Ondimu v Republic (Criminal Appeal E019 of 2024) [2025] KEHC 13586 (KLR) (29 September 2025) (Judgment)
Neutral citation:
[2025] KEHC 13586 (KLR)
Republic of Kenya
Criminal Appeal E019 of 2024
DKN Magare, J
September 29, 2025
Between
Dennis Ondimu
Appellant
and
Republic
Respondent
Judgment
1.This appeal arises from the judgment of the trial court, Hon. W. Kugwa (RM) given on 7.11.2023 in Kisii CMSO No. E018 of 2022. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. 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.
2.The particulars of the offense were that the Appellant, on 22.03.2022 at [Particulars Withheld] in Kisii central sub-county within Kisii County intentionally caused his genital organs namely a penis to penetrate the genital organs, namely a vagina of LKO, a girl aged 15 years.
3.There was an alternative count of committing an indecent act with a minor contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offense were that the Appellant, on 22.03.2022 at [Particulars Withheld] in Kisii central sub-county within Kisii County intentionally touched the anus of LKO, a girl aged 15 years.
4.The Appellant was arraigned, and he denied the charges. A plea of not guilty was consequently recorded. He was not granted bond. The court’s mind was unnecessarily poisoned by allegations of another case, wherein he had not been convicted. The court in denying the appellant bond believed the occurrence of this matter as a fact thus violating the sanctity of the principle that no one should be condemned unheard. The Appellant enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before it satisfied you beyond a reasonable doubt that an accused is guilty. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme court of Canada explained the standard of proof as doth:-
5.The trial court heard a total of 4 prosecution witnesses and the Appellant. The court considered the evidence and rendered judgment, where she found the Appellant guilty and sentenced him to 10 years imprisonment. The Appellant, aggrieved, lodged this appeal. The Petition of Appeal raised the following grounds:a.That the trial magistrate erred in both matters of law and fact sentencing the appellant to 10 years imprisonment when the offence of defilement was not proved beyond reasonable doubt as required by law.b.That the trial magistrate erred in both matters of law and fact by convicting the appellant to 10 years imprisonment without considering that the investigation conducted in this case was scanty and shady which could not be used to secure conviction.c.That for sure the medical report tendered before the trial court was malice which was only generated in order to fix this young and peasant boy into this heinous act.d.That the trial learned magistrate erred in law and facts by convicting the appellant to serve ten years imprisonment without considering the complainant’s age and the circumstances of the offence.e.That the learned magistrate further erred in both law and facts by convicting the appellant to ten years imprisonment despite the glaring contradictions.
6.The net effect of the appellant’s appeal was that that the trial magistrate erred in law and fact by sentencing the appellant to ten years’ imprisonment despite the offence of defilement not having been proved beyond reasonable doubt. It was further argued that the conviction was improper, as it was based on scanty and questionable investigations that could not sustain a conviction. Though indicated as an appeal touching on sentence, it is fully an appeal on conviction only.
7.The court directed that the matter be disposed of by way of written submissions, which were duly filed by both parties. The prosecution filed a notice of enhancement of sentence together with their submissions. However, the same was not brought to the attention of the appellant.
Evidence
8.PW1, the complainant, testified that she was born on 19.03.2007. She stated that on 22.03.2022, she left her home and went to the appellant’s residence, which she knew. She said she took a motorbike to the said place. It was her testimony that she went there with the intention of engaging in sexual intercourse with the appellant, which she alleged they did. She further stated that at about 2:00 p.m., the appellant was recalled to work at Mashauri area but returned at 3:00 p.m., when they allegedly engaged in sexual intercourse again. According to her, they later went out to buy food, returned at about 7:00 p.m., and thereafter spent the night together until the following morning. This last part is crucial for the determination of the appeal.
9.On the following day, at about 11:00 a.m., the complainant’s father, accompanied by other persons, went to the appellant’s house. Upon their arrival, the complainant concealed herself under the bed while the appellant hid beneath the couch. The group opened the door and found the complainant hiding under the bed. Her evidence was that this was not the only occasion on which she had engaged in sexual intercourse with the appellant.
10.The complainant was thereafter escorted to Kisii Teaching and Referral Hospital for examination and subsequently taken to the police station. In cross examination, she stated that she had gone to the appellant’s house on 22.03.2022, after he had informed her of his residence the previous day. She further indicated that there were neighbours present at the appellant’s house. Both the complainant and the appellant were eventually apprehended by her father together with the unknown persons who accompanied the father.
11.PW2 was the complainant’s father who worked at Kisii County as occupational safety and health officer. On 22.03,2022, he received a call from their little daughter, MA that her sister, the complainant herein was not in the house from 10.00 am. He stated that given they had another defilement case, she must be with the appellant. They did investigations with Marienga who called the appellant’s employer. They proceeded to the appellant’s house and found it locked. He asked the landlady to allow the break the same. They found them hiding; the appellant was behind sofa while the complainant was in the bedroom. They were taken with the policing community to the police station. The appellant was charged and the complaint taken to Kisii Teaching and Referral Hospital.
12.On cross-examination, he stated that they came with 2 community police who did not make a statement. One Farah was directed to the appellant’s place by the Appellant’s employer. He stated that the landlady gave permission to break into the house.
13.On cross-examination, he stated that he was accompanied by two community policing members who, however, did not record any statement. He added that one Farah was directed to the appellant’s residence by the appellant’s employer, and further stated that the landlady gave permission for the appellant’s house to be broken into. There was no indication on the role of Farah and the statement by the alleged landlady. It was also not clear the raison d'être for not involving the police to maintain the chain of custody of the appellant and recovery of any evidence at the scene. It appears the witness preferred gangland style of arrest. This will however, have profound effect on the decision.
14.PW3, the clinical officer, Stanley Matinda from KTRH, testified that he examined the complainant on 5.09.2023. He stated that the complainant reported that the appellant had allegedly defiled her on 22.03.2022. Upon examination, he observed the presence of pus cells but found no evidence of penetration. PW3 was not cross-examined.
15.PW4 was CPL Reina Magoma of Kisii Police Station. She stated that on 23.03.2022 a case of defilement was reported by the complainant’s father. The complainant was reported missing on 22.03.2022, that she had gone to spend the night at the appellant’s house. On cross examination, she stated that she did not visit the scene of crime and the complainant and the appellant were brought to the station.
16.The court, upon considering the evidence on record, found the appellant to have a case to answer. Section 211 of Criminal Procedure Code was complied with. The appellant opted to give sworn evidence.
17.The Appellant gave sworn evidence. He stated that on 22.03.2022 he was at work at Menyinkwa at around 1500 hours. He worked until the next day 23.03.2022 when for him at work. This was the complainant’s father and two other people. He was asked to accompany them to a parked car. They arrested him and took him to the police station. The two people identified themselves as community policing officers. He was taken to court the following day. He denied the charges. He stated that the complainant stated that he was at his house in Menyinkwa, but his house is at Riverside.
18.The Appellant further stated that he had another case involving the same complainant. He denied being found in a house at Menyinkwa and asserted instead that his residence was at Riverside near Kisii University. He complained that the two people who arrested him were never called as witnesses during the trial. His testimony was not subjected to cross-examination. The court shall revert on this shortly.
Submissions
19.The Respondent filed submissions dated 1.09.2024 that the conviction was safe as all ingredients were proved. They did not even submit on the notice of enhancement they had filed.
20.They submitted that the age of the complainant was proved to be 15 years. They stated that the child was the only witness to the offence hence section 124 applied. This was not factually correct, but it was their submissions. Reliance was placed in the case of Kassim Ali v republic.
21.It was submitted that the prosecution proved the 3 ingredients of the offence of defilement as required under the law. It was also submitted that age was proved and reliance placed inter alia on Stephen Gitwa Kimani v Republic (2017) eKLR as follows:
Analysis
22.This being a first appeal, this court is under a duty to re-evaluate 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 first hand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 held as follows:-
23.On a first appeal, the appellant is entitled to a fresh and exhaustive re-evaluation 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 [1972] EA 32 at 36, the East Africa Court of Appeal stated on the duty of the court on a first appeal:
24.The issue in this case is whether the prosecution proved its case to the required standard. The most oft quoted English decision of Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that;
25.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:
26.The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:-
27.Section 8(1)(a) (1) and (3) of the Sexual Offences Act under which the Appellant was convicted provides as follows:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)N/a(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.
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:-
29.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. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. The section reads as follows:
30.Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. I n this case, the Appellant was up to 20 years in prison or even 15 years depending on the age the court found the complainant to be. 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.
31.The appellant maintained that he was framed. There are witnesses who were mentioned and had no horse in the race. The father was said to be with two men. These men were never called. The appellant stated that he was at work. The complainant strained to place him in the house outcome. The arresting persons were said to be community policing officers. They were known. Could there have been reasons they were not called?
32.Secondly, the appellant gave evidence of an alibi as the evidence for part of the time. The rest of the time he was at home. There was alleged to be a landlady who broke down the door. This evidence was not even corroborated by the complainant. The complaint tendered evidence that the father and the unknown persons opened the door. This is major contradiction. The alleged storming in the appellant’s residence was through the help of the employer to trace the appellant. The landlady who allegedly gave consent was not also called. In other words, none of the independent witnesses were called.
33.On the other hand, the defence evidence was that he was called to the roadside and arrested. There was said to be a prior case which led to suspicions. It is also the evidence of prior differences. Was it not proper to call the arresting persons, to shed more light? Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-
34.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 where some of those witnesses may give evidence adverse to the prosecution’s case. This obligation ensures that the trial is conducted fairly and that the court is placed in a position to consider all relevant facts before reaching a conclusion. Failure to call material witnesses may result in an incomplete picture of the events, potentially undermining the prosecution’s case and affecting the court’s assessment of the evidence as a whole. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:
35.The court had also discussed the question Keter v Republic [2007] 1 EA 135 where the court held inter alia:
36.In this case there were two witnesses who gave the evidence on penetration. They were the medical officer and the minor. The minor alleged that she went for sex in the appellant’s house. The appellant denied this. This is where the court invoked Section 124 of the Evidence Act. The court, in my view wrongly proceeded as if, the said section overrides Article 50 of the Constitution. Section 124 is a rule of evidence and not a rule on the standard of proof. It is not automatic that the court must just believe the complainant. The rule is the exceptions as set in section 124 of the Evidence Act. The said section posits as follows:124.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.
37.The evidence of the minor was contradicted by medical evidence. Pus could not have formed when examination was on the same day. The medical evidence directly contradicted the minor’s evidence. The evidence also differed with the account given by the appellant. That account was not contradicted. The same with the medical evidence. The two pieces of evidence render the account by PW1 and PW2 false. When the medical evidence shows prior infection and no evidence of penetration, then the court must proceed with facts as established. The evidence from the prosecution witness three, was clear that there was no penetration. The defence evidence was to the same effect. The prosecution believed the truth of that evidence and no attempt was made to cross examine the appellant.
38.The latter part, or the proviso is key, in that it requires that the following conditions be met:i.The matter is a sexual offence,ii.The only evidence is that of the alleged victim of the offence,iii.For reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
39.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:
40.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. PW1 and PW2 Differed on fundamental aspects. Was there an opening of the house or a break in. The only neutral witness was the clinical officer. He found no evidence of penetration. The element of penetration was lost. This was not evidence of partial penetration. It is that there was no evidence of penetration at all. The complainant was taken to the hospital immediately. It is not possible to have pus cells result from intercourse on the same day. It is expected that was to be inflammation.
41.There was no evidence from the medical aspect that there was penetration. Without penetration, the offence fails.
42.The evidence from the complainant was that the appellant was at work at 3 pm. She alleged the arrest was on the following day. On the other hand, the father’s evidence leads to an arrest the same day. PW2 was definitely lying. He had suspicions and ensured that they materialized. However, the prosecution did not call the people who arrested the appellant. The court can only infer, that should they have testified, their evidence could have been adverse to the prosecution. 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.
43.Further, it must be remembered that, in view of the past case between the parties, the court ought to have treated the witnesses’ evidence with circumspection. In particular, the circumstances surrounding the appellant’s arrest warranted careful scrutiny, and a failure to properly consider these circumstances rendered the trial unsafe. The court’s oversight in this regard raises serious questions about the fairness of the proceedings and the reliability of the conclusions reached.
44.Therefore, being at home was not denied. The question was whether, the occurrence of the offence was proved. It is not lost on the court that the complainant testified that the appellant’s neighbours were in the house. The police did not bother to have any of them be a witness. These were people whom the complainant saw in the house, if she was there. Further, the first report was made to PW3 by CA, a sister to PW1.
45.There was no attempt to have her testify or even record a statement. The community policing officers were neither named nor called. To make matters worse, the record shows the raison d'etre for the arrest. The appellant had been released on bond for a prior offence. Upon arrest, the appellant was denied bond on the grounds that he breached the bond terms. This was neither investigated nor basis laid. The main purpose for the arrest appears to deny the appellant freedom. No reason is given for arrest of a person after medical report clearly showed there was no evidence of penetration.
46.These inconsistencies were fatal to the Complainant’s case. The Appellant raised inconsistencies and contradictions in the evidence proffered by the prosecution case and argued that the trial court failed in convicting him when the evidence tendered did not prove the offence against him to the required standard. On this, this court has to establish whether the alleged discrepancies and contradictions were fundamental as to cause prejudice to the Appellant. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held:
47.The appellant gave a rock-solid evidence. The appellant was simply suspected. The court forgot that, suspicion cannot be evidence. In the case of Faith Lucas V Republic [2008] KECA 267 (KLR), the court of appeal stated as follows:In Sawe V. Republic [2003] KLR 364 at pp. 375-6 this Court said:-
48.The case was based on suspicions arising from prior suspected crime. 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:
49.How then did the accused find himself in court? PW1 and PW2 did not produce any evidence on how the appellant ended up being arrested when the father clearly did not know where the appellant stayed. The complainant stated that she knew the home the previous day. Who then brought PW2 to that home, if indeed he did? There was thus a break in the chain of information, by omitting critical witnesses. The investigating officer did not even go to the scene to even confirm that the door was broken. The landlady, who was there when giving permissions, if PW2 is to be believed, was not called. All these people were not called as they did not witness. This is the only inference.
50.The one issue that the court failed to do was to consider the defence. The appellant was not cross-examined on his evidence. It means that his evidence was unrebutted. It is true that in certain cases, there is a need to set out an alibi early enough. However, the duty to prove falsity of an alibi still remained with the prosecution. The appellant as an accused has no duty to help the state carry out its case.
51.If evidence was tendered that was surprising to the state, they had a chance under Section 212 of the Criminal Procedure Code to call for rebuttal evidence. The section provides as follows:
52.The question of the rights of the prosecution to receive in advance defence evidence was addressed 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:
53.The appellant was not under duty to disclose his defence before being put on the defence. In any case, the state has a chance to call rebuttal witnesses. The case for the appellant from the cross examination was that he was not there. It used to be the position that alibi had to be disclosed in advance. However, non-disclosure is not fatal.
54.Not calling of the appellant’s employer who allegedly gave up his position was fatal. The said employer was not named. He was not called. It even became more crucial when defence evidence was given. There was no attempt to even challenge that evidence even by cross examination. Failure to cross examine, ipso facto, means that the evidence is unrebutted. The court had no way of dismissing the evidence which was not challenged. In the case of Wachera v Republic [2025] KEHC 11843 (KLR), this court posited as follows:43.The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home.44.The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus:“In considering an alibi, we observe that: a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view. b. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial. c. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court. d. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.45.The first aspect was the alibi defence set out. The state did not find it fit to challenge any of the statements made by the Appellant in relation to the alibi. The state, in its cross examination confirmed the consistence of the defence evidence. The appellant was in their home from 5 pm up to 10 pm when the parties took dinner. This piece of evidence was not impeached at all. The Appellant’s evidence remained unrebutted. In the case of Erick Otieno Meda v Republic [2019] eKLR, the Court of Appeal [Asike Makhandia, Kiage & Otieno-Odek JJA] posited as follows regarding an alibi: -In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...”46.In the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence: i. There is no burden of proof on the accused to prove his alibi. ii. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. iii. An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word." iv. If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar"). v. The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi.47.The burden of proving the falsity of an alibi was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: -“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution....”48.In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.
55.Why will the state fail to cross examine if they wish to rely on the answers in rebuttal. While addressing the question of failure to cross examine, the court of appeal had the following to say in the case of John Gitonga V Republic [2013] KECA 367 (KLR):
56.What was the court of appeal then saying? If cross examination is denied then it renders evidence not credible. However, on the other hand, if there is no cross examination, that evidence remains unrebutted. A party cannot rely on the submissions to rebut evidence. Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, where the Court held that:
57.The next question is whether the surrounding circumstances show that the offence was proved. For circumstantial evidence to work, it must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. Kihara Kariuki, Pca, M’inoti & Murgor, JJ.A] had this to say on circumstantial evidence:
58.The threshold had also been set out in the case of R vs Kipkering Arap Koske [1949] 16 EACA 135, that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe vs Rep [2003] KLR 364, the Court of Appeal expressed that:
59.The next limb is the age of the complainant. The evidence on the record shows that the alleged offence took place after the 16th birthday of the complainant. The complainant was said to be 16 years. Charging was related to a 15-year-old. There is not harm if the court finds that the minor was 16, not 15. However, the court gave 10 years. This was erroneous as the sentence provided for 15-year-old complainants was 20 years while 16 years was 15 years. The court gave 10 years. The sentence was thus illegal. The court ought to have given a sentence of 15 years. The question of age was not raised in cross-examination or at all. The issue of age, therefore, was proved from the circumstances of the case. However, given that the offence was not proved, the sentence is set aside.
60.The Respondent did not prove its case beyond reasonable doubt that the Appellant penetrated the minor with his penis. The medical evidence was to the effect that there was no evidence of penetration. The medical evidence did not support the version of evidence tendered by PW1 and PW2. Secondly, the appellant’s evidence remained unchallenged and unrebutted. There was no basis for convicting the Appellant. In the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:
61.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:
62.The trial court failed in not holding that such 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:
63.Therefore, in my overall reevaluation of the evidence, I am unable to agree with the trial court that the prosecution proved penetration of the minor’s vagina by the Appellant’s penis beyond a reasonable doubt. There was indeed no evidence of penetration. It is unnecessary to go into who committed the offence, in the absence of the offence, in absence of penetration.
64.In totality, the Respondent herein did not prove the offence of defilement against the Appellant beyond reasonable doubt, and the trial court erred in convicting the Appellant.
65.Having found that the conviction was improper, the sentence disappears with the same. I find and hold that the prosecution case was not proved beyond reasonable doubt and therefore allow the appeal set aside the conviction and sentence. The appellant shall be set free forthwith unless otherwise lawfully held.
66.Before departing, I need to address a question of profound interest to administration of justice. The right to bail is sacrosanct. It cannot by fiat or arbitrarily be taken away. The court fell far short of the required glory when it received evidence of pending defilement as ’breach of bond terms’. This is not only cavalier but surrender of the right to bond to skullduggery, machinations, and subterfuge of complainants. The investigating officers must also investigate and not to churn falsehoods to the courts without triangulation to establish the truth.
Determination
67.In the circumstances, I make the following orders: -a.The appeal on conviction and sentence is merited and is allowed.b.The conviction and sentence in Kisii CMSO No. E018 of 2022 is set aside.c.The Appellant shall be set free forthwith unless otherwise lawfully held.d.The file is closed.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF SEPTEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Komen for the StateAppellant in personCourt Assistant – Michael