https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12183

Zakayo v Republic (Criminal Appeal E085 of 2024) [2026] KEHC 12183 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12183 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E085 of 2024 MW Mutuku, J July 31, 2026 Between Eric Kyalo Zakayo Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. Geno. Okwengu (SRM) in Kilungu MCSO No. E017 of 2023) Judgment 1.This is an appeal from the Judgment of the trial court, Hon. Geno Okwengu (SRM) in Kilungu MCSO No. E017 of 2023. 2.The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. 3.The particulars of the offence were that the appellant, on diverse dates in the month of November 2022 and March 2023 at Itumbule Sub Location in Mukaa Sub County within Makueni County, caused his penis to penetrate the vagina of M.M, a child aged 12 years. 4.The appellant further faces a second charge of deliberate transmission of HIV contrary to Section 26(1) (b) of the Sexual Offences Act No.3 of 2006. The particulars are that on diverse dates in the month of November 2022 and March 2023 at Itmbule Sub Location of Ngamba Location in Mukaa Sub- County within Makueni County, having actual knowledge that you were infected with HIV, you intentionally defiled M.M which you ought to have reasonably known was likely to lead to M.M being infected with HIV. 5.The appellant was convicted of the offence of defilement and was sentenced to 20 years' imprisonment for the charge of defilement, and 15 years on the second charge of deliberate transmission of HIV contrary to Section 26(1) (b) of the Sexual Offences Act No.3 of 2006. 6.The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:i)That I pleaded not guilty to the charges.ii).That the learned Magistrate erred in law and facts in in relying on suspicious and fictitious evidence of PW 1 as subjected to duress thus incriminating the appellant. In that there was a grudge between the appellant and complaint’s mother was promised to revenge.iii)That the learned Magistrate erred in law and facts in relying on hearsay evidence adduced by prosecution witnesses and failed to note that the charges against the appellant were borne out of malice and ill-will.iv)That the learned Magistrate erred in law and facts in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the appellant.v)That learned the trial magistrate failed to test the evidence of prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistent and evidence that was not water tight. The evidence tendered in summation was underwhelming and lacked probative values to justify a conviction.vi)That the trial magistrate erred in law and facts without observing that there was no substantive investigations by the investigating officer thereby basing the conviction on mere allegations and fabrication. No eye witness testimony that a person was seen fleeing from the scene of crime and no finger prints nor anything was found at the scene linking the appellant with the commission of the offence.vii)That the learned magistrate erred in law and facts by shifting the burden of proof to the appellant; in that it is trite law that an accused person should only be convicted on the strength of the prosecution evidence and not the weakness of his defence.viii)That the learned magistrate erred in law and facts by failing to find that the prosecution had not proved its case beyond reasonable doubt as required by law and also failed to scrutinize and evaluate the prosecution evidence and evaluate the prosecution evidence therefore arriving at erroneous decision.ix)That the sentence imposed/meted against the appellant was manifestly draconian, excessively punitive and unfairly oppressive based on the facts and circumstances of the alleged offence and contravened the provisions of Article 47 of the Constitution.x)That the learned magistrate erred in law and facts as he deliberately overlooked that the witnesses gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross examination of the defence counsel which was biased and in favour of the prosecution. 7.The appellant was arraigned in court on 28.03.2023, where he pleaded not guilty. 8.When the case commenced for hearing, the court carried out voire dire for the minor and found her to be intelligent enough to give sworn testimony and to understand the meaning of an oath. 9.M.M (PW 1), the victim minor told the court on oath that the appellant is her uncle, the brother to her mother. That she recalled that on diverse dates around the month of November 2022 and the month of March 2023, that she had been send to buy sugar. That the appellant called her to his house and pulled down her pant and then inserted his penis into her vagina. That the appellant defiled her several times when she was in class four, though she never told her anyone. The appellant went on to tell her that that was how Adam and Eve were created. 10.She later reported the matter to her mother, who in turn reported to the area chief. The victim was taken to hospital for treatment. She identified the appellant as her uncle. She was able to identify the P3 form, Treatment notes and the PRC Form duly issued at the hospital. 11.JMZ (PW2) is the mother to the complaint. Her evidence in court was that on 16th March 2023, at around 5 p.m, Niko went to her and informed her that M.M had been raped by her uncle in the bush. She reported the matter to the chief, who advised her to report the case to the police. The accused was arrested and the minor taken to the police station. It was at the hospital that the minor was advised to start taking medication, as she had been infected with HIV. PW 2 was not aware that the appellant was HIV positive. She became aware of this fact when the appellant got and the daughter got tested at the hospital, after the matter was reported to the police. 12.Nicholus Katua (PW 3) is a herder. He told the court that on 26th March 2023, he was going home at around 5 p.m. He heard some noises from the bush next to the appellant’s house. He was able to see the appellant caressing the complainant all over her body, and they proceeded to the house. He later reported what he had seen. 13.Erick Kisiami (PW 3) is clinical officer based at Kilungu Sub County Hospital.He produced a P3 form filled in respect of the victim, a girl aged 12 years. She gave history of having been sexually assaulted on 26th March 2023. Upon examination, he noted that she had a wound on the vagina and her hymen was broken. The victim had also been infected with HIV and UTI. The clinical officer also tested the appellant, Kyalo Zakayo and he was found to be HIV positive and also suffered from a sexually transmitted infection which he had infected the minor with. He produced a P3 Form filled in respect of the victim and P3 form filled in respect of the appellant. He further produced the birth certificate in respect of the victim, and the Post rape Care Form. 14.In cross examination, the medical officer stated that the hymen was perforated, but not fresh, and that the complainant’s blood and that of the appellant had tested positive for HIV. No spermatozoa was seen. The mother to the victim was also tested for HIV and her results tuned out negative. 15.No. 59809 P.C Simon Mwangangi was the investigating officer in this case. He confirmed that the case was reported art Salama Police Station, and he was assigned the same for investigations. He visited Maseu Village where he rearrested the accused from members of public who has arrested and tied him up. He escorted him to the police station and commenced investigations. 16.In the course of investigations, he recorded witness statements and escorted the victim to hospital. Medical examination revealed that she had been infected with HIV. The appellant was also tested and found to be HIV positive. The mother to the victim, was also tested and tested to be HIV negative. 17.Francis Kaluma is the area Chief. His evidence was that he was called on phone on 27th March 2023 by Josephine (PW 2), who informed her that her daughter had been defiled. He arrested the accused person and later took him to the police station. 18.Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony and called three witnesses in support of his case. 19.In his sworn statement, the appellant informed the court that on 27th March 2023, he woke up as usual and as he prepared to go to the farm, he was approached by the chief who stopped him who gave him some information and work. The chief later arrested him and demanded to know what he had had done. The appellant stated that he did not know, and that is when he was arrested and later arraigned in court and charged with the offences before this court. 20.Dorcas Zakayo is the mother to the appellant. Her evidence was that the charges against the appellant are false. That she had followed up and established that the person who reported the case is the appellant’s enemy, and that the charges are not true. Further that the victim stays far away from their home. 21.David Zakayo, (DW 3) is the brother to the appellant. He stated that he was not present when the alleged offence was committed. That however, he had followed up on the offence and had established that the allegations were false. 22.Isaac Muuo Wambua ( DW 4), in defence of the accused stated that the accused was framed up with the offence because he had planned to sell a parcel of land. That they had interrogated the victim minor who stated that nothing had happened to her. That Nicholas had demanded for some money from the appellant though they are not related. 23.The appeal was canvassed by way of written submissions which I have considered. Analysis 24.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.” 25.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], 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”. 26.The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof 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. 27.Brennan J, addressed the standard of proof required in Criminal cases the case of 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. 28.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.” 29.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. 30.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 caution has regard to 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 for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:“Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.” 31.It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only one issue on count 1, that is: i)Whether the offence was proved to the required standards. 32.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(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.(5)…(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 33.On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.(3)The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.(4)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)(5)The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 34.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 are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 35.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. 36.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in 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. 37.The age of the minor was thus proved. 38.On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other” 39.The minor testified and identified the appellant as the perpetrator. PW3 also identified the appellant as the assailant. The minor did not just do identification but recognition. 40.The court is satisfied that the appellant was recognized by the minor and PW3, who knew him. Consequently it was provided that the appellant was the perpetrator. The victim and the appellant being close relatives, and the offence having been committed during the day, I find that the appellant was positively and conclusively recognized by the complainant. 41.The last issue is penetration. The medical evidence showed there was penetration. The minor herself testified on what happened to her. 42.Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 43.In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” 44.It is thus not a defence that the injuries were not serious or the penetration was not complete. The penetration was thus proved. The net effect is that the appeal lacks merit and is accordingly dismissed.I thus find that count 1, being the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act has been proved beyond reasonable doubt and the appeal on this ground is dismissed. Count 2 45.Section 26 of the Sexual Offence Act provides: -‘26.(l)Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know-(a)will infect another person with HIV or any other life threatening sexually transmitted disease;(b)is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease;(c)will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less fifteen years but which may be for life.’’ 46.The court heard that when the case of alleged defilement was reported to the police, the victim was the escorted to the hospital. The medical officer decided as part of management to test the complainant for HIV, which turned out to be positive. He proceeded to test the mother of the victim, and she tested negative. When he tested the accused person, the results turned out to be positive. 47.Having so found, it was incumbent upon the prosecution that the appellant was aware, and that he knew all along that he was infected with HIV. From the evidence, there is no evidence to suggest that the appellant was aware that he was infected with HIV. There being no evidence to suggest that the appellant knew that he was infected with HIV, one cannot that he knowingly and willingly infected the complaint with HIV. 48.The o the victim is on record stating that she did not know that the appellant was HIV positive. The medical officer who tested the appellant did not tell the court if he had enquired from the appellant about his medical history in respect to his HIV status.I find that the prosecution case on the 2nd count has not been proved to the required standards. The appeal succeeds on count 2, and the appellant is acquitted on this charge and the sentence of 15 years set aside. 49.I note that the court meted out a sentence of 20 years from the date of plea. The minimum mandatory sentence provided under section 8(3) of the sexual offences act is twenty years. There is no other sentence provided. 50However, I find that the appellant was arrested on 28th March 2023 and sentenced on 26th November 2024. The learned trial magistrate did not factor the period spend in remand custody. The period of 1 year 8 months shall be credited form the 20 years. DELIVERED, DATED AND SIGNED ON 31st DAY OF JULY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKUJUDGEIn the presence of: -Miss Omol for the StateAppellant in personCourt Assistant – Kibet.Right of appeal 14 days.The file is closed.