030 of 2024) [2026] KEHC 12460 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12460 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E030 of 2024 BM Musyoki, J July 29, 2026 Between Nicholas Kimeu Kioko Appellant and The Republic Respondent (Being an appeal against conviction and sentence dated 30th April 2024 in Senior Principal Magistrates Court at Kithimani (Hon. P. Wechuli PM) in sexual offence case number E018 of 2020) Judgment 1.The appellant was charged, tried and convicted of defilement contrary to Section 8(1)(3) of the Sexual Offences Act particulars being that on the 23rd day of December 2020 at [Particulars withheld] village in [Particulars withheld]Sub-County within Machakos County intentionally caused his penis to penetrate the vagina of FK a child aged 15 years. 2.The appellant was sentenced to serve twenty years in jail and being aggrieved, approached this court seeking to upset the aforesaid conviction and sentence raising the following grounds; 1.That the learned trial Magistrate erred in law in convicting the appellant without warning himself against the danger of convicting the appellant against unsubstantiated evidence of a minor. 2.That the trial Magistrate erred in law and in fact by not considering that nothing linked the accused medically with the alleged offence. 3.That the learned Magistrate erred in both points of law and facts for failing to note that the prosecution’s evidence was inadequate to hold a conviction. 4.That the learned trial Magistrate erred in both points of law and facts by convicting the appellant without considering that the prosecution evidence was full of contradictions and was not corroborated which was inconsistent with the provisions of the Evidence Act. 5.That the learned trial Magistrate erred in both points of law and facts by disregarding the appellant’s evidence without giving cogent reasons. 6.That the trial Magistrate erred in both matters of law and facts by imposing a harsh sentence that is highly excessive and punitive without considering the fact that being a first offender and the age of the minor, the appellant was lawfully entitled and qualified to benefit from Article 50(2) of the Constitution. 7.That the learned Magistrate erred in law and fact by convicting the appellant thus amounting to a miscarriage of justice. Prosecution’s case 3.The complainant told the court that on 23-11-2020 which was on a Thursday, she was going to the church for Christmas with a neighbour boy. At 2 pm while on the way, the boy went to call a daughter of the chairlady and the appellant appeared and dragged her to the bush and defiled her for about 15 minutes and ran away with colleagues. He warned her not to say anything lest she would be harmed. She added that she went to a nearby shop and asked for a phone and called her mother who was not available then called her father and told him. The father went to the police station after which she was taken to Ndithini hospital where she was treated then went back to the police station where she was issued with a P3 form. She identified the P3 form in court. She also identified the appellant in the dock who she said she had known for one year. 4.In cross-examination, the complainant insisted that she saw the appellant who came from her behind. She stated that she knew the appellant very well as he used to come and work there. She even knew his home and his mother. She added that there was DNA test which was conducted at Kenyatta but she never saw the results. 5.PW2 was MM who testified that on 23-12-2020, while she was seated outside her house with a house girl, someone alerted her of her husband’s missed calls. Her husband told her to go to a scene where their daughter had been defiled. She went and found her daughter crying. The daughter told her that Kimeu had dragged her to a nearby house and defiled her. She showed her some blood. The witness added that she was then given contact number for the assistant chief. She asked people to arrest the appellant which they did and took him to the assistant chief. She concluded that she knew the appellant who was their neighbour. She produced the child’s birth certificate as an exhibit. 6.In cross-examination the witness stated that the appellant found the complainant beside the road as she waited for other people. She reiterated that the complainant called her father who called the witness. 7.FM who was the third witness stated that on 23-12-2020, his sister told him that the complainant’s father had said that she had been defiled by Kimeu. He and another person arrested Kimeu and took him to the assistant chief. He added in cross-examination that they found the appellant in the house and that he was not present when the defilement occurred. 8Another witness also identified in the proceedings as FM who was called as PW4 told the court that on 23-12-2020, he was on the way from Ekalakala when he found PW2 and the child crying. PW2 said that her child had been raped and asked for the contact number of the assistant chief. She called the assistant chief who told him and PW3 to arrest the appellant which they did. He added that the child identified the appellant when she saw him. The witness stated in cross-examination that he did not know if the appellant committed the offence and that when they found him at home, he agreed to go with them. 9.The last witness was Dr. Brian Makau a clinician at Ndithini hospital. He testified that, the child was referred to the hospital in December 2020. The inner wear was blood stained with allegation of having been raped on 24-12-2020 by someone known to her. She had lacerations on the vaginal wall and hymen was broken and she had bloody discharge. He produced the P3 form as exhibit. 10.In his defence, the appellant told the court on oath that he was a hustler and he did not commit the offence and that it was all lies. He stated that, his family and that of the complainant had a dispute. He added that someone from the complainant’s family had stolen a sheep from their home and his mother knew. He added that people he did not name came for him with a motor bike and when he was taken to the market, he was told that he had committed the offence. Analysis and determination 111.I have read the submissions of the appellant dated 16-02-2026 alongside the record of appeal including the judgment of the trial court. When the matter came for confirmation of compliance on 23-02-2026, Mr. Mangare for the respondent told me that they had filed their submissions but I am unable to trace them either in the hard file or in the case tracking system. 12.This being a first appeal, this court is under an obligation to re-consider, re-evaluate and re-analyze the evidence produced before the lower court and come to its own independent conclusion but keep in mind that it did not take the evidence of the parties neither did it have the opportunity to observe the demeanour of the witnesses. This is a long-held principle which has been encapsulated in many decided cases including Mursal & another v Masese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR) where the court stated that;‘A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.’ 13.As rightly held by the trial court and submitted by the appellant, the ingredients of the offence of defilement are the age of the victim, the act of penetration and identification of the perpetrator. Reading from the submissions of the appellant and the record of the trial court, it is not disputed that the child was 15 years meaning that this court is called upon to analyze whether the evidence was enough to prove beyond reasonable doubt that the complainant was penetrated and if so, whether the appellant was the perpetrator. 14.The act of penetration can be proved by testimony of the witnesses or medical documents or both. In this matter, the complainant told the court that the appellant dragged her into the bush and raped her. She did not describe how the act was specifically done but I do not think that, it is necessary for a complainant to explain every detail. The complainant was aged 15 years and obviously approaching the age of majority and I do believe that she and the appellant understood what the word rape meant. 15.The complainant also told the court that she was taken to hospital on the same date. The only medical document produced in court was P3 form issued on 23-12-2020 and filled on 24-12-2020. The appellant has argued that the clinical officer contradicted the complainant’s evidence by stating that she was defiled on 24-12-2020. The P3 form indicates that the complainant was defiled on 23-12-2020 at 1750 hours although the complainant claimed that it happened at 2 pm. It shows that the date of the injuries seen was one day which is in my view consistent with the testimony of the complainant. I do not see the clinician’s evidence as a material inconsistency since the P3 form speaks for itself and there was no challenge to its production. 16.It has caught my attention that the P3 form was filed by one Brian Kavele whose designation, position or profession is not indicated. PW4 did not tell the court why the said Brian could not be called to testify or what position or his designation in the hospital was. He actually did not state that he was testifying on behalf of Brian or a doctor from the said hospital. No treatment notes were produced in evidence and although PW5 did not bother or was not led to tell the court the kind of treatment the complainant was given, the P3 form shows that she was given some drugs which appear to me to be painkillers and antibiotics. In these circumstances, the element of penetration was proved. 17.I now turn to the ingredient of identification of the perpetrator which in my view is the most contentious. The proof of the same is depended on the consistency and veracity of the evidence produced. As per the appellant’s submissions, he has taken issue with what he perceives as inconsistency of the prosecution’s evidence, failure to produce DNA results, failure to call crucial witnesses and the circumstances surrounding his arrest. 18.The appellant has submitted that there was contradiction on the scene of the offence. The complainant told the court that she was defiled in a bush while her mother (PW2) told the court that the act was in a house. I do agree with the appellant that this would be significant contradiction but it must be taken in context and totality of other pieces of evidence. The complainant must have narrated the ordeal to the mother and for a scene to have been in a house, there should have been explanation of which and whose house it was. If what the two witnesses told the court was what they had recorded in their statement at the police station, it should in my view, have raised the antennae of the investigating officer if he was prudent enough and prompt him to visit the scene and conduct more inquiries beyond the stories told to him by the two witnesses. 19.The complainant had claimed to have been accompanied by a boy who had gone to call another girl before the appellant pounced on her. She did not tell the court of the whereabouts of her company or how far from the scene was the place where the boy was to pick the other girl. It would have been crucial for the identity of this boy to be disclosed and statement taken from him or at least an attempt made for him to corroborate the testimony of the complainant. 20I am alive to the fact that the Section 124 of the Evidence Act allows the court to convict on evidence of a single witness but that should so be only where the court believes that the witness is telling the truth. This Section is meant to cushion victims against injustice where the only evidence available is that of the victim but not as a panacea for every sexual offence even where other evidence whether circumstantial or direct is deliberately left out exposing some gaps. 21.I am also alive to the position that the trial court had the opportunity to see and observe the demeanour of the witnesses and therefore better placed to analyse the truth or lack of it in their testimonies but where the evidence seems to be taken too shallowly or casually, the appellate court will be within its mandate to differ with the trial court in this aspect. The chains of events as narrated by the complainant and the other witnesses especially PW2 do not comment themselves to me as strong enough to establish truthfulness of the witnesses. 22.The complainant claims to have been defiled at 2 pm for 15 minutes. It should be assumed that for this long, the boy who had gone to call another girl had not come back. She claims to have borrowed a phone to call her father and mother. Why the investigating officer did not think that the evidence of the boy, the lady who gave the complainant the phone to call her parents and the father who the compliant called after the mother refused to pick the call, was necessary baffles me. After the mother was given the Assistant Chief’s contact number, she claimed to have asked some people who were assumably PW3 and PW4 to arrest the appellant and take him to the Assistant Chief. 23.PW3 told the court that they arrested the appellant and took him to the Assistant Chief while PW4 stated that the complainant’s mother was the one who called the Assistant Chief and the Assistant Chief instructed him and PW3 to arrest the appellant. While this contradiction is not material to afford an acquittal, I would have expected the Assistant Chief to play part in the mobilization and arrest of the appellant. The court was not told where the appellant was taken after being delivered to the Assistant Chief. The Assistant Chief is said to have played part in the arrest of the appellant, but the chain was broken when the prosecution failed to lead evidence to show what happened after the appellant was taken to the Assistant Chief. The selective and restricted manner in which the witnesses were called shed some bout of reasonable doubt into my mind. 24.PW3 and PW4 claimed to have picked the appellant from his home and it appears that he did not resist the arrest. They did not state whether they told the appellant the reason for his arrest. The appellant said in his defence that he was asked to board a motor bike and was only informed of the offence at the market. He did not talk of him being taken to the Assistant Chief. A person who had just committed heinous act of defiling a girl at day time would not in my view go and rest at home where he would easily be found and calmly accompany two civilians to the market. The conduct is not consistent with a person who had just committed the offence. 25.The appellant has argued that the evidence of an investigating officer in criminal cases is indispensable. I do not agree. Where there is tight and enough evidence in a trial, a court can convict without the necessity of the investigating officer testifying. In a case which is properly investigated, the investigating officer comes in just to give narration of how he collected and secured the evidence and in majority of the cases, his evidence is repetitive of what the other witnesses say. 26.However, although it is not a must for the investigating officer to testify for a court to return a verdict of guilty, the court must consider the circumstances of the case and where there are glaring inconsistencies and loose ends, the investigating officer must appear and give an explanation of details of his investigations. For instance, in this matter, the investigating officer should have testified and told the court why the witnesses I have identified above were left out and how he came into a conclusion that the appellant had committed the offence. 27.In Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR), the Court of Appeal while dealing with a similar situation held that;‘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.’ 28.The trial court observed in its judgment that the identification of the appellant was not in doubt because the complainant knew the appellant very well including his home. The fact that the complainant knew the appellant does not in itself mean that he committed the offence. The identification in matters of this nature is not restricted or limited to knowing the accused person. The identification referred to as ingredient means identifying the perpetrator and proving that he actually did the act. Going by the evidence on record, I am not convinced that there was enough evidence to identify the appellant as having committed the offence. A decision of the court should be dependent on the strength and probative value of the evidence and not the possibility of the act having been committed. 29The appellant has raised issue with the failure by the prosecution to avail the DNA test results. The proceedings show that on 6-04-2022, the prosecution told the court that some samples of the appellant and the complainant had been taken to the Government Chemist for DNA test. The complainant is on record confirming that DNA test was done in Kenyatta national Hospital but results were never submitted. It is not clear what kind of samples were these and how important or relevant they were to the case. I do not think that failure to produce the DNA test results would have affected the case in any way had the other evidence been sufficient to prove the offence. 30It has been held and I do agree that DNA test is not necessary to prove defilement. It can only corroborate evidence where there are gaps to be closed. In Wanyonyi v Republic [2019] KECA 679 (KLR), it was held that;‘The appellant asserts he is not the person who impregnated the complainant. Whether the victim of a sexual offence is impregnated or not is irrelevant to the ingredient of the offence of defilement.’ 31Having said the above, I must state that, if indeed the appellant defiled the complainant to which I have reservation, the investigating officer and the prosecution betrayed and failed her in the way they handled the case. The investigations were very poor and below acceptable standards. An investigator’s work must go beyond taking statements of witnesses who present themselves. He must seek and make attempts to procure witnesses who are crucial to the case. In this case, the investigating officer did not go out of his office to summon crucial witnesses and made it worse when he failed to testify. The prosecution closed its case without calling the investigating officer and did not inform the court the reasons for such a decision. 32The prosecution in my view did worse injustice to the case. The witnesses were not led to give fine details of their testimony. The prosecution has a duty to lead a witness to disclose details which are necessary to prove a case and clarify any grey areas brought up through cross-examination. It must take control of the proceedings in a manner that brings out the clear picture of the events said to constitute the offence. Going by the recorded testimonies, it gives an impression that the witnesses were let to narrate what they had in mind. The prosecutor seems to have been a pillion rider in the proceedings instead of having control. Whereas the prosecution is not expected to coach or suggest what the witnesses are supposed to say, it must remain in the steering wheel and ensure that the evidence is adduced in a manner that would help the court establish the truth. 33In his defence, the appellant stated that he did not commit the offence and brought in an issue of a family dispute. The court held and rightly so, in my opinion that this defence was an afterthought. However, it may have been an afterthought in the aspect of the family dispute but that does not mean that the appellant had the burden to prove his innocence. The burden to prove the case beyond any reasonable doubt remained the duty of the prosecution throughout the proceedings. The appellant could even elect to remain silent and still get an acquittal. 34I think I have said enough to show that the prosecution failed to prove the case against the appellant beyond any reasonable doubt. The conviction was not safe and I proceed to set it aside and quash the sentence imposed upon the appellant. He shall be set free forthwith unless otherwise lawfully held. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of the appellant and in absence of the respondent.