https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7415

Luwasi alias Mod v Republic (Criminal Appeal E002 of 2025) [2026] KEHC 7415 (KLR) (4 May 2026) (Judgment) Neutral citation: [2026] KEHC 7415 (KLR) Republic of Kenya In the High Court at Kwale Criminal Appeal E002 of 2025 F Andayi, J May 4, 2026 Between Mohamed Mwinyi Luwasi alias Mod Appellant and The Republic Respondent (Being an appeal from the conviction and sentence of Hon. R. K. Ogolla RM in Kwale Magistrates Court Sexual Offence (SO) Case No. E072 of 2022 delivered on 19/12/2024 and 23/1/2025 respectively) Judgment 1.The appellant, Mohamed Mwinyi Luwasi was convicted and sentenced to serve 32 years’ imprisonment on a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). The particulars were that on diverse dates between 13th November 2022 and 27th November 2022 at Matuga Sub-County within Kwale County, unlawfully and intentionally caused his penis to penetrate the anus of AM a child aged 10 years. 2.He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that during the same period, the same place and same time as in the principal charge the appellant unlawfully and intentionally caused his penis to penetrate the anus of AM a boy aged 10 years. 3.The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 4 witnesses to support its case. PW 1, AAM was the complainant. PW 2,MMG is the complainants’ mother. PW 3, Meajoto Nyamau is a clinical officer at Kwale hospital. PW 4, Police Corporal Fatuma Mbale of Ngombeni police patrol base conducted investigations in the case. 4.The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offences. 5.At the end of the trial, the appellant was found guilty of the principal charge of defilement. He was convicted and sentenced to serve 32 years’ imprisonment. 6.The appellant was aggrieved by the decision of the trial court and has filed this appeal through the petition dated 27th February 2025 based on the following grounds:a.the learned trial magistrate erred in law and in fact in upholding and convicting on a charge that was defective.b.the learned trial magistrate erred in law and in fact in failing to comply with constitutional and statutory provisions.c.the learned trial magistrate erred in law and in fact in basing a conviction on the evidence of a minor without any corroboration and explanation.d.the learned trial magistrate erred in law and in fact in making a finding that the evidence pointed at the guilt of the appellant without the possibility of a mistake.e.the learned trial magistrate erred in law and in fact in rejecting the appellant’s case without reason.f.that the sentence was manifestly excessive in the circumstances. 7.The appellant therefore prays that the conviction and sentence be set aside and the appellant be set at liberty. 8.The appeal was disposed of by way of written submissions filed by both the appellant and the respondent. 9.Learned counsel for the appellant submits on three issues which according to him warrant the setting aside of the conviction and sentence of the appellant. The first issue argued was that there was failure by the trial court to comply with constitutional and statutory requirements viz Article 50(2)(g) and (h) of the constitution on an accused person’s right to a fair trial and specifically the right to choose and be represented by an advocate and to be informed of this right promptly and the right to have an advocate assigned to an accused person by the State and at the State expense, if substantial injustice would otherwise result and to be informed of this right promptly. Learned counsel submits that throughout the trial the court never informed the appellant of those rights. For that reason, the trial should be declared null and void and the appellant acquitted. 10.Learned counsel submits further that the trial court failed to properly comply with the provisions of section 200 of the Criminal Procedure Code when a new magistrate took over the proceedings after the initial one left. 11.Learned counsel submits further that the trial court failed to comply with the provisions of section 124 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya but the said Act does not bear a section by that number. I believe that learned counsel was referring to section 19 of the Act. 12.On the evidence tendered at the trial, learned counsel submits that there was doubt cast on the evidence of the complainant which then required corroboration but there was none. 13.Learned counsel submits further that evidence of when the alleged offences took place as given by the complainant and what was alleged in the charge sheet was different and without amendment, that rendered the charge sheet fatally defective. 14.Learned counsel also submits that there was a discrepancy on the age of the victim that the PRC form showed his date of birth as 2nd June 2022 contrary to the other evidence that his date of birth was 12th June 2012. 15.Finally, learned counsel submits that the sentence of 32 years’ imprisonment was excessive. 16.Learned counsel for the respondent submits that the elements of the offence of defilement namely age of the victim, penetration and identification of the assailant were all proved beyond a reasonable doubt. She submits further that the sentence was fair because under section 8(2) of the Sexual Offences Act, the penalty for the offence is imprisonment for life. 17.This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno v Republic (1972) EA 32 that;“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala v Republic (1957) EA 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters v Sunday Post (1958) EA 424.” 18.This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19. 19.The prosecution’s case at the trial was that the appellant penetrated the complainant’s anal orifice with his male genital organ on three different occasions as he was taking him to madrassa in the morning. 20.The complainant gave unsworn evidence after a voire dire by the trial magistrate. He said the first incident occurred on 13th November 2022. While on the way to take him to the madrassa at around 6.35 a.m., the appellant stopped the motorcycle he was ferrying him on, took him to a house under construction and penetrated his anal orifice with his male genital organ. After the act, he threatened to kill the complainant or beat him up if he told anyone. He then took him to the madrassa. The complainant did not inform anyone of that incident. 21.The complainant said that the appellant repeated the same acts on 20th and 27th November 2022. He was then taken to hospital on 4th December 2022 by his mother. By this time, he had not told anybody about the incidents. 22.PW 2, the complainant’s mother said that in the same month of November, he noticed that the complainant appeared to lazy about as he would sleep a lot and lacked confidence in himself and would appear dazed. While washing his clothes, he would come across fecal matter, wetness and mucus like substance. This disturbed her a lot. She questioned the complainant but he did not open up, 23.The complainant also started to emit some foul smell from around his anal region. When PW 2 washed him, she noticed wetness and a fluid like substance around his anal region, and, the anal crack region was reddish in appearance. She took him to a medical clinic and the medical personnel told them that the complainant was not disclosing something. The medical personnel advised her to counsel him and also interrogate him to open up. 24.Two days after, the complainant opened up to his mother and informed her what had been happening to him and that the appellant was the culprit. 25.The matter was reported to the police and the complainant was taken to hospital for examination. The appellant was arrested and charged. 26.In his sworn evidence in defence, the appellant vehemently denied that he committed the offence. He said that upon being confronted by the complainant’s parents about the issue, he denied and offered that he together with the complainant be taken for medical examination at once. Disturbed by those allegations, he made a report to the police before the complainant’s parents did. 27.I have carefully examined and re-evaluated the evidence tendered before the trial court, the grounds of appeal as well as the submissions by the appellant and by the respondent in this appeal. The issues for determination are:a.Whether there were breaches of constitutional and statutory provisions in relation to the trial of the appellant and if so whether the appellant suffered prejudice and would amount to a failure of justice.b.Whether the charge was defective.c.Whether or not the conviction of the appellant on the evidence tendered at the trial was safe. 28.I will start with the ground alleging that the appellant’s constitutional rights were breached for failure to inform him of his right to legal representation and also to be afforded legal representation at State expense under Article 50(2((h) and (g) of the Constitution which provide as follows:“(2)Every accused person has the right to a fair trial, which includes the right—(a)...(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;” 29.I have read the proceedings of the trial court and I note that indeed, at no time did the court inform the appellant of these rights as required by the constitution. Learned counsel for the appellant has cited the case of Peter Kakai vs- R (HC CR Appeal no. E088 of 2023) for the holding that where an appellant had not been informed of his right to counsel rendered the trial a nullity as it was in breach of the right to a fair trial which right under the constitution there can be no derogation. Learned counsel did not provide a copy of that judgment for this court to fully inform itself of the reasoning by the High Court. I have not traced the decision on the kenyalaw website. However, there are two other decisions cited in that excerpt with a similar holding. 30.However, I also note that there is a different opinion on the issue. In the case of Joseph Ndungu Kagiri v Republic [2016] KEHC 4153 (KLR) where the cited provisions of the constitution were considered by the High Court, and Mativo, J. as he then was, held that: “Substantial injustice may be said to be subject to three tests, first, the complexity of the case. This is discernible from the issues of fact and law which may not be comprehended by the accused. The second test relates to the seriousness or nature of the offence in question. A serious offence may attract public interest to the extent that the public may require that some form of representation to be accorded to the accused owing to the nature of the offence. The third and final test relates to the ability of the accused person to conduct his own defence. Language difficulties experienced during the trial may be a perfect indicator of a accused persons' inability to conduct a defence….… Considering the above authorities and the facts of this case and the judicial interpretation of substantial injustice, I am not persuaded that the appellant herein has satisfied any of the tests stated above to demonstrate that substantial injustice was occasioned to him due to fact that he and his co-accused were unrepresented.However, in my opinion, in order to fully comply with the provisions of article 50(2)(h) of the constitution, trial courts, as a matter of constitutional duty and in the interests of justice, ought to make a preliminary inquiry at the earliest opportunity possible and make a determination on the question whether or not an accused person would require legal representation at the state expense before embarking on the hearing. The trial court is under a constitutional duty to satisfy itself that substantial injustice will not be occasioned if the accused is not represented and to make a finding in that regard. Where the trial court finds that substantial injustice would be occasioned if a state funded counsel is notprovided, it should also make a finding to that effect and make the appropriate orders.” 31.The Court of Appeal has also considered the provisions in the case of Waithaka v Republic [2025] KECA 1084 (KLR) where it held that:“Regarding the alleged violation of the appellant’s right to a fair hearing guaranteed under Article 50 (2) (g) and (h) of the Constitution, this Court in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) vs. Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) held that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it.... the appellant did not raise the issue of legal representation either before the trial court or before the High Court. In fact, the trial court record shows that the appellant participated in the trial and cross-examined the witnesses (PW3 -PW6), and it is not evident that he suffered any substantial injustice. For these reasons, we do not find any merit in the appellant’s arguments that his rights to a fair trial on under Articles 50 (2) (g) and (h) of the Constitution were violated.” 32.I am bound to follow this decision and find that the appellant has not shown that he suffered any substantial injustice before the trial court. For that reason, the ground that the trial should be declared a nullity fails. 33.The charge by learned counsel for the appellant that section 200 of the CPC was not fully complied with when a new magistrate took over the proceedings is not correct because the record shows that the court informed the appellant of his rights under the said section and the appellant responded that he was ready to proceed. I do not find that there was more than that that the trial court was bound to do. 34.On the issue of the charge being defective because the evidence tendered at the trial was at variance with the particulars of the charge with respect to the time when the offence was committed, section 214(2) of the CPC provides with respect to such discrepancy as follows:(2)Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. 35.Secondly, I have not found any material discrepancy as submitted by learned counsel between the evidence adduced and the dates indicated in the charge sheet on when the offences were committed. For that reason that grounds also fails. 36.On proof of the charge of defilement, Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:S. 8 (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. 37.The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:i.proof that the victim is a minor;ii.penetration of the victim’s genital organs with the genital organs of another person; andiii.the accused person was the person who penetrated the victim’s genital organs. 38.Evidence of the age of the complainant was not contested. All the same, the evidence was given by the complainant himself who said he was 11 years old. He was intelligent enough to know his age as he was attending school. The evidence was corroborated by his mother PW 2 and the certificate of birth produced in evidence as exhibit and which showed his date of birth as 2nd June 2012. That means that as at the first date of the incident on 13th November 2022 he was ten years and six months. The indication in the PRC form that the date of birth was 2nd June 2022 was obviously a typographical error that cannot be considered as a discrepancy, inconsistence or even a contradiction to be considered as creating a doubt in the mind of the court. 39.The learned magistrate was also satisfied that the complainant, who was a witness before her was a child of tender years and that is why she subjected him to voir dire examination. I am satisfied that there was evidence upon which the learned trial magistrate could find and did find that the complainant was a child as provided for under section 8(1) of the SoA. 40.Evidence that the complainant’s anal orifice was penetrated was not challenged at the trial `nor has it been argued as a ground of appeal herein. 41.There is no dispute that the appellant was well known to the complainant and that the complainant’s parents would hire him to ferry the complainant to madrasa classes. What is challenged is the identification of the appellant as the assailant. 42.The complainant gave evidence that his assailant penetrated his anus with his sexual organ in an incomplete house on three occasions. Learned counsel for the appellant submitted that there was inconsistence on the dates that the alleged acts were committed with one indicating the last incident as 4th December 2022. That was not the evidence in fact. The evidence on the date of 4th December was about the complainant being taken to hospital for the first time. 43.The fact of the complainant having been penetrated in his anus was corroborated by his mother PW 2 who examined him and found it appearing unusual with mucus like substance, wetness and reddish. This prompted her to take the complainant to hospital. Later examination at the hospital by PW 3 revealed that indeed the complainant had been penetrated in his anus. 44.I am satisfied that the medical evidence corroborates the complainant’s evidence that indeed his anal orifice was penetrated by a male genital organ. I find that the element of penetration was proved beyond a reasonable doubt. I am satisfied that the trial court reached a correct decision on that issue. 45.The final issue remaining is whether or not the identification of the appellant as the culprit was proved beyond a reasonable doubt and therefore whether the trial court reached a correct conclusion on that issue. 46.It is the appellant’s contention that he was not identified as the perpetrator of the offence. The evidence of identification of the appellant as the perpetrator was given by the complainant, PW 1 alone. There was no other witness to that fact. The complainant said that the appellant committed the acts while taking him to madrassa in the morning. Evidence that indeed the appellant was charged by the complainant’s mother to take him to madrassa in the morning was not contested. The appellant conceded in his evidence that indeed he would ferry him. He did not dispute the complainant’s evidence that on the 13th, 20th and 27th November he indeed was with the complainant taking him to madrassa. He also did not dispute the complainant’s evidence that there was an incomplete house along the way in which the acts could have been committed. 47.The manner in which the court should proceed to assess the unsworn evidence of a child victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for under section 19 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya and section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:S. 19(1). Oaths and Statutory Declarations Act:“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”S. 124. Evidence Act:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 48.I am satisfied that the trial court complied with the requirements of section 19 of the Oaths and Statutory Declarations Act and that the complainant made an unsworn testimony. 49.In the case of Sahali Omar vs. Republic [2017] eKLR the Court of Appeal while considering the provisions of section 124 of the Evidence Act held that:“On the first issue, the appellant took issue with lack of corroboration of the complainants’ evidence, which he said ran afoul of section 124 of the Evidence Act…The import of that provision is that ideally, the evidence of a child of tender years in criminal proceedings should always be corroborated; notwithstanding the voir dire examination of the child under section 19 of the Oaths and Statutory Declarations Act. In short, that even though the court is satisfied that the child is competent to tell the truth, their testimony should nonetheless be corroborated by independent evidence. However, the section also allows for an exception. Under the proviso thereto, the court is allowed to solely rely on the evidence of a child of tender years if the child is the victim, provided the court first satisfies itself on reasons to be recorded, that the child is being truthful…It is a well-established rule of law that the unsworn testimony of a child of tender years must be corroborated. However, where a child of tender years gives sworn testimony or is affirmed, corroboration is unnecessary. (See. Patrick Kathurima v. R (supra) and Johnson Muiruri v. Republic, (1983) KLR 445 and also John Otieno Oloo v. Republic [2009] eKLR)…In addition, the proviso to section 124 of the Evidence Act affords an exception to this general rule in cases of sexual assault where the child in question is not only the sole witness but also the alleged victim. So that as far as PW1 was concerned, even though neither PWs 2, 3, 4 or even 5 (the medical practitioner) could directly support her testimony, the court could nonetheless rely on it provided it recorded its reasons.” 50.The issue of reliance on the evidence of a victim in a sexual offence when there is lack of corroboration of the victim’s evidence has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…” 51.From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none the court can still rely on the uncorroborated evidence of the victim if it believed that the victim was telling the truth.In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the victim was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the victim. 52.The trial court noted that the complainant was confident when he testified and firm in his answers, meaning that it had reason to believe that he was speaking the truth. However, was there cogent evidence upon which the court could convict the appellant? Learned counsel for the appellant submits that there was not and that the trial court erred in relying on the uncorroborated evidence of the complainant. 53.The trial court in its judgment recorded the following as the testimony of the complainant on what transpired:“ 17.When they got to the flyover there is a road that they turned to then the accused stopped the motorbike and alighted. He also told him to alight which he did. 18.The accused began walking towards a certain house that was under construction, empty and a lonely place. PW 1 inquired on why they were going that way but the accused did not respond. 19.He began to run but the accused chased him and caught up with him. He held his hand and covered his mouth then dragged him into that house and removed his trouser plus innerwear. 20.PW1 explained to court that the accused then inserted his penis into his anus. After he was done sodomizing him then he dressed up and threatened to kill him or beat him if he told anyone what transpired. 21.Afterwards the accused took him to the madrassa and PW1 did not tell anyone there and at home what transpired. He tried to withstand the pain by standing and staying strong.” 54.The appellant vehemently denied that he committed the offence when he was confronted by the father of the complainant in company of the complainant. He readily offered to be taken for medical examination. Not that his examination at the time was necessary, but for his stance that he had not committed the offence. He also said that he reported the allegations to the police before the complainant’s parents made their report. He questioned the complainant’s mother, PW 2 whether the complainant’s madrassa teacher was aware of the incidents and PW 2 told him that he was but it was unnecessary to make him available as a witness because she (PW 2) believed that the appellant had committed the offence. 55.The learned trial magistrate did not believe the appellant’s evidence. In evaluating that evidence, she stated that:“133.The accused denied these charges and gave an account of 8th December 2022 when he saw the minor and dropped him at Madrasa. He did not tell court what happened on the dates alleged he defiled the complainant herein or call anyone to prove otherwise.” 56.The finding that the appellant did not call anyone to prove any aspect of his defence was a misdirection on the part of the trial court as an accused person has no obligation to adduce evidence to disprove any allegation made against him, the onus being upon the prosecution to prove every element of the offence beyond a reasonable doubt. 57.The appellant’s evidence had to be considered alongside the entire evidence for the prosecution. The acts complained of were alleged to have been committed in a building under construction. It was not said that it was hidden but “isolated” along the road. The complainant’s evidence was that they reached flyover where there was a road into which the appellant turned the motor cycle then stopped. That was certainly an open place. He then said that on the first day, he ran away but the appellant pursued and held him and took him into the building and defiled him. The question to ask here is even by common sense, how reasonable was that testimony? A man is carrying a minor on a motor cycle, they get to a flyover, meaning a major junction where, by any standards of imagination, there must be people around by the time of day stated as being after 6.30 a.m. The minor runs away from the rider who pursues him and catches up with him and forcefully takes him into a building under construction where he defiles him and then they return to the motor cycle and proceed on with the journey. All these without notice from anybody. How reasonable is that account? 58.I find it inconceivable that at such time of the day in broad daylight, nobody noticed what was happening so as to intervene. The complainant then said that he withstood the pain and did not raise an alarm nor inform his madrassa teacher immediately he arrived in school or his parents later at home. 59.According to the complainant, the acts were repeated on two other occasions, being done at the same place and time of the day. There is no indication that on these two other occasions, he attempted to run, as he had done the first day, or raise an alarm when the appellant led him to the house, The issue of why he did not decline to be ferried to madrassa by the appellant on the subsequent days was also never addressed by the trial court. 60.Evidence tendered by a witness has to be considered alongside other probabilities among other factors. How probable is it that a motor cycle rider would stop in an open ground and force his passenger, a young boy into a nearby house under construction leaving his motor cycle in the open, defile the boy, return with him to the motor cycle and carry him away without notice by members of the public, and repeat the acts on two other occasions within a span of two weeks? How probable is it that an intelligent boy of the complainant’s standing could withstand such despicable acts without even declining to his parents, to be ferried by the same individual on subsequent days? It is not that the acts were not committed upon the complainant. The fact is that the story of the appellant being the culprit is so improbable that it must create a doubt in the mind of the court. 61.The other lacuna which was not covered by the investigations and the trial court did not give it any consideration either was where the complainant was between the time the appellant dropped him at the madrassa and his returning home. The possibility that the acts could have been committed even at the madrassa was not eliminated by the prosecution evidence. This is not a fanciful suggestion but a real possibility. It is not to cast any aspersions on the religious teachers of the child but to show that investigations into this matter were inadequate. Could there be other people at the madrassa classes who would commit the acts upon the complainant? Cases of religious teachers or even other persons within the precincts of schools sexually molesting their pupils abound. (See for example the case of Salim v Republic [2024] KECA 113 (KLR). When the appellant raised the issue of whether or not the complainant’s madrassa teacher was aware of the allegations, this should have led the investigating officer to pursue that lead in order to eliminate that possibility. But here, the said madrassa teacher was not called as a witness despite evidence from the complainant’s mother that the complainant appeared distressed and the evidence of the clinical officer, PW 3 that the complainant was walking with difficulty, which then should have been noticed even by the madrassa teacher. It could not be the case that once the child had accused the appellant of the acts, his word had to be taken for the gospel truth. 62.The prosecution failed to eliminate that possibility by not including the madrassa teacher, at the very least, as a witness. Noting that the complainant’s appearance to the mother had changed, then the same changes should have been noticed by the madrassa teacher especially since he was the one who would have come into contact with the complainant, as he reported for classes, immediately after the incidents. He would have been the first person to notice the complainant’s changed appearance on the first day or even on the subsequent days. 63.The learned trial magistrate found that there was corroboration of the complainant’s evidence that he had been defiled. However, she did not address herself to whether there was corroboration of the identification of the appellant as the culprit. Most importantly, she failed to warn herself in her judgment on the danger of relying on the uncorroborated and unsworn testimony of a minor. 64.The issue of the conduct of the complainant of being afraid of reporting the incident to his parents has to be intently considered. The complainant only opened up to his ordeal after the first medical personnel informed his mother that he was hiding something from her and he needed counselling to open up. In that case, the complainant must have realized that he had nothing else but to reveal his ordeal to his mother. The question is, did he reveal the correct culprit? Could it have been because the acts were committed by a person who was in authority over him? Could the complainant have been influenced by the power relations as between him and his madrassa teacher and between him and the appellant, the former having more authority over him than the later and for him choosing to lay blame where it was easier for his parents to believe? Could the appellant have been the easier catch for him? 65.I find that due to the doubt that the incidents would have happened in an almost open place yet there was no indication that any other person noticed it, coupled with the failure by the prosecution to eliminate the possibility of the incidents having taken place at the 12/13 madrassa or even on the complainant’s way back home, and considering the appellant’s stance that he had not committed the offence and even offering to go for medical examination with the complainant and taking the step to report the allegations to the police, there was reasonable doubt to believe the complainant’s evidence that the appellant was the culprit. 66.It is now accepted that a court may believe all, some, or none of a witness's testimony. Whatever is accepted may be allocated a different weight to each piece of evidence. It depends on the circumstances of each case. In the present case, the evidence of the complainant that he was defiled was believable. However, his evidence of the identity of the culprit had great doubts. 67.I therefore find that in this case, the element of identification of the culprit in the offence of defilement against the appellant was not established beyond a reasonable doubt. It follows that the charge of defilement was not proved against the appellant beyond a reasonable doubt and the learned trial magistrate was in error in convicting the appellant. 68.Consequently, the judgment of the trial court finding the appellant guilty of defilement is hereby set aside and substituted with a finding that neither the charge of defilement contrary to section 8(1) as read with (2) of the SOA nor the alternative charge of committing an indecent act with a child was proved against the appellant beyond a reasonable doubt. The appellant is therefore acquitted of the charges under section 354(3)(a)(i) of the Criminal Procedure Code. 69.Orders accordingly. ANDAYI W. FRANCISJUDGEDated, signed and delivered on the Virtual Platform, Teams, this 4th day of May 2025 in the presence of:The Appellant in person from Shimo La Tewa Maximum prison. Orwa holding brief for Ms Vallerie for the RespondentUmmu: Court assistant.Signed By/for:THE JUDICIARY OF KENYAHON. JUSTICE ANDAYI W.F.KWALE HIGH COURTHIGH COURT DIVDate: 2026-05-07 05:41:3