https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12178

Kufucha v Director of Public Prosecution (Criminal Appeal E044 of 2023) [2026] KEHC 12178 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12178 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E044 of 2023 S Mbungi, J July 31, 2026 Between Francis Mwangi Kufucha Appellant and Director Of Public Prosecution Respondent (Being an appeal against the conviction and sentence by Hon. V. Ochanda – SRM delivered on 24th May 2022 at CM’s Court in Murang’a Criminal SO No. 19 of 2020) Judgment 1.The appellant herein, Francis Mwangi Kufucha, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the 19th day of July 2020 at Gitaro sublocation, Gatundu location in Kahuro sub county within Murang’a County, the appellant caused his penis to penetrate the vagina on T.W.N, a child aged four (4) years old. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 19th day of July 2020 at Gitaro sublocation, Gatundu location in Kahuro sub county within Murang’a County, the appellant intentionally and unlawfully touched the vagina of T.W.N, a child aged four (4) years. 3.The appellant pleaded not guilty to all the charges and the case went to full trial. The prosecution called seven witnesses whereas the accused testified as the only defence witness. Facts at Trial. 4.PW1 was Millicent Nduta, the complainant’s mother. She testified that the child was four years old, having been born on 08.05.2016 and produced her birth certificate in court. She recalled that on the material day, while away from home, she got a call from her mother (the complainant’s grandmother). That on 24.07.2020, she informed her that she had taken the complainant to Murang’a Hospital on the allegation that she had been defiled. She stated that the accused was her nephew, used to live a few meters from their home and that there was no grudge between them. 5.PW2 was Margaret Kamau, the complainant’s grandmother. She recalled that on 19.07.2020 at about 3.00 p.m., the complainant’s brother informed her that the complainant had Kshs. 20/- and was purchasing glucose. Upon being questioned, the complainant initially declined to disclose where she had obtained the money. She later disclosed to another child, and subsequently to PW2, that Francis had called her into his house, instructed her to remove her pants and raise her legs, and thereafter gave her Kshs.20. PW2 further testified that she took the complainant to Murang’a Hospital for examination and subsequently presented the medical documents to the police. She stated that the complainant had initially appeared and behaved normally. In cross-examination, she maintained that there was no grudge between her and the appellant, although the appellant confronted her angrily after learning of the allegation and denied committing the offence. 6.PW3 was No. 218719 Sergeant Macharia Njoroge. He testified that on 25th July 2020, PW2 presented an envelope containing medical documents and a report that a four-year-old child had been defiled. Upon being instructed to arrest the suspect, he proceeded to the appellant’s home the following morning in the company of the area Assistant Chief, where they arrested the appellant. 7.PW4 was No. 201603558 Stephen Mwangi Kimani, the Assistant Chief of Gitaru Sub-location. He testified that he accompanied PW3 to the appellant’s home and assisted in identifying the appellant and locating his residence. The appellant was thereafter arrested and taken to Gatundu Police Post. He clarified that he did not participate in the investigations. 8.PW5 was No. 118985 PC Delvin Chepkemei, the investigating officer. She testified that she received a report concerning the defilement of the four-year-old complainant, who had disclosed that the appellant called her into his house, removed her clothes, defiled her, gave her Kshs. 20/- and warned her against disclosing the incident. She arranged for the complainant’s further medical examination and the completion of a P3 form. She also produced the complainant’s birth certificate, which indicated that she was born on 8th May 2016. Owing to the complainant’s tender age, PW2 assisted her in giving and recording her account. Upon completing the investigations, the appellant was charged. 9.PW6 was Joel Onyancha, a Clinical Officer at Muriranjas Hospital. He testified that he completed the complainant’s P3 form using treatment notes from Murang’a Hospital and Muriranjas Hospital. The medical records indicated that the complainant experienced pain in her genital area, particularly while bathing or during the taking of a swab, and that her hymen was broken. No spermatozoa were detected. The complainant was treated with antibiotics. He produced the treatment notes from Murang’a Hospital and Muriranjas Hospital as P. Exhibits 2(a) and 2(b), respectively, and the P3 form as P. Exhibit 3. 10.PW7 was the complainant. The court made several attempts to receive her evidence, but she initially remained mute. When she was eventually affirmed, she testified that she had been playing with her friend on the material day and identified Francis as the person who had done bad things to her. Upon being recalled, she stated that Francis was her uncle and that he had given her money to purchase glucose. She was unable to testify further and began crying, whereupon the court treated her as a vulnerable witness. That marked the close of the prosecution case. 11.The trial court considered the evidence adduced and found that the prosecution had established a prima facie case against the accused and accordingly placed him on his defence. Defence Case 12.DW1 was Francis Mwangi Kufucha, the accused. He gave unsworn evidence and stated that he was a lorry conductor in Mukurweini and that on the material day, he left home at 5:00am in the morning for work and left at 8:00pm in the night. 13.Upon considering the evidence adduced at the trial court, the trial magistrate convicted and sentenced the accused to life imprisonment. 14.Aggrieved by the decision of the trial court, the appellant lodged the present appeal vide a petition of appeal dated 21st March 2023, citing the following grounds of appeal;a.That, The Learned Magistrate erred in law and fact by appointing an intermediary without ascertaining the vulnerability of the complainant.b.The learned Magistrate erred in law and fact by appointing an intermediary without first declaring the complainant as a vulnerable witness.c.The learned Magistrate erred in law and fact by allowing the intermediary to give her own testimony instead of assisting the vulnerable witness testify.d.The learned Magistrate erred in law and fact by failing to follow the procedure under section 31 of the sexual offences Act in taking the evidence of the intermediary.e.The learned Magistrate erred in law and fact by convicting the appellant solely on the uncorroborated evidence of the intermediary.f.The learned Magistrate erred in law and fact by treating the evidence of the complainant's mother as that of an intermediary without following the steps of such an appointment.g.The learned Magistrate erred in law and fact by convicting the appellant based on hearsay evidence.h.The learned Magistrate erred in law and fact by convicting the appellant without evidence beyond reasonable doubt that the appellant was positively identified as the perpetrator of the offence.i.The learned trial Magistrate erred in law and fact by convicting the appellant based on contradicting evidencei.PW6 testified that the P3 form was filled on the 23/7/2020 while the alleged date of offence was 19/7/2020.ii.That the honorable trial magistrate erred in law and in fact in convicting and sentencing the appellant when the evidence adduced was actually contradictory, misplaced and unjust thereby arriving at an improper, unjust and uninformed decision and judgement. 15.Consequently, the appellant prayed that the trial court’s judgment be set aside and he be set free. 16.The appeal was canvassed by way of written submissions. On record are submissions dated 20th May 2025 filed by the appellant, and submissions dated 16th November 2025, filed by the respondent; both of which this court has carefully considered. Appellant’s submissions 17.The appellant condensed the grounds of appeal into five broad issues, namely, whether the trial court complied with the procedure governing the appointment and use of an intermediary; whether the conviction was founded on the uncorroborated evidence of the intermediary; whether the prosecution relied on inadmissible hearsay evidence; whether the appellant was positively identified as the perpetrator; and whether the conviction was founded on contradictory evidence. 18.Regarding the appointment of an intermediary, the appellant submitted that the trial court failed to comply with Article 50(7) of the Constitution and section 31 of the Sexual Offences Act. That the court appointed PW1, the complainant’s mother, as an intermediary without first declaring the complainant a vulnerable witness, ascertaining the complainant’s vulnerability or examining PW1 to determine her suitability to act in that capacity. Citing John Kinyua Nathan v Republic [2017] eKLR and M.M. v Republic [2014] eKLR, the appellant argued that the role of an intermediary is limited to facilitating communication between the vulnerable witness and the court, and does not extend to giving independent evidence on behalf of that witness. That PW1 gave her own account rather than conveying the complainant’s evidence and that, in any event, PW1 subsequently testified as an independent prosecution witness 19.On the sufficiency and admissibility of the evidence, the appellant submitted that the conviction was principally founded on PW2’s account of statements allegedly made by children who were not called as witnesses. In particular, that PW2 testified that Joyce Muthoni and Trevor Kamau informed her of what the complainant had allegedly disclosed, which statements constituted inadmissible hearsay and could not properly form the basis of a conviction, regard being had to section 63 of the Evidence Act. He relied on Maina Kinyatti v Republic [1984] eKLR on the nature and inadmissibility of hearsay evidence. 20.The appellant further submitted that, in the absence of direct evidence, the prosecution case rested on circumstantial evidence which did not irresistibly point to his guilt. He cited Rex v Kipkering arap Koske & Another (1949) 16 EACA 135 for the proposition that, before a conviction may be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 21.On identification, the appellant averred that the complainant merely stated that a person called Francis, whom she described as her uncle, had done bad things to her and given her money to purchase glucose. It was submitted that she did not identify the appellant in the dock despite being recalled on several occasions. The appellant also pointed to PW2’s reference to ‘Wachira Francis’ as the person whose home the complainant frequented and contended that this raised doubt as to the identity of the alleged perpetrator. 22.The appellant additionally challenged the medical evidence, pointing to discrepancies regarding the date on which the P3 form was completed. He also submitted that although the medical records indicated that the complainant’s hymen was broken, there was no discharge or bruising noted. That taking these factors into consideration together with his defence, raised reasonable doubt which ought to have been resolved in his favor Respondent’s Submissions 23.The respondent opposed the appeal and submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt. It was contended that the complainant’s age was established through her birth certificate, the medical evidence adduced by PW6 established penetration, and the complainant positively identified the appellant as the perpetrator. 24.On the appointment of an intermediary, the respondent submitted that the complainant was only four years old and was manifestly unable to communicate effectively without assistance. It was pointed out that, during the initial attempt to receive her evidence, she was unable to repeat the affirmation, became overwhelmed, remained silent and walked out of the courtroom in search of her mother. According to the respondent, those circumstances sufficiently demonstrated her vulnerability and justified the trial court’s decision to appoint her mother as an intermediary under section 31 of the Sexual Offences Act. 25.The respondent further submitted that although PW1 was initially appointed as an intermediary, she later testified in her own capacity as an independent witness. It was also contended that the complainant was subsequently called as PW7 and gave a first-hand account in which she identified her uncle Francis as the person who had done bad things to her and given her money to purchase glucose. The respondent maintained that the complainant’s inability to narrate the incident in greater detail, on account of her tender age and emotional distress, did not render her evidence worthless. In that regard, the respondent relied on M.M. v Republic [2014] eKLR, where the Court of Appeal held that insisting that every child victim of defilement must testify, irrespective of age or ability to communicate, may occasion a miscarriage of justice. Reference was also made to Robinson Tole Mwakuyanda v Republic, High Court Criminal Appeal No. 227 of 2007, in support of the proposition that a conviction may still be founded on other cogent evidence where a child of tender years is incapable of speaking or giving a complete account. 26.The respondent submitted that the complainant’s account was corroborated by the medical evidence of PW6, which showed that she experienced pain in her genital area and that her hymen was broken. It was contended that those findings were consistent with sexual abuse and provided objective corroboration of the prosecution case. 27.On identification, the respondent argued that this was a case of recognition rather than identification of a stranger. The complainant knew the appellant as her uncle Francis. That PW1 confirmed that he was a family member who lived only a few meters away and the evidence showed that the complainant frequently visited his home to play. The respondent maintained that the evidence of PW1 to PW5, considered together with the complainant’s testimony and the medical findings, sufficiently established that the appellant was the perpetrator. Analysis and Determination 28.This being the first appellate court, it is guided by principles set out by the court of appeal in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the court stated as follows:“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 29.Having considered the grounds of appeal, the rival submissions by the parties and the lower court proceedings, I isolate the following issues for determination:i.Whether the procedure adopted by the trial court concerning the complainant’s vulnerability and the appointment of an intermediary occasioned a miscarriage of justice.ii.Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt.iii.Whether the alleged hearsay evidence, contradictions and the appellant’s defence raised reasonable doubt.iv.Whether the sentence imposed upon the appellant was lawful. Issue I: Whether the procedure relating to the appointment of an intermediary occasioned a miscarriage of justice 30.The constitutional provision recognizes that certain witnesses may require assistance to communicate effectively with the court and empowers the court to adopt appropriate measures to facilitate their participation in the proceedings. 31.Article 50(7) of the Constitution provides that:“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.” 31.Section 31(1) of the Sexual Offences Act similarly empowers a court conducting proceedings relating to a sexual offence to declare a child or alleged victim a vulnerable witness. Upon such declaration, the court may, under section 31(4)(b), direct that the witness give evidence through an intermediary. Section 31(10), however, provides that a court shall not convict an accused person solely upon the uncorroborated evidence of an intermediary. 32.In John Kinyua Nathan v Republic [2017] KECA 793 (KLR), the Court of Appeal explained that the vulnerability of the proposed witness ought to be ascertained before an intermediary is appointed and that the court should satisfy itself as to the suitability of the proposed intermediary. The intermediary’s function is to facilitate communication and not to substitute his or her own evidence for that of the vulnerable witness. The court held thus:“It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the proposed vulnerable witness and to inform the court of the same. The court too must satisfy itself of the vulnerability of the witness before declaring the witness vulnerable. Section 31(4) only comes into play after such declaration. Once declared vulnerable, the court may direct that the witness give evidence through an intermediary. The intermediary must be a person who has the necessary expertise or experience and in the court’s opinion is able to communicate with the vulnerable witness." 31.In the present case, the appellant has faulted the trial court for appointing PW1 as an intermediary, on account that the court did not declare the minor as a vulnerable witness. That the evidence presented by the intermediary to the court was that of a witness and not the intermediary’s. To me, this argument is neither here nor there. From the record, the complainant was only four years old. During the initial attempt to receive her evidence and voire dire examination, she was unable to repeat the affirmation after the interpreter, became mute and eventually walked out of the courtroom to look for her mother. Those circumstances plainly demonstrated that the complainant was experiencing considerable difficulty communicating with the court on account of her tender age and emotional state. That is when the trial court thereupon invited her mother to assist as an intermediary. 32.As correctly submitted by the appellant, PW1 was appointed by the court as an intermediary for the complainant. However, PW1 did not purport to transmit answers given to her by the complainant. Rather, she testified in her own independent capacity as the complainant’s mother, principally concerning the complainant’s age, the report made to her and her relationship with the appellant. It is noteworthy, however, that the complainant was subsequently recalled, affirmed and testified as PW7. She personally informed the court that Francis was her uncle, that he had done bad things to her and that he had given her money to purchase glucose. Her evidence was therefore received directly from her and not through PW1 as an intermediary. The conviction cannot, in those circumstances, be said to have been founded solely, or at all, upon the uncorroborated evidence of an intermediary. To me, no prejudice or failure of justice was demonstrated towards the appellant by virtue of PW1 testifying, since the court eventually had a chance to hear from the complainant as well before arriving at its decision. 33.Section 382 of the Criminal Procedure Code precludes the reversal of a finding or sentence merely on account of an irregularity in the proceedings unless the irregularity occasioned a failure of justice. I therefore find that the manner in which the trial court initially sought to facilitate the complainant’s testimony did not vitiate the trial or render the eventual conviction unsafe. Issue II: Whether the offence of defilement was proved beyond reasonable doubt 38.Section 8(1) of the Sexual Offences Act provides that a person who commits an act which causes penetration with a child is guilty of defilement. The essential ingredients which the prosecution must establish are the age of the complainant, penetration and the positive identification or recognition of the perpetrator. The Court of Appeal recently restated those ingredients in Salim v Republic [2025] KECA 811 (KLR) and Landi v Republic [2025] KECA 1339 (KLR). 39.The complainant’s age was proved by PW1, who testified that the complainant was born on 8th May 2016. Her birth certificate was produced as evidence in court. The offence was alleged to have occurred on 19th July 2020, when the complainant was four years old. The evidence concerning her age was not seriously controverted. I am therefore satisfied that the prosecution proved beyond reasonable doubt that she was a child aged four years at the material time. 40.On the ingredient of penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person. 40.PW6, the Clinical Officer, testified that the complainant’s medical records showed that she experienced pain in her genital area, particularly when being bathed and during the taking of a swab. Her hymen was found to be broken. The treatment notes and the P3 form were produced in evidence. Although no spermatozoa were detected and no discharge or bruising was documented, those matters are not statutory ingredients of penetration. The absence of spermatozoa does not, by itself, negate penetration since ejaculation is not an element of the offence. 41.In Mang’eli v Republic [2023] KECA 1438 (KLR), the Court of Appeal reiterated that penetration may be partial and that it is unnecessary for the hymen to be completely broken. The medical evidence must be considered alongside the complainant’s account and the entirety of the surrounding circumstances. 42.In the present case, the medical findings did not stand in isolation. They were consistent with the complainant’s evidence that the appellant had done ‘bad things’ to her and with the evidence that she had disclosed being taken into the appellant’s house, instructed to remove her pants and thereafter given Kshs.20/-. When considered cumulatively, the complainant’s evidence, the account of her disclosure and the medical findings established penetration beyond reasonable doubt. 45.On identification, the appellant’s principal contention was that the complainant did not formally point him out in the dock and merely referred to the perpetrator as Francis. That argument, however, must be considered against the entirety of the evidence and the complainant’s tender age. 46.The complainant stated that the person who did bad things to her was called Francis. When recalled, she further stated that Francis was her uncle and that he had given her money to purchase glucose. PW1 identified the appellant as a member of their family who lived only a few meters from their home. PW2 similarly testified that the complainant was accustomed to visiting the appellant’s home. The appellant was therefore not a stranger to the complainant. 47.This was a case of recognition of a close relative rather than fleeting identification of an unknown assailant. In Baya v Republic [2024] KECA 1469 (KLR), the Court of Appeal upheld identification where the complainant knew the appellant both by appearance and by name. Similarly, in M’Mitea v Republic [2024] KECA 1094 (KLR), the Court recognized that identification of a close relative with whom the complainant was familiar was identification by recognition. 48.The absence of a formal exercise in which the complainant physically pointed at the appellant in the dock was not fatal where her evidence, taken together with the surrounding circumstances, left no reasonable uncertainty as to the person she meant by “Francis, my uncle.” PW1 and PW2 both stated that there was no grudge between their family and the appellant. No reason was advanced as to why a four-year-old child would falsely implicate a close relative whom she knew and whose home she regularly visited. 49.In evaluating the complainant’s evidence, the Court must also bear in mind that she was only four years old. Her evidence cannot reasonably be expected to possess the detail, sequence and precision ordinarily expected from an adult witness. Her use of the expression “bad things” must be understood in the context of her age, the questions put to her, her evident distress and the corroborating medical evidence. The law does not require a court to reject the evidence of a child merely because the child is unable to narrate the incident in elaborate or anatomical terms. The Court of Appeal addressed this concern in M.M. v Republic [2014] KECA 441 (KLR), observing that an inflexible insistence that every child victim must testify comprehensively may itself occasion a miscarriage of justice. 50.Section 124 of the Evidence Act further permits a court, in a sexual offence case, to convict upon the evidence of the complainant alone where the court believes the complainant and records the reasons for that belief. In this case, the complainant’s evidence did not stand alone. It was supported by the medical findings, the evidence regarding the Kshs.20 given to her and the evidence establishing the appellant’s close familial relationship with her. 51.Upon my own evaluation of the evidence, I am satisfied that the complainant positively recognized the appellant as the person who assaulted her and that the prosecution proved the identity of the perpetrator beyond reasonable doubt. Issue III: Whether the hearsay evidence, contradictions and defence raised reasonable doubt 52.The appellant complained that PW2 referred to information allegedly conveyed to her by Joyce Muthoni and Trevor Kamau, neither of whom was called as a witness. To the extent that those statements were tendered to establish the truth of what the children allegedly said, they constituted hearsay and ought to be approached with caution. 53.Nevertheless, the conviction did not depend upon those statements. Even if the evidence attributed to Joyce Muthoni and Trevor Kamau were excluded entirely, the court would still be left with the direct evidence of the complainant, the evidence of her relationship and familiarity with the appellant, the evidence concerning the money given to her and the medical findings. Section 143 of the Evidence Act expressly provides that no particular number of witnesses is required for the proof of any fact unless the law provides otherwise. The prosecution was therefore not obliged to call every person who may have received or relayed information concerning the incident, but the necessary witnesses to prove their case and warrant a conviction. 54.Regarding the alleged contradictions, not every discrepancy in the prosecution evidence is fatal. A contradiction will only affect a conviction where it is material, goes to the root of the prosecution case or creates reasonable doubt concerning an essential ingredient of the offence. Minor discrepancies that do not affect the substance of the charge are insufficient to displace otherwise cogent evidence. That principle was restated by the Court of Appeal in TKW v Republic [2024] KECA 123 (KLR) and Mathenge v Republic [2024] KECA 1514 (KLR). 55.The discrepancy regarding the date on which the P3 form was completed did not affect the date of the offence, the complainant’s age, the clinical findings or the identity of the person implicated. Likewise, PW2’s isolated reference to “Wachira Francis” did not create reasonable doubt when her evidence was read as a whole. She identified the person in the dock as Francis, while PW1 confirmed that the appellant was the relative known to the complainant as Francis and that he lived nearby. 56.The appellant’s defence was that he left home for work at about 5.00 a.m. and returned at about 8.00 p.m. That was, in substance, an alibi. The law is settled that an accused person who raises an alibi assumes no legal burden of proving it. The burden remains throughout upon the prosecution to establish guilt beyond reasonable doubt. The Court must, however, weigh the alibi against the totality of the prosecution evidence. 57.I have considered the appellant’s defence alongside the prosecution evidence. The complainant recognized him as her uncle Francis, placed the incident in his house and connected the Kshs.20 she used to purchase glucose to him. The medical evidence was consistent with her having been sexually violated. In the face of that evidence, the appellant’s bare assertion that he was away at work did not raise reasonable doubt. The prosecution evidence sufficiently displaced his defence. 58.I consequently find that the alleged hearsay evidence, contradictions and the appellant’s defence did not weaken the prosecution case or render the conviction unsafe. Issue IV: Whether the sentence was lawful 59.The complainant was four years old. Section 8(2) of the Sexual Offences Act provides:“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.”The life sentence imposed by the trial court was therefore the sentence prescribed by statute for the offence of which the appellant was convicted. 60.In Republic v Mwangi; Initiative for Strategic Litigation in Africa and 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court addressed the constitutionality of mandatory minimum sentences under the Sexual Offences Act. Applying that decision, the Court of Appeal has subsequently affirmed that the statutory sentences prescribed under the Act remain lawful and that a trial court has no discretion to impose a sentence below the statutory minimum. (See Masembo v Republic [2025] KECA 1635 (KLR).) 61.In Mang’eli v Republic [2023] KECA 1438 (KLR), the Court of Appeal reinstated the sentence of life imprisonment imposed for the defilement of a child aged six years, holding that section 8(2) prescribed life imprisonment for a child aged eleven years or less. The sentence imposed upon the appellant herein was therefore lawful. 62.In the result, I find that the appeal against both conviction and sentence is devoid of merit. The conviction is hereby upheld and the sentence of life imprisonment affirmed. 63.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 31ST DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/ VelmaCharles Mbugua for Appellant present.Mr. Mwangi for ODPP present online.