https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8960

Kiio v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 8960 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 8960 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E060 of 2024 DKN Magare, J June 22, 2026 Between Wilson Mwetha Kiio Appellant and Republic Respondent (Being an appeal from the Judgment of Hon. S.K. Nyaga, (Senior Resident Magistrate) in Kenol PMCSO No. E006 of 2023) Judgment 1.This appeal arises from the Judgment of Hon. S.K. Nyaga, (Senior Resident Magistrate) in Kenol PMCSO No. E006 of 2023. The Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. 2.The particulars of the offence were that on 7.2.2023 at [Particulars Withheld], Kirimiri Murang’a South sub-county within Murang’a County, the Appellant intentionally and unlawfully pulled the right breast of PKM, a child aged 17 years. 3.The Appellant was arraigned on 22.2.2023 and he denied the charges. A plea of not guilty was consequently recorded. The trial court considered the case and rendered judgment. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to 10 years imprisonment. 4.The Appellant, aggrieved, lodged this appeal. The petition raised the following grounds:a.That, the learned trial magistrate erred in both law and facts to convict and sentence the appellant by failing to observe that the evidence on record was received from a single source, family members, on identification creating doubt as to the guilty of the appellant for an offence under Section 1f (1) of the Sexual offences Act.b.That, the trial court magistrate erred in matters of law and facts to find that the prosecution's case had been proven, whereas the evidence on record demonstrates the appellant's innocence.c.That, the trial court magistrate erred in law and facts to convict and sentence the appellant despite the plausible defence, thereby shifting the burden of proof contrary to the law.d.That, the trial magistrate erred in both law and facts by convicting and sentencing the appellant to 10 years imprisonment based on Section 11(l) of the Sexual Offences Act whereas the evidence on record is consistent with the appellant's acquittal for the offence. Evidence 5.At trial, PW1 was the minor. She was 17 years. She was in form 4. She had seen the Appellant more than once. On 7.2.2023, she left school and met Hellen outside the school canteen. The school was [Particulars Withheld] School. As they walked along the road, they met the Appellant. The Appellant threatened to remove her clothes. He held her breast and pulled until her blouse tore. Her mother came and they found the Appellant drinking at a den. They reported the matter to police and also went to Makuyu hospital. On cross examination, she stated that the Appellant told her he had permission to touch her breast. She borrowed a mobile and called her mother who came. 6.PW2 was Hellen Kanini. She was with PW1 on the material day. The Appellant grabbed PW1 and her blouse buttons tore. He touched her breasts and said that “hii matiti ni yangu”. On cross examination, she was with PW1 on the road. He touched PW1’s right breast. 7.PW3 was VN. She was PW1’s mother. PKM, called her using a neighbor’s phone. She went. PW1 told her a man damaged her clothes. She was crying. The man touched her by force. The breast was exposed as the blouse was torn. They found the appellant drinking. 8.PW4 was Erick Kyalo. He heard screams and went to see what was happening. He saw the Appellant and PW1 chasing each other. PW1 was screaming. On cross examination, he stated that the Appellant held PW1’s blouse. There were no other people except the Appellant, PW1 and PW2. 9.PW5 was George Mwangi Maina. He was the clinical officer. He treated PW1 on 21.5.2023. There were no injuries. The private parts were normal. The hymen was broken. She was pregnant. He produced PRC form and P3 form. On cross examination, there was no proof of touching the breast. 10.PW6 was Cpl. Josephine Mungai. She was the investigating officer. She reviewed the medical evidence and the testimony of PW1 and her mother. She had reason to believe the Appellant was culpable hence the charges. She arrested the Appellant after 2 weeks. 11.The Appellant also testified on oath as DW1. He testified that on the material day, indeed, he met PW1 and PW2. He had been in a relationship with PW2 for one month. PW1 insulted him and he slapped her. They threatened to maliciously implicate him with sexual offence. Submissions 12.The Appellant herein filed submissions dated 18.3.2025. It was submitted that there were amended grounds of appeal under section 350 (2)(v) of the Criminal Procedure Code. 13.He also submitted that the prosecution failed to prove the ingredients of the charge of defilement. He submitted that the prosecution's evidence on record has not proved to be authentic and free from error, manipulation or exaggerations and not credible to found a conviction. He submitted that the evidence that stands the test of time and fact is that of the appellant. This because in his defence, he denied touching or pulling the breast of the alleged victim instead confessed to assaulting her. A confession in itself which is sufficient to found an offence under Section 251 of the Penal Code, not under Section 11 of the Sexual offences Act. 14.The appellant quoted page 21 of the record where his evidence was that:“PW2 had asked me to help raise her child. She told me she is no longer interested in a relationship with me. PWI started insulting me who wanted to beat me. I slapped the PW1 and went to PW2 to call her mother. I sat to near a club. The mother of PWl, PWI and PW2 came there. They had carried sticks. They assaulted me. The injuries are still there. They threatened to maliciously implicate me with an SO case. The sticks made the blouse get torn. 15.The appellant submitted to the court to note that the prosecution failed to call IP Rono and the arresting officer, Cpl. Abdi Alao who had more facts on the matter including the failure by PW6, to make available evidence on the first report, search and arrest of the appellant. 16.He cited among others Rechi J in Republic v Remmy Wanyonyi Wanjoki HCRRA No. 53 of 2019. Based on the said authorities, he submitted that penetration, identification and age were not proved. It was also submitted that the court erred in relying on single identifying witness. He cited among others, Maitanyi v Republic [1986] KECA 39 (KLR). 17.Further, that the court erred in not stating reasons in the judgmnt. He cited section 169(1) of the Criminal Procedure Code. The said section provides as follows:(1)Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.(2)In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code (Cap. 63) or other law under which, the accused person is convicted, and the punishment to which he is sentenced.(3)In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty. 18.On sentence, he submitted that the sentence was contrary to Article 25 (c), 29 of the constitution. He also relied on Oprodi Peter Omukanga v Republic ([2023] KECA 430 KLR. 19.The Respondent filed submissions on 17.2.2026. It was submitted that age, penetration and identification were corroborated and proved beyond reasonable doubt. They cited among others Charles Wamukoya Karani v Republic Criminal Appeal No. 72 of 2013. Reliance was also placed on section 124 of the Evidence Act to support corroboration. It was unclear which offence they were dealing with. It was submitted that the defense was considered and was a general denial. 20.On sentence, sentence was submitted to have been according to section 8(2) of the Sexual Offences Act, and proper. They cited among others Evans Wanjala Wanyonyi v Republic (2019) eKLR to submit that sentence was proper. Analysis 21.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. 22.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. 23.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. 24.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. 25.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. 26.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. 27.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. 28.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. 29.Indecent act under Section 2 of the Sexual Offences Act No. 3 of 2006 is defined as follows:“Indecent act" means any unlawful intentional act which causes(a)Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;(b)Exposure or display of any pornographic material to any person against his or her will; 30.A court dealing with a first appeal is entitled to consider the evidence in the trial court as a whole as being submitted afresh 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:-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.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. 31.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 32.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.’ 33.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. 34.At trial, PW1 and PW2 testified that the Appellant tore the blouse of PW1 when he pulled her. He also touched her right breast. This evidence was not corroborated by medical evidence. The prosecution was under duty to prove the case beyond reasonable doubt. The Appellant’s case was that he slapped PW1. 35.In this case, age and identification were proved. However, there is an issue as to whether this was a proper case of indecent assault. It was in doubt whether the Appellant pulled the breast of PW1 as stated in the charge sheet. The prosecution was expected to prove indecent act. An indecent act was an act that was sexual in nature. That is why it was usually an alternative charge with other sexual offences like defilement or rape. There ought to have been established contact between the Appellant’s hand and PW1’s right breast not as an act of common assault but an indecent act with a minor. This was not proved.1.The Appellant had to serve the sentence of 10 years only if indecent act with the minor was proved. None was proved in this case. The defence by the Appellant was credible. He admitted to being at the scene of the crime and meeting PW1 and PW2. He however denied the offence of indecent act with a minor. He admitted to slapping PW1 following an altercation. This was not a sexual set up. The charges were far-fetched and there was no reason to convict the Appellant. I am unable to find reason to sustain the conviction. 37.The Defence raised by the Appellant was credible and remained unshaken. 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, acquit the appellant, set aside the sentence and order that the Appellant be and is hereby set free unless lawfully held. Determination 38.I make the following final orders:a.This appeal succeeds. The conviction is quashed. The sentence is set aside and the Appellant is hereby set free unless lawfully held.b.The appellant 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 22ND DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Vincent Maina for the ODPPAppellant presentMr. James Kinuthia at Manyani MainCourt Assistant – Martin