https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1491

Wairimu v Republic (Criminal Appeal E030 of 2024) [2026] KECA 1491 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1491 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E030 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Samuel Muhia Wairimu Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Voi (Njoki Mwangi, J.) delivered on 19th April 2024inCriminal Appeal No. E046 of 2021) Judgment 1.Samuel Muhia Wairimu (the appellant) was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, Cap. 63A in the Chief Magistrate’s Court at Voi in Criminal Case No. E006 of 2020. 2.The particulars of the offence were that, in January 2020, on an unknown date at [Particulars Withheld] in Voi sub-County within Taita Taveta County, the appellant intentionally and unlawfully caused his genital organ (penis) to penetrate the female genital organ (vagina) of GHN, a girl aged 7 years (the complainant). 3.The appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 of the Sexual Offences Act in that, during the same period and at the same place, he intentionally and unlawfully touched the female genital organs of the complainant. 4.On 12th October 2020, the appellant denied committing the offence on both the main and alternative charges, and a plea of not guilty was entered, paving way for a full trial. 5.The brief facts of the case are that the appellant and the family of the complainant were acquaintances. The appellant ran a boda boda business, and the complainant’s family were using his services whenever they needed transport. As at the time of the incident, they had engaged him for a period of one and a half years. On the material date, which the complainant could remember, she fell sick and was taken to Aga Khan Hospital for treatment by her mother, PKC ((PW2). Thereafter, (PW2) was accompanied by (PW1 (the complainant) to her place of work from where (PW2 called the appellant to come and take (PW1 back home. Instead of doing as instructed, the appellant made a detour to his house. There, he put up very loud music and instructed the complainant to dance for him. He then touched her private parts with hands, and thereafter did ‘tabia baya’ (bad manners) to her. He then warned her that if she told anyone, he would dig a hole and burry her alive. Fearing for her life, (PW1 did not speak out. 6.According to (PW2, some time in the month of August, 2020, (PW1 went to visit her uncle and his wife who was (PW2’s sister in law and an aunt to (PW1. It is here that (PW1’s aunt noted that (PW1 looked sad and, upon questioning her, she opened up on what had transpired on the fateful day. (PW1’s aunt then informed (PW2 who in turn took (PW1 to Aga Khan Hospital for examination from where she was referred to a Government hospital. She reported the matter to Voi Police Station where she was issued with a P3 Form. The complainant was then taken to Moi County Referral Hospital, Voi where she was examined on 5th October 2020 by Dr. Joto Nyawa ((PW3), who also produced the P3 Form in evidence. Examination revealed that the complainant’s hymen was broken but not freshly; the vagina was dirty with a whitish smelly discharge; and there were no spermatozoa seen. It was deduced that, by virtue of the broken hymen, there was evidence of penetration. Treatment notes were also produced in evidence. 7.The case was investigated by (PW4, Corporal Elama Mtwana of Voi Police Station. She summed up the prosecution’s case, and added that she is the one who recorded the witnesses’ statements and preferred the charges against the appellant. She also produced in evidence the complainant’s Birth Certificate. 8.After the close of the prosecution case, the learned trial Magistrate (Hon. C. Kithinji -PM) ruled that the prosecution had established a prima facie case against the appellant and accordingly put him on his defence. The appellant denied committing the offence. He however conceded that he was indeed instructed by (PW2 to go and pick the complainant from home and take her to Aga Khan Hospital after which he handed her over to her mother; that, prior to leaving the house, he requested (PW2 to allow the house girl to accompany the complainant but she declined; and that, after 15 minutes, he was asked to go and pick the complainant and he took her back to the house. The appellant also agreed that the complainant’s family had engaged him in his boda boda business for quite some time prior to the incident. 9.After considering the evidence before him, the learned trial Magistrate held that all the ingredients of the offence of defilement, being the age of the complainant, penetration and positive identification of the appellant had been established; and that there were no grounds advanced to warrant a conclusion that the appellant had been framed. Ultimately, the trial Magistrate found that the prosecution had proved its case beyond reasonable doubt. The appellant was convicted of the main charge of defilement as charged, contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, and sentenced to life imprisonment. 10.Dissatisfied with both the conviction and sentence, the appellant preferred an appeal to the High Court where he faulted the decision of the trial court for convicting him without the prosecution having discharged its burden of proof, of proving all the ingredients of the offence for which he was convicted beyond reasonable doubt; that he was convicted on the basis of evidence of unreliable prosecution witnesses, and whose evidence the trial court did not properly evaluate; and for not according him the benefit of doubt for the reason that the prosecution’s evidence was doubtful. 11.In her Judgment delivered on 19th April 2024, the learned Judge (Njoki Mwangi, J.) identified three issues for determination, namely: whether there were massive contradictions, inconsistencies and/or discrepancies in the prosecution’s case; whether the prosecution failed to call critical witnesses whose evidence would have been of great importance to their case; and whether the prosecution proved its case against the appellant beyond reasonable doubt. 12.On the first issue, the learned Judge noted that the alleged contradictions were with respect to the evidence of the complainant on one hand and that of (PW4 on the other on whether the complainant’s pant was removed during the alleged defilement and secondly, with respect to the evidence of (PW2 and (PW4 as to what led the complainant to confide in her aunt in Mtwapa on the alleged offence. These contradictions and/or inconsistencies were found not to be massive to the extent that they vitiated the evidence tendered by the complainant and (PW4. The learned Judge observed that the complainant was categorical that the appellant removed his boxer and he inserted his private parts in hers and ‘did something that made her feel pain’; and that failure to state whom between the complainant and the appellant removed her (the complainant’s) pants, did not weaken her evidence that penetration occurred. 13.As to whether the prosecution failed to call crucial witnesses, namely (PW2’s househelp by the name M, who allegedly received the complainant when she was dropped home and the complainant’s aunt who lived in Mtwapa, while referring to Section 143 of the Evidence Act, and this Court’s decision in Julius Mutunga v Republic (2006) eKLR, the learned Judge held that there is no provision for the number of witnesses that the prosecution should call to proof any fact; that what was crucial is to avail witnesses who can prove the case; that, in this case, (PW4, the investigating officer stated that the complainant’s aunt was unavailable as she was pregnant; that it was unnecessary to call M, the house girl, since it was not demonstrated that she kept a record of the time when complainant was to be dropped home by the appellant on the date of the incident; that, in that case, no prejudice was occasioned by failure to call her; and that, (PW2 testified that the complainant would bathe herself, and that, therefore, there was no way through which M would have known whether the complainant was defiled or not. 14.Finally, on whether the prosecution proved its case beyond reasonable doubt, the learned Judge held that all the ingredients of the offence of defilement, namely the age of the complainant, penetration and positive identification of the appellant were all established. As regards the age of the complainant, it was held that it was proved by a Birth Certificate which indicated the complainant’s age to be 6 years having been born on 23rd May 2013; that penetration was proved by the evidence of the complainant herself who testified that she was defiled by the appellant and by the medical evidence of (PW3, which confirmed that the complainant had a broken hymen; that identification was not in doubt as the appellant had ferried the complainant and her mother on several occasions using his boda boda; that the appellant too confirmed that, on the material day, he ferried the complainant to and from hospital; and that, therefore, the issue of mistaken identity could not arise. 15.On the issue of sentence, the learned Judge placed reliance on the then prevailing position as to the unconstitutionality of life sentences under the Sexual Offences Act, and the decision of this Court in Manyeso v Republic (2021) KECA 827 (KLR), to set aside the life sentence and substitute therefor with a sentence of 20 years imprisonment effective from 30th November 2021. 16.Further dissatisfied, the appellant is now before this Court on a second and perhaps the last appeal. The appellant challenges both his conviction and sentence. It suffices to state that there are two sets of grounds of appeal. The first set is contained in a Memorandum of Appeal dated 14th June 2024 filed by M/s. J. M. Muthama & Co. Advocates then acting for the appellant. However, at the hearing of the appeal on 13th January 2026, the appellant, who was in person,informed the Court that he would rely on the undated self- made Supplementary Grounds of Appeal filed contemporaneously with his undated written submissions. The three (3) grounds of appeal raised therein are:“i.That the first appellate court erred in law and in facts in failing to evaluate afresh the entire evidence and come up with its own independent conclusion;ii.That the High Court Judge erred in law in upholding the appellant’s conviction and failing to consider that primary penetration was not well established by the medical evidence beyond reasonable doubt; andii.That the two courts failed to take into consideration the appellants’ defence in line with the prosecution evidence to arrive at the conclusion they made.” 17.Both the appellant and the respondent wholly relied on their respective written submissions. Learned State Counsel Ms. Mutua represented the respondent. The respondent’s submissions are dated 12th January 2026. 18.The appellant faulted the learned Judge for failing in her duty as a first appellate court, to re-analyse the evidence before it afresh and reach her own independent conclusion as was held in the decisions of this Court in Okeno v Republic (1972) EA 32; and David Njuguna Wairimu v Republic (2010) KECA (495) (KLR). He submitted that the complainant’s testimony was marred with inconsistencies and material contradictions; that it was based on hearsay evidence and borne out of ill will towards him; that penetration was not established since the complainant testified that she had her pants on and that the appellant remained with a vest and boxer throughout the alleged sexual assault, and that, therefore, it was not possible that penetration would have taken place; and that, on cross examination, the complainant changed her testimony to say that he removed his boxer. The appellant posited that the first appellate court ought to have taken note that the complainant was not a straight forward witness and, consequently, accord him the benefit of doubt as to his culpability. 19.The appellant also took issue with the evidence of (PW4 whom he submitted testified that he (the appellant) made the complainant lie on a seat and remove her clothes while he removed his pants halfway; that, at no time did the complainant herself testify that he removed her pants, and that, her testimony was that she removed her dress and biker by herself; and that this contradiction ought to have been resolved in his favour. 20.The appellant asserted that, the fact that the medical examination was done 10 months later, raised doubt on conclusive proof that the primary cause of penetration was the broken hymen; and that, furthermore, the age of the injuries was not established and, therefore, it was not proved when the hymen was broken. To buttress this submission, reliance was placed on the High Court decision in Ben Mwangi Muteti v Republic (2020) KEHC 7367 (KLR); and of this Court in Benjamin Mugo Mwangi & Another v Republic (1984) KECA 77 (KLR) for the proposition that penetration cannot be deemed to have been established if the age of the broken hymen is not established. 21.The appellant also faulted the fact that the house help by the name Mitchell was not called as a witness to shed light on whether she bathed the complainant or washed her clothes and, if so, whether she noticed blood on her inner wear. 22.Finally, the appellant submitted that his defence was not considered but that, instead, the burden of proof was wrongly shifted to him to prove his innocence. Referring to the provisions of Section 308 of the Criminal Procedure Code which provides that a court may give the prosecution an opportunity to rebut evidence introduced by the defence, the appellant submitted that the trial court failed to give the prosecution the right to rebut his defence if, for any reason, it was in doubt as to his culpability. 23.On the part of the respondent, it was urged that, this being a second appeal, only matters of law should be considered and, in this regard, reference was made to the decisions of this Court in Njoroge v Republic (1982) KECA 19 (KLR); and Karani v Republic (2010) KECA 478 (KLR). The respondent disagreed with the appellant that the first appellate court failed to re-evaluate and reconsider the evidence on record and arrive at its own conclusion; that the first appellate court, in its judgement, appreciated its role in that capacity, and that it ably re-analysed the evidence afresh and satisfied itself that the prosecution discharged its duty by proving the case to the required standard beyond reasonable doubt; and that the ground of appeal that the first appellate court failed to conduct a fresh and exhaustive re- evaluation of the evidence on record ought to fail. 24.On the submission that the learned Judge failed to afford the appellant the benefit of doubt despite appreciating that the prosecution’s case was laced with contradictions, the respondent submitted that the nature of the contradictions, inconsistencies and discrepancies pointed out by the appellant did not go to the root of the prosecution’s case to the extent of vitiating the strength of the evidence tendered. The prosecution supported its argument by referring to the decision of Twehangane Alfred v Uganda Crim. App. No.139 of 2001 (2003) UGCA, 6 as cited by this Court in Erick Onyango Odeng’ v Republic (2014) KECA 523 for the proposition that minor contradictions should be ignored, unless the court thinks that they point to deliberate untruthfulness, or if they affect the substance of the prosecution’s case. 25.The respondent submitted that the delay in examining the complainant did not vitiate the conclusive proof of penetration; that the appellant threatened the complainant not to disclose what had happened and, for that, she only spoke out in August 2020; and that the medical evidence confirmed penetration. 26.On the submission that crucial witnesses were not called, the respondent submitted that Section 143 of the Evidence Act provides that no particular number of witnesses are needed to proof any particular fact; and that this Court in Julius Kalewa Mutunga v Republic (2006) KECA 79 (KLR) held that the number of witnesses to be called by the prosecution was a matter within its discretion. The respondent agreed with the findings of the first appellate court that, since an explanation was tendered for non-attendance of (PW1’s aunt, an adverse inference could not be inferred against the prosecution, and urged us to find so. 27.In conclusion, the respondent contended that both the trial and the first appellate courts correctly applied the law, both substantive and procedural in their respective decisions, and that neither court erred in arriving at the conclusion that the prosecution proved its case beyond reasonable doubt. It was urged that the appeal is unmerited, and that we should accordingly dismiss it. 28.This is a second appeal and, by dint of Section 362(1)(a) of the Criminal Procedure Code, this Court concerns itself with matters of law only, the issues of fact having been settled in the two courts below. The Court explained its approach in a second appeal as follows in Dzombo Mataza v Republic (2014) KECA 831 (KLR):“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 29.We have carefully considered the record of appeal, the written submissions, the authorities cited by both parties and the law. The issues that fall for our determination are: whether the prosecution proved its case beyond reasonable doubt; whether the contradictions and inconsistencies in the prosecution’s case were fatal to its case; whether the prosecution failed to call crucial witnesses; whether the first appellate court re–evaluated the evidence as required; and whether the appellant’s defence was considered. 30.We shall consider the first and second issues simultaneously, namely whether the prosecution proved its case beyond reasonable doubt; and whether the contradictions and inconsistencies in the prosecution’s case were fatal to its case as they are intertwined. 31.The appellant was convicted and sentenced under Section 8(1) as read with Section 8(2) of the Sexual Offences Act Cap 63 A which provide that:“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life." 32.In order to secure a conviction of defilement, the prosecution must prove saliently, the age of the victim, penetration whether partial or full, and the identity of the perpetrator. This was aptly stated by this Court in the case of John Mutua Munyoki v Republic (2017) KECA 376 (KLR) by this Court as follows:“For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: -i.The victim must be a minor.ii.There must be penetration of the genital organ by the accused, and such penetration need not be complete or absolute. The partial penetration will suffice.” 33.It is also trite law that the uncorroborated evidence of the complainant in a sexual assault case is sufficient to convict an accused person as long as the trial court is satisfied that the victim is truthful. See: Section 124 of the Evidence Act. 34.At the outset, we wish to note that the issue of the age of the complainant, which for all intents and purposes is a matter of fact, is not contested. We need not delve into it save to observe that the Birth Certificate produced by (PW4 indicated that the complainant’s date of birth was 23rd May 2013. The offence having taken place in January 2020, it means that the complainant was then 6 years of age. 35.As regards the identification of the perpetrator, we take to mind that the offence took place during broad day light; and that there is no contestation that both the appellant and the complainant were together on the material date. The point of departure is the appellant’s assertion that, after he picked up the complainant from her mother, he did not detour, but instead rode directly to her home where he dropped her. 36.Although the incidence was disclosed by the complainant many months later, there is no evidence pointing to the fact that the complainant or her family could have framed the appellant. The complainant gave a candid account of how the appellant rode her on his boda boda to his house where he defiled her. The law, under the proviso to Section 124 of the Evidence Act, allows a court to convict an accused person based on uncorroborated testimony of a minor victim on a defilement case so long as it believes that the victim was telling the truth. In this case, just as the two courts below held, we too are of the view that the complainant told the truth, and that she had no reason to lie. Furthermore, her story was replicated by (PW2, her mother, as narrated to her by the complainant. We cannot therefore fault the two courts below for finding that the appellant was positively identified. 37.The appellant conceded that, on the material date, he picked the complainant from their home, took her to Aga Khan Hospital where (PW2 was waiting for them before returning her home after being treated. The appellant was not a stranger to the complainant. Noting that both the complainant and the appellant were acquaintances, his identification was by way of recognition, which is more assuring and satisfactory as was held by Madan, JA. in Anjononi & Others v The Republic [1980] KLR that:“……This, however, was 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 t9. he personal knowledge of the assailant in some form or other.” 38.Further, in Karaton Ole Lesarau v Republic (1988) KECA 94 (KLR), this Court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. The appellant was not a stranger to the complainant and her mother (PW2. He was their regular rider whenever they needed transportation of any kind. And, indeed, the complainant did call out the name of the appellant in court when she testified:‘‘Sam is in court (points at accused). He is the 2nd one (positively identifies the accused). He would carry me and mum or me alone.’’ 39.As to the fact of penetration, the same is tied to the alleged contradictions from the testimonies of the complainant and(PW4. According to the appellant, the complainant testified in her examination in chief that she still had her pants on at the alleged time of defilement, and that it was therefore not plausible to penetrate her with her pants on. Regarding what transpired before the defilement, the testimony of the complainant was as follows:“I was wearing a dress and biker. He had clothes on. He had a shirt, sweater and a trouser. After telling me to lie down he told me to remove my clothes. I removed the clothes. I removed the dress. I removed the biker. He removed his sweater, shirt and trouser and remained with a vest and boxer… He then told me to wear my clothes and go home.’’In cross examination, she stated:“He told me to lie down and he lay on me. I was looking up. I was not wearing clothes. I had my pant on. He lay on top of me. He was not wearing clothes. He had a boxer and a vest. He removed his boxer.’’ 40.As for (PW4, the investigating officer, he testified as follows: -“He made her lie on a seat and removed her clothes. He removed his pants halfway. The girl said her pant was removed halfway and they had sexual intercourse.’’ 41.From the above excerpt, it is factual that there were contradictions in the testimonies of the complainant and (PW4 on whether or not (PW2 had pants on when the incident was taking place. Contradictions are not a novel thing in criminal trials. In Joseph Maina Mwangi v Republic (2000) KECA 282 (KLR), this Court held that:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz, whether such discrepancies are so fundamental as to cause prejudice to the appellant, or they are inconsequential to the conviction and sentence.” 42.In Asiago v Republic (2026) KECA 773 (KLR), this Court held that:“The approach in appreciating evidence is whether the evidence of the witnesses read as a whole, appears to have a ring of truth. Once that impression is formed, the Court should scrutinize the evidence keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether they are against the general tenor of the evidence given and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hyper- technical approach by taking sentences torn out of context here or there from the evidence, or attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. (See - Supreme Court of India in State of U.P. v M.K. Anthony; Criminal Appeal No. 19 of 1976.)’’ 43.First, we observe that the incident happened in the month of January 2010, but the complainant disclosed what took place months later. What was vivid in her mind was that she was subjected to sexual intercourse against her will. Secondly, the complainant was only 6 years old as at the time of the offence and 7 years old when she testified. It is not plausible to expect that, with her tender age, she would have given a perfect account on what transpired. It is natural that memory may fade, but that does not mean that it ousts the fact that there was a picture in her mind of what took place, although not vividly said, was aptly described. 44.What then is critical is whether these contradictions go to the root of the case. We think not, and agree with the learned Judge’s finding that:“Having considered the nature of the said contradictions, inconsistencies and/or discrepancies, it is my finding that they do not go to the root of the case herein. In any event, in cross examination, complainant was categorical that the appellant removed his boxer and that he put his private part in her private part and did something that made her feel pain. She asserted in her evidence that he forced his private part into her private part. Noting that the complainant was only 6 years old at the time she was defiled I am of the considered view that failure to state if she removed her pant or if it was removed by the appellant would not weaken her evidence that the appellant penetrated her private part. It is my finding therefore that the contradictions, inconsistencies and/or discrepancies on record are not massive to the extent that they would vitiate the evidence tendered by complainant and (PW4.’’ 45.The medical reports confirmed that the complainant had a broken hymen. This is proof that penetration occurred. A consideration of the totality of the prosecution’s case leads us to conclude that the contradictions and inconsistencies were inconsequential to the conviction, and that they did not also occasion any prejudice to the appellant. We find that the prosecution proved the element of penetration as well beyond reasonable doubt. 46.On whether the prosecution failed to call crucial witnesses, we hold, just as did the learned Judge, that the number of witnesses called in proof of a case is a matter of the prosecution’s discretion, and that an appellate court will not interfere with that discretion unless it is shown that the prosecution was influenced by some oblique motive as was held by this Court in Julius Kalewa Mutunga v Republic (2006) eKLR. Further, Section 143 of the Evidence Act provides that no particular number of witnesses are needed to proof any particular fact. All that the prosecution is required to do is call such number of witnesses as are sufficient to prove its case. 47.It is also settled law that failure to call a crucial witness can invite adverse inference if the evidence of the witness would have added value to the prosecution’s case. In Kamau v Republic [2024] KECA 314 (KLR), this Court rendered itself thus:“33.This leads to the next question as to whether there was a failure to call some key witnesses and whether such failure was fatal to the prosecution case. For starters, we are cognizant, and like the trial court, appreciate that under section 143 of the Evidence Act, no particular number of witnesses is required to prove any fact. Further, we also appreciate that the prosecution is only required to call the witnesses who are sufficient to prove a fact and no more; and, that the discretion to decide which witnesses to call remains with the prosecution. We therefore associate ourselves with the holding in Julius Kalewa Mutunga v Republic [2006] eKLR that: “As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive – see Oloro s/o Daitayi & others v R. [1950] 23 EACA 493.”34.Having stated the foregoing, we add that adverse inference will only be drawn by the court if the evidence tendered by the prosecution is barely adequate to establish a fact in issue beyond reasonable doubt. If, however, the evidence adduced by the called witnesses is sufficient to prove a fact in issue, adverse inference will not be drawn by the court.” 48.In the same vein, this Court in Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), while referring to the oft cited case of Bukenya & others v Uganda (1972) EA, 549, stated:“The appellant took issue with the fact that one Violet, who (PW2 mentioned in her evidence as having happened by when the appellant was with (PW2 was not called as a witness. In Bukenya & Others v Uganda 91972) EA, 549, the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case; and that where essential witnesses are available but are not called, the court is entitled to draw the inference that if their evidence had been called, it would have been adverse to the prosecution case.” 49.In the Bukenya Case (ibid), the Court summarised the requirement for availing necessary witnesses as follows:“i.The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.ii.The Court has the right, and duty to call any person whose evidence appears essential to the just decision of the case.ii.Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.” 50.In the instant case, the prosecution, through (PW4, indicated that the complainant’s aunt was pregnant and that that is why she was unable to testify. We also agree with the learned Judge that the testimony of Mitchel, (PW2’s househelp and aunt to (PW1, would not have added value to the prosecution’s case because it was difficult for her to discover the sexual assault as she never used to bathe her. We thus conclude that failure to call either the aunt to (PW1 or Mitchel did not vitiate the prosecution’s case, and neither did it prejudice the appellant. 51.The last two issues for determination on whether the first appellate court re-evaluated the evidence as required, and whether the appellant’s defence was considered will be dealt with jointly. Prior to addressing herself on the issues in the first appeal, the learned Judge reminded herself of the role of a first appellate court, that it is called upon to re-evaluate the evidence on record afresh. Indeed, the learned Judge went to great lengths to restate the prosecution witnesses’ evidence from paragraphs 5 to 21 of her judgement and, at paragraphs 22 to 24, she reiterated the appellant’s testimony. It is not therefore factual that the learned Judge did not reconsider afresh the evidence adduced before the trial court. 52.As to whether the appellant’s defence was considered, the learned Judge had this to say:“59.In light of the evidence tendered against the appellant, his defence was displaced and cannot be truthful. It is therefore disregarded as such. In the result, it is my finding that the appellant was convicted on sound evidence. I hereby uphold his conviction.’’ 53.We therefore reject the appellant’s argument that his defence was not considered. We then find and hold that the prosecution proved its case beyond reasonable doubt that the appellant defiled the complainant, and we accordingly uphold his conviction. 54.In view of our foregoing discourse, we arrive at the inescapable conclusion that this appeal is unmeritorious and the same is hereby dismissed. Accordingly, we uphold the Judgment of the High Court at Mombasa delivered by Njoki Mwangi, J. on 19th April 2024 in Criminal Appeal No. E046 of 2021.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A. K. MURGOR*JUDGE OF APPEAL.....................................DR. K. I. LAIBUTA CArb, FCIArb.JUDGE OF APPEAL.....................................G. W. NGENYE-MACHARIAJUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR