https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9255

SMN v Republic (Criminal Appeal E073 of 2023) [2026] KEHC 9255 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9255 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E073 of 2023 DKN Magare, J June 25, 2026 Between SMN Appellant and Republic Respondent (Being an appeal from the Judgment of the Honourable Hon. Mary Gituma, SRM delivered on 16.11.2023, in Nyeri CMCSO No. E054 of 2021.) Judgment 1.This appeal arises from the Judgment of the Honourable Hon. Mary Gituma, SRM delivered on 16.11.2023, in Nyeri CMCSO No. E054 of 2021. The appeal was on both conviction and sentence. 2.The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the diverse months of August 2021 to 5.12.2021, at [particulars Withheld] Village, Kieni West subcounty, within Nyeri County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of TMS a child aged 12 years who to his knowledge was his daughter. 3.The Appellant was arraigned on 9.12.2021, where he denied the charges. A plea of not guilty was consequently recorded. The court gave directions regarding bond and a hearing date. 4.The trial court found the Appellant guilty and convicted and sentenced him to serve 35 years imprisonment. Aggrieved, the Appellant lodged this appeal challenging both conviction and sentence. The grounds of appeal were materially stated as follows:a.The learned magistrate erred in law and fact in failing to appreciate that the alleged victim was incredible and doubtful.b.The learned magistrate erred in law and fact in failing to appreciate that the critical elements of incest were not proved to the required standard.c.The learned magistrate erred in law and fact in failing to consider that the prosecution case was riddled with material discrepancies capable of unsettling the verdict.d.The learned magistrate erred in law and fact in failing to consider the credible Appellant’s defence Evidence 5.PW1 was the minor. She was 13 years and in class six. In 2021, her mother went to the market. Her father came into her bedroom. He took her to his bedroom. He removed her clothes. He removed his penis and put it in her vagina. She could not remember the date. He could do these, many times whenever her mother was at the market. One day, EM saw her leave her father’s room without clothes. He asked and she told him what had happened. He reported to the school deputy. The teacher then informed her mother. 6.On cross-examination, the complainant testified that their house comprised two rooms. She shared one room with her sister, BB, while her uncle, EM, slept in the other room together with her brother, CC. According to her, her father would come to her room at about 4.00 a.m., take her to his room, and thereafter return her to her bed. She stated that she never reported the alleged incidents to anyone because her father had threatened to strangle her should she disclose them. 7.PW2 was EM . He testified that he lived with his sister, who was the mother of PW1. On 02.12.2021, his sister had travelled to Nyeri to deliver vegetables. At about 4.00 a.m., he heard someone moving around the house, something he stated had happened before. He then saw the Appellant walk to the room where the girls were sleeping and take PW1 to his room, which was situated in the sitting room. The sleeping area was separated by a curtain, making it impossible to see what was happening on the bed. After some time, he saw PW1 emerge from the Appellant's room wearing a T-shirt and carrying her clothes in her hands. He informed his sister of what he had witnessed later that evening. 8.PW2 further testified that PW1 informed him that she had come from the Appellant's room and that the Appellant had forced her to have sexual intercourse with him. On the following Monday, they went to school where he reported the matter to Mr. Gichuki, a teacher. 9.On cross-examination, PW2 stated that the Appellant had threatened to kill him and had previously beaten him before the incident of December 2021. He testified that when he saw the Appellant take PW1 to his room, he followed them but was unable to see what transpired because the sleeping area was concealed by a curtain. He further stated that he had witnessed similar incidents on four previous occasions. 10.PW3 was the mother of PW1 and the sister of PW2. She testified that PW2 informed her about the incident, following which she confronted the Appellant and subsequently reported the matter to the police. 11.On cross-examination, PW3 conceded that she did not witness the alleged incident and had not noticed anything unusual. She stated that she used to sleep with the Appellant in the sitting room and that the lights remained on throughout the night. She further testified that when she confronted the Appellant about the allegations, he threatened to kill her. 12.PW4 was AWM. She recalled that on 6.12.2021 she was not working. She stated that the head teacher of PW2’s school. It was her evidence that fellow teacher called her and informed her a student that had been beaten by his brother-in-law for defiling his daughter. She came back next day and inquired from the student defiled, PW1. She refused to disclose at first. However, she told her that her father would take her to his bed and defile her. She reported to the assistant chief who advised that the matter be reported to police station. 13.PW5 was Dr. William Muriuki, a medical doctor attached to Nyeri County Hospital. He examined PW1 on 17.12.2021 and noted that she had an old broken hymen. He completed and produced the P3 form in evidence. 14.PW6 was SMG, who was a teacher. He testified that PW2 came to his office on 6.12.2021 and narrated the incident that had happened. The Appellant would go to the room PW1 slept, take her to his own room and defile her. He called the deputy and informed her. On cross examination, he did not report to the mother of the child. 15.PW7 was Edith Wagariti Maina. She was a clinical officer at Mweiga Health Centre. She examined PW1 on 17.12.2021. The hymen was normal and old broken. There were no bruises on outer genitalia. There were red blood cells. There were no spermatozoa but there were red blood cells. He stated that the red blood cells could be due to trauma but were found on when they took a high vaginal swap. 16.PW8 was No. 9xxx2 PC Susy Saidi of Mweiga Police Station. She received the report on 17.12.2021 and recorded statements. She filled the P3 form. She recommended to charge the Appellant with the offence. 17.The appellant was placed on his defence. The court complied with section 211 of the criminal procedure code. The appellant opted to give sworn evidence. 18.The Appellant testified as DW1. He denied defiling his daughter on 05.12.2021. He stated that he had marital problems with his wife, whom he accused of being unfaithful. He further testified that there was conflict between him and his wife regarding PW2, as he had not agreed to PW2 living in their home. According to him, he would leave for work at about 8.00 a.m., while his wife would leave the house at about 5.00 a.m. and return at around 1.00 p.m. He maintained that he did not know why his daughter had testified against him. Appellant’s Submissions 19.The appellant filed submissions dated 26.4.2026. They set out the duty of the court as laid out in the case of Pandya vs Republic [1957] EA 336 and of Okeno v Republic [1972] EA 32 at 36. On the legal burden of proof in criminal matters reliance was placed on the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481. He submitted that the supplementary question of age were addressed by the court of appeal [Asike –Makhandia, Musinga & Gatembu, JJ.A] in the case of SS v Republic [2021] KECA 450 (KLR) as follows:The charge of incest has three components namely,a.Sex between the perpetrator and the victim,b.The relationship between the two, andc.The age of the victim for purposes of sentencing. 20.It was submitted that this in essence means that the respondent was under a duty to prove both penetration and the relationship between the appellant and TMS in order to prove the offence of incest. 21.He submitted that the broken hymen must be linked to penetration by the Appellant to sustain a conviction. They posited that scientific and medical evidence has proved that some girls are not even born with hymen, especially those where the hymen is broken by factors other than sexual intercourse. It was submitted that court of appeal in P.K.W v Republic [2012] eKLR held as follows:Is hymen only ruptured by sexual intercourse? 3 Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769. 22.He submitted that in this case the clinician who examined the complainant child did not tell whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. She told the court that she concluded from the history. The child continued with her life normally even after the alleged incest. The mother told the court that she did not notice anything. She only took the issue seriously after the teacher called her following the complaint by her brother PW2. 23.He submitted that the evidence on record reveals several inconsistencies and circumstances that raise reasonable doubt regarding the prosecution's case. He pointed out several of them. First the complainant testified that she did not disclose the alleged incident to anyone. The report originated from her uncle, EM (PW2), who was the accused's brother-in-law and admittedly had a strained relationship with the accused. 24.It was submitted that PW2 stated in evidence that the lights were on during the alleged incident but conceded that he neither saw what transpired nor heard any screams from the complainant. Further that there were contradictions regarding the complainant's appearance when she allegedly left the accused's room. The complainant stated that PW2 saw her leave the room without clothes, whereas PW2 testified that he saw her wearing a T-shirt. The discrepancy raises questions as to how the complainant knew what PW2 had allegedly seen and why their accounts differed. 25.The complainant's mother testified that she did not notice anything unusual and only took the allegations seriously after being contacted by the complainant's teacher following the report made by PW2. She further stated that, even after PW2 informed her of the allegations, she did not know whether they were true. PW2 reported the matter to the teacher after he had allegedly been assaulted by the accused, thereby raising the possibility of ulterior motives. Both PW2 and the complainant's mother, who were key prosecution witnesses, admitted that they did not witness the accused commit the alleged offence. 26.The complainant, a Class Six pupil, alleged that she had been carried from her bed by the accused, yet none of the other children in the house heard or noticed anything. Further the complainant's mother did not witness the incident and only learned of the allegations from her brother (PW2) and the complainant's teacher. It was submitted that the complainant only spoke about the alleged incident after being informed that the matter would be reported to the police. 27.It was submitted that PW5, the medical doctor, testified that he examined the complainant. However, during cross-examination, he admitted that he had not personally examined her and appeared uncertain in his testimony, as reflected on page 33 of the record. 28.The complainant and her mother both testified that they had never visited any hospital other than Mweiga Health Centre and specifically denied ever attending Nyeri County Hospital (PGH). This evidence conflicted with the testimony of PW5, who is based at Nyeri County Hospital and claimed to have seen the complainant there. The investigating officer also gave contradictory evidence regarding the complainant's attendance at Nyeri County Hospital. She initially testified that she accompanied the complainant to PGH but later stated that she was not present during the examination and that she only took the PRC form for completion of the P3 form. 29.The trial court failed to record the demeanour of the complainant, an important consideration in assessing credibility. It was admitted during the trial that the accused had a strained relationship with both the complainant's mother and PW2. The trial court did not adequately consider the possible effect of this animosity on the evidence tendered against the accused. Collectively, these inconsistencies and contradictions create significant doubt as to the reliability of the prosecution's case and whether the allegations against the accused were proved beyond reasonable doubt. 30.On contradictions reliance was placed on the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, where the court stated :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. 31.He submitted that the Appellant’s defence was not considered. The court treated it as an afterthought. The court on page 9 of the judgement erred when she stated that the issue of strained relationship between the Appellant and PW2 and PW3 was only brought up during the defence stage. This was an issue that had been addressed during the trial and the witnesses had admitted that the relationship was strained. 32.The Respondent filed submissions dated 6.04.2026. They submitted that the appellant raised three issues that is:a.Whether the prosecution case was proved beyond reasonable doubt.b.Whether the magistrate properly considered the appellant’s defencec.Whether the victims’ testimony was credible. 33.The Respondent submitted that the age of the complainant was proved by the production of her birth certificate, which indicated that she was born on 10.01.2010. Consequently, as at 05.12.2021, the date of the alleged offence, she was still a minor. 34.On penetration, the respondent relied on the complainant’s testimony. Reliance was placed on the case of George Kioji v Republic Nyeri Criminal Appeal No. 270 of 2010 (unreported), where the court stated:Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to Section 124 of the Evidence Act, cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records reasons for such belief. 35.They also relied on the clinical officer’s testimony that she noted that the external genitalia was normal with old broken hymen. She opined that the complaint was defiled. They also attacked the submissions that the charge was fabricated as they were going to a rough patch was not proper. Further that the appellant cross examined two witnesses. The defence was an afterthought. Analysis 36.The main issue in this case is whether the prosecution proved is case to the required standards. The second issue is in regard to sentence. 37.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 38.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 39.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 40.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 41.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 42.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 43.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence on the required standard. It does not call for magic, surmises, hyperbole and subterfuge. It calls for prove beyond reasonable doubt. 44.The accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth:39.Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these linesThe accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression beyond a reasonable doubt mean? The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.40.This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory. 45.The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of in re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 46.The appellant was charged with the offence of incest. The same is provided for under Section 20(1) of the Sexual Offences Act as follows:(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 47.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ 48.PW1, the minor complainant, narrated events where she appeared to implicate the Appellant. She testified that she could not recall any specific date on which the incidents occurred. According to her, on several occasions, the Appellant would take her to his room at about 4.00 a.m., usually after her mother had left for the market. She stated that the incidents occurred in December 2021. She further testified that PW2 saw her emerging from the Appellant's room without clothes, inquired as to what had happened, and upon her explanation, reported the matter to a teacher, who testified as PW6. 49.The court will endeavour to deal with the issues as raised by the parties. Age is not a prerequisite. It is necessary only for purposes of conviction. the punishment part indicates as follows:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. 50.Therefore, the elements to be provided are:a.Genital penetration by a male person of genital organs of a female person.b.That the appellant is the perpetrator.c.Relationship between the perpetrator and the victim. 51.It was proved beyond reasonable doubt and indeed admitted that the complainant was the appellant’s daughter. The relationship was thus proved. The appellant was a father within the meaning of the Section 22 of the Sexual Offences Act as follows:1.In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.2.In this Act-a.Uncle means the brother of a person's parent and aunt has a corresponding meaning;b.nephew means the child of a person's brother or sister and niece has a corresponding meaning;c.half-brother means a brother who shares only one parent with another;d.half-sister means a sister who shares only one parent with another; ande.adoptive brother means a brother who is related to another through adoption and adoptive sister has a corresponding meaning.3.An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.4.In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children's Act. 52.This then leaves two questions to be proved. That is whether there was genital penetration by a male person of genital organs of a female person and that the appellant was the perpetrator. The case turned on the evidence of PW2. He is the one who reported to the teacher but forgot, of all people to inform his sister. It is not a natural way of acting. Secondly, he was purporting to be an eye witness. However, he admitted that he had issued with the appellant who had hitherto threated to kill him. He did not find it necessary to admit his bias. 53.The mother on the other hand did not find anything unusual in the minor. The minor did not bother to inform the mother. This raises doubt as to the veracity of their evidence. This is more confounding because the house was occupied by other people, that is BB and CC. The complainant slept with BB. If the two slept together, BB was best placed to testify on what happened. He was not called. Failure to call both BB and CC must be read against the state. A negative inference must be made. It must be recalled that there is no number of witnesses required to prove a fact. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact. 54.There is no requirement to call a superfluity of witnesses. However, there must be at least a bare minimum of witnesses to prove a charge. Where key witnesses are not called, and the case is wholly, then an adverse inference must be made for failure to call such. In the circumstances of this case, failure to call Mary resulted in a break in the chain of evidence. PW4 placed the appellant away from home on the material day and time. There is no connecting witness, Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR), the Court of appeal [S.E.O. Bosire, P.N. Waki, and J.W. Onyango Otieno] 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's 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's 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's case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference. 55.The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135, where the court held inter alia:The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses are sufficient to establish the charge beyond any reasonable doubt. 56.In the circumstances, failure to call both BB and CC was fatal to the case as the court must make an adverse inference that if she had been called, her evidence would have been adverse to the prosecution. The evidence of PW2 was not evidence that came from a truthful witness. No uncle, however young, will see her niece being defiled, and just keep quiet 4 times. The evidence was simply unbelievable. 57.The evidence of PW2, reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR)….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N v. N [1991] KLR 685, he expressed himself in the following terms:I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted. 58.Regarding lying witnesses, a South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC), the court posited as follows:In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa… 59.The trial court relied heavily on the evidence of PW2. However, that evidence was not believable as it was inconsistent and contrary to the ordinary course of human conduct. It was difficult to accept that an adult uncle who allegedly witnessed the complainant repeatedly emerging naked from the Appellant's room at 4.00 a.m. would neither intervene nor report the matter to the complainant's mother or any other authority. The conduct attributed to PW2 was therefore inherently improbable. The court must therefore consider whether the circumstantial evidence on record irresistibly points to the guilt of the Appellant. The law on circumstantial evidence is settled. In the case of Sawe v Republic [2003] KECA 182 (KLR), where the Court of Appeal [RO Kwach, AA Lakha & EO O'Kubasu, JJA] posited as follows:If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of Republic V. Kipkering Arap Koske & Another (1949) 1 EACA 135, where it held, inter alia, that;‘In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt’. 60.The case essentially pitted the evidence of the complainant's mother and her brother against that of the Appellant. There were other witnesses who were allegedly present, namely CC and BB, but the prosecution failed to call them to testify. In the circumstances, the court is entitled to draw an adverse inference that had these witnesses been called, their evidence would not have supported the prosecution's case. 61.Another significant aspect of the case was the existence of bad blood and a grudge between the parties. Although the Appellant acted in person, he was able to demonstrate that there existed actual hostility between him and PW2 and his wife. The evidence disclosed that PW2 had allegedly been threatened with death by the Appellant. However, the issue before the court was not the offence of threatening to kill. The alleged threat had been made long before the events giving rise to the present charges. 62.The existence of prior animosity between the Appellant and PW2 was therefore a relevant consideration, as it raised the possibility of bias, malice, or an ulterior motive on the part of PW2. In criminal proceedings, where the prosecution's case substantially depends on the testimony of witnesses who may harbour a grudge against the accused, the court must exercise caution and carefully scrutinize such evidence before relying upon it to found a conviction. 63.Secondly, the evidence showed that the Appellant was sleeping separated only by a curtain from PW2. In those circumstances, it is difficult to accept that PW2 could not hear or perceive what was allegedly taking place if indeed the incident occurred in the manner described by the prosecution. During cross-examination, PW2 was evasive and could not give a clear account of the alleged events. Instead, PW2 appeared to invite the court to rely on his suspicions and assumptions rather than on direct and credible evidence. 64.Suspicion, however strong, cannot form the basis of a criminal conviction. The prosecution bore the burden of proving its case beyond reasonable doubt through cogent, credible and reliable evidence, and not through conjecture, suspicion, or speculation. The gaps and inconsistencies in the evidence of PW2 therefore raise reasonable doubt as to whether the alleged acts actually occurred as alleged by the prosecution. In the case of Republic v Denis Wamaye Kimemia & another [2019] KEHC 11092 (KLR), Wakiaga J, posited as follows:Whereas there is strong suspicion that the accused persons were involved in the unlawful killing of the deceased, the said suspicion is based on hearsay evidence which is uncorroborated and the court has said over and over again that mere suspicion however strong cannot be a ground for sustaining a conviction in a criminal case as was Stated by the Court of Appeal in Mary Wanjiku V Republic, Criminal appeal no 17 OF 1988 that:Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused freedom and at times life. 65.Circumstantial evidence must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), [P. Kihara Kariuki, Pca, M’Inoti & Murgor, JJ.A] Court had this to say on circumstantial evidence:However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. 66.The next was the inconsistence of witnesses. There were several inconsistences. Was the evidence on record was that that the mother was leaving to the market at 5.am not 4.00am. This may appear minor but when it appears consistently it raises doubt. The question of inconsistence was addressed in the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 67.Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 68.The trial court failed to hold that such a magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: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. 69.This then takes us back the other question of penetration and the evidence of PW1, the complainant. This evidence was deliberately left out in the initial analysis as it is subject, in certain cases to special protection. What is not in doubt is that the complainant was sleeping in the same house with his mother, his uncle, BB and CC. We are not given their respective ages and the reason they did not testify. The offence is also said to have occurred in darkness at 4.00 am. Secondly the complainant did not indicate to her mother that this offence occurred. The originator was the mother’s brother, PW2. Reliance was placed on section 124 of the Evidence Act. The said section provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 70.Essentially therefore, for the section to apply, three elements must be borne out, either in law or evidence, that is:a.A criminal case involving a sexual offenceb.Only evidence available is that of the alleged victim of the offence,c.There are reasons to be recorded in the proceedings and the court is satisfied that the alleged victim is telling the truth. 71.The three elements must be met sequentially and must all be present. That is to say the provision only applies to sexual offences where the only witness is the alleged victim. Therefore, where there are more witnesses the section is irrelevant. Further, the complainant must be saying the truth. The truth must be self-evidence and on the record. The court must record the reason. It is not enough for the court to believe the witness. There must be written reasons for the belief. In other words, in absence of reasons, then there must be corroboration. Doing other will breach Article 50(2) of the Constitution which provides as follows:Every accused person has the right to a fair trial, which includes the right-(a)to be presumed innocent until the contrary is proved; 72.This is in line with the common law practice regarding the presumption of innocence. Most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 , comes in handy in describing the legal burden of proof in criminal matters, that:Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 73.One of the major contradictions that was fatal to the case was treatment as PGH. It is either one is treated or not. The complainant cannot recall being taken to any hospital other than Mweiga hospital. Therefore, taking documents from PGH was meant to buffer a case that was in the woods. Medical evidence obtained in the absence of a complainant is bogus. Such medical evidence has no probative value at all. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so. 74.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so. 75.Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- Because this is the evidence of an expert, I believe it. 76.However, medical evidence must be scientific and not based on rumours, hearsay and subterfuge. The court is unable to find any value for the medical evidence from PGH, since either a different person was examined or was produced in absence of the complainant. Such evidence brings the makers to public odium and renders the evidence useless. 77.However, medical evidence must be founded on scientific examination and objective findings, and not on rumours, hearsay, assumptions, or subterfuge. The court is unable to attach any probative value to the medical evidence from PGH because the circumstances surrounding its preparation cast serious doubt on its authenticity and reliability. It remains unclear whether the person examined was the complainant or whether the report was produced in the absence of the complainant altogether. 78.Such glaring inconsistencies and uncertainties undermine the integrity of the medical evidence and render it wholly unreliable. Consequently, the court finds that the medical evidence from PGH is devoid of evidential value and cannot be relied upon in determining the guilt or otherwise of the Appellant. 79.Secondly, PW5, who produced the P3 Form, and PW7, who produced the PRC Form, testified that upon medical examination, PW1 had an old broken hymen, which in their opinion was indicative of previous penetration. Their evidence was limited to the medical findings and could only establish that PW1 may have been penetrated at some point in time. 80.However, neither PW5 nor PW7 could not identify the Appellant as the perpetrator of the alleged offence. Medical evidence, by itself, cannot establish the identity of the offender unless it is corroborated by other credible evidence directly linking the accused person to the offence. This therefore brings into sharp focus the question of reliance on the testimony of a single identifying witness, namely PW1. The court must examine such evidence with the greatest care and caution, particularly where there is no independent evidence connecting the Appellant to the alleged act of penetration. 81.Other than the provisions of Section 124 of the Evidence Act, which allow for a conviction based on the testimony of a single witness in sexual offences if the court believes the complainant and records the reasons for such belief, the court must nonetheless exercise caution and warn itself of the dangers of relying solely on the evidence of a single identifying witness. In the case of R v Turnbull & Others [1976] 3 All ER 549, which decision has been generally accepted and greatly used in our judicial system, the court set out the guidelines to be observed when the evidence of visual identification is relied upon, emphasizing the need for the court to consider the circumstances under which the identification was made. The said court stated as doth:The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 82.While addressing evidence of a single witness, the court, C.N. Njagi posited as follows in the case of Vincent Manyonge v Republic [2018] KEHC 164 (KLR):Before the court convicts on the evidence of a single identifying witness, the court has to warn itself of the dangers of convicting in reliance of such evidence. The evidence has to be thoroughly examined and be ruled to be free from the possibility of error. This was well set out in the case of Kiilu Vs Republic (2005) 1KLR 174 where the court of Appeal held that:‘ subject to certain well known exceptions , it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error. See also Abdalla Wendo & Another Vs Republic (1953) 20 EACA(166) KLR 198. 83.The question of a single evidence was dealt with in the case of Maitanyi v Republic [1986] KECA 39 (KLR), where the court of appeal[Nyarangi, Platt & Gachuhi JJA] held that :Although the lower courts did not refer to the well-known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error…It must be emphasized that what is being tested is primarily the impression received by the single witness at the time of the incident. Of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improve. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and it position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into. In days gone by, there would have been a careful inquiry into these matters, by the committing magistrate, state counsel and defence counsel. In the absence of all these safeguards, it now becomes the great burden of senior magistrates trying cases of capital robbery to make these enquiries themselves. Otherwise who will be able to test with the “greatest care” the evidence of a single witness?There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify or recognise the person, then a later identification or recognition must be suspect, unless explained. It is for the magistrate to inquire into these matters. 84.However, this being a sexual offence, the evidentiary rules have been modified to better serve the interests of justice and society. In such cases, the critical issue is not much on the need for a warning on the dangers of relying on a single witness, but rather whether the court has recorded cogent reasons for believing the complainant’s testimony in accordance with Section 124 of the Evidence Act. No such reasons were given. Further PW1 was not the only witness. PW2 was a purported eye witness, hence section 124 of the evidence act could not apply. 85.In the present appeal, the PW1’s testimony was 13 years while testifying and voire dire established her understanding of oathing. Her account was doubtful and required corroboration for certainty. According to her, PW2 would hear the Appellant walk into her room and drag her to his room. A shuka separated the Appellant's room from the room where PW2 slept. According to PW1, whenever the Appellant took her to his room, he would instruct her to remove her clothes. She stated that these incidents occurred on numerous occasions. 86.The evidence of PW2 raises serious doubts as to its credibility and reliability. PW2 testified that a shuka separated his room from that of the Appellant and that he would hear the Appellant take PW1 into his room on several occasions. However, despite allegedly witnessing PW1 emerge naked from the Appellant's room, PW2 did not intervene, raise an alarm, or report the matter to PW3, the complainant's mother, or to any other person. Further, there was evidence that other persons, namely CC and BB, were also present in the house. There was no indication that they heard any commotion or observed anything unusual. The incidents were also said to have occurred at around 4.00 a.m., an ungodly hour when visibility would naturally be poor. 87.The prosecution did not lead any evidence regarding the nature, source, or intensity of the light in the house. It was not established whether there was any light on at all, and if so, whether it was sufficient to enable PW2 to identify PW1 as she allegedly emerged naked from the Appellant's room. The circumstances under which PW2 made these observations were therefore left unexplained. Equally troubling is the assertion that the acts of defilement occurred repeatedly in the presence of an adult uncle who, despite allegedly being aware of what was happening, did absolutely nothing to protect the minor or report the matter. Such conduct is inconsistent with ordinary human behaviour and renders the evidence inherently improbable. 88.The court of appeal addressed the question of intensity of light in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 89.In the circumstances, the testimony of PW2 required independent corroboration. No such corroborative evidence was tendered by the prosecution. The evidence of PW2 therefore fails to remove the doubts surrounding the prosecution case and cannot, without more, be relied upon to sustain a conviction. 90.An examination in the PRC did not show any laceration, bruise inflammation or spermatozoa. One or the other is not necessary. However, in absence of bruises, lacerations, inflammations, especially on the labia minora, the court cannot find that there was penetration. The minor did not know the actual dates and was evasive on this. However, the alleged defilement of 05.12.2021 was witnesses. However, the medical officers did not find any evidence except red blood cells. 91.However, there were no epithelial cells. Under normal circumstances, a vaginal swab should feature a robust presence of stratified squamous epithelial cells mixed with normal flora. In the absence of inflammation, bruises and epithelial cells, the presence of red blood cells suggests minor bleeding or irritation, which is common during menstruation. Without localized inflammation, the court cannot attribute blood to penetration. It is to be remembered that the same occurred less than 24 hours before alleged examination. 92.Broken hymen is not proof of sexual assault or penetration. In the case of P.K.W v Republic [2012] KECA 103 (KLR), the court of appeal [K.H. Rawal and D.K. Maraga]stated, [in a judgment not signed by O’Kubasu JA but delivered pursuant to the provisions of Rule 32(3) of the Court of Appeal Rules(repealed)], as follows:16.Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769 93.The net effect of the evidence is that there was no proof of penetration on 05.12.2021. There was also no evidence on penetration on the other dates. Having not found evidence of penetration, the question of the perpetrator becomes moot. 94.Regarding penetration, as has been above observed, the minor was not quite clear that the Appellant, was the one who penetrated her on the many occasions in December 2021. The evidence of PW1 did not link the Appellant as offender. There was need for corroboration. The medical evidence was to the effect that there was penetration merely because the hymen was old broken. The PRC and P3 forms showed no bruises or epithelia cells. Without much, penetration by the Appellant was not proved beyond reasonable doubt. 95.The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 20 of the Sexual Offences Act provides for an offence of incest and the convict is liable to imprisonment for a term of not less than ten years. There is a proviso that if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. This particular offence is provided for under section 20 of the Sexual Offences Act as follows:(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 96.Life imprisonment in the offence of incest is not mandatory. Section 26 of the penal code provides as follows:(1)A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.(2)Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 97.The question of liable to was addressed in the case of Republic v Jared Nyakundi Ratemo & 3 others [2016] KEHC 6000 (KLR), the W. Okwany, J posited as follows:5.To my mind and understanding of the law on sentencing, the law uses words ‘shall’ or ‘is liable’. Where the word shall is used, the discretion of the court is expressly limited by parliament as opposed to the instance where the word ‘is liable’ is employed as it denotes that the court has a discretion.6.Where parliament has restricted the discretion of the court in sentencing, the court’s hands are tied as it were and cannot go against the statute and give the words ‘shall’ a different that was not intended by the law makers. 98.Further, there is more guidance given in the Sentencing Policy Guidelines 2023 as follows:2.3.2The wording used by the Penal Code in most cases is …liable to…imprisonment or in some cases using the words not exceeding…37 - thus setting out the maximum sentence in most cases. Section 26 (2) of the Penal Code gives the court discretion to impose a sentence shorter than prescribed by the relevant provision except where mandatory minimum sentences are prescribed.38 Subsequent statutes such as the Sexual Offences Act provide minimum39 and maximum sentences. The Security Laws (Amendment) Act provides minimum sentences in some instances. 99.The tenor of section 20 means that the appellant, if found guilty, could be sentenced between ten years and life imprisonment with other permutations in between. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed.12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 100.Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 101.The said section provided for a minimum sentence. However, having found that the offence was not proved to the required standard, the conviction has to be set aside, the issue of sentence is moot. I find no utility delving into the issues of sentence which cannot equally stand. ORDERS 102.In the circumstances, I make the following orders:a.The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b.The appellant’s name be removed from the register of sexual offenders.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 25TH DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Mutheu for the AppellantMr. Maina for the State/ODPPAppellant presentCourt Assistant – Martin