https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11620

SMM v Republic (Criminal Appeal E018 of 2025) [2026] KEHC 11620 (KLR) (Crim) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 11620 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Appeal E018 of 2025 AM Muteti, J July 1, 2026 Between SMM Appellant and Republic Respondent (Being an Appeal Against Conviction and Sentence In Cr. Case Number MSO 005 Of 2021 In The Chief Magistrate's Court At Milimani Delivered On 31st August 2023 Before Hon Ekhubi P.M) Judgment Introduction 1.The appellant was charged with defilement contrary to section 8(1) as read with section 8(3) of the sexual offences no. 3 of 2006. 2.The particulars of the charge were that on diverse dates between 1st January, 2020 and 31st July, 2020 at [Particulars Withheld] in Nairobi County she unlawfully and intentionally caused penetration of the penis of B.Y.S child aged 12 years old to her vagina. 3.The appellant faced an alternative count of Indecent Act with a Child Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 4.The facts in relation to the alternative count were that on diverse dates between 1st January 2020 and 31st July 2020 at Kileleshwa the appellant committed an indecent act with a Child namely B.Y.S aged 12 years old by touching his penis with her hands. 5.The appellant was convicted for the offence of defilement and sentenced to a 10year period of imprisonment. 6.The appellant was also charged ion count 2 with the offence of Compelling or inducing indecent act with a child contrary to section 6(b) of the Sexual offences Act No. 93 of 2006. The particulars being that on diverse dates between January 2020 and July 2020 within [Particulars Withheld] Nairobi County she compelled K.M.C a child of 5 years to suck the penis of B.Y.S a child aged 12 years. 7.The appellant was sentenced to serve 3 years imprisonment in respect of count 2. 8.The appellant aggrieved by the decision of the trial court preferred an appeal raising the following grounds;-a.That, the trial Magistrate erred in matters of law and facts by failing to appreciate that the prosecution did not prove its case beyond reasonable doubt.b.That, the trial Magistrate erred in matters of law and facts by relying on circumstantial evidence.c.That, the trial Magistrate erred in matters of law and facts by failing appreciate the glaring contradictions and uncorroborated evidence by the prosecution witnesses.d.That, the trial Magistrate erred in matters of law and facts by failing to produce crucial witnesses in court.e.That, the trial Magistrate erred in matters of law and facts by failing to appreciate that elements of the charges were not proven. 6.That, the trial Magistrate erred in matters of law and facts by failing into accounts the appellant’s defence. Issues For Determination 9.The following issues arise for determination from the grounds set forth by the appellant;-i).whether the charges against the appellant were established beyond a reasonable doubt.ii).whether there were contradictions in the prosecutions case that rendered the conviction of the appellant unsafe.iii).whether the defense by the appellant was properly considered by trial courtiv)whether the trail court relied on circumstantial evidence to convict the appellant. Appellant’s Submissions 10.The Appellant submitted that she was charged, convicted and sentenced for two counts of defilement contrary to Section 8(1) and the offence of compelling and inducing an indecent act with a child contrary to Section 6(b) of the Sexual Offences Act. 11.The Appellant submitted that this court, being the first appellate court, is mandated to reconsider, re-evaluate and analyze the evidence presented before the trial court and arrive at its own independent conclusion while taking into account that it did not have the advantage of seeing and hearing the witnesses. 12.The Appellant relied on Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR, which affirm the duty of a first appellate court to revisit the evidence and make its own findings. 13.The appellant further submitted that the prosecution bears the burden of proving the case beyond reasonable doubt as provided under Sections 107, 108 and 109 of the Evidence Act and that the burden never shifts to the accused person. 14.The appellant argued that an accused person cannot be convicted on suspicion, conjecture or speculation and relied on Article 50(2)(a) of the Constitution on the presumption of innocence. 15.On the issue of circumstantial evidence, the Appellant argued that the prosecution case was mainly based on circumstances that did not meet the required legal standard. 16.The Appellant relied on Sawe v Republic [2003] KLR 364, where the court held that before a court can rely on circumstantial evidence, it must be satisfied that there are no other circumstances that weaken or destroy the inference of guilt. 17.The Appellant also relied on Teper v Republic [1952] ALL ER 480 and Musoke v Republic [1958] EA 715, where the court held that circumstantial evidence must form a complete chain of events pointing irresistibly to the guilt of the accused. 18.The Appellant submitted that the prosecution failed to establish such a chain, particularly due to the delay in reporting the allegations and absence of forensic evidence linking her to the offences. 19.The Appellant submitted that the prosecution evidence was inconsistent and lacked corroboration. She relied on May v Republic (1981) KLR and Section 124 of the Evidence Act, arguing that the court must be satisfied that the victim’s evidence is truthful before relying on it. 20.The Appellant further relied on GMW v Republic [2019] eKLR and submitted that the evidence used to convict must be strong, consistent and reliable. 21.In relation to contradictions, the Appellant relied on Richard Munene v Republic [2018] eKLR, where the Court of Appeal stated:“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 trifling 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 an accused person will be entitled to benefit from it.” 22.The Appellant argued that the evidence of the prosecution witnesses differed on key issues including the number of alleged incidents, the circumstances surrounding the allegations and the alleged penetration incident narrated by PW2 which was not supported by other witnesses. The Appellant submitted that these inconsistencies created doubt as to whether the offences were committed. 23.The Appellant further submitted that investigations conducted by the prosecution were inadequate and failed to establish the truth of the allegations. Reliance was placed on Musili Tulo V. Republic Criminal Appeal No. 30 of 2013, and Republic v Nicholas Wanjohi Gakuya Nanyuki Criminal Case no. 1 of 2016, where the courts addressed the importance of proper investigations and the effect of failure to present evidence necessary for a just determination. The Appellant argued that the investigation failed to address the contradictions or verify the allegations. 24.The Appellant also submitted that the prosecution failed to call crucial witnesses. The appellant relied on John Kenga v Republic.Cr Appeal No 1126 of 1987, Juma Ngonia v Republic 1982-88, and Bukenya and Others Vs Uganda 1972 EA 549, where the court held:“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent, the court has a right and duty to call the witnesses whose evidence appears essential to the just and fair decision of the case and when the evidence is barely adequate, the court may infer that the evidence of uncalled witnesses would have been tendered to be adverse to the prosecution." 25.The appellant argued that the father of PW1 and PW2, as well as the investigating officer, were important witnesses whose evidence would have assisted the court in determining the truth of the allegations. 26.The Appellant further relied on Donald Majiwa Achilwa and 2 other v R (2009) eKLR, where the court stated:“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses' evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case." 27.The Appellant submitted that failure to call these witnesses weakened the prosecution case and created doubt which should have been resolved in her favor. 28.The Appellant maintained that the prosecution also failed to prove the essential ingredients of the offences under the Sexual Offences Act, arguing that the evidence presented was inconsistent, unsupported and insufficient to sustain the conviction. 29.On the defence, the Appellant submitted that an accused person is not required to prove their defence but only demonstrate that their version of events is reasonably possible. 30.The Appellant relied on S v Phallo and Others 1999(2) SACR 558 (SCA) and S v Shackell (4) SA 1 (SCA)) in support of the argument that where an accused person’s version is reasonably possibly true, the accused is entitled to an acquittal. The Appellant argued that the trial court erred by dismissing her defence and maintained that the allegations were not proved beyond reasonable doubt. 31.In conclusion, the Appellant urged the court to find that the prosecution failed to discharge its burden of proof, that the conviction was unsafe due to contradictions, lack of sufficient evidence, inadequate investigations and failure to call crucial witnesses. 32.The Appellant therefore prayed that the appeal be allowed, the conviction quashed, the sentence set aside and an acquittal entered. Respondent’s Submissions 33.The Respondent submitted in support of the judgment delivered by the Honourable EKHUBI B.M (SPM) on 31st August 2023 in Nairobi S.O E005/2021 Republic Versus Muasya Sabina M. 34.The Respondent submitted that the issues for determination are whether the prosecution proved all elements of the offences beyond reasonable doubt and whether reliance on uncorroborated evidence was fatal to the prosecution case. 35.On the first issue, the Respondent submitted that the essential ingredients of the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the offender. Reliance was placed on George Opondo Olunga v Republic [2016] eKLR and Jefa v Republic (Criminal Appeal E019 of 2021) [2022] KEHC 12858 (KLR), where the courts held that the prosecution must establish the age of the complainant, penetration, and the identity of the perpetrator in order to prove the offence of defilement. 36.The Respondent further submitted that these elements were proved beyond reasonable doubt. The prosecution produced birth certificates which established the ages of the complainants, confirming that PW1 was five years old and PW2 was twelve years old at the time of the offence. 37.The Respondent further submitted that the Appellant was the children’s house help and admitted that she was employed by PW3 and was responsible for taking care of the complainants. The issue of identification was therefore based on recognition since the children were familiar with the Appellant, having lived with her and been under her care. 38.On penetration in respect of count 1 the Respondent submitted that although medical evidence did not reveal signs of penetration due to the delay in reporting and examination, the trial court properly relied on the testimony of PW2. 39.PW2 gave a detailed, consistent, and credible account of what occurred, which evidence was supported by PW3, PW4 and PW5. The Appellant did not discredit this evidence during cross-examination. 40.The Respondent submitted that the law recognises that penetration may be proved through the evidence of the victim alone where the court is satisfied that the victim is truthful. 41.The respondent placed reliance on P v Republic (Criminal Appeal E049 of 2021) [2023] KEHC 21572 (KLR), where the court held that medical evidence is not a sine qua non for proving penetration; the victim's credible testimony suffices. 42.The Respondent submitted that the trial magistrate, having had the opportunity to observe PW2 testify, properly assessed his credibility and found him to be truthful. 43.On the charge of compelled indecent act contrary to Section 6(b) of the Sexual Offences Act, the Respondent submitted that the testimony of PW1 was consistent and was supported by PW2, PW3 and PW5. The evidence established that the Appellant compelled PW1 to engage in an indecent act with another child. The Appellant did not controvert this evidence, and the trial court properly found that the ingredients of the offence had been established. 44.The Appellant contended that crucial witnesses were not called. The Respondent in answer to the contention submitted that the prosecution is not required to call a multiplicity of witnesses where the evidence presented is sufficient to prove the case. The witnesses who testified were adequate, and the Appellant failed to demonstrate any prejudice arising from the failure to call additional witnesses. 45.On the allegation that the trial court relied on circumstantial evidence, the Respondent submitted that the evidence was not purely circumstantial since the prosecution relied on direct testimony from the complainants. In any event, the evidence before court was sufficient and led to the inescapable conclusion that the Appellant committed the offences. 46.The Respondent further submitted that the trial magistrate properly considered the Appellant’s defence. The record shows that the defence of denial was evaluated and rejected after considering the totality of the evidence presented by the prosecution. 47.On the second issue, regarding whether reliance on uncorroborated evidence was fatal to the prosecution case, the Respondent submitted that the ground lacked merit. 48.The respondent cited Section 124 of the Evidence Act (Cap 80) which provides:“Notwithstanding the provisions of section 19 of the Oaths andStatutory Declarations Act, where the evidence of the alleged victim 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." 49.The Respondent submitted that the trial magistrate recorded reasons for believing the complainants, including the consistency of their evidence, their demeanour, and the detail contained in their narration. Their evidence was further supported by the testimony of PW3 regarding disclosure and the circumstances surrounding the offences. 50.The Respondent relied on the case of H.N.K v Republic [2013] KEHC 5724 (KLR), where the Court held that corroboration is not necessary in sexual offences if the court is convinced that the child was telling the truth. The court further held that the proviso to Section 124 allows a conviction on the sole evidence of the victim where the court records reasons for believing the victim. 51.The Respondent further relied on JMG v Republic (Criminal Appeal 106 of 2017) [2019] KECA 134 (KLR), where the Court of Appeal reiterated that a conviction can be based on the uncorroborated testimony of a minor in sexual offences, so long as the trial court records its satisfaction that the child is truthful. 52.The Respondent submitted that in the present matter, the trial court properly evaluated the evidence, found the complainants credible, and reached the correct conclusion that the prosecution had proved the offences beyond reasonable doubt. 53.Accordingly, the Respondent submitted that the appeal lacks merit and prays that the same be dismissed in its entirety and the conviction and sentence be upheld. Analysis And Determination 54.This court as a first appellate court is required to re-evaluate and re-examine the evidence tendered before the lower court and draw its own conclusions from the same as to whether or not the charges against the appellant were proved beyond a reasonable doubt. The court must however remain cognizant of the fact that unlike the trial court, this court has not had the opportunity to hear or see the witnesses testify thus due allowance must be made for that. See Okeno vs Rep {1972} E.A 32 55.The appellant in this matter was convicted of two counts the first being the offence of defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual offences Act. 56.The prosecution in a charge of this nature must prove the following ingredients in order to succeed in securing a conviction;-a).the age of the victimb).the identity of the offender or perpetrator of the offencec).penetration 57.The prosecution in the instant appeal was able to establish that the victim of the offence in Count 1 was 13 years of age at the time the offence was allegedly committed by the appellant. 58.The evidence of Pw2 was that the appellant was their house help under whose care he would be left whenever the mother went to work. 59.The witness testified that between January and July 2020, he was residing at [Particulars Withheld] in Kileleshwa together with his sister M whom the court understands to be PW 1 his mother, and the accused, MS. He stated that his mother, whose name is Adriana, operated a hotel called Swahili Village and would leave the house at 8:00 AM and return at approximately 9:00 PM. He was a boarding student at Laiser Secondary School in Naivasha and would come home only during the April, August, and December holidays. He explained that school closed in early 2020 due to the COVID-19 pandemic, and that he therefore remained at home from around March 2020 onwards. During that period, he and the accused and his sister would pass the time by playing outside, watching television, doing chores, and eating dinner together. 60.He then proceeded to narrate the incidents that occurred during that period. He testified that on one occasion, he and the accused were in the bedroom watching pornography they used the bedroom because the mother sometimes had visitors in the sitting room. 61.During this time, the accused instructed his sister, PW 1, to perform oral sex on his penis. He stated this was the first time his sister did so. He screamed, and his mother came after a while to check on them. He told his mother he had been scratching himself, and she instructed them all to go to bed. He did not disclose what had truly happened at that time because he was afraid. 62.He went on to describe a second incident, stating that he had injured his right arm on a piece of broken glass and was required to wear a large bandage. Because he could not manage his personal hygiene on his own, his mother had instructed the accused to assist him with washing. On one occasion while the accused was wiping his private parts, the witness stated that he voluntarily touched the accused's breasts. He was clear in his testimony that this act was initiated by himself. 63.The witness then described a third and more serious incident. He stated that after having bathed and changed his clothes, he went to his sister's bedroom where the accused was already present on the bed with PW 1. The accused then undressed, placed him on the bed, and sent PW 1 out of the room to watch television. She covered his eyes with her cloth so that he was blindfolded, and he felt something penetrating his penis. He stated that the accused was naked and that he was lying on his back on retreated to the servants' quarters. 64.He also testified about a fourth incident in which he was seated on the sofa watching pornography and he himself invited the accused to come and sit on him. She sat on his lap for approximately two minutes, facing the television. He acknowledged this was initiated by him. 65.The witness explained that he accessed pornography through a television connected to Google via WiFi, and that he had first been exposed to it and become addicted while at boarding school. He further stated that at some point he told the accused that he would not tell anyone what was happening between them. 66.He confirmed that disclosure of the events was eventually made in late 2020 when his sister told the new househelp, M, during a bathroom conversation that their aunt M had asked her to suck his penis. The mother overheard this conversation and came to question both children. The family then reported the matter to the police children's desk, and both he and his sister were taken to MSF Hospital, Eastleigh for medical examination. 67.The witness Pw1 was the only witness who testified in support of charge of defilement. The court notes that from the evidence of Pw1 it was clear that the age of the victim was proved as well as the identity of the offender. 68.However, the evidence was insufficient in this courts view on the element of penetration. The stated that he felt something penetrating his penis. 69.He did not tell the court what it was that he felt penetrating him thus the court proceeded on an assumption that he was defiled by the appellant purely on account of him having been naked. 70.Section 2 of the Sexual Offences Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. The evidence by the prosecution must therefore establish beyond any reasonable doubt that the penetration was by insertion of the genital organs of the appellant into that of the victim. 71.The failure to establish the element of penetration is fatal and the conviction cannot therefore stand where the prosecution does not prove the same beyond a reasonable doubt. The trail court convicted the appellant on account of the evidence of Pw2 even after acknowledging that all that pw2 talked about penetration by “something”. 72.The prosecution led medical evidence through Pw3 but the witness simply told the court that “the boy stated that he managed to penetrate her once”. The witness simply reiterated what the boy told her but there was no medical confirmation of that allegation. 73.In GMO v Republic (Criminal Appeal 157 of 2020) [2026] KECA 170 (KLR) (30 January 2026) (Judgment) the Court of Appeal held; “We will first address our minds to the gravamen of this appeal, which is whether the offence of defilement was proved to the required standard. Section 8(1) of Act states that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. A reading of the said section shows that to secure a conviction for the offence of defilement, the prosecution is obligated to prove the following ingredients:(a)that the victim is a child, within the meaning assigned thereto in the Children Act which defines a child as a person below the age of 18 years.(b)the prosecution must prove an act causing penetration which is defined under the Act to mean partial or complete insertion of the genital organs of a person into the genital organs of another person, and,(c)the assailant must be identified as the offender. These three ingredients must be proved by way of evidence beyond reasonable doubt.Was penetration proved to the required standard? The Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person. The prosecution is required to prove that the perpetrator's actions caused penetration. We have re-evaluated the evidence on record. The complainant’s evidence was that she was alone at the material time when the appellant came and asked her where her father was and she told him he had gone to graze the cows. He followed her to the toilet, he lifted her dress, held her neck, covered her mouth, told her not to scream and defiled her”. (emphasis added) 74.In the instant appeal the victim never described the organ that was used to penetrate him if at all there was penetration. The court could not therefore assume it was the genital organ of the appellant. The court also failed to take note of the conduct of the victim who was a self- confessed liar and whose conduct betrayed the behavior of deviant who had taken to watching pornographic movies at school and in the house and would occasionally ask the house help to sit on his laps as he enjoyed watching pornography. 75.The testimony of Pw2 ought to have been received with great circumspection in the circumstances as the court considered the charge of defilement. 76.The evidence of PW2 and all other prosecution witnesses fell short of establishing this key ingredient of the offence thus the conviction against the appellant on the first count was unsafe and is hereby quashed and the sentence of 10 years imprisonment is hereby set aside. 77.As for Count 2 the prosecution led the evidence of Pw1 who testified that she lived with her mother, father, and an aunt who helped clean the house and whose name is M. She stated that she has a brother called B and a sister called W, and that her father's name is CM. 78.The witness narrated that in the year 2020, she was staying with her aunt the accused person and that one night, after she had eaten dinner and was watching cartoons with her brother, the accused, who was standing directly in front of her, began repeatedly instructing her to lick her brother's penis. 79.The witness told the court that she was afraid to speak about what happened, expressing openly that she feared the accused would make her feel bad. The witness testified that despite her initial reluctance, the accused kept insisting and pressing her to perform the act, and that although she refused multiple times, she ultimately complied under the accused's continued pressure. She further stated that the accused had asked her to do this on more than one occasion, and she confirmed that the person she was referring to was the accused person seated in the dock. 80.She told the court that at the time of the incident, her father was not present in the house, and that her mother was in the sitting room watching television while she and her brother were in her bedroom. 81.The lights in the room were on, the news was playing on television, and it was nighttime. The accused was dressed in a dress and was standing right in front of her as she made the demands. 82.During cross-examination, the witness clarified that their house did not have an upstairs floor, but that they lived in an apartment building with a neighbour residing on the upper floor. She stated that B was at home at the time the events occurred, confirming that he had not yet left for boarding school during that period. She added that she travels to school by bus and returns home at 3:00 PM. The witness identified the accused in the dock as the person he had been referring to throughout his testimony. 83.The evidence of Pw1 clearly established Count 2 of compelling or inducing an indecent act with a child contrary to Section 6(b) of the Sexual offences Act No 3 of 2006. 84.PW 3 AJL testified that her name is AJL and that she is employed at Absa Bank Limited. She confirmed that she is the mother of PW 1 and PW 2, and produced their birth certificates before the court. The birth certificate of PW 2 showed his date of birth as the 24th of April 2008, and the birth notification for PW 1 showed her date of birth as the 24th of April 2015. These were admitted as PMFI 1 and PMFI 2 respectively. 85.The witness testified that on the 8th of November 2020, she was at home with her children following dinner. As the family was preparing for bed, her then househelp, MC, took PW 1 to the bathroom. While there, the witness heard PW 1 say to M, in Kiswahili, that the former aunty M used to lick PW 2 on his penis and would then tell her to suck it. Upon hearing this, the witness immediately went to the bathroom, where PW 1 repeated the exact same words to her directly. The witness then proceeded to PW 2's bedroom, where she questioned him in the presence of both M and PW 1. PW 2 initially denied the allegations, but eventually disclosed to her that M had wanted him to do the same to her, though he said he had refused. He later opened up further as the conversation continued. 86.PW 4 Peninah Angwenyi stated that she is a clinical officer holding a degree in Clinical Medicine and Community Health from Mount Kenya University. She has been working at MSF for ten years, and her duties include attending to patients and survivors of sexual violence, conducting examinations, and preparing medical reports. 87.She testified that on the 5th of February 2021 at approximately 8:30 PM, she examined PW 2, who had been brought to the facility by his mother, PW 3. PW 2 reported that he had been a victim of sexual violence perpetrated by a known person the accused at their home in Kileleshwa. He told the clinical officer that the accused would ask his sister, PW 1, to perform oral sex on him, and that the accused had also attempted to have sexual intercourse with him by directing the act. He stated that he had managed to penetrate her on one occasion. During the examination, the witness observed that PW 2 appeared anxious. His physical examination was otherwise normal. An HIV test was conducted, and counselling was provided. The witness duly filled out the P3 form in respect of PW 2 and the medical report was produced as an exhibit before the court. 88.The witnesses therefore established that the appellant in this case would ask Pw1 to suck the penis of Pw2 an act that would qualify as an indecent act under Section 6(b) of the Sexual offences Act. 89.The appellant alluded to contradictions in the prosecutions evidence but upon analysis of the evidence this court none that would justify the interference with the decision of the learned Hon Magistrate in respect of Count 2. 90.In any event for contradictions to lead to the quashing of a decision, the same must go to the root of the matter since not every other contradictions would lead to the quashing of a conviction that is properly supported by evidence. In Uganda Court of Appeal in Twehangane Alfred vs Uganda (Criminal Appeal No. 139 of 2001 , {2003} UGGA 6 the court held that it is not every contradiction that warrants rejection of evidence. As the court put it:-“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 91.The contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. 92.Having reviewed the entire record, this court has come to the conclusion that the appellant did not succeed in establishing existence of material contradictions that would vitiate the conviction in count 2. 93.The upshot of the above is that the appeal partially succeeds in that the conviction for the offence of defilement is quashed and the sentence of 10 years set aside but the court upholds the conviction against the appellant in count 2 of inducing an indecent act with a child. 94.The appellant shall therefore continue to serve the sentence of 3 years imprisonment imposed in count 2. 95.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 1ST DAY OF JULY, 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaMs Njoroge for StateKimathi h/b Ouma for 1st AccusedKimathi for 2nd AccusedOndicho h/b Ouma for 1st Accused