https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1667

PC v Republic (Criminal Appeal E106 of 2023) [2026] KECA 1667 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1667 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E106 of 2023 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 31, 2026 Between PC Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Kisumu (Aburili, J.) dated 29th May, 2023, in HCCRA No. E043 of 2022 Criminal Appeal E043 of 2022 ) Judgment 1.The appellant, PC, an Italian national, was charged before the Senior Resident Magistrate’s Court at Winam with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 15th February, 2022, at around 11.00 a.m., at [Particulars Withheld] Centre in Kisumu East Sub- County, within Kisumu County, the appellant intentionally caused his penis to penetrate the anus of TJ, a child aged three years old, in violation of the said act. 2.In the alternative, the appellant was accused of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were that on the same date, place, and time, the appellant did an indecent act to TJ, a child aged three years old, by touching his anus with his penis. 3.The prosecution called five (5) witnesses in support of its case.At the commencement of the trial, the prosecution informed the trial court that the complainant, being a three-year-old child, was a vulnerable witness and requested that her mother be appointed as an intermediary pursuant to Section 31 of the Sexual Offences Act. Thereafter, the court proceeded to hear her testimony. 4.PW1, BLA testified that she is the biological mother of the complainant, who was three years old at the time of the incident, and the wife of the appellant, PC, whom she married in Italy in 2009. She stated that although they had separated, the appellant had come to Kenya and was staying with them at the time in the month of February 2022. 5.According to PW1, on 15th February 2022, at about 3.00 p.m., she laid the complainant down to have an afternoon nap. About thirty minutes later, while she was at the balcony and the appellant was watching television in the living room, the complainant came to her appearing exhausted while crying silently. When she asked him what was wrong, he initially said nothing but later mentioned the appellant's name. She confronted the appellant, who denied knowing why the child was awake, leading to an argument that lasted about thirty minutes. 6.PW1 testified that after the argument, she removed the complainant’s diaper and noticed black tiny particles on it. Upon examining his private parts, she observed that his anus was red, had black particles around the opening, and emitted a foul smell. Suspecting that something was wrong, she left the house with the complainant and another woman, Vanessa, and first took him to Jalaram Hospital, before being referred to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH). She stated that the complainant was examined in her presence and the medical personnel informed her that something had happened to the child's anus. She was advised not to wash the child and to return to the hospital the following day for further examination. She stated that her mother took the complainant to the hospital the next day. On 21st February 2022, she reported the incident at Kondele Police Station. The appellant was later arrested. 7.PW2, Vanessa Lynn Otiyo, testified that she was a friend of PW1, whom she had known since 2020. She also knew the complainant as PW1's son, and the appellant as PW1's husband. It was her testimony that on 15th February, 2022, she visited PW1's residence in Manyatta, Magadi, where she found the appellant and the complainant. She was seated with PW1 at the balcony, while the appellant was with the complainant in the living room. Moments later, the complainant came to the balcony while crying. PW1 removed the child's diaper to examine him. PW2 observed redness around the child's anus. 8.PW2 stated that she advised PW1 to take the child to hospital.They initially went to Jalaram Hospital but were referred to JOOTRH, where the complainant was examined in her presence. PW1's mother later joined them at the hospital at about 7.00 p.m. They left the hospital between 8.00 p.m. and 9.00 p.m. PW2 further testified that she became aware that the matter had been reported to the police and later recorded her statement at Kondele Police Station. 9.PW3, EA, stated that on 15th February, 2022, at about 7.30 p.m., while at work, she received a telephone call from her daughter PW1. She was crying. She proceeded to JOOTRH, where she found PW1, PW2, and the complainant. She witnessed doctors examine the child after removing his diaper and observed that the child's anus was reddish and dark. The medical personnel advised that the child be taken to the Gender Department the following day for examination, and instructed them not to wash him. 10.PW3 testified that on 16th February, 2022, she took the complainant back to JOOTRH for further examination at the Gender Department. Blood samples were taken, and they were advised to return after three days for the results. Upon returning, she was informed that the results could only be released to a police officer. She further stated that, acting on the advice of the nurses, they reported the matter to the police on 21st February, 2022. 11.PW5, Dr. Lucy Ombok, a medical doctor at JOOTRH, where she had worked for nine years, examined the complainant, and completed the P3 Form dated 22nd February, 2022. She stated that the history given by the complainant alleged sexual assault by the appellant. Upon examination, the complainant appeared tearful, frightened, and cried whenever the appellant's name was mentioned. His external genitalia was normal. However, tenderness was noted in the anal region, though there was no discharge. 12.PW5 further, with the leave of court, produced the complainant’s Post Rape Care Form filled by her colleague, Effie Awuor. The PRC Form recorded a history of sexual assault allegedly involving the appellant. On examination, redness and black particulate matter were noted around the anal region. The complainant had been administered PEP and medication for sexually transmitted infections. Laboratory examination revealed numerous epithelial cells, which, according to the witness, were indicative of injury. 13.PW4, CPL Elkano Mungale, testified that he was attached to the DCI at Kondele Police Station and was the investigating officer in the case. He stated that after being assigned the case, he interviewed the complainant's mother and grandmother, who informed him that the complainant, a three-year-old boy, had been defiled. PW4 testified that upon reviewing the file, he found a completed P3 Form and established that the complainant had been treated at JOOTRH. He visited the hospital and collected the Post Rape Care (PRC) Form, which he produced in Court as an exhibit. 14.He further stated that he was informed by PW1 that the appellant was still at her residence in Manyatta. Accompanied by three police officers, he proceeded to the residence, found the appellant there, arrested him, and escorted him to Kondele Police Station. After recording the necessary statements, the investigation file was forwarded to the Office of the Director of Public Prosecutions (ODPP). The appellant was presented before the court to obtain custodial orders for five days to facilitate completion of investigations. PW4 testified that the police intended to obtain saliva samples from the appellant for forensic comparison with anal swabs collected from the complainant. However, the samples were never obtained because the appellant, on the advice of his advocate, declined to provide them. The appellant was thereafter charged with the offences cited above. 15.The appellant was placed on his defence. He gave sworn evidence. He testified that he is an Italian national and a painter by profession. He stated that he met PW1 in Kenya about twenty years earlier, and that they later married in Italy. Their marriage was marked by recurrent separations and reconciliations, culminating in a separation agreement under Italian law. He testified that although he was not the complainant's biological father, he accepted and treated him as his own child, having lived with him both in Italy and Kenya. 16.The appellant testified that he travelled to Kenya on 13th February, 2022, at PW1's request. He stayed at PW1's apartment with her and the complainant. They all shared the same bedroom, and slept on the same bed. He stated that on the material date of 15th February, 2022, they spent the day at the apartment together with PW1's friend, Lester, and later Vanessa, mainly in the living room and balcony while the complainant slept. At about 6.00 p.m., he left the balcony because Lester and Vanessa were smoking cannabis and remained in the living room while watching television. Shortly thereafter, PW1 and Vanessa left the apartment with the complainant, informing him that PW1's mother had been involved in a motorcycle accident. The complainant appeared normal when they left the apartment. He remained in the apartment until PW1 returned later that night. 17.The appellant further testified that neither PW1 nor her mother informed him that the complainant had been taken to hospital until the following morning, when PW1's mother accused him of sexually abusing the child. He denied the allegations and stated that although PW1 and her family persistently demanded that he undergoes DNA testing, they never showed him any medical report obtained from their hospital visits. He declined to undergo the test until he had consulted the Italian Embassy and obtained legal representation. 18.It was his testimony that despite the accusations, he continued staying at PW1's apartment until 25th February, 2022, when he was arrested. He added that while at the DCI offices after his arrest, PW1 and the complainant visited him. The complainant ran to him, hugged him, sat on his lap, and accepted juice from him without objection from PW1. The appellant denied committing the offence and maintained that the allegations against him were false. 19.DW2, FC, the appellant’s sister, confirmed the relationship between the appellant and PW1. She stated that after the appellant informed her of his arrest, she contacted PW1. DW2 produced screenshots of her text message conversation with PW1 in evidence. She testified that the complainant addressed any and every person as "P", and did not use the name solely in reference to the appellant. 20.At the end of the trial, the appellant was found guilty with respect to the main charge of defilement. He was accordingly convicted, and sentenced to serve life imprisonment. 21.The appellant, dissatisfied by the decision of the trial court, lodged an appeal before the High Court. He challenged both his conviction and sentence on several grounds. He contended that the learned trial magistrate erred in law by invoking Section 31 of the Sexual Offences Act, to admit PW1's evidence as intermediary testimony on behalf of the complainant, and by treating PW1's evidence as the complainant's testimony, despite the complainant not testifying. He further argued that the trial court improperly rejected the defence evidence on identification, particularly DW2's observations and text messages, and failed to appreciate that the complainant's repeated use of the name "P" did not exclusively refer to the appellant, thereby giving rise to reasonable doubt as to the identity of the perpetrator. 22.The appellant further faulted the trial court for failing to consider the defence evidence and submissions on the surrounding circumstances under Section 33(a)(i) of the Sexual Offences Act, which, according to him, demonstrated that the offence was unlikely to have occurred. He also contended that the trial court overlooked material inconsistencies and anomalies in the prosecution's evidence regarding the timelines of events and the placement of the witnesses, thereby undermining the credibility of PW1 and PW2. In addition, he argued that the court erred in relying on hearsay evidence by admitting the history allegedly obtained from the complainant through PW5 and as recorded in the medical reports, notwithstanding that the complainant did not testify in court. 23.The appellant further argued that the trial court failed to consider PW5's concession that the injuries sustained by the complainant could have resulted from non-sexual contact, and failed to appreciate that there was no medical or forensic evidence linking him to the offence. Lastly, the appellant challenged the sentence of life imprisonment on the basis that it was imposed without due regard to the applicable principles of certainty in sentencing and his mitigating circumstances. 24.His appeal by the first appellate court was dismissed. The learned Judge found that the prosecution sufficiently proved the main charge of defilement against the appellant. The learned Judge also found that PW1 had been properly appointed as an intermediary, and that she gave evidence for and on behalf of the complainant, and that the fact that the complainant did not give direct evidence was not fatal. However, the appellant’s appeal on sentence was allowed. The learned Judge found that the life sentence awarded by the trial court was harsh and excessive, and substituted the same with a custodial sentence of thirty (30) years. 25.The appellant, aggrieved by the decision of the learned Judge, filed a second appeal before this Court. The appeal was heard by way of written submissions. The appellant condensed his appeal into three principal issues, namely: whether the courts below misconstrued the role of an intermediary under Section 31 of the Sexual Offences Act; whether they improperly admitted and relied on hearsay evidence; and whether they failed to properly evaluate exculpatory circumstantial evidence. 26.On the first issue, counsel for the appellant, Mr. Rienye, submitted that both the trial court and the High Court fundamentally misunderstood the legal role of an intermediary. It was argued that Section 31 of the Sexual Offences Act is intended to balance the protection of vulnerable witnesses with an accused person's right to a fair trial, by allowing an intermediary only to facilitate communication between the witness and the court, rather than to testify in place of the witness. 27.Counsel averred that the first appellate court treated PW1's evidence inconsistently: relying on it as her own testimony when proving the complainant's age, but treating it as the complainant's direct evidence when determining identification and penetration. He urged that this approach violated the appellant’s constitutional right under Article 50(2)(k) of the Constitution to challenge the evidence against him, and was contrary to the binding decisions of the Court of Appeal in John Kinyua Nathan v Republic [2017] eKLR and M.M. v Republic [2014] eKLR, which he submitted, clearly distinguished the role of an intermediary from that of a substitute witness. 28.Counsel for the appellant further submitted that the courts below erred in admitting and relying upon hearsay evidence to establish essential ingredients of the offence. It was argued that the courts improperly relied on PW1's and PW5’s account of what the complainant allegedly said in identifying the appellant, which evidence was hearsay. 29.Counsel emphasized that neither the P3 Form nor the Post Rape Care Form established penetration, and that even the High Court acknowledged the absence of medical evidence linking the appellant to the offence. In his view, the finding of penetration rested solely on inadmissible hearsay evidence. The appellant also argued that the High Court erroneously treated the testimony of PW1 and PW5 as though it constituted the complainant's direct evidence under Section 124 of the Evidence Act. 30.Regarding circumstantial evidence, counsel for the appellant submitted that the courts below failed to properly evaluate exculpatory circumstances which, if considered cumulatively, would have raised reasonable doubt. First, counsel pointed to material inconsistencies in the prosecution's timeline, noting that PW1 placed the alleged incident at about 3.30 p.m., whereas PW2's evidence suggested that the relevant events occurred at approximately 1.30 p.m. 31.Secondly, counsel argued that the courts selectively relied on behavioral evidence adverse to the appellant, while ignoring behavioral evidence consistent with innocence. In particular, it was submitted that PW1 continued social interactions with the appellant after the alleged incident, including going on outings during which he paid their bills; that PW3 and PW4 described the complainant as remaining affectionate towards the appellant even after his arrest, contrary to PW5's evidence that the child feared him; and that PW1 continued allowing contact between the complainant and the appellant, a conduct which the appellant argued was inconsistent with the allegation that he had sexually abused the child. 32.Finally, counsel urged us to consider that although the medical evidence documented injuries, the courts failed to give due weight to PW5's concession that those injuries could have been caused by factors other than sexual penetration, particularly in light of the absence of any medical evidence directly connecting the appellant to the offence. On those grounds, he invited us to find that the cumulative errors rendered the conviction unsafe, allow the appeal, quash the conviction, and set aside the sentence. 33.In rebuttal, learned Assistant Director of Public Prosecutions, Mr. Okango, opposed the appeal in its entirety. On the question of the appointment and role of the intermediary, it was his submission that both the trial court and the High Court correctly interpreted and applied Section 31 of the Sexual Offences Act. It was argued that the trial court properly declared the child vulnerable, heard arguments on the appointment of the complainant's mother as an intermediary, and lawfully appointed her in that capacity. Consequently, her testimony was received solely as that of an intermediary, and there was no inconsistency in the manner the courts treated her evidence. 34.Mr. Okango further maintained that the appellant's right to challenge evidence under Article 50(2)(k) of the Constitution was not infringed since the intermediary was fully cross- examined. It was also submitted that the courts below did not depart from the doctrine of stare decisis with respect to the role of an intermediary. 35.Regarding the complaint that the conviction was founded on hearsay evidence, the respondent argued that the evidence of the intermediary was legally admissible and could not be characterized as hearsay. It was further submitted that identification of the appellant was not in dispute, as the child knew him and referred to him by name. Mr. Okango further argued that PW5 examined the complainant and confirmed that his injuries were consistent with penetration. It was contended that medical evidence linking the appellant to the offence was unnecessary, since the offence of defilement may be proved through credible oral evidence, and that Section 36 of the Sexual Offences Act leaves the consideration of the evidence of the taking of medical samples at the court's discretion. The respondent further noted that the appellant himself declined to undergo medical examination and could not thereafter complain that no forensic evidence connected him to the offence. 36.On the alleged failure to evaluate circumstantial evidence, Mr. Okango submitted that the High Court properly analyzed the applicable principles and correctly concluded that the chain of circumstantial evidence was complete. He maintained that the prosecution’s evidence consistently placed the appellant alone with the complainant immediately before the injuries were discovered, a fact substantially corroborated by the appellant's own testimony. Any discrepancies regarding time were said to be minor and incapable of affecting the conviction. 37.The respondent further argued that the continued interaction between the appellant and the complainant's mother after the incident did not weaken the prosecution case, particularly in light of the uncontroverted medical evidence, and their marital relationship. As for PW5’s concession that similar injuries could arise from other causes, the respondent submitted that this merely acknowledged a theoretical possibility and did not displace the specific finding that the complainant's injuries resulted from defilement in the circumstances of the case. 38.Finally, on sentence, the respondent urged the Court to correct what it termed an illegal sentence by restoring the life sentence originally imposed by the trial court. It was submitted that, following the Supreme Court's decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), the High Court erred in substituting the mandatory sentence of life imprisonment with a custodial term of 30 years. The respondent therefore prayed that the appeal against conviction be dismissed, and that the appellant’s sentence be enhanced to life imprisonment 39.This is a second appeal. The mandate of this court on a second appeal was aptly stated in the case of Dzombo Mataza v Republic [2014] eKLR, where this court expressed itself in the following terms;“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court…. By dint of the provisions of section 361(1) (a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 40.We have considered the record of appeal, the rival submissions made by the parties, and the law. It is our considered view that the appellant’s appeal turns on the following issues:i.Whether the learned Judge erred in upholding the trial court's application of Section 31 of the Sexual Offences Act and the appointment of PW1 as an intermediary;ii.Whether learned Judge erred in affirming the appellant's conviction on the basis of inadmissible hearsay evidence; and,iii.Whether the learned Judge failed to properly re-evaluate the evidence, including the exculpatory circumstantial evidence, thereby upholding an unsafe conviction. 41.As regards the first issue, Article 50(7) of the Constitution, and Section 31 of the Sexual Offences Act establish the statutory framework governing the use of intermediaries in criminal proceedings involving vulnerable witnesses. Article 50(7) of the Constitution provides:“In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court." 42.Under Section 31 of the Sexual Offences Act, where a witness is, by reason of age, mental disability or any other recognized vulnerability, unable to give evidence without undue mental stress or suffering, the court may, upon application or on its own motion, appoint a competent intermediary to facilitate the witness's testimony. The object of the provision is to enable vulnerable witnesses to effectively participate in the trial process, while at the same time safeguarding an accused person's right to a fair trial. 43.The function of an intermediary is limited to facilitating communication between the vulnerable witness and the court. Section 31(7) of the Sexual Offences Act provides as follows:“If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may:a.convey the general purport of any question to the relevant witness;b.inform the court at any time that the witness is fatigued or stressed; andc.request the court for a recess." 44.From the foregoing, the role of the intermediary is limited to conveying the questions put by the court or counsel to the witness in a manner the witness can understand, relaying the witness's responses to the court, and, where necessary, explaining either the questions or the answers to the vulnerable witness to ensure effective communication. The evidence, however, remains that of the witness and not of the intermediary. Consequently, an intermediary cannot testify on behalf of the witness or replace the witness altogether. That distinction has been consistently recognized by decisions of this Court. 45.In M.M. v Republic [2014] KEHC 3141 (KLR), this Court observed as follows:“Is an intermediary the mouth piece of the vulnerable witness or is he or she the witness? According to section 2 of the Sexual Offences Act, an intermediary is defined to mean among other things, a person who gives evidence on behalf of a vulnerable witness.Section 31 (1) provides inter alia that:-“A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.”We have seen that in Article 50(7) of the Constitution an intermediary is a medium through which the accused person or complainant communicates with the court. In our understanding, the evidence to be presented is not that of the intermediary himself or herself but that of the witness relayed to court through the intermediary.The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross- examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties….It is the witness who gives the evidence which is explained and communicated to the court and the reverse through an intermediary in the manner and style developed between the two.” (Emphasis ours)See also the decision of this Court in John Kinyua Nathan v Republic [2017] KECA 793 (KLR). 46.The record before us reveals that the complainant in this case was never called as a witness. Consequently, the trial court did not undertake voire dire contemplated under Section 19 of the Oaths and Statutory Declarations Act to determine whether the complainant understood the nature of an oath or, if not, whether he possessed sufficient intelligence to justify the reception of his unsworn evidence or, whether his evidence ought to be received through an intermediary on account of his vulnerability. Whereas it was adduced in evidence that the complainant was a child aged three years, the trial court was required to comply with the procedure set out in section 31(1) of the Sexual Offences Act before appointing PW1 as an intermediary. 47.As this Court observed in John Kinyua Nathan v Republic (supra), the procedure relating to the appointment of an intermediary precedes the testimony of the intended vulnerable witness. Whether the appointment is made upon application by a party or by the court on its own motion, the witness must nonetheless appear before the court so that it may determine the appropriate mode by which his or her evidence is to be received. Thereafter, the intermediary merely facilitates communication between the witness and the court during the giving of that evidence. 48.In the present case, that statutory procedure was never invoked. The complainant did not testify, either on oath or unsworn, nor was his evidence received through an intermediary. Instead, PW1 narrated what the complainant was alleged to have communicated to her, thereby assuming the role of a substitute witness. Both the trial court and the High Court treated that narration as though it constituted the complainant's own evidence. Indeed, the learned Judge expressly concluded that PW1 gave evidence for and on behalf of the complainant and that the complainant's failure to testify was not fatal. With respect, that conclusion betrays a fundamental misunderstanding of the role of an intermediary under the Act. 49.The consequences of that misdirection were profound. The evidence relied upon to identify the appellant as the perpetrator consisted principally of PW1's account of what the complainant allegedly told her after the incident. Likewise, the clinical history reproduced by PW5 in both the P3 Form and the PRC Form, implicating the appellant, was similarly derived from information allegedly communicated by or on behalf of the complainant, notwithstanding that the complainant himself never testified before the court through the intermediary process envisaged under Section 31 of the Sexual Offences Act. In effect, the intermediary mechanism was transformed into a vehicle through which another witness substituted her testimony for that of the complainant. Such a procedure is plainly inconsistent with the purpose and architecture of Section 31. The trial court should have considered the testimony of PW1 as an independent witness and not as a substitute of the complainant. In failing to do so, both courts below committed an error in law. 50.More importantly, that course denied the appellant the opportunity to confront and interrogate the complainant's evidence through cross-examination, as guaranteed under Article 50(2)(k) of the Constitution. Put differently, the prosecution was permitted to rely upon the complainant's alleged assertions while insulating the maker of those assertions from examination by the defence. The appellant was therefore deprived of the opportunity to test the complainant's perception, recollection, consistency and credibility before the court. That prejudice strikes at the very heart of a fair criminal trial and cannot be regarded as inconsequential. 51.We are unable to agree with the finding of the courts below that the complainant's absence from the witness stand was immaterial. Although Section 124 of the Evidence Act permits a conviction for a sexual offence to be founded on the sole evidence of the complainant where the court believes that evidence and records its reasons, the provision necessarily presupposes admissible evidence from the complainant. It does not authorize another witness to substitute the complainant's testimony. Equally, Section 31 of the Sexual Offences Act does not enlarge the role of an intermediary beyond facilitating communication. To hold otherwise would effectively permit the prosecution to prove essential ingredients of a criminal charge through a substitute witness while denying an accused person the constitutional right to challenge the complainant's evidence. 52.Although Section 33 of the Sexual Offences Act recognizes that, in appropriate cases, a court may determine whether a sexual offence has been committed from the surrounding circumstances, including medical and other evidence, notwithstanding the absence of direct testimony from the complainant, the provision does not relieve the prosecution of its obligation to establish the essential ingredients of the offence beyond reasonable doubt. 53.In the present case, we are satisfied that once the evidence improperly attributed to the complainant is excluded from consideration, the evidentiary foundation upon which the conviction rested is materially weakened. We find that the surrounding circumstances did not fill the evidential gap created by the complainant's failure to testify. Unlike in M.M. v Republic (supra), where there existed independent evidence from the complainant's mother regarding the commission of the offence, the present case is devoid of any comparable independent evidence identifying the appellant as the perpetrator. While the medical evidence demonstrated that the complainant had sustained injuries to the perianal region, the surrounding circumstances did not bridge the evidential gap on the identity of the perpetrator. 54.In our view, the medical evidence did not identify who occasioned the injuries, and no forensic or other scientific evidence connected the appellant to the alleged offence. In fact, PW5 conceded that the injuries seen could have been occasioned by other agency other than defilement. The prosecution's case on identification therefore rested substantially on what the complainant was alleged to have communicated to PW1 and as later reflected in the medical history, evidence which, for the reasons already stated, was improperly received. Once that evidence is discounted, the remaining circumstantial evidence establishes no more than that the appellant had access to the complainant during the material period. Access, without more, cannot suffice to prove beyond reasonable doubt that it was the appellant who inflicted the injuries complained of. 55.The appellant’s behaviour and conduct after the alleged incident of defilement, was inconsistent which that of a person with a guilty mind. For ten days after the alleged incident he continued staying in the same apartment with the complainant and the PW1(the mother). According to the appellant, they slept on the same bed during the entire period. The appellant took PW1 and the complainant to outings which he paid for. PW1 during this entire period did not deny the appellant access to the complainant. The appellant had the opportunity to escape from the jurisdiction of the court during this period. He did not. His conduct was certainly not a conduct of a person with a guilty conscience. The appellant was eventually arrested while at PW1’s apartment. Reasonable doubt as to his guilt was created in such circumstances as existed in this appeal. 56.In the end, we are satisfied that the misapplication of the intermediary procedure fatally undermined the prosecution's case on the identity of the perpetrator. The conviction was founded upon evidence received through a process not contemplated by Section 31 of the Sexual Offences Act, thereby depriving the appellant of the full benefit of his constitutional right to a fair trial envisaged under Article 50 of the Constitution. Once that evidence is excluded from consideration, the remaining evidence falls short of establishing, beyond reasonable doubt, that it was the appellant who committed the offence. 57.At the very least, the evidentiary gaps and uncertainties arising therefrom raise a reasonable doubt as to the appellant's culpability. It is a cardinal principle of our criminal justice system that where such doubt exists, it must invariably be resolved in favour of the accused. The appellant is therefore entitled to the benefit of that doubt. 58.Accordingly, we allow the appeal, quash the appellant’s conviction, set aside the sentence of thirty years imposed upon the appellant, and order that he be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA............................. JUDGE OF APPEALH.A. OMONDI............................. JUDGE OF APPEALL. KIMARU............................. JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.