https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10582

Welikhe v Office of the Director of Public Prosecutions (Criminal Appeal E022 of 2025) [2026] KEHC 10582 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10582 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E022 of 2025 RK Ondieki, J July 2, 2026 Between Noah Wekesa Welikhe Appellant and Office of the Director of Public Prosecutions Respondent (Being an Appeal against the Judgment by Hon. Viola Yator (P.M.) in Principal Magistrate’s Court at WebuyeCase No. E003 of 2021, Delivered on 18th March, 2025) Judgment 1.The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held that the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. 2.In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated that an Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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. 3.T.N.J.(PW1) told court that at the time of her testimony, she was 12 years old and that on 12th August, 2020, her mother sent her to the Appellant to collect Kshs100/ being monies for the seeds the appellant borrowed from her mother. The witness said that the appellant lives 60 metres from their home. Upon arrival at the appellants house, the appellant forcefully took her into the room and carried her into the bedroom and defiled her. Thereafter the appellant gave her Kshs200/=for her buy him sugar but instead, she went home and told the mother what had happened. Her mother and two ladies namely Brigid and Lena came and examined the victim. The matter was immediately reported to the police and the victim was taken to the Webuye Hospital where she was examined and treatment notes issued. 4.Under cross examination, the victim said that he knows the appellant well and sometimes she plays with his children. She has gone to his home twice. The appellant lives near a road where she used to pass severally. The victim knows Beatrice as the mother to the appellant. On that day, the appellant and forcefully took her to his room undressed her. It was the first time to be defiled. 5.Naom Khamala Juma(PW2) told court that on 12th August, 2020, she sent the victim to the appellant to pick monies for the seeds that the appellant had borrowed and when she went back home, she disclosed what had befallen her. She screamed and in company of her mother in-law and co wife, they examined the victim and saw white discharge on her thighs and her private parts had begun to swell. The victim was treated at Webuye Hospital after a report was made at the Police Station. The witness marked 200/ note as MFI 1, p3 Form as MFI 2, PRC Form as MFI 3, Lab Test report as MFI 4, Treatment notes as MFI 5, Age assessment report as MFI 6, Xray film as MFI 7 and Hospital card as MFI 8. Under cross examination, the witness said that she had known the appellant for close to 4 years as a close a close neighbour. 6.Peter Fwamba(PW3) told court that he is a clinician based at Webuye and that the P3Form for the victim was filled on 12th August, 2020. On examination, the clothes were dirty. The thighs had whitish substance. The labia Majora was slightly swollen and the inside of the vagina was swollen. However, there were no bruises and tears. The examination was done within 17 hours from the time of the incident. The witness produced out patient card as Exhibit 1, treatment notes as Exhibit 2, PRC Form as exhibit 4 and P3 Form as Exhibit 5. Under cross examination, the witness said that the scar was old and that he used treatment notes to fill the P3 Form. That the offence is alleged to have been committed on 12th August, 2020 and the P3 Form was filled on 13th August, 2020. 7.PC Knight Agoi(PW4) told court that on 12th August, 2020 at about 17:40 hours the matter was reported to the police station and was asked to escort the victim to the Hospital. The witness reiterated the narration of the victim to her mother. The victim handed over to the witness 200/= note and because she did not have a birth certificate, she was taken for age assessment together with dental x-ray. The witness produced 200/ note as Exhibit 6, X-ray as Exhibit 6(a) and age assessment report as Exhibit 6(b). Under cross examination, the witness said that the home of the appellant and complainant is opposite each other and about 150 Metres apart. There was a report that the appellant was vying as MCA. The appellant was never examined. 8.Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were that on the 12th day of August, 2020, at Lutaso B village Bokoli Location in Webuye West Sub County within Bungoma County, intentionally and unlawfully penetrated the vagina of T.J. a child aged 11 years. 9.In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were; on that on the 12th day of August, 2020, at Lutaso B village Bokoli Location in Webuye West Sub County within Bungoma County, intentionally and unlawfully rubbed your penis against the vagina of T.J. a child aged 11 years. 10.Upon closure of the prosecution case, the trial court delivered a ruling on section 210 of the Criminal Procedure Code and here is the recording of that day “I have analysed the evidence tendered by the prosecution. I am satisfied that a prima facie case has been established against the accused, he is hereby placed on his defence…ruling delivered in the presence of the accused, Ms Awuor for the state, Shamsi-Court Assitant. Accused: My advocate is praying for another day because he is bereaved. Court: Because the defence is bereaved, section 211 Criminal Procedure Code to be complied on the defence hearing date. Defence hearing on 13th May, 2024” Come 13th May, 2024, the court records the following; “Prosecutor: the matter is for defence hearing. We are ready.Wamalwa S: I am ready.” The appellant is then sworn and tendered his testimony in Swahili. The other two witnesses equally testified on oath. I note that the statutory provisions on section 211 of the criminal Procedure Code was not complied with by the Trial Magistrate. However, the record show that the appellant was represented all through including the defence hearing. The appellant gave sworn evidence as well as the other two witnesses. The fact that the trial magistrate did not comply with section 211 CPC was neither raised at the time nor was it raised, as part of the grounds of appeal. At the same time, I see no prejudice suffered by the appellant. In respect, a similar irregularity was committed in another case and the Court of Appeal in Chome Vs Republic (Criminal Appeal 92 of 2022) [2023] KECA 69 (KLR) had the following to say; “The record of proceedings did not show that there was compliance with that section 211 of the Criminal Procedure Code. It was incumbent upon the trial court to comply with the command of section 211 and the omission to do so was irregular. However, the record showed that throughout the trial including when the matter was called out for defence hearing on July 11, 2011, the appellant was represented by an advocate. On that date, counsel for the appellant was recorded as having stated that “the accused will adduce sworn evidence. We intend to call three witnesses. We are ready to proceed.” The appellant thereafter proceeded to give evidence on oath, was cross-examined and re-examined. His three witnesses also gave evidence on oath and were also cross-examined. In effect, the appellant duly and fully exercised his rights notwithstanding the omission by the court to explain as required by section 211. The omission by the court to comply with section 211 did not in any way prejudice the appellant or otherwise occasioned a failure of justice” 11.In his defence, the Appellant Noah Wekesa Walikhe gave sworn testimony and said that on 12th August, 2020, the victim went to his home pick kshs100/ for the seeds that his wife had taken from her mother. He went into the house and told his son to give her Kshs200/ and get back the change. Later he learnt that he is being accused to have defiled the victim. The appellant blames his woes on his opponent as the mother to the victim was in his opponent’s campaigning team. Under cross examination, the witness said that indeed the victim went to his house on the 12th August, 2026 and her mother was not campaigning for any seat. 12.H.N.W(DW2) told court that indeed the victim went to their home on 12th of a month she cannot recall and was asked to wait on the bench. The appellant asked the witness to give the victim Kshs200/and return a change of Kshs100/=. On that day, the victim did not enter into the house. The witness further said that his father was a political aspirant and that is why he was framed up. 13.Beatrice Welikhe(DW3) said that the appellant is her son and indeed on 12th August, 2020, the complainant went to his home and at the time, the appellant was slashing weed. The complainant started to play with other children. Later she learnt that the Appellant had defiled the victim. She went to that home and asked to examine the victim, but she declined. Under cross examination, the witness said that indeed the complainant took money from the appellant. 14.Anne Juma(PW4) told court that on 12th August, 2026, the victim went to their home to pick kshs100/ and while in her house, the appellant went in and asked her to pay the victim. The Appellant did not defile the victim. The appellant at the time was vying for the seat of MCA and she cannot comprehend, why the victim framed him up. 15.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by convicting and sentencing the appellant yet the prosecution did not prove its case beyond reasonable doubt.b.That the learned trial Magistrate erred in law and fact by convicting based on insufficient and contradictory evidence.c.That the learned trial Magistrate erred in law and fact by convicting by relying on age assessment report in the absence of corroboration of birth certificate.d.That the learned trial Magistrate erred in law and fact in misdirecting herself in concluding that penetration did occur based on PW2’S testimony of an old broken hymen and minor swelling.e.That the learned trial Magistrate erred in law and fact by relying on medical evidence that failed to establish recent penetration.f.That the learned trial Magistrate erred in law and fact by disregarding and dismissing without due consideration of credible evidence of DW1-DW3.g.That the learned trial Magistrate erred in law and fact by dismissing the appellant’s alibi.h.That the learned trial Magistrate erred in law and fact by improperly faulting the appellant for not cross examining the complainant on specific details.i.That the learned trial Magistrate erred in law and fact by erroneously concluding that there was no mistaken identity.j.That the appellant was charged under section 8(1) as read with section 8(2) and yet the latter applied to victims under the age of 11 years and below.k.That the learned trial Magistrate erred in law and fact by failure to consider the defence case.l.That the learned trial Magistrate erred in law and fact by shifting the burden of proof to the appellant.m.That the learned trial Magistrate erred in law and fact by failing on the part of the prosecution to call material witnesses.n.That the learned trial Magistrate erred in law and fact by failing to consider the appellant’s mitigations. 16.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 17.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent and to set the ball rolling, I find it extremely apposite to determine issues that have been framed by Appellant. I hasten to add, that, some of these grounds of appeal overlap one another. However, I shall collapse them into the following sub-headingsAge of the victimThe principle of beyond reasonable have been defined by different jurisdictions. However, all are in agreement as to this agelong requirement of burden of proof in criminal matters. In the famous case of Miller Vs Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt; “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. 18.In Bakare Vs State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 19.To my understanding, burden of proof in criminal matters, need not be beyond shadow of doubt but must carry a high degree of probability. Put differently, the Supreme Court of Nigeria(supra) pithily puts it this way ‘’Absolute certainty is impossible in any human adventure, including the administration of criminal justice” 20.Back to this case, the law on defilement has been distilled by a copious of precedents in Kenya. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held that the critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant. Additionally, in the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and 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. In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1). Additionally, the Court of Appeal said in the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR held that: “... 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.” 21.In respect to age, it was the evidence of the Investigation officer that the mother to the victim did not have a birth certificate readily and so the officer settled on Age Assessment Report. This report was produced together with Xray report which show that as at 21st August, 2020, the victim was aged eleven (11) years old. Put differently, the age of the victim was scientifically proved by age assessment. Other documents like PRC, P3 form, Lab test form, admission form, do not prove age. Penetration: 22.Under section 2, penetration is defined as partial or complete insertion of the genital organs of a person into the genital organs of another. The victim told court that the appellant pulled her to the bedroom and defiled her. Defilement was corroborated by medical documents produced by PW4 which disclosed that labia majora was slightly swollen and the inside was slightly swollen. The hymen was absent and there were no bruises or tears. PW4 further told court that the age of the injury was 17 hours old. To me, this was a recent penetration. Auxiliary to this, was a submission that the broken hymen was not of recent. The case laws, provide for the elements of the offence that must be proved and broken hymen, is not a core element in defilement. However, it can corroborative in some instances. It is submitted that the medical documents are at variance, therefore contradictory. I must say that, notwithstanding medical proof, the victim was sworn after voir dire examination and the court was convinced that she was truthful in the manner in which the offence was committed. The proviso of section 124 of the Evidence Act Cap 80 Laws of Kenya allows the court to believe a victim in sexual offences where the court is satisfied that he is telling the truth. 23.In any event, discrepancies on these documents are insignificant. The Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. The court said that 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. emphasis supplied. Positive Identification: 24.The lower court proceedings show that the victim and the appellant know each other well. They are close neighbours. Their homes are 150 metres apart and opposite to each other. The Appellant says that he knows the victim from the time she was born. Undisputedly, the appellant confirms, that indeed the victim went to his home on 12th August, 2020 at about 4pm-5pm to pick kshs100/ to take to her mother. It was the victim’s evidence that the offence took place at about 5 pm. To this extend, I believe that the appellant was a person known to the victim and there is no mistaken identity. Failure to call material witnesses: 25.In respect to crucial witnesses, the law is clear. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact and so in Donald Majiwa Achilwa and 2 other Vs R (2009) eKLR , the Court stated that the law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. In this appeal, it is not clear to me, what value the evidence of other witnesses like the grandmother Lena and Brigid would have added to the evidence of PW1, which the court found trustworthy. In my opinion, other witnesses would have been, peripheral.Failure to consider the defence case:The court has perused the Judgement of trial magistrate and I note that it was summarized under paragraph 11 to 14. In conclusion, the trial magistrate said “I have considered the evidence by the prosecution and the defence by the accused”. Equally under paragraph 25 of the judgement, the relevant defence evidence has been meticulously analysed. This ground collapses.Politics:The general rule of evidence is that he who alleges must prove. This is captured under section 107 and 109 of the Evidence Act Cap 80 Laws of Kenya. In criminal proceedings, the legal burden always remains in the prosecution’s courtyard and never shifts. However, when an accused raises a defence, then the evidentiary burden shifts to him to establish those facts. In our case, it was the evidence of the appellant that the whole saga was politically engineered by his opponent in politics. It was also alleged that the mother to the victim was using the victim to malign him. However, this opponent’s name was never disclosed to court. There was no nexus between “the opponent” and PW2. Without proof that indeed the appellant vying against his opponents in a particular Ward, the court will be would be plunging into the realm of speculations.More importantly, I have not gathered any bad blood between the two families prior to the incident and so I wonder why 11-year-old would frame up a whole MCA aspirant. She does not know what politics is. I dismiss this line of argument.Disposal:a.The Appeal lacks merit and is hereby, dismissed. DELIVERED VIRTUALLY THIS 2ND JULY, 2026 R.K. ONDIEKI.JUDGE.in the presence ofthe Appellant, Ms Matere for ODPP andCourt Assistant, IvyProe: I seektyped proceedings and the rulingCourt: the ty[ed proceedoinfs and the ruling tob esuppied.