https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8400

Migiro v Republic (Criminal Appeal E079 of 2025) [2026] KEHC 8400 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8400 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E079 of 2025 DKN Magare, J June 3, 2026 Between Bildad Migiro Appellant and Republic Respondent (An appeal arising from the judgment of the trial court, Hon. J. Irura (SPM), given on 9.7.2025 in Kigumo Criminal Case Number E013 of 2023) Judgment 1.This appeal arises from the judgment of the trial court, Hon. J. Irura (SPM), given on 9.7.2025 in Kigumo Criminal Case Number E013 of 2023. 2.The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 10.05.2023 at around 1100 hours within [Particulars Withheld] area, Makomboki Location, Kigumo Sub-county within Murang’a County, intentionally caused his penis to penetrate the vagina of RN, a child aged 12 years. 3.There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, on 10.05.2023 at around 1100 hours within [Particulars Withheld] area, Makomboki Location, Kigumo Sub-county within Murang’a County intentionally and unlawfully touched the vagina RN, a child aged 12 years with penis. 4.The Appellant was arrested on 12.05.2023 and charged with attempted defilement. He was arraigned in court on 15.05.2023 and pleaded not guilty. The charges were subsequently amended on 09.04.2024 after two witnesses had testified. The appellant was released on bond on 22.06.2023. 5.He was tried and convicted and then sentenced to 20 years imprisonment from which he appealed and set forth the following grounds of appeal:a.That the learned trial magistrate erred in matters of law and fact by failing to find that recent penile penetration of the complainant’s genitalia as alleged by the key prosecution witnesses was not supported by evidence.b.That the learned trial magistrate erred in matters of law and fact by failing to find that the prosecution narrative was premised on mere suspicion and that the complainant was evidently coerced to implicate the appellant.c.That the learned magistrate erred in matters of law and fact by failing to find that the appellant herein was not properly identified as the perpetrator of the offence(s) charged.d.That the learned trial magistrate erred in matters of law and fact by failing to find that the appellant’s mode and circumstances of arrest were unjustifiable under the circumstances of the case.e.That the learned magistrate erred in matters of law and fact by failing to find that would be vital prosecution witnesses, necessary to prove basic facts were not produced.f.That the learned trial magistrate erred in matters of law and fact by failing to find that the prosecution case was tainted by anomalous allegations and improbabilities.g.That the learned magistrate erred in matters of law and fact by making findings based on misinterpretation of evidence on record.h.That the learned trial magistrate erred in matters of law and fact by disregarding the defences of alibi and grudge, which defences were well supported by evidence. Evidence 6.The complainant testified on 09.04.2024. She stated that the appellant had sex with her. She had been sent home from school. She went to see the mother, where she was picking tea. He pulled her, tied her hands and had sexual intercourse, removed her stockings, and defiled her. The appellant placed a condom on his penis. After finishing he told her not to tell anyone. He had sexual intercourse for three other occasions (the occasions and circumstances are not given and are not on the charge sheet). On the third occasion he gave her yoghurt and a cake. The appellant was not known to her. He told her the name after defiling. The appellant was said to be John Maina. 7.On cross examination, she stated that they met in a shamba and he told her that he was John Maina. She did not tell anyone as she feared as the appellant threatened her. She was taken to Kandara. She had not seen the appellant before they met. She feared telling Waithera but later told her. On re-examination she stated that she was raped during school holidays and the last occasion when she was going to the tea farm. 8.PW2 was SNM. She stated that the minor was born on 30.06.2012. This would have made the minor to be 11 years! She stated that two women Lucy Moraa and Monia Waithera aka Wa Maina asked her what she would do if she learnt her daughter was defiled. They told her that her daughter was defiled. The daughter was taken to hospital at Gituru and later they went to Githumu Police Station. Later they went to Kangari Police Station who referred them to Makomboki Police Station. The officers sent them to investigate the suspect. The minor told them that the assailant resembles someone who carries her on a motor cycle. She noted when the appellant was arrested that he usually fishes at the dam. 9.On cross examination by the appellant, she stated that the daughter was sent home from school. She took the daughter to Gituru police station. It was Waithera who met the daughter and came with Lucy Moraa. They reported at Makomboki the following day. She stated that there is a man who usually carries her in the morning and in the evening. The two are usually together. 10.This is the point charges were amended. The witnesses were then reluctantly recalled. I don’t understand why the court was reluctant, as amendment of charges should automatically lead to recalling of witnesses on the new charges, otherwise the evidence before is otiose. 11.PW3 was James Mugo Mburu, a Clinical Officer registered with the Clinical Officer’s Council. He filled a P3 form. The minor was 12. The minor was allegedly, dragged into a tea plantation, where she was defiled. On examination, he stated that the patient was in a fair general condition, hymen old broken, whitish discharge, no bruises, no lacerations, no bleeding, no spermatozoa, all vital tests were negative. 12.On cross examination he said that the complainant did not give a description of the person who committed the offence. There was no evidence of sexual assault, no laceration and no bleeding. No other physical injuries on the victim: no blood stains, no evidence of struggle, no stains on the clothes. The injuries were ten hours and the offence was attempted rape. The minor denied to have had sexual intercourse but on examination, he saw the hymen was broken. 13.PW1 was recalled for further cross examination. She stated that on 10.05.2023, she was sent home from school and went straight home. She decided to go to where the mother was picking tea. She had changed school uniform. The mother did not give her money and she went to school to collect her bag, 5 minutes run away. She left the mother at 1 pm and went for lunch. They were in the farm until 4 pm. She was with the mother. She was defiled a day before. She had gone to see the sister at 11.00 am. 14.She stated that the sister went home at 10.00 am. She was defiled at the dam area, 3 minutes from where the mother was. She could not see the mother and did not scream. She knew the person who defiled her. The person who defiled her threatened to kill her. She stated that after defilement she was given cake and yoghurt. She identified the person in the dock as the person who defiled her. She denied that the appellant was working elsewhere on that day. 15.On re-examination, she stated that the appellant raped her for three days. First when she was at home, second at mid-term and the third time when the appellant gave her yoghurt. She came to know his name when he was arrested. The person who defiled her was tall and dark. The appellant had a back pack where he got lesos and tied her. The appellant defiled her on three occasions and she reported the third. 16.On cross examination by the court, she stated that when she went to look for her sister is when she was defiled and given yoghurt. She was not treated at a private hospital but was asked to report to the police. 17.PW2 was recalled. She stated that she knew of the defilement at 11.00 am. She was at a buying centre at Githioro when the two ladies, Wa Maina and Lucy Moraa told her of the defilement. She did not know who defiled the complainant. The child had already changed inner wear. The minor did not tell her who defiled her, it was Wa Maina and Lucy Moraa. She never sent anyone to the appellant seeking compensation. Monica Waithera aka Wa Maina was a neighbour and Lucy Moraa was her friend. They moved to unknown places. On re-examination, she stated that she did not know the appellant’s name. The complainant gave the accused’s name and the appellant was arrested. 18.PW4 was Monica Waithira Maina. She recalled that on 10.05.2023, she was going to charge her phone at Lucy Moraa’s place. She met a neighbour’s daughter who told her what she was going through at home. She noticed that a day she came earlier she stained her seat. The minor told her that she was given the yoghurt and cake by a woman. She noted the minor was lying. After interrogation, she stated that she was given by Maina. Later she said it was Jose of Thika boda boda. Then said it was John Maina who is a barber at Makomboki and that wherever she sees him at the tea, she leaves the tea farm and goes to him. 19.She stated that they usually go to the forest and he comes with a leso where they lay on. The minor did not know where the barber shop was. She called the complainant’s mother and told her what complainant was telling her. They went to see the complainant’s mother. They told her that they go to hospital. The mother joined them at 3 pm. They went to Githumu Mission Hospital and were referred to Githumu Police Station. They were refereed back to Kangari Police Station where they went and referred to Makomboki Police Post. She did not know John Maina of Makomboki. 20.On cross examination she stated that the minor lied that she was given yoghurt by a woman she did not know. She changed later to a Maina of Thika. She suspected she was not telling the truth. She did not know the person who was arrested. The complainant did not give any descriptions of the person who defiled her. She did not know that at that time the appellant was in a different tea buying centre to deliver tea leaves. 21.PW5 was 240132 PC(W) Anastacia Wanjiru Mwangi of Kangari Police Station, the investigating officer. She recalled that on 12.05.2023 at about 7.20 am two ladies, PW2 and PW4 came to the police station accompanied by PW1. They reported that the child was sent home from school at 11.00 am and met the appellant who dragged her into the bushes and defiled her. Thereafter, the mother and PW4 took her to Gituru Dispensary. The minor was escorted to Kandara Hospital, treated and P3 issued. They were referred back to Makomboki Police Post where the case was earlier recorded. 22.They went and arrested the appellant, Bildad Migiro. They found the appellant working not far from the scene of the incident. The victim identified the appellant. They found the appellant at his employer’s home. The mother did not avail the birth certificate as she alleged that it was lost. 23.On cross examination, the witness stated that the report was made at 0720 hours, though the defilement was at 11.00 am. The minor did not give a description of the appellant. They asked for assistant of the Nyumba Kumi elder who knew where the appellant worked. The minor did not know the appellant’s real name and no identification parade was carried out. 24.On re-examination, the date and time of entry was said to have been an error on part of the officer. The child narrated the defilement had taken place on several occasions. 25.The appellant was placed on his defence and section 211 complied with. He stated that he was to call three witnesses and give sworn testimony. 26.The appellant testified that he comes from Makomboki and picks tea leaves. On 10.05.2023, on a Wednesday, he was picking leaves with his wife and Calvin Nyakundi. They picked up to 10.00 am when the vehicle usually comes. They took 10 minutes to the tea buying centre to sell tea leaves they had picked. They usually pour tea and wait for it to be inspected and then repack it into the sacks. The centre has 60 members. They weighed tea. The brother weighed 21 kg while they weighed 35 kg with the wife, Lydia. They showed 2 delivery receipts, which were marked as DMFI 1 and DMFI 2. The process ended about midday. They went back home and worked until 6 pm. 27.The employer, Emily Njeri has a Farm Manager called Paul Mburu. He reported at 8.00 am. After weighing, they took the receipts to Paul Mburu. The complainant was not known to her. He was arrested on 12.05.2023. He was assisting Paul Mburu to pick tea leaves. They were arrested with the brother and taken to the police station. The police were brought by Lucy Moraa. She is the one who identified the appellant. Lucy Moraa came with the complainant after a while. She told the complainant to pick the appellant. He asked Paul Mburu to get him and another job, which he did with Emily Njeri. The case was brought since Lucy Moraa had a grudge, as he had declined to marry her. 28.He recalled that he had had an affair with Lucy Moraa when she came to look for employment but did not know that she was married. He decided to marry Lydia and Lucy was not happy about it. He moved away from the area she was staying. Later Lucy Moraa moved into the area he was staying. 29.On cross examination, he stated that he did not know how the said Lucy Moraa came to know the complainant, who is said to be 12 years. There was no one who heard Lucy Moraa threatening him because he left. He stated that they have an oral contract with the employer. The card for delivery of tea leaves is with Paul Mburu. The complainant is not known to him and he had no grudge with them. All witnesses confirmed that they were with Lucy Moraa. He did not know where defilement took place. 30.On re-examination, he stated that Lucy Moraa came at 10.30 am and they went to the buying centre with the wife and brother. He was employed by Emily Njeri. On the court examination, he stated that there is nothing in the document showing who picked the tea. 31.DW2 was Paul Mburu from Kimanga in Makomboki, a tea farmer and a supervisor in other tea farms. He knew the appellant who stays in his home. He is a Farm Manager. On 10.05.2023 he was at Emily Njeri’s farm and found the appellant, his wife, and brother at about 8.30 am. They were harvesting tea. The vehicle collects tea around 10.30 am to 11 am. They left for the tea buying centre. 32.The witness usually reports to Emily Njeri. The workers came back at midday from the centre. The appellant sold 35.8 kg while the brother sold 21.2 kg. After coming back they continued work until 5.00 pm. On 12.05.2023, he went to pick the appellant on the motorcycle. His home is far from Emily Njeri’s farm. He went for the appellant at 6.30 am. They came back and were taking breakfast. The wife called, that Emily Moraa had gone there with two police officers. After a while the police came with one woman and the appellant’s brother. The woman identified the appellant and he was arrested. 33.On cross examination, he stated that he did not follow the appellant to the tea buying centre. The receipts do not show how much tea the appellant delivered. There was no cross-examination whether he actually delivered tea. 34.DW3 was Calvin Nyakundi from Makomboki. He usually picks tea and the appellant is the brother. On 10.05.2023, they were picking tea at mama Matheri’s farm with the appellant and the appellant’s spouse. They picked tea leaves up to about 11 am. They went to the tea buying centre where he weighed 21 kg and the appellant sold 35 kg. They went back home together and went into the farm until evening. 35.On 12.05.2023, DW2 called the appellant to work for him. He was left with the appellant’s wife. At 7 pm 2 police officers came and asked the whereabouts of the appellant. He told them that he had gone to Kimayu. The officers were with a woman known as Moraa. He was not told what the appellant was being arrested for. They went to Paul Mburu’s house and arrested the appellant who was identified by Lucy Moraa. Shortly Lucy Moraa came and told the complainant to say it was the appellant. 36.On cross examination, the witness stated that the appellant told him that they had an affair with Lucy Moraa. She was not living in their village. 37.DW4 was Emily Njeri. She knew the appellant. She recalled that she had employed the appellant, his wife and brother. On 10.05.2023, the appellant was picking tea in her farm. After picking the tea leaves they sold and were given receipts, defence exhibits 1 and 2. She had no employments records. She stated that the receipt was in her name. They don’t give workers to show who was picking tea. Impugned Judgment 38.The court found, against the medical documents, that there was penetration. This was said to be on the basis of the clinician’s evidence. The evidence was not saying so. The court based this finding on conjecture, surmise and hyperbole. The court stated that the age was proved on basis of the clinical evidence, allegedly as an expert in age assessment. There was no such evidence on record. 39.The third ingredient of identification, the court indicated that it was free from error. He dismissed the defence evidence without considering the same at all. Submissions 40.The appellant filed submissions wherein it was submitted that there was failure to prove penile penetration. He raised issue on how the complainant could be defiled three minutes from where the mother was and did not raise alarm. The hymen was found old broken and had no bruises, laceration and bleeding, though she had pus. They submitted that if she was defiled for a few hours, pus could not be there. They stated that the complainant denied prior intercourse but on examination the hymen was old broken. She was therefore a lair. 41.The prosecution was said to be premised on mere suspicions. They relied on the case of James Tinega Omwenga v Republic [2014] KECA 670 (KLR), where the court of appeal held as follows:Based on the evidence on record, we find that the only thing that connects the appellant to the offence is suspicion. Nelco testified that the conduct of the appellant pointed to his guilt because he avoided attending both meetings which had been convened by the chief. It is trite law that suspicion alone cannot be the basis for inferring guilt. In Mary Wanjiku Gichira -vs- Republic- Criminal Appeal No. 17 of 1998, this Court held,“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence.”See also this Court's decision in Sawe -vs- Republic (2003) KLR 364. 42.The complaint was on suspicions from PW4, where the complainant stained her seat. It is not known when this happened. They submitted it is not PW1 that initiated suspicion. They submitted that there was direct evidence of coercion by PW4. They also submitted that from PW2’s evidence, and I agree with this part of the submissions, that it was not clear who the suspect was, as the complainant had not told the mother who the suspect was. 43.They submitted that had the court analyzed the evidence, it would have seen that PW4 influenced PW1. Reliance was placed the case of Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), where the court of appeal [Nambuye, Koome & Kiage, JJA)] stated as follows:What we find troubling about this case is that J.M.K did not on her own volition make a complaint that the appellant had defiled her. Her testimony was that after the "bad things", she went home whereat she met her aunt (PW2) who beat her up to reveal what had transpired. It was the appellant's contention that J.M.Ks' testimony was procured by threats and that it was only given as instructed by PW2. We cannot dismiss this as an idle or insubstantial contention. 44.The court failed to analyse the event and had he done so, it could have been found that the complainant was not a credible witness. She told a lie after another. Therefore, the court could not invoke Section 124 of the Evidence Act. Reliance was placed on the case of Manga v Republic [2016] KECA 691 (KLR), where the court of appeal [W. Ouko, MS Asike-Makhandia & K M'Inoti, JJA] held as follows:“We agree with the appellant that such fundamental disparities in the evidence of the JM regarding a material fact in the case, without any explanation, cast a reasonable doubt on the veracity of her evidence. In Ndungu Kimani v Republic [1979] KLR 282, this Court aptly observed:“The witness in a criminal case upon whose evidence is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore unreliable inordinate witness which makes it unsafe to accept the evidence.” 45.He submitted that the circumstances of arrest and proper identification were not addressed. He stated that circumstances of his arrest were not justified and he was never identified as the perpetrator. He submitted that PW1’s evidence was contradictory and self-defeating. She gave a history to the clinical officer to have been defiled by someone well known to her but in her testimony the appellant was not well known to her. The complainant is said to have given three names, John Maina from Thika, Jose the bodaboda and John Maina a barber at Makomboki. They raised a legitimate question that since the three names do not refer to the appellant, how was he arrested. This will be the clincher and the lynchpin on which the entire edifice of the prosecution case falls or survives. 46.He submitted that the descriptions were not given to the police, PW2, PW3, PW4 and PW5. He questioned what criteria was used for his arrest. The appellant was said to have been identified after arrest and not before. The appellant submitted that the gap is unexplained and huge. 47.He raised issue of failing to call crucial witnesses, that is Lucy Moraa and the Nyumba Kumi elder. They assisted to identify the appellant but did not testify. Reliance was placed on the case where the court of appeal held as follows:Besides there was an eye witness, Abdi Kadir, who should have, but did not testify. There was no explanation given by the prosecution for their failure to call him as a witness. He was an important witness as the trial was at some stage adjourned to enable the prosecution to get him. But he was not called. The law is clear that the prosecution has a duty to call all witnesses necessary to establish the truth, but where the evidence in support of the charge against an accused is barely adequate the court hearing his case will be perfectly entitled to draw an adverse inference that where a witness who should have been called was not called his evidence would have tended to be adverse to the prosecution case. (see Bukenya and others vs. Uganda [1972] EA 549).We think that this is a proper case for such inference. 48.The appellant submitted that the evidence is anomalous and full of improbabilities. He stated that the complainant stated that she was defiled at home during midterm, and when given cake and yoghurt. He submitted that this could be encounters with the people she named and not the appellant. 49.The court was accused rather correctly that it misinterpreted the evidence on the record. The court found, rather strangely and I must agree with the appellant, that the complainant gave descriptions to Lucy Moraa, her mother and Nyumba Kumi elder. The court was plainly wrong in stating that the defence agreed that it is the complainant who identified the appellant. There is no such evidence on the record. It is in the realm of conjecture, guesswork and hyperbole. 50.This appears to have been AI generated hallucinations as the witnesses were succinct on what was done or not done. Further, it is rather sad that the court relied on the alleged descriptions by Lucy Moraa, her mother and Nyumba Kumi elder, persons who are not witnesses. No witness stated such descriptions. It is not clear and the court does not want to imagine, what was the source of such information. A court cannot rely on rumours or documents and evidence not produced. Defence witnesses stated that it was Lucy Moraa who identified the appellant to the complainant. 51.The appellant concluded that the court rejected without analysis the two defences given, that is, a grudge by Lucy and the alibi defence. Reliance was on the case of Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), where the court of appeal [Kihara Kariuki (PCA), Musinga & Gatembu, JJ.A] held as follows:But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant’s defence. The section states as follows:“309. If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.”The prosecution failed to do so.All in all, we find and indeed hold that for the reasons stated herein, the appellant’s conviction was unsafe and accordingly allow this appeal. The appellant’s conviction is quashed and the death sentence is hereby set aside. The appellant is set at liberty unless otherwise lawfully held. 52.Respondent filed submissions dated 10.12.2025 where it was submitted that the appeal lacks merit and ought to be dismissed. Reliance was placed on the duty of the court as set out in the locus classicus case of Okeno Vs Republic (1972) EA 32. They relied on the element of defilement as set out in the case of George Opondo Olunga v Republic [2016] eKLR. 53.He submitted that the question of not raising alarm was misplaced. The same was due to fear, intimidation and prior encounters. Reliance was placed on the credibility of the witness on basis of the court of appeal decision in Kassim Ali V Republic [2006] KECA 156 (KLR). 54.They also relied on the persuasive case of George Owiti Raya v Republic [2013] KEHC 1044 (KLR), where Onesmus Makau, J held as follows:“There is no other medical opinion to contract that of PW5. It remains therefore that there can be penetration without going past the hymen membrane. Section 2 defines penetration to include both partial or complete insertion of the genital organ into another. The foregoing view corroborates the evidence of the PW1 is further corroborated by the evidence of PW2 and 3 all of whom examined the PW1's genitalia and confirmed there was injury and discharge. The said PW2, 3 and 5 corroborated the evidence of PW1 when she stated that the appellant removed his and her clothes and pushed his penis into her private parts. The foregoing consistent evidence cannot be defeated by failure to produce the PW1's pants as exhibit." 55.They submitted that evidence was not obtained by coercion. They submitted that identity was proved beyond reasonable doubt. Reliance was placed on the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:“The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; 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. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported)." 56.They dismissed the position that non production of vital witnesses was baseless. The state is not required to give a multitude of witnesses. Reliance was placed on the case of Bukenya & Others v. Uganda [1972] EA 549. They submitted that in any case the complainant’s evidence was clear, consistent and credible. 57.They submitted rather wrongly that there were no independent witnesses supporting the alibi. I say, rather wrongly, as the duty to prove falsity of an alibi is on the state. See the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir. Udo Udoma C J stated as follows:“As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution." 58.The Respondent placed reliance on the case of [Particulars Withheld] Kiarie v Republic [1984] KECA 65 (KLR). They submitted that the suggestion of the grudge is equally untenable. Analysis 59.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different." 60.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [Supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 61.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 62.Brennan J addressed the standard of proof required in such cases in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:“The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." 63.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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“That degree 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 the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the 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." 64.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 65.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 66.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. The Law 67.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)…(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 68.The essentials constituting defilement were set out in the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, as the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 69.I must add that the penetration is of a sexual organ, of the vagina or anus by a sexual organ. This case turns out on the 4 elements, which the court was to find. 70.The first impression and the correct impression is that the investigating officer was pressured to bring charges she did not believe in at all. First, the clinical officer did not find any sexual assault. She was categorical that this could only have been attempted defilement. This was what was filed. The evidence from the clinical officer ruled out penetration. There was no penetration. The minor’s story does not add up, since in chief she indicted that she had been sent home from school. I take judicial notice that 10.05.2023 is during school days. The evidence thus has wide contradictions that do not add up. She had not indicated how she identified the appellant to the police or the arresting officers, or her age. 71.The only correct finding the court can make is that the complainant was a gun for hire. Waithera was correct that the complainant was a lair. She stated too many people to have defiled her. Unfortunately, there was no evidence of struggle, defilement or any sexual activity. At some stage she changed her story when it was clear that timelines were not adding to defilement on an earlier date. The complainant did not explain why she could go a long distance to meet Wa Maina and leave the mother who was three minutes away. Regarding penetration, the medical reports are conclusive that there was no penetration. There was nothing of significance noted. It was not clear whether the hymen was freshly broken or old. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding, as was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 72.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 73.Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, where it was held that:“While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts: -"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it." 74.The Clinical Officer was succinct and clear that there was no sexual assault. It will be preposterous to find sexual activity when nothing shows and the minor’s evidence is shaky. In short PW1’s evidence was false. I agree with the clinical officer that there was no penetration. 75.This could be the end but this is not the last court. The court must consider the other elements. The appellant gave a rock solid alibi. The alibi was also intertwined with cross examination. For example the question of being in another buying centre was raised so much early that it cannot be said to be an afterthought. Secondly the court was plainly wrong in not analyzing the alibi. There is no law requiring the appellant to disclose his alibi early enough. 76.The one issue that the court failed to address critically was the evidence in defence. The court summarily dismissed the defence of alibi. It is true that in certain cases, an alibi needs to be set out early but it is not a legal requirement. It used to be so, when section 307(2) was law. This was repealed vide Act number 5 of 2003. The section 307 of the Criminal Procedure Code before repeal provided as follows:307 (1) The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.(2)2) Notwithstanding the provisions of subsection (1), the accused person or his advocate shall not, without the leave of the court, the reasons for which shall be recorded, adduce alibi evidence unless details thereof, and the names and addresses of any witnesses in support thereof, were provided at the committal proceedings or in writing to the committal court and the prosecution within fourteen days thereafter. 77.The section repealed meant that there is no restriction on when an alibi can be given. Requiring prior disclosure is not based on any law in force in Kenya. Any decision based on a repealed section is not just bad in law but is not law. However, the duty to prove the falsity of an alibi still remained with the prosecution. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada explained the standard of proof as doth:-The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt. 78.If evidence was tendered that was surprising to the state, they had a chance under section 212 of the Criminal Procedure Code to call for rebuttal evidence. The section provides as follows:If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 79.The question of the rights of the prosecution to receive in advance defence evidence was addressed in the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), where the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows:So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. …That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: If you rattle a snake, you must be prepared to be bitten by it. ….We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers.They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court:To make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. – see section 3A.There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate. But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 80.The appellant was not under duty to disclose his defence before being put on the defence. In any case, the State has a chance to call rebuttal witnesses. The case for the appellant from the cross examination was that he was not at the scene of crime. He was working for DW4 together with his wife, DW2 and DW3. That he was not there. It used to be the position that alibi had to be disclosed in advance. However, non-disclosure is not fatal. From the defence evidence, it is clear that the appellant was not anywhere near the scene of crime. This is actually supported by the prosecution case in a rather uncanny manner. 81.The minor admitted that he knew the defiler as John Maina or Jose. She did not take part in arrest of the appellant. The investigating officer sought assistant of nyumba Kumi to arrest the appellant. Her description had not been given. The minor was not at the scene. The names were not known. However, the officers were led to a specific place and specifically sought for Bildad Migiro. How this happened is beyond conjecture. 82.The minor testified twice. However, she did not say that she led the police to arrest the appellant. She denied that Lucy Moraa (Mama Sam) made her frame the appellant. PW2 stated that Lucy Moraa and Waithera were the ones interrogating the daughter. She did not lead the police to the arrest of the appellant. Waithera also did not get the description of the person who defiled the minor. How then did the police arrest the appellant? The only explanation is that given by the appellant that he was set by his ex-girlfriend Lucy Moraa whom he dumped for the current wife. Lucy Moraa did not testify. The court can only make negative inference, that had she testified her evidence would have been against the state. 83.The court will make a negative inference, that had Lucy Moraa testified, her evidence would have been adverse to the prosecution case. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows: -“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.” 84.However, I am equally persuaded by the reasoning of Odunga, J as he then was in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR where the learned judge stated as follows:53.In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded. 85.Had Lucy Moraa testified the evidence could have been adverse to the state’s case. The gaps and contradictions were humongous, as huge as Menengai crater. Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law." 86.I therefore find and hold that there was no single witness who placed the appellant in the locus in quo. The complainant could not explain how the appellant was arrested. It is therefore not farfetched to find that the appellant was led by Waithera and Lucy Moraa to frame the appellant. No wonder there was no medical evidence to back it up. 87.The next element was age. The complainant was said to be 12 years. The date of birth given by the mother makes her 11 years. The document on the medical report show 12 years. The minor did not bother to state her age. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 88.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim." 89.The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows:In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence. 90.However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. No. 364 of 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 91.The court was plainly wrong to find that a clinical officer did an age assessment. There is no age assessment on the record. The element of age was treated in such a cavalier manner that it was not proved. The court cannot estimate the age. It is not enough to assert that someone is12 years. There needs to be concrete basis. This was not proved. 92.The next issue is contradictions. At the end of the complainant’s testimony it was clear that her evidence was not credible. It had huge craters in terms of what happened, that no reasonable tribunal could have believed her. There was an attempt to make this as a habitual defilement but the explanation was not adding up. She did not point out the appellant to anyone. This means someone had someone else in mind. Given that the appellant was arrested before the minor could point him out, an identification parade was necessary. 93.There was no identification parade carried out. The complainant did dock identification. The court considers the weight to be attached to such identification evidence. The need for a parade in circumstances where the appellant was unknown to the complainant and no description was given was paramount. This was addressed in the case of David Mwita Wanja & 2 others v Republic [2007] KECA 324 (KLR):The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/o Manaa (1936) 3 EACA 29. There are a myriad other decisions on various aspects of identification parades since then and we need only cite for emphasis Njihia v Republic [1986] KLR 422 where the court stated at page 424: -“It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”Indeed, Police Form 156 which is designed pursuant to Force Standing Orders issued by the Commissioner of Police under section 5 of the Police Act Cap 5 Laws of Kenya and which is invariably used in the conduct of identification parades expressly provides for 16 or so requirements which ought to be observed. As far as is relevant to this case, Standing Order 6(iv) (d) and (n) state as follows:“6. (iv) Whenever it is necessary that a witness be asked to identify an accused/suspected person, the following procedure must be followed in detail: -…………………………………………………………(d)The accused/suspected person will be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself. Should the accused/suspected person be suffering from a disfigurement, steps should be taken to ensure that it is not especially apparent;…………………………………………………(n)The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified;”The investigators of the crime in this matter found it necessary to conduct an identification parade for the appellants in order to lend credence and support for the visual identification made by PW1 at the scene of the crime two months earlier. 94.The Appellant was not taken through an identification parade in consonance with Section 156 of the Police Standing Orders, which sets out the Force Standing Orders regarding identification parades. One of the prerequisites of a fair parade is that the witnesses ought to give a description of the suspect to the police officer in charge of the crime so that the officer arranging the parade picks members to the parade who, as much as possible, fit the description of the suspect. When parades are not arranged or conducted with scrupulous fairness, then their evidential value is lessened or annulled. 95.In this case there was no description given to the police. The appellant’s arrest therefore must remain in the realm of conjecture and hyperbole. This was addressed in the case of John Mwangi Kamau v Republic [2014] KECA 168 (KLR), the court of appeal [Visram, Koome & Odek, JJ. A as they then were], stated as follows:16. Ideally, a witness ought to give the description of his/her assailant for purposes of organizing an identification parade. In this instant case, the appellant contends that the failure to do so rendered the identification parade worthless. So, what is the consequence of the said failure? In Nathan Kamau Mugwe –vs- Republic- Criminal Appeal No. 63 of 2008 this Court faced with a similar situation expressed itself as follows:-“As to the compliant in ground six that the witnesses had not given to the police the description of the appellant before the parade, we do not think that failure to describe the person to be identified necessarily renders an otherwise valid parade worthless. Even in Gabriel’s case, supra, the Court did not go so far as to say that a witness must be asked to give a description of the person to be put on the parade for identification. All the Court said was that the witness ‘SHOULD’ be asked. That is obviously a sensible approach. It is not impossible to have a situation in which a witness can tell the police that though he cannot give a description of the person he had seen during the commission of an offence, yet if he (witness) saw that person again, he would be able to identify him. It would be wrong to deprive such a witness of an opportunity of a properly conducted parade to see if he can identify the person. Again, the police themselves may, through their own investigations, come to know that a particular suspect may have been involved in a particular crime though the witness or witnesses to that crime have not given a description of the suspect. Once again it would be wrong to deny the police the opportunity to put such a suspect on a parade to see if the witnesses can identify him.In either of the two cases, the parade cannot be held to have been invalid merely because the witnesses had not previously given a description of the suspect. The relevant consideration would be the weight to put on the evidence regarding the identification parade. We reject the contention that because James had not given to the police a description of the appellant, his evidence with regard to the identification parade ought to have been rejected.” 96.The value of identification was set out in the case of Biruri v Republic [2025] KECA 375 (KLR), where the court of appeal [MA Warsame, JM Mativo & PM Gachoka, JJA] held as follows:“After a careful analysis of the evidence, we find that the identification of the perpetrator fell short of the standard of proof beyond reasonable doubt. This was an explicit case calling for an identification parade. Contrary to the findings of the two courts below, PW1’s evidence in our view was not sufficient enough to identify that the appellant was the perpetrator of the offence. In Gabriel Kamau Njoroge vs. Republic [1987] KECA 4 (KLR), this Court held as follows regarding the relevance of an identification parade and which sentiments we adopt accordingly:Dock identification is worthless the court should not rely on a dock identification unless this has been preceded by a properly conducted identification parade. A witness should be asked to give description of the accused and the prosecution should then arrange a fair identification parade… On many occasions this court has held that such identification is almost worthless without an earlier identification parade (see Owen [Particulars Withheld] Kiarie v Republic, Criminal Appeal No 93 of 1983 relying on Rachhodas & Thakore, The Law of Evidence, (The Indian Evidence Act) 13th edn p 151.) The operation of this rule may be observed in Gopa s/o Gidamebanya v Republic (1953) 20 EACA 318 at 322 et seq.... (See Republic v Mohamed bin Allui (1942) 9 EACA 72, Rex v Shabani Bin Donald (1940) 7 EACA 60 and Owen [Particulars Withheld] Kiarie (supra). If one is to test the evidence with the greatest care this was the way that Court of Appeal in England in Republic v Turnbull [1976] 3 All ER 549 saw the examination. The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, e.g by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and the accused’s actual appearance? As a result of public disquiet in England that there were mistakes of identification, the Attorney-General agreed that the Director of Public Prosecution would not invite a witness as to identity who has not previously identified the accused at an identification parade, to make a dock identification unless the witness’ attendance at a parade was unnecessary or impractical or there were exceptional circumstances. (See Archbold, Criminal Pleading Evidence and Practice (40th edn) para 1348 et seq.) There is no evidence that there is any less disquiet in Kenya than in England, and as the authorities on this topic stretch back some 40 years, it is not asking too much that a witness is asked to give a description of the accused, and the prosecution to arrange for a fair identification parade.” 97.In the case of S v Langa and Others (C 40/2020) [2025] ZAGPPHC 303 (7 March 2025), the High Court in South Africa sitting as Circuit Court Vereeniging in stated as follows:With regards to identification, the following was held in S v Mthetwa 1972(3) SA 766 (A):Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest. The reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in light of the totality of the evidence, and the probabilities.” 98.The court also ignored all contradictions and inconsistencies. The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 99.It is thus unnecessary to go into the question of age of the complaint in the circumstances of the case. I am unable to agree with the trial court that the prosecution proved the offence beyond a reasonable doubt. There was indeed no evidence of penetration. In totality, the Respondent herein did not prove the offence of defilement against the Appellant beyond reasonable doubt, and the trial court erred in convicting the Appellant. The law should be light that guides conscience and not a shadow that hides it. It will be contra moro bonos to have Lucy Moraa have her last laugh against the appellant when there was no penetration. 100.Consequently, the appeal is allowed. The conviction is set aside. The sentence is a slave of conviction. In absence of conviction, the question of sentence becomes moot. Determination 101.In the circumstances, I make the following orders:a. The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b. The appellant’s name be removed from the register of sexual offenders.c. Right of appeal 14 days.d. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Appellant presentMr. Kihara for the StatePC Job Kithaka presentCourt Assistant – MartinM. D. KIZITO, J.