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Kyalo & another v Republic (Criminal Appeal E012 of 2025) [2026] KEHC 12018 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12018 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E012 of 2025 C Akaigwa, J July 30, 2026 Between Michael Kyalo 1st Appellant Moses Mutua Muoki 2nd Appellant and Republic Respondent (Being an Appeal from the whole of the Judgment, Conviction and Sentence of Hon. O.A Nyandusi (RM) in Makindu Sexual Offences Case No. E040 of 2023, delivered on 26th February 2025) Judgment A. Background 1.The 1st and 2nd Appellants were jointly charged with the offence of gang defilement, contrary to Section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 23rd May 2023, at [Particulars withheld] Area, [Particulars withheld] Sub-County, Makueni County, the 1st Appellant, Michael Kyalo, acting in association with the 2nd Appellant, Moses Mutua Muoki, intentionally and unlawfully caused his penis to penetrate the vagina of SNM, a child aged 15 years. 2.The Appellants pleaded not guilty to the charge, whereupon the matter proceeded to full trial. In support of its case, the prosecution called four (4) witnesses. At the close of the prosecution’s case, both Appellants were placed on their defence. The 1st Appellant elected to give sworn testimony, while the 2nd Appellant exercised his constitutional right to remain silent. Upon evaluating the evidence placed before it, the trial court, in a judgment delivered on 26th February 2025, found both Appellants guilty of the offence of gang defilement contrary to Section 10 of the Sexual Offences Act, convicted them accordingly, and sentenced each of them to fifteen (15) years’ imprisonment. 3.Aggrieved by both the conviction and sentence, the Appellants lodged the present appeal and challenge the decision of the trial court on the following grounds:a.That the learned trial Magistrate erred in law and in fact by convicting the Appellants on evidence that failed to meet the requisite legal threshold and lacked sufficient probative value to sustain a conviction, thereby arriving at an erroneous and unjust decision.b.That the learned trial Magistrate erred in law and in fact by relying on prosecution evidence that was fraught with material inconsistencies and contradictions.c.That the learned trial Magistrate erred in law and in fact by placing reliance on evidence that was unreliable, suspicious, and lacking in credibility.d.That the learned trial Magistrate erred in law and in fact by convicting the Appellants on the basis of mere allegations and presumptions, without subjecting the prosecution evidence to the requisite degree of scrutiny and circumspection.e.That the learned trial Magistrate erred in law and in fact by failing to consider the prosecution’s omission to call a crucial witness whose evidence would have had a material bsearing on the determination of the case.f.That the learned trial Magistrate erred in law and in fact by failing to take into account that the Appellants were youthful first offenders.g.That the learned trial Magistrate erred in law and in fact by failing to properly weigh the Appellants’ mitigating circumstances against the aggravating factors, thereby imposing a sentence that was excessive, disproportionate, and unjust.h.That the learned trial Magistrate erred in law and in fact by impermissibly shifting the burden of proof to the Appellants. 4.In their memorandum of appeal and written submissions, the Appellants invite this Court to interfere with both conviction and sentence allow the appeal, quash the conviction, and set aside the sentence imposed by the trial court. B. The Evidence in Brief 5.The complainant testified that on 25th March 2023, at around 7.00 p.m., she was at [Particulars withheld] Area in the company of another boy when she encountered the two Appellants. She stated that the 1st Appellant, who was in the company of the 2nd Appellant, approached her and insisted on touching her. Feeling uncomfortable, she left the scene and proceeded towards her grandmother’s home. She further testified that upon reaching Deliverance Church, she noticed that the Appellants were following her from behind. She attempted to run away, but they pursued her and eventually caught up with her. 6.The Appellants then removed her lesso, tied her mouth, and pinned her to the ground on her back. They thereafter took turns defiling her by inserting their penises into her vagina. In addition, she testified that the Appellants further inserted a stick into her vagina. She was, however, unable to identify with certainty which of the two Appellants carried out that particular act. 7.The complainant testified that the Appellants threw her into a ditch after the incident. She regained consciousness about 10 minutes later and went to MM , her father’s friend , to whom she narrated the incident. She stayed there overnight. The following day, MM contacted her mother, who picked her up, took her to the police station, and later to AMREF for medical examination. It was also her testimony that the Appellants were well known to her. She further stated that, despite it being dark, she was able to see and identify them with the assistance of car headlights. 8.This was the complainant’s initial testimony when she testified in court on 13th March 2024. She was, for reasons on record, recalled as a witness on 30th October 2024. During the subsequent testimony, her account remained substantially unchanged, save for the clarification that she indicated the date of the incident as 23rd May 2023. 9.In his defence, the 1st Appellant gave sworn testimony and denied any involvement in the offence. He testified that he was arrested at his home, taken to the market, and later handcuffed by police officers. Regarding the material date, he stated that on 23rd May 2023, he was at a club in Thange Area where he saw the complainant in the company of one Bernard Mukeu. He testified that he remained at the club until about 11.00 p.m., after which he returned home. He admitted knowing the complainant, stating that he had seen her around before, but denied the allegations levelled against him by the prosecution. 10.The 2nd Appellant elected to remain silent and did not tender any evidence in his defence. 11.The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for consideration by the Court. C. Issues for Determination 12.From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-i.Whether the prosecution proved the offence of gang defilement against the Appellants beyond reasonable doubt.ii.Whether the prosecution's failure to call the alleged crucial witness was fatal to the prosecution case.iii.Whether the trial court improperly shifted the burden of proof to the Appellants.iv.Whether there is any basis for this Court to interfere with the sentence imposed by the trial court. D. Legal Analysis 13.The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32, it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses. 14.The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. i. Whether the prosecution proved the offence of gang defilement against the Appellants beyond reasonable doubt. 15.Section 10 of the Sexual Offences Act creates the offence of gang rape or gang defilement and provides as follows:Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonmnent for a term of not less fifteen years but which may be enhanced to imprisonment for life. 16.Therefore, to sustain the charge of gang defilement, the prosecution must prove the following essential elements:a.Commission of defilementb.Penetration as defined under Section 2 of the Sexual Offences Actc.The offender is in association with another or with others or any other with common intention, is in the company of another or others who commit the offence of defilement.d.The age of the victim in the case of gang defilement must be proved to be under 18 years.e.The perpetrator is positively identified. (See Ouma & another v Republic [2023] KEHC 23087 (KLR) a. Penetration 17.Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. 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. 18.In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration:The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt. 19.In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration. 20.In the present case, the complainant testified that upon being accosted by the two Appellants, they took turns defiling her. She was categorical that each of the Appellants had sexual intercourse with her. Her testimony on this aspect was clear, consistent, and remained unshaken during cross-examination. 21.The complainant's account was further reinforced by the medical evidence adduced before the trial court. According to the PRC Form and P3 Form completed on 24th May 2023, the examination revealed that the complainant's hymen was completely torn. PW3, the Clinical Officer attached to Kibwezi Sub-County Hospital who examined the complainant, testified to that effect and confirmed the findings contained in the medical documents produced before the Court. 22.These medical findings lend considerable weight to the complainant's testimony and provide independent corroboration of her account. The Court is therefore satisfied that the prosecution proved the ingredient of penetration beyond reasonable doubt. b. Age of the Complainant 23.For the offence of gang defilement to be established, the prosecution must prove that the complainant was a child, that is, a person below the age of 18 years at the time of the offence. The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated that the issue of proving age has been settled by jurisprudence, and may be established through various forms of evidence, including documentary proof such as a birth certificate or baptismal card, oral testimony from the child where sufficiently intelligent, evidence from parents or guardians, or medical evidence, among other credible sources. The Court emphasised that irrespective of the mode of proof relied upon, the evidence adduced to establish age must be credible, reliable, and trustworthy. 24.From the evidence on record, the Court notes that the prosecution produced a birth certificate indicating that the complainant was born on 18th February 2008. This places her age at 15 years, 3 months, and 5 days at the time of the incident. The Court therefore finds that the prosecution duly proved that the complainant was below eighteen (18) years at the material time, and that this essential ingredient was established beyond reasonable doubt. c. Identification of the Perpetrator 25.It is true that our case law calls for caution in receiving identification evidence because of the grave possibility of a miscarriage of justice occasioned by misidentification. As was stated in Roria v R [1967] EA 583, “a conviction resting entirely on identity invariably causes a degree of uneasiness.” Similarly, in Kiarie v Republic, the Court of Appeal emphasised that “it is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.” 26.To aid in the exercise of this “circumspection” our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 . They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:i.How long did the witnesses have the accused under their observation?ii.What was the distance between the witnesses and the accused person?iii.What was the lighting situation?iv.Was the observation impeded in any way, as for example, by passing traffic or press of the people?v.Had the witnesses ever seen the accused person?vi.If the witnesses knew the accused prior to the current transaction, how often?vii.If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?viii.How long elapsed between the original observation and the subsequent identification to the police?ix.Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance? 27.This was not a case of identification of a stranger but one of recognition. The distinction is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR), recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. 28.More recently, in Abuku & Another v Republic [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an accused means a witness requires less time to make an accurate identification. 29.On the issue of identification, the complainant’s testimony was clear that the Appellants were well known to her prior to the incident. She also stated that on the material day she first encountered them at Thange Area and later again near Deliverance Church during the same sequence of events. She further testified that although it was dark, she was able to identify them with the assistance of car headlights. The Court is therefore dealing with a case of recognition rather than identification of strangers, a factor which significantly reduces the risk of mistaken identity. 30.Importantly, the 1st Appellant in his own defence confirmed that the parties were not strangers. He admitted that he had previously seen the complainant in the area and further stated that on the material date he saw her at a club in Thange Area in the company of another person before he left for home. There is therefore no doubt in the mind of this Court that the Appellants were properly identified. d. The offender is in association with another or with others or any other with common intention, is in the company of another or others who commit the offence of defilement 31.The distinguishing element between defilement and gang defilement lies in proof that the offender acted in association with another person or others, or in the company of others acting with a common intention. Section 2 of the Sexual Offences Act defines a “gang” as two or more persons, thereby requiring the prosecution to demonstrate joint participation in the commission of the offence. 32.In the present case, the complainant gave consistent and unwavering testimony that she was accosted by two individuals whom she positively identified as the 1st and 2nd Appellants. Her account remained materially consistent from the time she first reported the incident to her mother (PW1), through her narration to the medical practitioner as recorded in the PRC Form, and finally during her testimony before the trial court. This consistency across multiple stages of reporting and testimony lends credence to her account and firmly establishes the element of joint action by the Appellants in the commission of the offence. ii. Whether the prosecution's failure to call the alleged crucial witness would be materially fatal to the prosecution’s case. 33.This is one of the grounds of appeal raised by the Appellants in their memorandum of appeal. However, in their submissions, the Appellants do not elaborate on this issue and neither do they specify which particular witness was allegedly not called by the prosecution, nor the nature of the evidence that such witness would have tendered. 34.It is trite law that the prosecution is not bound to call a multiplicity of witnesses to prove its case. Section 143 of the Evidence Act expressly provides that, in the absence of any legal requirement to the contrary, no particular number of witnesses is required to prove a fact. Nonetheless, the courts have held that where the prosecution fails to call a witness who is shown to be material, the court may, in appropriate circumstances, draw an adverse inference against the prosecution (See Bukenya & Others v Uganda* [1972] EA 549 and Eric Onyango Odeng’ v Republic [2014] eKLR). 35.In the present case, no sufficient basis has been laid to warrant the invocation of the principle in Bukenya (supra). The Appellants have not identified the alleged crucial witness nor demonstrated the nature or materiality of the evidence that such witness would have adduced. In the absence of such particulars, this Court is unable to draw any adverse inference against the prosecution. 36.Be that as it may, and in any event, the Court is satisfied that the prosecution adduced sufficient evidence through the 4 witnesses called, which was cogent, consistent, and sufficient to prove its case beyond reasonable doubt. iii. Whether the trial court improperly shifted the burden of proof to the Appellants. 37.The Appellants contend that the trial court improperly shifted the burden of proof to them, thereby undermining the fairness of the trial. It is a cardinal principle of criminal law that the burden of proof in all criminal proceedings rests throughout upon the prosecution and never shifts to the accused person. The standard required is proof beyond reasonable doubt, as articulated in Miller v Minister of Pensions [1947] 2 All E.R. 372, and nothing short of that threshold will suffice to sustain a conviction:The degree of proof beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice. 38.An accused person bears no legal obligation to prove innocence, explain the prosecution’s case, or fill any perceived gaps in the evidence adduced by the State. (See Republic v Vivo & 2 others [2026] KEHC 7588 (KLR) 39.In the present case, however, a careful reading of the record does not support the allegation that the trial court shifted the burden of proof. The learned trial magistrate evaluated the prosecution’s evidence in its totality and only made reference to aspects of the Appellants’ accounts in the context of testing credibility and assessing whether the prosecution case had been shaken. This is a legitimate judicial function and does not amount to calling upon an accused person to prove his innocence. 40.Accordingly, the assertion that the burden of proof was shifted to the Appellants is not borne out by the record. The trial court properly directed itself on the burden and standard of proof and ultimately convicted the Appellants on the strength of the prosecution case, not on any failure by the Appellants to prove their innocence. iii. Whether there is any basis for this Court to interfere with the sentence imposed by the trial court. 41.Having carefully re-evaluated the entire evidence on record and having found that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the learned trial Magistrate was safe and firmly grounded on the evidence. Consequently, the appeal against conviction is devoid of merit and is hereby dismissed. 42.This Court now turns to consider the propriety and legality of the sentence imposed by the trial court. The question for determination is whether the sentence meted out was consistent with the applicable provisions of the law and whether there exists any basis upon which this Court should interfere with the same. 43.It is trite law that sentencing is the discretion of the trial court. The Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR stated thus as regards interference with sentence:It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. (Emphasis added) 44.Before considering whether there is any basis for interfering with the sentence imposed by the trial court, it is important to restate the objectives of sentencing in criminal matters. Sentencing serves multiple purposes, including punishment, deterrence, rehabilitation, denunciation of unlawful conduct, and the protection of society from offenders. 45The Appellants contend that the trial court failed to properly consider their mitigation before sentencing, particularly on the basis that they were youthful first offenders. It is further argued that the sentence imposed did not adequately take into account these mitigating factors. 46.Section 10 of the Sexual Offences Act provides that any person convicted of gang defilement is liable to imprisonment for a term of not less than fifteen (15) years, which may be enhanced to life imprisonment. 47.In the circumstances, the sentence imposed by the trial court was lawful as it fell within the statutory framework prescribed under Section 10 of the Sexual Offences Act. The provision sets a mandatory minimum sentence 15 years’ imprisonment, below which a sentencing court has no discretion to descend, regardless of the mitigating factors advanced by an accused person. 48.While the Appellants’ mitigation was duly on record, the trial court was bound by the express provisions of the statute and could not lawfully impose a sentence below the prescribed minimum. The sentence of 15 years’ imprisonment was therefore proper, lawful, and incapable of interference on appeal. E. Disposition 49.In the upshot, this Court finds no merit in the Appellants’ appeal. The appeal is hereby dismissed in its entirety. The conviction entered by the trial court is upheld as safe, and the sentence imposed is affirmed as lawful. It is so ordered. DATED AND DELIVERED AT MALINDI THIS 30TH DAY OF JULY 2026C. AKAIGWAJUDGEIn the presence of: