https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11578

Nyongesa v Republic (Criminal Appeal E031 of 2025) [2026] KEHC 11578 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 11578 (KLR) Republic of Kenya In the High Court at Lodwar Criminal Appeal E031 of 2025 PJO Otieno, J July 28, 2026 Between Benson Nyongesa Appellant and Republic Respondent (Being an appeal from the conviction and sentencing of Hon. C.A.Mayamba (SPM) in Kakuma SO Criminal Case No. E028 of 2025 delivered on 11th November 2025) Judgment 1.The Appellant was arraigned before the Senior Principal Magistrate's Court at Kakuma in SO Criminal Case No. E028 of 2025 and charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that, on diverse dates between December 2024 and May 2025, at Nakalele Sublocation, [Particulars Withheld] Village, Turkana West Sub-County within Turkana County, the Appellant intentionally caused his penis to penetrate the vagina of AN, a child aged fourteen (14) years. 2.In the alternative, 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, No. 3 of 2006. The particulars of the alternative charge were that, on diverse dates between December 2024 and May 2025, at Nakalele Sublocation, [Particulars Withheld] Village, Turkana West Sub-County within Turkana County, the Appellant intentionally touched the vagina of AN, a child aged fourteen (14) years. 3.The Appellant denied both charges, and the matter proceeded to a full trial. The prosecution called five (5) witnesses, whose evidence may be summarized as follows. 4.PW1, the complainant, testified that she was fifteen (15) years old, a Grade Seven pupil at Makutano Primary School, and a resident of [Particulars Withheld] Village. She stated that on 31st December 2024, her mother travelled to Bungoma after being escorted to the bus stage in Lodwar by the Appellant, who is her father. She remained at home with her younger brother. According to her, the Appellant returned home that night, they had supper, and thereafter retired to sleep. She stated that the family lived in a single-room house, with each of them sleeping on separate mattresses. 5.PW1 testified that before they retired to bed, the Appellant asked her whether she was on her menstrual period, to which she responded in the affirmative. She further stated that later that night, while she was asleep, the Appellant came to where she was sleeping, forcibly removed her undergarments, and inserted his penis into her vagina. She testified that the act caused her severe pain. Thereafter, the Appellant repeatedly subjected her to the same act on several occasions and threatened to kill her should she disclose the incidents to anyone. 6.She further testified that in May 2025, the family travelled to Bungoma to attend a burial ceremony. After the burial, the Appellant remained behind while she and her mother returned to [Particulars Withheld] in June 2025. In August 2025, her mother noticed changes in her body and questioned her, whereupon she disclosed that the Appellant had been sexually abusing her. Her mother subsequently contacted a chief in Bungoma, who initiated efforts to trace the Appellant. 7.PW1 stated that when the Appellant eventually returned from Bungoma, he quarreled with her mother and, during the altercation, broke her mother's mobile phone. The matter was thereafter reported to the Chief of [Particulars Withheld], leading to the Appellant's arrest and detention at Kakuma Police Station. She was escorted to Kakuma Sub-County Hospital, where she underwent medical examination and was confirmed to be pregnant. She identified the Appellant as her biological father and stated that she had lived with him since birth and could not have mistaken his identity. 8.During cross-examination, PW1 stated that she attended a mixed primary school and that her younger brother was twelve (12) years old. She maintained that the first incident occurred in December 2024 and that the sexual abuse was repeated thereafter. She further confirmed that she had continuously resided with the Appellant between December 2024 and May 2025. 9.PW2, the complainant's mother, testified that she was a resident of [Particulars Withheld] Village. She recalled that on 31st December 2024, she travelled to Bungoma to attend a funeral, leaving behind her two children, including the complainant. Following the death of another close relative, the Appellant and the two children joined her in Bungoma in May 2025. 10.PW2 testified that while in Bungoma she noticed changes in PW1's physical appearance and inquired whether she had started menstruating, to which PW1 responded in the affirmative. Upon returning to [Particulars Withheld], however, she observed that PW1's abdomen continued to enlarge. When she questioned her further, PW1 disclosed that the Appellant had been having sexual intercourse with her and had threatened her should she reveal the abuse. PW2 stated that PW1 informed her that the abuse had commenced in December 2024 and had continued thereafter. 11.Following the disclosure, PW2 contacted the area chief in Bungoma, who relayed the information to the Chief of [Particulars Withheld]. She testified that by then the Appellant was on his way home. Upon his arrival, the appellant assaulted the witness by kicking her and smashing her mobile phone while questioning why she had returned. She thereafter reported the matter to the authorities and took PW1 for medical examination. 12.During cross-examination, PW2 stated that she had quarreled with the Appellant on 18th August 2025. She denied the suggestion that the complainant had a boyfriend at school. She further confirmed that the Appellant owed money to his former employer but stated that she did not wish to involve herself in that dispute. 13.PW3, the Assistant Chief of Nakalale Sub-location and a resident of [Particulars Withheld] Village, testified that on 18th August 2025 at about noon, she received a telephone call from a village elder attached to the Chief's office in Bungoma. She was informed that PW2 had reported that the Appellant had impregnated the complainant. Upon receiving the information, she traced PW2 and contacted the complainant, both of whom confirmed the allegations. She further testified that later that night, the complainant telephoned her using her husband's mobile phone and informed her that the Appellant had assaulted her and was attempting to take the children away but had been restrained by miners who were nearby. PW3 stated that she immediately instructed an NPR officer by telephone to arrest the Appellant. The Appellant was subsequently arrested, taken to her office, and thereafter escorted to Kakuma Police Station. 14.During cross-examination, PW3 stated that the Appellant was her neighbor and that their respective homesteads were separated only by a fence. 15.PW4, a Clinical Officer attached to Kakuma Sub-County Hospital, testified that he examined the complainant on 19th August 2025. Laboratory investigations confirmed that she was pregnant. Upon physical examination, he observed that her hymen was broken, although the labia majora and labia minora bore no visible injuries. He further testified that an ultrasound examination established that the complainant was five (5) months pregnant. PW4 also conducted an age assessment based on the eruption of the upper and lower dentition, noting a total of twenty-eight (28) teeth, from which he estimated the complainant's age to be fifteen (15) years. He produced the Age Assessment Report, P3 Form, X-ray Report, Ultrasound Film and Laboratory Request Form as Prosecution Exhibits 1, 2, 3, 4 and 5, respectively. 16.During cross-examination, PW4 testified that the gestational age of the pregnancy corresponded to March 2025. Upon re-examination, PW4 stated that no request had been made for DNA analysis. 17.PW5, a Police Constable attached to Kakuma Police Station and the investigating officer, testified that on 19th August 2025, while on duty at the station, the Appellant was brought in by an NPR officer in the company of the complainant, PW2 and PW3. He stated that the Appellant had been accused of defiling the complainant. Upon interviewing the complainant, she informed him that in December 2024, her mother had travelled to Bungoma for a burial, leaving her in the Appellant's care, during which period the Appellant repeatedly defiled her. PW5 testified that he placed the Appellant in custody and issued the complainant with a P3 Form for medical examination at Kakuma Sub-County Hospital. The medical examination confirmed that the complainant was fifteen (15) years old and twenty (20) weeks pregnant. He further testified that his investigations established that the Appellant had threatened the complainant, thereby explaining her failure to report the incidents at an earlier opportunity. 18.The evidence of PW5 marked the close of the prosecution's case. The trial court found that a prima facie case had been established and accordingly placed the Appellant on his defence. 19.The Appellant was the sole witness for the defence. He testified on oath and stated that he was a casual labourer working in Nakalale Location. He further stated that he had two wives and seven children. According to him, he began living with one of the two families in January 2024 together with four of his children, one of whom subsequently passed away. At the material time, he was employed by PW3's husband. He testified that in October 2024, his employer informed him that he would be travelling to Nairobi for a graduation ceremony and advised him to seek alternative employment in the meantime. He later established that he owed his employer Kshs. 77,000/=. He thereafter travelled to Lokore in search of employment. While there, he received a telephone call from his wife informing him that gold had been discovered at Lomekoron Junction and that she wished to expand her kiosk business. He worked for one week, received his wages, and later returned to [Particulars Withheld], where he agreed to support her business. He testified that in November 2024, his children, who had been in boarding school, returned home and were assisting their mother in the kiosk business. He further stated that in December 2024, the gorge was closed after claiming several lives, prompting him to advise his wife to return to [Particulars Withheld]. When another gorge was discovered, he again encouraged her to establish a business there and supported her with Kshs. 5,000/=. He testified that on 24th December 2024, he returned to [Particulars Withheld] for the Christmas festivities and found his wife with one child. She informed him that the other two children had gone to attend a church vigil. He spent Christmas Day with his family before travelling to Naduat the following day in search of employment. He returned to [Particulars Withheld] on 31st December 2024 and found that two of his children were absent. His wife informed him that they had attended a crossover church service. He returned to Naduat the following day. On 28th January 2025, his wife joined him and informed him that she intended to travel home to attend a burial. The two thereafter returned to [Particulars Withheld] to facilitate her travel arrangements. She travelled with one child while he remained behind with the other two children, who were then in boarding school. He further testified that on 30th March 2025, his children telephoned him to inform him that schools had closed, and he promised to join them the following day. However, he received news of the death of his nephew and instructed the children to prepare for the journey home. On 7th April 2025, he informed his employer of the bereavement, whereupon the employer gave him money to facilitate his travel to [Particulars Withheld]. He travelled with the children two days later after which he sought employment in Kajiado and Naivasha without success and was eventually compelled to sell a parcel of land in order to raise school fees for his children. 20.According to the appellant, his wife returned to Lodwar on 30th June 2025. He further testified that in August 2025, he commenced constructing a house for his first wife, which angered his other wife. He claimed that she sent him threatening text messages, switched off her mobile phone, and thereafter only contacted him whenever she required financial assistance. He stated that on 16th August 2025, he telephoned her, but she responded rudely. On 18th August 2025, he travelled to [Particulars Withheld] only to discover that she had moved to another house. He proceeded to the new residence, but she refused to allow him to spend the night there. He requested to leave with his sons, whereupon she screamed and a man armed with a club emerged, forcing him to leave and return to [Particulars Withheld]. He further testified that the following morning at about 6.00 a.m., his former employer arrived at his home armed with a knife and accompanied by NPR officers. He was handcuffed while demanding payment of the outstanding debt. He stated that he was escorted to his former employer’s residence, where he found PW3, who accused him of absconding with their money. He claimed that he offered to continue working in order to offset the outstanding balance of Kshs. 77,600/=, but the offer was rejected. 21.According to him, his former employer threatened that he would "rot in prison." He was subsequently arraigned before the trial court on 21st August 2025 on the present charge of defilement. He maintained that he requested the trial court to order DNA analysis to establish the paternity of the complainant's pregnancy before judgment was rendered. 22.During cross-examination, the Appellant maintained that DNA analysis ought to have been conducted. He asserted that the complainant was a boarding school pupil, contrary to her testimony that she attended a day school. He acknowledged knowing the two persons who had been charged with interfering with witnesses but denied sending them. He further maintained that the case had been fabricated due to the outstanding debt he allegedly owed PW3's husband and because he had constructed a house for his first wife. 23.Upon re-examination, the Appellant acknowledged that the trial court had considered and dismissed his application for DNA analysis. The defence thereafter closed its case. 24.By its judgment delivered on 11th November 2025, the trial court convicted the Appellant and sentenced him to thirty-five (35) years' imprisonment. 25.Aggrieved by both the conviction and sentence, the Appellant lodged the present appeal seeking to have the conviction quashed and the sentence set aside. The appeal is premised on the grounds that the charge was irregular because the matter was initially reported as an assault case; that the prosecution was actuated by malice arising from a grudge against him; that the age assessment was improperly conducted by a clinical officer instead of a dentist; that penetration was not proved; and that the trial court erred in rejecting his request for DNA analysis. 26.The appeal has been canvassed by way of written submissions filed by both parties. The court has had the benefit of reading the submissions, appreciates the parties’ industry and will only capture the summary thereof in this decision. Appellant's Submissions 27.The Appellant submits that the charge sheet was defective on the ground that it alleged the offence was committed on diverse dates between December 2024 and May 2025, yet the ultrasound examination conducted in August 2025 established that the complainant was five months pregnant. He further contends that the complainant failed to explain why she did not report the alleged sexual abuse when it first occurred. Additionally, he argues that the trial court failed to consider his defence, improperly shifted the burden of proof onto him, and conducted the proceedings in a manner that demonstrated bias on the part of the learned trial magistrate. 28.Consequently, the Appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty unless otherwise lawfully held. Respondent's Submissions 29.The Respondent identifies four issues for determination. The first is whether the age of the complainant was established beyond reasonable doubt. Under this issue, the Respondent addresses the identity of the perpetrator, submitting that the Appellant admitted that he was the complainant's biological father, thereby confirming the nature of their familial relationship. It further submits that PW1 had known the Appellant since birth and had continuously lived with him, rendering the possibility of mistaken identity non-existent. In support of this proposition, the Respondent places reliance on Anselm Atuti & another v Republic [2017] eKLR, where the court held that prolonged domestic proximity significantly diminishes the possibility of mistaken identity. 30.The second issue is whether penetration was proved beyond reasonable doubt. On this issue, the Respondent submits that PW1 gave a detailed account of how the Appellant directed her to bed, ordered her to undress, and proceeded to penetrate her vagina with his penis. It further relies on the decision of the Court of Appeal in Nzuki v Republic [2012] eKLR for the proposition that pregnancy constitutes compelling corroborative evidence that sexual penetration occurred. 31.The third issue concerns the proof of the complainant's age. The Respondent submits that the law does not require an age assessment to be conducted exclusively by a dentist. It argues that a competent medical practitioner, including a clinical officer, is professionally qualified to assess a person's age through clinical evaluation. In support of this submission, reliance is placed on JMK v Republic [2015] eKLR. 32.The fourth issue identified is whether the charge sheet was defective. The Respondent submits that, under Section 214 of the Criminal Procedure Code, a charge sheet is only defective where it fails to disclose the offence charged or omits the particulars necessary to inform an accused person of the nature of the charge he is required to answer. It argues that the Appellant was properly charged with the offence of defilement and that the alleged existence of an earlier assault complaint made by PW2 has no bearing on the validity of the charge sheet or the particulars of the offence before the trial court. 33.Accordingly, the Respondent urges this Court to find that the prosecution proved its case beyond reasonable doubt and to uphold both the conviction and the sentence imposed by the trial court. Issues, Analysis and Determination 34.This being a first appeal, this Court is duty bound to re-evaluate, re-analyze and reconsider the entire evidence adduced before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance for that disadvantage. This duty was succinctly stated in Okeno v Republic [1972] EA 32 and reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174. 35.Having considered the record of appeal, the judgment of the trial court, the grounds of appeal and the rival submissions of the parties, the sole substantive issue that falls for determination is whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. There is also the preliminary issue raised by the appellant questioning the propriety of the charge sheet. 36.Because the question is a threshold one, it must be disposed of preliminarily. The need for a charge to be properly drawn goes to the root of fair hearing. An accused person has the right to properly understand the accusation against him as a prerequisite of his preparation in his defence. The law under section 134 requires the charge to contain, and only be sufficient if it contains, the statement of the specific offence(s) with which the accused is charged and the particulars as is necessary for giving reasonable information as to the nature of the offence. 37.The requirement of that provision mirrors the constitutional provision in article 50(2) n, & o, of the constitution. The particulars as are necessary for giving reasonable information must thus be to the extent that would enable the accused to not only understand the accusations but also discern and develop the appropriate defence, establishing whether the offence is declared as an offence under the law thus meeting the principle of legality, and, whether same offence has been previously charged and determined by the court. The charge must therefore mandatorily disclose the law creating the offence and the penalty, the date place and manner of commission. Where the state of mind constitutes an indispensable ingredient of the offence, such state of mind needs to be stated. 38.In the case of defilement like in the instant matter, it was important to state the date and place of the incident, the fact of penetration and the age of the complainant. The court has perused the charge sheet and is satisfied that it disclosed all the necessary information the law demands. It thus passes as properly drawn and was thus not defective. The court finds that ground to lack merit and is thus dismissed. Whether the prosecution proved the offence of defilement beyond reasonable doubt? 39.Because the Appellant was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, the law remains settled that to sustain a conviction for defilement, the prosecution must prove beyond reasonable doubt that; the complainant was a child within the meaning of the Act; secondly, there was penetration as defined under Section 2 of the Sexual Offences Act; and thirdly, the accused person was positively identified as the perpetrator. These essential ingredients were succinctly set out by the Court of Appeal in ABA v Republic (Criminal Appeal 106 of 2020) [2025] KECA 1069 (KLR). 40.The Appellant contends that the prosecution failed to discharge that burden. Specifically, he argues that the complainant's age was not proved; penetration was not established; DNA analysis ought to have been conducted to ascertain the paternity of the complainant's unborn child; the complainant's delayed report undermined her credibility; and the trial court improperly relied on insufficient evidence to convict him. The Court shall examine each of these complaints in turn. Age 41.The age of the complainant is a fundamental ingredient of the offence as it determines both the nature of the offence and the applicable sentence under Section 8 of the Sexual Offences Act. However, the law does not prescribe an exclusive mode of proving age. The Court of Appeal in Kaingu Elias Kasomo v Republic [2016] eKLR held that age may be established through a variety of forms of evidence, including documentary evidence such as a birth certificate or baptismal card, medical evidence, the testimony of a parent or guardian, or, where appropriate, the oral testimony of the child if the child is of sufficient intelligence. The critical consideration is that the evidence relied upon must be credible and sufficient to establish age beyond reasonable doubt. 42.In the present case, PW4, a Clinical Officer attached to Kakuma Sub-County Hospital, conducted an age assessment of the complainant and assessed her age to be fifteen years. Although the Appellant contended that the assessment ought to have been conducted by a dentist, there is neither a statutory provision nor judicial authority mandating that age assessments be undertaken exclusively by dental practitioners. This Court agrees with the holding in Kenga Hisa v Republic [2020] KEHC 7058 (KLR) that age assessments may properly be conducted by qualified medical officers and physicians. Moreover, PW4's qualifications were not challenged during the trial, nor did the Appellant tender any contrary medical evidence to impeach the assessment. 43.That notwithstanding, the court appreciates that the prosecution witnesses were affirmative that the complainant was school-going and in grade seven as at the date of giving evidence. The court takes judicial notice that with the new curriculum Kenya is implementing, and as a policy since 2010, candidates for national examinations mandatorily register for same with birth certificates. Being in grade 7, the complainant must have sat the transition examinations at grade 3 and 6. That would have not happened without a birth certificate. The court therefore finds that the birth of the complainant was indeed registered but the prosecution for own reasons chose to avoid proof of death by that and opted to do so with the use of age assessment. 44.While the court continues to be bound by the decision in Kaingu Elias Kasomo v Republic [2016] eKLR, the decision does not give a free hand on the prosecution to chose the mode of proof even when it is not the best of the available modes. The decision equally does not negate the value of verifiability of documentary evidence over parole evidence. For that reason, while the age may be proved by various modes, the court holds that, the other modes including age assessment are only acceptable where the birth has not been registered. To say otherwise would be to negate the very public policy for which we keep records of birth. 45.Accordingly, the court finds that while there exists no legal or factual basis for rejecting the age assessment merely because it was conducted by a Clinical Officer and not a dentist, the court finds that in this case that was not the best evidence available because the complainant’s birth must have been registered and it was thus suspect why the prosecution opted to avoid availing the birth certificate. On the face of the court’s finding that the birth of the complainant must have been registered, the evidence based on the opinion of PW4 could not satisfactorily establish that the complainant was fifteen years old at the material time. The court therefore finds and holds that the age of the minor was not proved to the standard of proof expected. Penetration 46.Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. It is equally settled that penetration may be proved by the credible testimony of the complainant, with medical evidence serving a corroborative role. In Williamson Sowa Mbwanga v Republic [2016] KECA 147 (KLR), the Court of Appeal held that the testimony of the complainant alone may suffice where is cogent and truthful and establishes the act complained of. 47.While PW1 was consistent that the Appellant repeatedly had sexual intercourse with her; that he repeatedly removed her undergarments, inserted his penis into her vagina, in the same room she slept with a brother, and threatened her with death should she disclose the abuse, the appellant equally gave an account to underscore that there was a difference between him and the wife, PW2, and that a neighbour, wife to PW3 used that difference to push vengeance against the appellant on account of alleged debt for services not rendered. That fact when taken together with the fact that it took more than five months for the complainant to confide in the mother, that the appellant was consistent in his request that a DNA testing be done on the expected child, and the fact that the prosecution chose the less foolproof mode to prove age of the complainant, lead the court to doubt whether the prosecution of the appellant was not for ulterior purposes. The court is not satisfied that penetration of the complainant by the accused was proved beyond reasonable doubt. 48.In remains the law that the three ingredients of the offence of defilement are cumulative and that failure to prove one is fatal to the charge and any conviction reached. The foregoing findings disposes the appeal and the court finds that the conviction reached is unsafe and ought to be quashed. 49.It is however necessary to give a comment on whether the appellant was properly identified. The court appreciates that the appellant was not a stranger to the complainant and that it was never a case for identification but recognition. The Appellant was however, consistent in his denial of having defiled the complainant and maintained that the allegations against him were false and fabricated. He further applied for DNA analysis of the unborn child, contending that such evidence would conclusively determine whether he was responsible for the pregnancy. 50.The learned trial magistrate declined the application for DNA testing on the ground that Section 36 of the Sexual Offences Act confers only a discretionary power upon the court to order DNA analysis. 51.Indeed, it is not mandatory for DNA test to be conducted in every case of defilement even where there is a pregnancy. However, it is also possible that at times people use the stringent and well-intended law to settle scores. To this court where, one of the pieces of evidence of defilement, from the judgment of the trial court, was the pregnancy. Where pregnancy become the proof of defilement, it becomes desirable that, if possible and can be done without delay or unreasonable costs, that such evidence be availed. Here, the court is of the opinion that no prejudice would have resulted had the DNA testing been allowed. There would have been foolproof evidence whether or not the pregnancy was occasioned by the appellant 52.There can be no quarrel with the proposition that Section 36(1) of the Sexual Offences Act is couched in discretionary terms. The use of the word "may" makes it clear that a court is not obliged to order DNA analysis merely because such a request has been made. Nevertheless, judicial discretion must always be exercised judiciously, reasonably and in a manner that promotes the interests of justice. This was the holding of the Court of Appeal in Patriotic Guards Ltd v James Kipchirchir Sambu [2018] KECA 799 (KLR) where it was held as follows;“It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit.” 53.The question before this Court is therefore not whether DNA evidence is mandatory in every prosecution for defilement, but whether, in the particular circumstances of this case, the interests of justice required the trial court to exercise its discretion in favour of ordering DNA analysis. In Paul Mirito Aming'a v Republic (Criminal Appeal E009 of 2023) [2024] KECA 480 (KLR), the Court of Appeal observed that, although DNA testing is not mandatory in every sexual offence case, where a child is conceived as a result of the alleged defilement and such evidence is capable of resolving a contested issue, DNA analysis may be necessary to establish the prosecution's case beyond reasonable doubt. The Court expressed itself as follows:“We think, with respect, that both courts below fell into error when they determined that a DNA test was not necessary in the matter. While it is trite that DNA testing is not mandatory to prove a sexual offence, we are of the considered view that in such a case as the instant one where a child was born out of the alleged defilement, and there was no other medical evidence, DNA ought to have been done to establish beyond reasonable doubt that the appellant was the biological father of the child, hence connected to the defilement.” 54.In the present case, the complainant's pregnancy was not a peripheral matter. It formed a significant part of the prosecution's case and was relied upon to corroborate the complainant's allegation that she had been subjected to repeated acts of sexual intercourse. At the same time, the Appellant consistently denied ever having sexual intercourse with the complainant and persistently sought DNA analysis to determine whether he was responsible for the pregnancy. In those circumstances, the identity of the person responsible for the pregnancy became a central and contested issue. 55.Although the offence before the trial court was one of defilement and not a paternity dispute, DNA analysis was sought, not to determine parental rights, but as objective scientific evidence capable of confirming or excluding the Appellant as the perpetrator. Had the results established that the Appellant was the biological father of the unborn child, they would have significantly strengthened the prosecution's case. Equally, had they excluded him, they would have substantially undermined the prosecution's case and fortified the Appellant's defence. 56.In the Court’s view, the learned trial magistrate approached the application from an unduly narrow perspective by focusing solely on the discretionary nature of Section 36 without considering whether, in the peculiar circumstances of this case, the interests of justice demanded the exercise of that discretion. The refusal to order DNA analysis denied the court the benefit of objective scientific evidence capable of conclusively resolving a central issue in dispute. 57.Criminal proceedings are fundamentally concerned with discovering the truth while safeguarding the constitutional right of an accused person to a fair trial. Where scientific evidence capable of conclusively resolving a material issue is readily available and is sought by an accused person who consistently disputes the allegations against him, a court should be slow to decline such a request unless compelling reasons exist. No such reasons emerge from the record. 58.The Court is unable to overlook the manner in which the central issue of identity was resolved by the trial court. Although the complainant was found to be pregnant and fingers pointed at the appellant as the perpetrator, no DNA analysis was undertaken to determine whether the Appellant was the biological father of the expected child. In the particular circumstances of this case, where the pregnancy formed a significant part of the prosecution's case and paternity was capable of being scientifically established, DNA evidence would have provided objective evidence capable of conclusively resolving the contested issue of identity. 59.Upon its own evaluation of the entire record, the Court is persuaded that the failure to obtain DNA evidence left a significant evidential gap in the prosecution's case regarding the identity of the perpetrator. In the peculiar circumstances of this case, that omission gives rise to a reasonable doubt which, in accordance with the settled principles of criminal law, must be resolved in favour of the Appellant. 60.Consequently, and over and above the conclusions made on the other ingredients of the offence, and while the Court reiterates that DNA evidence is not a mandatory requirement in every prosecution for defilement, it finds that the learned trial magistrate erred when he failed to exercise the discretion conferred under section 36 of the Sexual Offences Act judiciously in the particular circumstances of this case. The omission to direct DNA analysis to resolve the disputed issue of identity rendered the conviction unsafe. 61.In the result, the appeal succeeds. The conviction is hereby quashed, the sentence is set aside, and the Appellant shall be released forthwith unless he is otherwise lawfully held. DATED, SIGNED AND DELIVERED AT LODWAR THIS 28TH DAY OF JULY, 2026PATRICK J O OTIENOJUDGE