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Waweru v Republic (Criminal Appeal E079 of 2025) [2026] KEHC 8481 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 8481 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E079 of 2025 DKN Magare, J May 6, 2026 Between Ian Gachira Waweru Appellant and Republic Respondent Judgment 1.This Appeal arises from the Judgement of the Trial Court, Hon. D. K Matutu, Principal Magistrate in Mûkûrwe’inî PMCSO No. E009 of 2023. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 12.6.2023 at around 2100hrs at [Particulars Withheld] of Mûkûrwe’inî subcounty within Nyeri County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AWN, a child aged 14 years. 2.There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that on 12.6.2023 at around 2100 hours at [Particulars Withheld] of Mûkûrwe’inî subcounty within Nyeri County, the Appellant intentionally and unlawfully Touched the vagina of AWN, a child aged 14 years, with his penis. 3.The Appellant was arraigned and he denied the charges. A plea of not guilty was consequently recorded. The Trial Court considered the case and rendered the Judgement. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to 15 years imprisonment. The Appellant, aggrieved, lodged this Appeal. The Petition of Appeal dated 18.11.2025 raised the following Grounds:a.The learned trial magistrate erred in failing to appreciate that the elements of the offence of defilement were not proved beyond reasonable doubt, that is penetration and identification of the perpetrator.b.The learned trial magistrate erred in law and fact in failing to find that there was framing up of the case against the Appellant.c.The learned trial magistrate erred in law in failing to consider that medical evidence did not link him up to the offence.d.The learned trial magistrate erred in law and prosecution evidence was marred with contradictions and was uncorroborated.e.The learned trial magistrate erred in law in not considering the defence by the Appellant which displaced the prosecution’s case. Evidence 4.At the trial, PW1, a minor, testified that she was born on 18.6.2008. She was a Form Two student at XXXI Secondary School. On 11.6.2023 at about 8.00 a.m., she attended church at Nduma. Thereafter, she proceeded to XXXI Primary School to watch a football match where she met her friend, AWZ. While there, the Appellant arrived riding a motorcycle. PW1 requested him to take her home, but he declined and instead proposed that he take her to his house. PW1 and AWZ accompanied him to his residence, arriving at about 7.00 p.m. 5.PW1 testified that the Appellant’s house contained a bed and a three-seater sofa set. The Appellant brought rice and potatoes, which they ate for supper. At about 9.00 p.m., they retired to bed. AWZ slept in the middle, while PW1 slept at the edge of the bed. The following morning at about 6.00 a.m., PW1 left for her home. Upon her arrival, her mother questioned her whereabouts. PW1 informed her that she had been at MBI’s place. Her mother then beat her, prompting PW1 to run away and return to the Appellant’s house, where AWZ had remained. 6.PW1 stated that upon returning to the Appellant’s house, she found that he was absent as he had gone to work as a boda boda rider. He returned at about 8.00 p.m. That night, the three of them slept on the same bed, with the Appellant lying between PW1 and AWZ. According to PW1, the Appellant asked her to have sexual intercourse with him, but she refused. He then turned to AWZ and had sexual intercourse with her. Thereafter, he touched PW1’s breasts, removed her T-shirt, bra and panty, and pulled up her skirt to her waist. PW1 testified that the Appellant then had sexual intercourse with her while AWZ sat on a seat in the room. 7.The following morning at about 8.00 a.m., PW1 and AWZ left for their homes in Nduma. On the way, they met AWZ’s mother. PW1 testified that she was subsequently arrested and taken to the Children’s Office before being escorted to hospital for examination. She stated that she did not know whether AWZ had a separate case arising from the incident. 8.On cross examination, it was her case that she slept with the Appellant. She did not know any person called Rasta and she was not with any such person. She did not know where the Appellant’s parents were. 9.PW2 was NNM, the complainant's mother. She testified that PW1 was born on 18.06.2008. She stated that on 11.06.2023, she attended church at about 8.30 a.m. While PW1 attended a different church. PW1 was expected to return home later that day but failed to do so. She stated that PW1 returned home the following day at about 6.00 a.m. Upon inquiry, PW1 informed her that she had spent the night at a friend's house. PW2 reprimanded and beat her. Thereafter, PW1 left home again and could not be traced. PW2 initially believed that PW1 had gone to school. However, she later received a call from the school secretary informing her that PW1 had not reported to school. 10.PW2 further testified that on the following Wednesday, the school principal contacted her and requested that she attend a meeting. She also received a call from a Children's Officer who informed her that PW1 was with them. PW2 stated that PW1 subsequently disclosed to her that she had spent time at the Appellant's house and that the Appellant had engaged in sexual intercourse with her. 11.PW3 was ANX, the mother of ANZ. She testified that on 11.6.2023, she attended church together with PW1 and her daughter, ANZ. At about 5.30 p.m., PW1 and ANZ informed her that they were leaving for home. PW3 later discovered that neither of the two girls had returned home. Efforts to trace them were unsuccessful. She testified that the girls were eventually found on 11.6.2023. Following their recovery, they were taken to Mûkûrwe’inî Police Station, where the matter was reported and investigations commenced. 12.PW4 was Simon Kungu Mwaniki, a Clinical Officer attached to Mûkûrwe’inî Sub-County Hospital. He testified that he examined the complainant on 13.06.2023 and produced the P3 Form and Post Rape Care (PRC) Form, both dated 13.06.2023. 13.According to PW4, upon examination, the complainant had no lacerations on the vagina. He noted that the hymen was old and broken. Laboratory findings did not reveal the presence of spermatozoa. However, pus cells were detected, and the complainant was diagnosed with a urinary tract infection (UTI). 14.The witness produced the P3 Form and PRC Form as exhibits and confirmed the findings contained therein. 15.PW6 was No. 10xxxx PC Elizabeth Mwikali, attached to Mûkûrwe’inî Police Station. She was the investigating officer in the case. She testified that on 13 June 2023, while on duty at the Gender Desk, she was assigned to investigate a complaint involving two minors, PW1 and ANZ. According to her, the two girls had left their homes and were later traced. Upon interviewing them, they disclosed that they had been defiled by the Appellant. Following investigations, PW6 established that the Appellant was the prime suspect. Consequently, he was arrested and charged with the present offence. 16.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. 17.The Appellant testified on oath as DW1. He denied the charge and stated that the allegations against him were false. He testified that he carried PW1 on his boda boda motorcycle while she was in the company of another boy. After dropping them off, he went about his normal activities. Three days later, he learnt that PW1 had been arrested, although he did not know the circumstances surrounding her arrest. He was thereafter arrested and charged. 18.On cross-examination, the Appellant stated that he had carried two girls and a boy on his motorcycle. He identified the boy as Duncan. He testified that he dropped them along the road near his home and denied that they ever spent the night at his house. He further stated that PW1 lived approximately three kilometers from his residence. He knew PW1 before the incident and occasionally transported her father on his boda boda motorcycle. 19.DW2 was Agnes Gachiri, the Appellant’s mother. She testified that on 11.06.2023, the Appellant left home in the morning to attend to his boda boda business and returned at about 9.00 p.m. She stated that his house was situated next to her own house and that she did not see PW1, ANZ, or any other girls at his residence on that day. According to her, the Appellant’s house was attached to her house, and had the girls been there, she would have noticed their presence. 20.The appellant submissions forwarded on 09.02.2026. he Submitted that his case was that he carried PW1 on his boda boda motorcycle while she was in the company of another boy. After dropping them off, he went about his normal activities. she submitted that the mother, who had a house adjacent to his did not hear the girls being there. he submitted that the complainant had stated that she was at MBI’s and she went back to GLA when she was beaten. further that she did not testify on any defilement on the said date. she alleged to have hidden her bag in the nappier grass. 21.He submitted that the complainant was not truthful, hence section 124 of the Evidence Act does not apply to her. He relied without saying so, on the rule of falsus in no falsus in omnibus. He further submitted that the complainant was examined a few hours later but the finding was that the hymen was broken not fresh. Reliance was placed on the decision of this court in Nyaguthii v Republic [2024] KEHC 4973 (KLR), where the court, Kizito J, posited as follows:47.Once witness are lying on basic things, the court is entitled to make a negative inference. A lying witness is totality useless. The complainant contradicted his father and the clinical officer on crucial issues. 22.The appellant submitted that the complainant lied that she was defiled on 13.06.2023, when the medical evidence showed otherwise. Further she stated that she was at MBI’s place and wanted to stay with GLA. She lied to the mother where she was the previous day. Further that she hid her bag in the nappier grass so as to trick everyone concerned consequently, he could noy benefit from section 124 of the evidence act. Reliance was placed on the case of Njoroge v Republic [2024] KEHC 8615 (KLR), where Kizito J, held as follows:43.In this case a very critical witness was not called. Both the defence evidence and the prosecution are compelling. The evidence of the minor is not believable in view of the promise she was given. This means Section 124 of the Evidence Act comes into pay.44.There was no evidence to corroborate the minor’s evidence. The court could not have reasons to believe or disbelieve her. When evidence is neither reliable nor not believable the benefit of doubt goes to the appellant. The nature of the harm done to the minor did not reflect adult penetration. There was no evidence that the appellant had a micro-mini penis to explain the change from a penis to finger. 23.He submitted that the case was made out of pure malice by PW1He is God fearing, did not defile and was not aware of the defilement the complainant framed him to save her skin for the fear of her mother. He recalled that he once carried the minor with a buy and another but cannot remember when it was. They submitted that the prosecution failed to call ANZ who was allegedly with the complaint. He submitted that there was no eye witness who saw the appellant take the minor to his hose. This was not true since PW1 was with ANZ. 24.He invited the court to note that sexual offences are used to settle scores real or imaginary or notably for extortion. reliance was placed on the case of Wambui v Republic [2019] KECA 906 (KLR), where the court of appeal [RN Nambuye, DK Musinga & PO Kiage, JJA]posited as follows:During cross examination PW2 stated that the Kshs 80,000 “was to take care of the education expenses” he had used on the complainant and not dowry, but the critical point is the admission that had it been paid the matter would have rested. The picture that emerges is of a father righteously indignant that his daughter has been seduced and put in the family way, and who would have the culprit prosecuted unless he would pay some kind of compensation. This, too, raises questions as to whether the prosecution was for the proper purpose of enforcing the law or settling a score. At any rate, the effect is to whittle the reprobate value of the father’s evidence and to lend credence to the appellants contention that both the father and chief did know that the girl was of age. The evidence of PW2, properly evaluated, would have been in the category of what this court described in Ndungu Kimanyi v Republic[1979] KLR 282;"The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unrealiable witness which makes it unsafe to accept his evidence.”33.This now brings us to the last issue, which is the appellant’s defence that he believed that the complainant was over 18 years old. He maintained that he had a relationship with her and that she was of a marriageable disposition. When she got pregnant she came to his house and in fact the investigating officer found her with the appellant’s wife. The complainant knew that he was married and she was prepared to be his second wife. 25.He submitted that ANZ was not called. They alleged that it was N=ANZ who was defiled but the court went ahead and convicted. He submitted that suspicion cannot be a ground for conviction. Reliance was placed on the case of Sawe v Republic [2003] KECA 182 (KLR), where the court of appeal posited as follows:We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt. 26.On ground 2 he submitted that the prosecution had to prove penile penetration, age and identity of the alleged perpetrator. Reliance was placed on the cases of Fappyton Mutuku Ngui v Republic [2014] KECA 570 (KLR) and Fappyton Mutuku Ngui v Republic [2020] KEHC 10377 (KLR). He submitted that the evidence did not show penile penetration. He submitted that DNA analysis was not conducted. The evidence given was hearsay evidence. 27.The appellant submitted that he gave sworn evidence that he was framed. The court failed consider his defence. Reliance was placed on the case of Republic v David Ruo Nyambura & 4 others [2001] KEHC 826 (KLR), where A.G.A Etyang J, held as follows:“Since the well-known decision of Woolmington v Director of Public Prosecutions (1935) AC 462, it is well settled that, subject to the defence of insanity and to certain statutory exceptions which are not relevant to the present case, no burden rests upon an accused person to establish any defence. In the recent case of R v Johnson 46 CR APP R 55 the Court of Criminal Appeal dealt specifically with the burden of proof when a defence of an alibi is raised. The headnote of that case reads:-“Though an alibi is commonly called a defence, it is to be distinguished from a statutory defence such as insanity or diminished responsibility and is analogous to a defence such as self defence or provocation. A prisoner who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any burden as resting on the prisoner in such a case”.In Sekitoleko v Uganda (1967) EA 531 where the facts were that the appellant was charged with robbery. His defence was an alibi. The then Chief Justice of Uganda Sir Udo Udoma held that, as a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.The same principle of law was again restated by Sir Udo Udoma in Ssentale v Uganda (1968) EA 365 where he held that an accused person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer. 28.He expressed his confidence in getting justice form the spreoius courts. He posited that the burden of proof was placed on his tiny shoulders, contrary to the law. The court was also enjoined to look at the evidence as a whole reliance was placed on the case of Bukenya &nOthers v. Uganda [1972] EA 549. 29.The court was invited to allow the appeal after revieing the evidence in terms of the endroits Classique, Pandya -vs- Republic [1957] EA 336 and Okeno v Republic [1972] EA 32 at 36 Analysis 30.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." 31.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." 32.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. 33.Brennan J addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 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. 34.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. 35.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. 36.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. 37.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 carries a lifelong stigma and can only be justified based on indisputable evidence. 38.This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:-“1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.2.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; 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." 39.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 40.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.’” 41.The parameters that were to be proved in cases such like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 42.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 43.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 44.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 45.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, in Malindi Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim." 46.Consequently, age herein was proved by the production of the Birth Certificate. The birth certificate stated that PW1 was born on 18.6.2008 and so was 14 years old. I have no reason to doubt the birth certificate was chis registered on 31.7.2008 and issued on 13.3.2008. The age of the complaint was not seriously contested. The contest was on the other two elements, that is, penetration and identity of the perpetrator. The other was the consideration of the defence evidence. 47.The question of identification of the perpetrator and defence evidence will be dealt together. PW1, testified that she knew the Appellant as a boda boda rider. 48.This was also the Appellant’s position. She further testified that the Appellant took her together with ANZ to his house. He rode them on his motorcycle from XXXI Primary School where that had gone to watch football after church. On 11.6.2023 when he took them, they slept on his bed with him but there was no sex. However, when she returned home on 12.6.2023 and her mother beat her, she ran back to the Accused. She had left ANZ at the Appellant’s house. She joined ANZ. The Appellant came back at 9pm. This time, he had sex with ANZ and also had sex with PW1 this night. The said ANZ was a compellable witness but was never called to testify or record a witness statement. 49.The Appellant case was largely that although he carried PW1, another girl and a boy called Duncan on the material day, he did not take the two girls to his house. He dropped them with the boy known as Duncan at the road near his house and did not know what transpired that led to PW1 being taken to the police station. 50.All through the trial, the prosecution was duty bound to prove the case against the Appellant beyond reasonable doubt. PW1’s testimony that on the first day, 11.6.2023, the Appellant brought potatoes and rice and they ate. On 12.6.2023. there was no mention of having eaten any food. It was also note stated how ANZ remained in the Appellant’s house on 12.6.2023 without any attention to DW2 whose house was attached to the Appellant’s. PW1’s case was than the Appellant came back from his boda boda business at 800 pm and they slept. There was an inconsistency that ought to have been interpreted in favour of the Appellant. 51.The story put forth by the Appellant and supported by his mother DW2 in his defence was reasonable. It was their consistent case that the Appellant could leave in the morning and come back later in the evening. He was a boda boda rider. On 11.6.2023, the Appellant dropped the two girls with another boy. DW1 testified that she could place food in the Appellant’s house. The Appellant clearly stayed alone but his house was attached to DW2’s house. PW4, the investigating officer did not bother to visit the house of the Appellant and substantiate the description of the house that PW1 had given. 52.Criminal liability, must be founded on cogent, credible, and free material. Contradictions and inconsistencies unless explained, may cause the evidence to be rejected. In the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:“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." 53.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." 54.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. 55.The other aspect was that there was a witness who allegedly slept with the complainant. She was sleeping n the middle. Ipso facto, if they even slept together, penetration could not have occurred on pw1. It only could have been to ANZ. She was present when the offence was occurring. She was thus a crucial witness. Her presence in the locus in quo removes section 124 of the Evidence Act. It 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. 56.For section 124 to be used the following must happen:i.The complainant must be recorded and reasons given that she telling the truth.ii.it must be a sexual offenceiii.the witness is a sole witness 57.That is why the truth should always be recorded and reasons for so believing. All the three conditions must be present for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs- Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows:“Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” 58.The trial court noted that she believed PW1 to be saying the truth. Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up for 20 years in prison even though 15 years was given. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 59.This was a sexual offence when the first condition was met. However, the second and third conditions were not met. The victim was not the only witness. There was medical evidence and there was circumstantial evidence that could be produced. In the absence of the production of circumstantial evidence available, then the court was wrong. Thirdly, and more crucially, there was no evidence and reasons recorded for believing the Complainant to be saying the truth. The clinical officer did not testify whether or not there was penetration. There was not evidence of partial penetration. Looked at together with the medical records produced, it is that there was no evidence of penetration at all. PW1 was taken to the hospital the following day, within 24 hours. It is not possible to have pus cells result from intercourse on the same day. Either, the observation of pus cells were not recorded in the P3 or PRC but emerged in the testimony without justifying the observation. 60.In the matter before the court, PW1 was allegedly with ANZ. Therefore, she is not the sole witness. Secondly, her evidence is contradictory. The medical evidence is at variance with her evidence. Lastly, the matter involves a sexual offence. this is the only limb that was shown to exist. all the three limbs must coexist. In the circumstances, the complainant, having lied to the matter, and lied on her whereabouts, her evidence being contradictory, cannot benefit form section 124 of the evidence act. Her evidence needed to be corroborated. 61.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.” 62.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 and 2 other v R (2009) eKLR the Court stated:“The law, as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case, even though some of those witnesses’ evidence may be adverse to the prosecution'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.” 63.The foregoing had earlier been dealt with in the case of Keter v Republic [2007] 1 EA 135, 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.” 64.In the circumstances, failure to call ABZ, who was allegedly present when the defilement was occurring 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. 65.The court dismissed the appellant’s defence off hand. This was not the correct position to take. He had no duty to help the prosecution prove its case. Once of the major misdirections relate to alibi. There is no requirement that an alibi be disclosed in advance. It used to be the case under section 307(2) of the Criminal Procedure Code. However, the said section was repealed by. section 307 before repeal read as follows:“307 (1)The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.(2)Notwithstanding the provisions of subsection (1), the accused person or his advocate shall not, without the leave of the court, the reasons for which shall be recorded, adduce alibi evidence unless details thereof, and the names and addresses of any witnesses in support thereof, were provided at the committal proceedings or in writing to the committal court and the prosecution within fourteen days thereafter. (the underlined part is now repealed) 66.The section was repealed by dint of section 87 of Act No. 5 of 2003. this therefore removed the need of an advance disclosure of one’s alibi. this is also in line with judicial precedent. As he had denied the charges, the Appellant remained innocent until proven otherwise guilty. In the case of Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the court of appeal [R.S.C. Omolo, E. O. O’Kubasu and J. W. Onyango Otieno] posited as follows:So, if at the beginning of the trial, the Constitution obliges everybody to assume that an accused person is innocent, what case is he to disclose in advance? Mr. Tobiko’s position appears to be that if the accused person chooses to give evidence and call witnesses then he ought to be able to disclose his case to the prosecution. That contention, however, ignores one basic distinction. The privileges, if we may so designate them, of the accused person are conferred on him by the Constitution. As soon as he is arrested, he shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. Nobody is ever likely to arrest the Republic of Kenya and charge it with a criminal offence so that it would require it to be informed of the nature of the offence against it. The question of reciprocity is, therefore, misplaced. …That approach by the learned Judge creates the dangerous theory that what is convenient and would expedite the disposal of a matter is lawful. The proposition ignores the fact that the rights of an accused person are considered to be so important that they are protected under section 77 of the Constitution. Against whom are those rights protected? The answer to the question must be obvious. The rights can only be protected against those who have the unlimited capacity and resources to deprive individual Kenyans of their life, liberty, security of the person, freedom of conscience, freedom of expression, of assembly and of association. We know who is capable of locking up individual Kenyans in the Nyayo House Dungeons. We know who is capable of telling Kenyans: “If you rattle a snake, you must be prepared to be bitten by it.” ….We would repeat these sentiments here to emphasize the point that the courts in the country in spite of their perceived previous failures, must now rigorously enforce and enforce against the state the fundamental rights and freedoms of the individual guaranteed by the Constitution. Those rights cannot and must not be allowed to be diluted by purported exercise of inherent powers by judicial officers allowing the state to claim reciprocal privileges. The state is the usual and obvious violator against whom protection is provided in the Constitution and it ought not to be allowed to claim the same privileges. We know the good Book says that in the end of times, the lion shall graze and lie peaceably together with the lamb. But our recent history is still too fresh in our mind and we in the courts must try to keep the lion away from the lamb. In other words, there is not and there can be no question of reciprocal rights, or a level playing field or any such theory as between an accused person and the state. No statute gives the state such privileges, and the Constitution, wisely in our view, does not give the prosecutors such powers.They cannot be given through the inherent power of the court. Even in civil matters, there is a specific provision in the Civil Procedure Act, Chapter 21 Laws of Kenya, recognizing the existence of the inherent power of the court:“to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” – see section 3A.There is no similar provision in the Criminal Procedure Code, Cap 75 Laws of Kenya and we think the omission is deliberate . But even if there was such a power with regard to criminal matters, we do not accept that a judge would be entitled to create non-existent rights and confer them upon a party as the learned Judge purported to do here. 67.I therefore find and hold that the court erred in disregarding the defence. Considering the defence. Circumstantial evidence was not irresistibly pointing to the guilt of the appellant. The presence of the mother, DW2 in the next room, made the appellant’s guilt coexist with his innocence. The circumstantial evidence does not lead to the appellant as the alleged perpetrator. 68.I proceed to established whether the act of penetration was proved to the required standard. The evidence of PW1 was clear that the Appellant removed her t-shirt, pant and lowered her skirt before having sex with her. This was not on the first night of 11.6.23023. It was on 12.6.2023 and ANZ was present seated on sofa. The Appellant started first with sex with Ann before he had sex with PW1. 69.The medical evidence was however that the hymen was old broken and there were no laceration or bruises on the vagina. There were no spermatozoa or injuries. The medical evidence did not support PW1’s version of evidence. Going by the medical report, there was no evidence of penetration. In 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 recognised 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.” 70.The identification was by recognition. However, the person identified also ought to have committed the offence. The Respondent had the obligation to extract the criminal element of the offence. That is why proof standard was beyond reasonable doubt. In this case there was reasonable doubt as to whether PW1 was in the house of the Appellant as alleged and whether the Appellant had sex with PW1 on 12.6.2023 at his house. This ought to have been interpreted in favour of the Appellant. I am fortified by the decision of this court in the case of Cleophas Otieno Wamunga v Republic [1989] eKLR the court stated as follows:-“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 71.The appellant maintained that he was framed. There was a key witnesses who was mentioned but had no horse in the race. Ann Wanjiru was said to be with the Appellant and PW1 on the same bed at night and the Appellant allegedly had sex with her before having sex with PW1 in her watch. This Ann was never called. The Respondent strained to place the Appellant on bed with Ann and PW1. The arresting person was PW5 who did not give a picture of the said bed or house or even an explanation how she arrested the Appellant. In the case of Awii V Republic [2025] KEHC 5626 (KLR), Wakiaga J, underscored the question of adverse inference as follows:33.I have also noted that one very important witness was not called to testify leading to an adverse inference that had he been called it would have adverse to the prosecution case this being John kilonzi who was on duty with the appellant and the complainant and whom the complainant first made a report to.34.In convicting the appellant, the trail court based the same on speculation which was not supported with evidence on record to wit that the accused had not envisaged that any other person would be within the compound whereas the evidence on record was that there was on going construction and that there were three guards on duty in the compound all the time. 72.The conviction herein was thus based on circumstantial and not direct evidence. The inculpable facts were not inconsistent with the innocence of the Appellant and co-existing circumstances weakened the chain of circumstances relied upon. The threshold as stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe v Republic [2003] KECA 182 (KLR), Sawe v Republic [Supra] (KLR), , the Court of Appeal [RO Kwach, AA Lakha & EO O'Kubasu, JJA]expressed that:“In order to justify on circumstantial evidence, 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. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused. 73.The court can only infer, that should they have testified, their evidence could have been adverse to the prosecution. 74.The case against the Appellant was based on suspicion that since he was a boda boda rider and had on the material day of 11.6.2023 carried PW1 on his motorcycle, then he was the offender. When faced with a case where there is bad blood, the prosecution had a duty to produced evidence and not suspicion. 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.” 75.I am unable to find reason to sustain the conviction. The prosecution failed to prove its case beyond reasonable doubt. There was no evidence of penetration. Medical evidence was actually exculpatory. The court was plainly wrong in convicting the Appellant. Having found that the Appellant ought to have been acquitted in the first place, I find no utility in venturing into the path of the sentence imposed. I set the Appellant free. My findings are that this appeal succeeds. I quash the conviction, set aside the sentence and order that the Appellant be and hereby set free unless lawfully held. Determination 76.I make the following final Orders:a.This Appeal succeeds on conviction and sentence. The conviction is quashed, the sentence is set aside and the Appellant be and hereby set free unless lawfully held.b.14 days right of appeal.c.the file is closed DELIVERED, DATED AND SIGNED AT NYERI THIS 6TH DAY OF MAY THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -State Counsel –Mr. KiharaCourt Assistant- MichaelAppellant present12