https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9768

Missiani v Republic (Criminal Appeal E017 of 2025) [2026] KEHC 9768 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9768 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E017 of 2025 RK Koech, J June 25, 2026 Between Douglas Missiani Appellant and Republic Respondent (Being an appeal from the judgment, conviction and sentence of the Honourable P.C. Biwott, Chief Magistrate, delivered on 30h May, 2025 in Ogembo CMSO E 070 of 2024) Judgment 1.The appellant was charged with the offence of defilement contrary to S. 8(1) as read with S. 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence stated that on diverse dates in the month of March, 2024 at [Particulars withheld] sub-location within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of C.N., a child aged 13 years. The appellant denied the charges, after a full trial, the appellant was convicted and sentenced to serve a sentence of imprisonment for a period of twenty (20) years. 2.Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s petition of appeal lodged with the court on 11th June, 2025. The appellant is seeking orders to have his conviction quashed, the sentence of imprisonment set aside and the case set for re-trial before another court, other than Hon. P.C. Biwott. 1.The grounds in support of the appeal are as summarized hereunder; 1.That the trial magistrate erred in law and fact by convicting and sentencing the appellant for the offence of defilement based on flawed evidence which falls short of the requisite standard of proof, and 2.That the learned trial magistrate erred in law and fact by convicting the appellant based on contradictory evidence, which was improbable and unbelievable in the circumstances. 3.The appeal was admitted for hearing, with directions that the parties file their respective submissions. In his written submissions dated 24th February, 2026, the appellant submits that he was convicted on the basis of evidence adduced by family members. The appellant submits that he was convicted in a case that had not been proved beyond reasonable doubt. He faults the learned trial magistrate for permitting the use of a defective charge sheet during the trial. The appellant faults the prosecution for its failure to conduct a DNA test to confirm the paternity of a child alleged to have been fathered by the appellant. 4.The appellant submits that the charge sheet is defective for reasons that he has been charged for defiling the complainant on diverse dates in the month of March, 2024. The appellant submits that the specific dates when he is alleged to have defiled the complainant should have been stated. The appellant submits that the charge sheet offends the express provisions of S. 134 of the Criminal Procedure Code. The appellant contends that DNA samples ought to have been collected for purposes of ascertaining the paternity test of the complainant’s child. The appellant submits that the testimony of the complainant was not credible and should have been discarded. The appellant points out that there is a possibility that the complainant moved in to stay with the appellant while pregnant. The appellant submits that the complainant hid her pregnancy from her parents and the appellant even though she told the court that the appellant was her boyfriend and she was cohabiting with him. 4.The appellant submits that some crucial witnesses were not called and an inference should be drawn that had they been called, their evidence would have been adverse to the prosecution’s case. The appellant attacks the complainant’s testimony for being contradictory as regards the exact time when she started her relationship with the appellant. The appellant is urging this court to discard the contradictory evidence. 5.The appellant submits that the minimum sentence imposed deprives the court of its discretion in sentencing and resulted in the denial of the appellant’s right to personal dignity. The appellant urges that the circumstances of the offence should have been taken into account in sentencing. The appellant faults the investigating officer for conducting very shoddy investigation and failing to interrogate the complainant and her family members. The appellant has summed up his submissions by urging this court to allow his appeal, set aside the conviction and sentence and set the appellant at liberty. 6.Even though the respondent indicated that it filed submission dated 23rd February, 2026 on 27th February, 2026, the case tracking system shows that no such submissions were uploaded. Instead, the system shows that there was an attempt to file a document on 24th February, 2026 which cannot be found. 7.As a first appellate court, it is the duty of this court to re-evaluate the entire evidence afresh and draw its own conclusion, see the decision in Okeno v Republic (1972) EA32. To sustain a conviction, the prosecution is duty bound to proof its case beyond any reasonable doubt and that burden never shifts to the defence. This is a timeless principle in criminal trials; see Woolmington v DPP (1935) AC 462. An accused person, like the appellant in the present case, is presumed innocent until the prosecution discharges its evidentiary burden of proof aforesaid; see Article 50(2) (a) of the Constitution of Kenya, 2010 8.A look at the evidence on record shows that the complainant allegedly cohabited with the appellant for a period of six months, during which time she got pregnant with the appellant’s child. By the time of her testimony, the complainant was heavy with child and the pregnancy was estimated to be 31 weeks old. The complainant told the trial court that she was acquainted with the appellant in the month of March, 2024 and moved in to live with him in a plot at Nyabikene area. It was her evidence that she had sex with the appellant severally, mostly using condoms, save for two occasions when they failed to do so, resulting in the pregnancy. 9.The complainant reportedly notified her father and aunt when she realized that she was pregnant while identifying the appellant as the responsible person. Though earlier saying she cohabited with the appellant for six months, in the course of her testimony, the complainant told the court that she was visiting the appellant during weekends. She told the trial court that she believed she was born in the year 2007 but her late mother registered her birth belatedly in the year 2011. The complainant denied a suggestion that she was pregnant when she moved in with the appellant. During her re-examination, she told the court that she got pregnant in late December, 2023 when she started engaging in sex with the appellant. It is her evidence that she was 13 years old as per her certificate of birth but that she felt like she was 18 years of age. 10.The certificate of birth was not referred to the complainant for identification during her testimony. No. 225530, PC Wilkister Otieno Simina who was the investigating officer mentioned but did not produce the complainant’s certificate of birth, which allegedly showed that the complainant was born on 1st January, 2011. This confirms that the complainant was 13 of years old when she was defiled. The only exhibits produced during the trial were the P3 of the complainant; treatment notes, an ultrasound report and the P3 of the appellant (see exhibits 1, 2, 3 and 4 respectively). 11.In the case of Duncan Odhiambo Onyango v Republic (2019) eKLR, it was held, “ the key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator.” The Court of Appeal in the case of Eliud Waweru Wambui v Republic (2019) eKLR also considered the issue of age in sexual offences and held,In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.” 12.The complainant herself has cast doubt on the accuracy of her age as captured in the alleged certificate of birth. The father to the complainant and her brother were never called as witnesses. They would probably have explained how they allowed a minor to cohabit with a male adult for more than six months. Maybe, they would have shed light on the actual age of the complainant. The appellant denied committing the offence, he pointed out that one Collins had been reported to have defiled the complainant before he was arrested. It is inexplicable why the birth certificate of the complainant was not produced in evidence, it is a puzzle how it ended up in the court file and referenced by the trial court. 13.The conviction of the appellant is unsafe, to say the least. There were glaring inconsistencies in the testimony of the complainant. Her age was not proved; she might be a child or an adult. Whenever doubts arise in a criminal trial, the same should be resolved in favour of the accused. It is more likely that the complainant had attained the age of majority, given her conduct, in the words of the complainant herself she felt like she was 18 years old. Without proof of age the charges of defilement cannot stand. Even though the appellant is pleading for a chance to be retried, where the appellate court finds a miscarriage of justice, the appropriate remedy is not an order for retrial. 14.In the circumstances, I do allow the appeal, set aside the judgment of the trial court, quash the resultant conviction and set aside the sentence of imprisonment. The appellant is hereby set at liberty unless otherwise lawfully held.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of: Appellant appearing virtually from Kisii GK Prison Mr. Koima appearing virtually for the Respondent Ms. Roselyne Court Assistant Right of appeal within 14 days