https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11449

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CRIMINAL APPEAL NO. E085 OF 2025** **STEPHEN MAINGI NYAMAI………………..…………..………….. APPELLANT** **VERSUS** **REPUBLIC ……………………………..……………..…………………. RESPONDENT** ***(Being an appeal against the conviction and sentence by Hon.G Okwengu (SRM) in Kilungu SPM (SO) Case No. E027 of 2023)*** **JUDGEMENT** 1. The appellant herein,Stephen Maingi Nyamai was convicted and sentenced to 10 years imprisonment by the Senior Principal Magistrates’ Court at Kilungu for the offence of committing an indecent act with a child contrary to Section 11 (1) of the *Sexual Offences Act* with particulars stating that on diverse dates between 23 December 2022 and 16 March 2023 at Mutiluni village Kilombe location Mukaa sub county within Makueni county, intentionally and unlawfully touched the breasts and genital organ of E.M.N a child aged 16 years. 2. Aggrieved by the conviction and sentence by the trial court, he filed the present appeal where he raised the following grounds; 1. That the trial court erred in law and fact by relying on suspicious and fictitious evidence of the complainant who was under duress to implicate the appellant. 2. That the trial court erred in law and fact by relying on hearsay evidence and failing to note that the charges were malicious. 3. That the trial court erred in law and fact by convicting the appellant on a charge that was not proved beyond reasonable doubt. 4. That the trial court erred in law and fact by relying on evidence that was flimsy, inconsistent and lacked probative value to convict the appellant. 5. That the trial court erred in law and fact by convicting the appellant without corroborative evidence to support the complainant’s allegations. 6. That the trial court erred in law and fact by failing to find that the case was not properly investigated. 7. That the trial court erred in law and fact by failing to find doubt in favour of the appellant arising from the evidence of the complainant 8. That the trial court erred in law and fact by shifting the burden of proof to the appellant in contravention of Section 107 of the Evidence Act. 9. That the trial court erred in law and fact by failing to find that the witnesses gave false evidence on oath. 10. That the trial court erred in law and fact by passing a sentence that was harsh and excessive in the circumstances. 3. The appellant was charged with defilement contrary to Section 8 (1) as read with 8 (4) of the *Sexual Offences Act.* The particulars of the charges were that on diverse dates between 23 December 2022 and 16 March 2023 at Mutiluni village Kilombe location Mukaa sub county within Makueni county, intentionally and unlawfully caused his penis to penetrate the organ of E.M.N a child aged 16 years. He also faced an alternative charge of committing an indecent act to a child as stated above. At the close of the trial, he was acquitted of the main charge of defilement but convicted and sentence on the alternative charge as stated above. 4. The prosecution case was that PW1 the complainant testified that on she had sex with the appellant on two occasions. The first was on 23 December 2022 where she went to the appellant’s house at around 12pm at his invitation, entered the bedroom where he touched her breasts, removed his and her clothes, removed his penis and inserted in her vagina. She testified that it was her first time to have sex, she felt pain and bled but she did not inform anyone. She went on to say that the second time was on 16 March 2023 when the appellant asked her to go to his place where they had sex. 5. On 1 June 2023, the appellant gave her a phone which was discovered by her mother PW2, who took her to the police station where she disclosed that he had sex with the appellant.She was taken to Kilungu sub county hospital for examination. It was her testimony that she had never had sex with any other person except the appellant. She further stated that in May 2024, she delivered a boy child who she said was sired by the appellant. 6. PW2 Mary Nduku Norman, the complainant’s mother testified that on 30 May 2023 she found PW1 talking to the appellant next to a tree. She warned him that PW1 was still in school. She later found a phone in PW1’s box and on establishing that it belonged to the appellant, reported the matter to the police. She was later informed PW1 was pregnant and on inquiry, PW1 identified the appellant as the father. PW1 gave birth on 21 May 2024. She testified that they have a land boundary dispute with the appellant's family but denied that as the reason for the charges. 1. PW3 Eric Kasiamani a clinical officer at Kilungu sub-county hospital examined on 11 June 2023 after she was reported to have been defiled. He established that she had no physical injuries, hymen was broken with a wide open vagina. He concluded that she had been defiled and produced the P3 and Post Rape Care Forms evidence. 2. PW4 IP Wilfred Mogaka the investigating officer based at Kilome police station testified that on 10 June 2023, PW2 reported that the appellant had defiled the complainant in 2022. She referred the complainant to Kilungu sub county hospital where tests revealed that she had been defiled and was pregnant. After the complainant delivered, a DNA test was conducted where the results showed that the appellant was not the biological father. He dropped the defilement charges and sustained the alternative charge. 3. At the close of the prosecution’s case, the court found that a *prima facie* case had been established and placed the appellant in his defence. In defence, the appellant gave unsworn testimony where denied committing the offense and stated that on 9 June 2023, he got home at around 4pm and saw some goats in their farm. On further inspection, he saw PW1 releasing the goats from their place. PW2 came and found them talking, asked why he was talking to PW1 about the land dispute and insulted him. He threatened to take an action that he would regret. On 10 June 2023, he saw summoned to the police station where on arrival he was informed that he had defiled PW1. He was subsequently charged on 12 June 2023. 4. In its judgement dated 1 December 2025, the trial court found no evidence to support the charge of defilement on the basis that penetration was not proved against the appellant on account of the DNA results but found that the alternative charge of committing an indecent act to a child was proved beyond reasonable doubt on the strength of PW1’s evidence. 5. The appeal was disposed by way of written submissions. The appellant contended that the prosecution case was mired by inconsistencies, contradictions and uncorroborated evidence that made the conviction unsafe. He argued that the charge was not supported by medical evidence and that the DNA results excluded him as the biological father and confirmed that PW1 had carnal knowledge with other men. He relied on the case of ***Ndungu Kimani vs Republic (1979) KCA*** to support his argument that the prosecution witnesses were not forthright and reliable. 1. He submitted that evidence of PW1 is suspicious and fictitious since it was made under duress from PW2 and was geared towards implicating the appellant. He submitted that the said evidence lacked probative value and should be disregarded. 2. He contended that the prosecution relied on hearsay to convict him without taking into consideration the fact that the entire case was born out of the land dispute between the two families. He argued that no evidence was tendered to show that the victim was indecently touched and urged the court to allow his appeal and set aside the conviction. 3. At the hearing, the respondent informed the court that they had filed their submissions dated 12 May 2026 and uploaded them on the CTS on 13 May 2026. However, the said submissions were not in the court file and the CTS as at the date of writing the judgement. ***Analysis and determination*** 1. This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See ***Okeno vs Republic [1972] EA 32*** *and* ***Mark Mose vs Republic (2013) eKLR***. 2. The court of appeal, in ***Kiilu & Another v Republic [2005]1 KLR 174***, stated thus; “*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; 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.”* 1. Having considered the grounds of appeal, the evidence adduced in the lower court, the judgement and the appellant's submissions, I find the main issues for determination to be; 2. Whether the prosecution proved its case beyond reasonable doubt. 3. Whether the sentence was manifestly harsh and excessive. 4. ***Whether the prosecution proved its case beyond reasonable doubt*** 5. The appellant was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the *Sexual Offences Act* which provides that any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 6. The offence of indecent act is defined under Section 2 (a) of the *Sexual Offences Act* as an unlawful intentional act which causes any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration. 7. The specific ingredients of the offence of offence of committing an indecent act with a child that the prosecution must prove beyond doubt are; 1. That the victim was a child within the meaning of the Children’s Act; (under the age of 18 years). 2. That the appellant was positively identified as the assailant, and 3. That the appellant committed an indecent act. See ***Bambare vs Republic (Criminal Appeal E024 of 2025) [2026] KEHC 7646 (KLR) (28 May 2026).*** ***Proof of age of the victim*** 1. The age of a victim may be proved in various ways. In ***Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR***, the court stated: *“ ... 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.”* 1. The PW1 the complainant testified that she 17 years old on 18 March 2025. PW2 her mother testified that PW1 was born on 26 July 2007 and produced her birth certificate as exhibit 1. This meant that PW1 was 16 years at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt. ***Positive identification of the appellant as the assailant*** 1. PW1 testified that she knew the appellant who was her neighbour and that they had talked severally. PW2 confirmed that she knew the appellant who was her neighbour and had engaged him, a fact not disputed by the Appellant. What is in dispute is whether the appellant committed the offence as charged. ***Whether the appellant committed an indecent act.*** 1. The trial court in convicting the appellant stated that PW1 consistently testified that the accused touched her breasts, touched her genital area, undressed her and engaged in sexual conduct. Even if penetration is doubtful in light of the DNA results, the evidence that the accused lured the complainant at midday, undressed her, touched her breasts and genitalia remains unshaken. 2. The appellant submitted that evidence of PW1 is suspicious and fictitious since it was made under duress from PW2 and was geared towards implicating him. He contended that the said evidence lacked probative value and should be disregarded. He went on to say that the prosecution relied on hearsay to convict him without taking into consideration the fact that the entire case was born out of the land dispute between the two families. He argued that no evidence was tendered to show that the victim was indecently touched and urged the court to allow his appeal and set aside the conviction. 3. It is apparent that the evidence relied upon in this case is that of PW1, a single witness and that the trial court based its findings on the sole evidence of the complainant, PW1. While under Section 124 of the *Evidence Act* requires corroboration to sustain a conviction, the *proviso t*herein makes it possible for a court in a sexual offences case to convict on the sole eviednce of the victim provided it meets the set criteria. *Nonetheless,* such evidence of a single witness, must be treated with caution. 4. Section 124 of the *Evidence Act* provides thus: *“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:* *Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”(underlining mine).* 1. The court can only accept the evidence of a single witness if it is satisfied that that it is truthful and it records the reasons for arriving at that finding in the proceedings. PW1 testified that she had sex with the appellant twice. She stated that the only person she had engaged in sex with was the appellant. She maintained throughout her testimony that the father of the child she had delivered was the appellant. However, the DNA results found that the appellant was not the biological father of PW1’s son meaning that PW1 had engaged in sexual intercourse with other people other than the appellant. This created reasonable doubt on her truthfulness and credibility as a witness. In such a case, it was necessary that there be corroboration. However, none was provided. PW2 did not witness the indecent act or provide any evidence to support the charge. 2. The courts have called for caution in instances where relying on the evidence of a single witness could occasion injustice. One such case is *****Mwangi vs Republic (1984) KLR 595***** where the Court of Appeal stated :- ***“The relevant law in Kenya is succinctly set out in Chila V the Republic (1967) EA 722 at page 273:*** ***“The law of East Africa on corroboration in sexual cases is as follows. The Judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.”*** 1. The evidence before court disclosed material contradictions between the evidence of PW1 and the DNA results. This contradictions tested the credibility of PW1 as a witness. The court of appeal in case of ***Richard Munene vs Republic (2018) eKLR,*** had this to say regarding contradictions or inconsistency in the evidence of the prosecution witnesses: *“**Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where* *contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law, however, that it is not every flirting contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that the accused person will be entitled to benefit from it.”* 1. The contradictions brought out are material and go to the root of the case, *which is*, whether the court can rely on the sole evidence of PW1’s to convict the appellant. The answer to this question lies in Section 124 of the *Evidence Act.* In this case, the trial court did not record any reasons as to why it believed the evidence of PW1 to be truthful in light of the apparent contradiction in the evidence before the court. This created reasonable doubt as to whether the appellant committed the offence. That doubt must be applied in favour of the appellant. The court finds that this ingredient was not proved beyond reasonable doubt. 2. The upshot is that the charge against the appellant was not proved beyond reasonable doubt which renders the conviction unsafe. ***Final Orders*** 1. In view of the above, the court makes the following orders: 2. The conviction against the appellant is quashed and the sentence set aside. 3. the appellant shall be set at liberty forthwith unless lawfully held. Dated, signed and delivered virtually at Nairobi on this 23rd day of July 2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**