https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12136

Nyondo v Republic (Criminal Appeal E023 of 2025) [2026] KEHC 12136 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12136 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E023 of 2025 JN Njagi, J July 29, 2026 Between Rai Nyondo Appellant and Republic Respondent (Appeal from the original conviction and sentence by Hon. O. O. Koranje, RM In Mariakani Senior Principal Magistrate’s Court Sexual Offence Case No. E012 of 2023 delivered on 20/3/2024) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006 and sentenced to life imprisonment. The particulars of the offence were that on the 2nd day of January 2019 at (name withheld) Sub location in Samburu Sub County within Kwale County, he unlawfully caused his penis to penetrate the anus of HMJ, a chilrd aged 6 years. 2.Aggrieved by the sentence and the conviction, the Appellant lodged an appeal on the following amended grounds of appeal:1.That the learned trial magistrate erred both in law and fact by failing to consider that the prosecution case was not proved beyond reasonable doubt.2.That the trial magistrate erred in law and fact by failing to appreciate that the prosecution’s case was marred by contradictions and inconsistencies.3.That the learned trial magistrate erred in law and fact by shifting the burden of proof from the prosecution to the appellant.4.That the learned trial magistrate erred in law and fact by failing to consider his mitigation. Prosecution’s case 3.The case for the prosecution was that the victim PW1 was a grade 2 pupil aged 8 years. He was staying with his grandparents. His grandmother was PW2 in the case. The appellant was his relative, 4.It was the evidence of the victim that he was on the material day grazing his family livestock away from their home. He was in the company of his younger brother who did not testify in the case. That at 7pm the appellant found them at the farm and grabbed him. He pushed him. His brother on seeing that ran away. The appellant removed his, victim`s, underpant and trousers and inserted his penis into his anus. He started to bleed from the anus. When he finished, he left him there and went away. His grandmother went to the shamba and picked him. She took him to hospital. 5.The grandmother to the complainant PW2 testified that the appellant is a son to her in-law. That on the material day the victim returned home from grazing animals and reported to her that he had been defiled by the appellant. She checked him and found him bleeding from the anus. She reported to the mother of the appellant and they took the victim to hospital. She called the father to the victim and informed him. 6.The mother to the appellant PW2 testified that PW2 went to her and informed her that the victim herein had been defiled by the appellant. She went and found the victim outside the house of PW2. He was wearing black trousers that were bloody. She checked him and found him bleeding from the anus. She took him to hospital. 7.The father to the victim PW3 said that he was working away from home. That on 4/1/2023 he was called by his mother PW2 who informed him that his son the victim had been defiled by the appellant. That on the following day he travelled home and found his son having been taken to hospital and treated. He went to Mariakani police station and he was issued with a P3 form. It was filled. 8.A Clinical officer at Mariakani sub county hospital PW5 told the court that the complainant was initially seen at his local dispensary on 2/1/2023 and was he PW5 attended to him at Mariakani hospital on 5/1/2023. He re-examined him and noted that there was minimal bleeding at the anal region with bruises on the anus. He formed the opinion that the victim had been defiled. 9.The case was investigated by PC Nganga PW6 of Bofu police station. It was his evidence that the case was reported at the station on 4/1/2023. He complied the reports and recorded statements. The appellant was brought to the station on 6/1/2023 by the complainant’s parents and some villagers. He was questioned at the station but he remained silent. He was charged. 10.During the hearing of the case in court, the clinical officer PW5 produced the P3 form, treatment notes and the Post Rape Care form as exhibits, P. Exh. 1, 2 and 3 respectively. Defence Case 11.When placed to his defence the appellant stated in a sworn statement that he was on the material day working at a welding shop. He worked from 7:00am to 4:00pm when he left work and went home where he arrived at 7:00pm in the night. He denied that he defiled the victim. He said that the victim is his nephew and he was lying that he defiled him. Further that he was being accused falsely because of a land dispute he has with the complainant’s parents. Submissions 12.The appellant submitted that the prosecution failed to prove beyond reasonable doubt that he committed the offence. He took issue with the fact that the alleged offence was committed in darkness and it was therefore impossible to state with certainty that he was the perpetrator. He contended that identification was not proved and for that reason he urged the court to allow the appeal. 13.The Respondent on the other hand submitted that the testimony of the medical officer corroborated that of the complainant. That the medical officer confirmed that PW1 was defiled and that the medical evidence confirmed that there was anal penetration. Counsel also submitted that the defence tendered by the appellant was a mere denial that could not dispel the overwhelming evidence tendered by the prosecution. 14.He further submitted that the prosecution witnesses gave direct evidence in support of the prosecution case. That the testimonies of the prosecution witnesses were not only consistent but corroborative of each other. He submitted that the prosecution presented a strong case and was able to discharge its burden of proof beyond reasonable doubt. Analysis and determination 15.This being the first appellate court in this matter, the court is guided by the principles stated in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 16.I have considered the grounds of appeal, the evidence adduced at the trial court and the submissions filed by the respective parties. The main issue for determination is whether the prosecution proved its case beyond reasonable doubt. 17.The ingredients of the offence of defilement are prove of the age of the complainant; proof of penetration and proof of the identity of the perpetrator, see the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013. 18.In respect to proof of age, the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows: -“... 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.”. 19.The victim herein in his testimony stated that he was 8 years old. His father PW3 did not state the age of the victim herein. The investigating officer PW6 produced a birth certificate which indicated that the complainant was born on 12th December, 2015, which placed his age in May 2023 at 7 years. A birth certificate is sufficient proof of the age of a person. The age of the victim herein was proved at 7 years at the time of the offence. 20.The second ingredient in proving the offence of defilement is penetration. Penetration is defined under Section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organ of a person into the genital organs of another person.” 21.Penetration can be proved by oral evidence of witnesses or by circumstantial evidence which evidence may be corroborated by medical evidence. More so, the court in sexual offence cases involving children may under the provisions of section 124 of the Evidence Act convict on the sole evidence of a child where the court is satisfied that the child is telling the truth and gives reasons for such a finding. 22.The victim testified that he had taken his family animals to feed at the farm the appellant found him there, stripped him of his clothes and inserted his penis into his anus. He was attended to at a local dispensary and found with minimal bleeding at the anal region with bruises at the said place. 23.The trial magistrate in convicting the appellant of the offence stated that he was convinced that the complainant was telling the truth and that the testimony of the complainant was corroborated by the testimony of the clinical officer, PW5. 24.I have re-examined the evidence adduced before the trial court. The victim stated in his evidence that the appellant is the one who inserted his penis into his anus and caused him to bleed from the anus. The bleeding of the complainant from the anus was seen by her grandmother PW2. The same was confirmed by the appellant`s own mother PW3. It was confirmed by the clinical officer who examined the complainant PW5. 25.From all this evidence there is no doubt that the victim was penetrated into his anus by a person with the use of a penis. The question is whether the appellant is the person who did so. 26.According to the complainant the incident took place at night at 7pm when it was dark. Similarly, the evidence of the investigating officer PW6 was that the incident took place at 7pm. 27.It is then clear that the incident took place at 7pm when it was dark. It is trite that the court before basing a conviction on evidence of identification should examine the evidence carefully and satisfy itself that the circumstances of identification were favourable and free from the possibility of error. In Francis Karuiki and 7 others vs. Republic Cr. Appeal No 6 of 2001 [200] eKLR it was held that;“The law on identification is well settled and this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if satisfied that the identification is positive and free from possibility of error.” 28.In the case of Cleophas Wamunga v Republic (1989) KLR the Court of Appeal cautioned as follows:Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. 29.The Court of Appeal in the case of Maitanyi v Republic (1986) eKLR held the following on such identification:….. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect. 30.The complainant in his evidence never gave evidence how he identified the person who penetrated him to be the appellant yet it was dark at the time. Despite the complainant saying that it was dark when the incident took place, the trial court ignored that evidence and did not interrogate it but only faulted the appellant for not giving account of his whereabouts between 4pm and 7pm. This amounted to shifting the burden of proof from the prosecution to the appellant, contrary to the law of evidence. The court failed to consider the issue of identification in difficult circumstances. 31.The complainant was the only witness on identification. It is also trite that a court before convicting on the evidence of a single identifying witness should warn itself of the danger of basing a conviction on such evidence. In Roria vs Republic (1967) EA 583 the Court of Appeal stated at page 584 that:“A conviction resting entirely on identity invariably causes a degree of uneasiness…That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.” 32.In Kiilu & Another v Republic [2005] eKLR, the Court of Appeal held that;“Subject to well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect of identification especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances, what is needed is some other independent evidence, whether it be circumstantial or direct, pointing to guilt, from where a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can be safely accepted as free from possibility of error.” 33.In the case against the appellant there was no other independent evidence pointing to the guilt of the accused. The trial court did not warn itself of the danger of convicting on the sole evidence of the single identifying witness in unfavorable circumstances. It was not safe to convict on the sole evidence of the victim in this case. The trial court was in error in convicting the appellant of the offence. 34.The upshot is that the case against the appellant was not proved beyond reasonable doubt. The conviction is thereby quashed and the sentence set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF JULY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RepublicAppellant – present virtually at GK Prison MalindiCourt Assistant – Luckson