Morris Mwiti Mbuthi v Republic

reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." 3. We shall consider the facts of the case briefly to satisfy ourselves that the two courts below carried out their mandate as required in law. 4. The prosecution’s case was based on the testimony of 6 witnesses, who included 3 minors. This was to the effect that there was drama at Ntulele area in Isiolo on the morning of 26th January, 2016 when “M.K.” (PW1), a girl aged 12 years was on her way to school accompanied by her 8 year old brother when at 7 a.m. they happened to be passing by a maize plantation when she (MK) was suddenly grabbed from behind by a man who emerged from the plantation. She screamed and her frightened younger brother run away to school. The man lifted her, carried her on his back and took her deep into the plantation. He carried a panga in a bag which he used to hit her on her knees as he ordered her to undress. She refused to undress and in her own words: …the man then removed my underpants. I was still standing. The man then unzipped his trouser and told me to lie down. I refused. The man then threw me on my back to the ground. He then inserted his penis in my vagina. I felt pain. I was screaming. The man blocked my mouth with his hand….” 5. Further, that the incident took about 1 hour after which the man left her telling her to go and report that she had been defiled by herdsmen. She proceeded to school and reported the incident to a teacher, who telephoned her mother, “MKK” (PW3), who reported to school and took her to Isiolo Police Station and thereafter to General Hospital Isiolo, where she was examined and treated. 6. On 10th February, 2016 while recording a statement at the said police station, she saw her defiler, who had been arrested. Challenged in cross-examination on the identity of the appellant, she said: “ …The accused came from the left side. He had not covered his face. He was wearing a purple trouser made of material not jeans… I said I could identify the accused from his pose. While standing he has a bending gait like this (witness stands and demonstrates the stooping gait of the accused)...” 7. FK” (PW2), another pupil aged 14 years, was on her way to school the same morning when, while passing the maize plantation a man emerged from the plantation and greeted her, but then grabbed her neck and pushed her to the ground. According to her: “ …The man came from ahead of me. I saw the man clearly…” 8. They struggled while he attempted to undress her; he had a panga with which he cut her twice on the forehead and hit her on the knee as he threatened to kill her. He even bit her on the cheek using his teeth, and she bled from the cuts on the forehead, staining her jacket with blood. As this was going on, a school boy from another school appeared at the scene on his way to school, and when the appellant saw him, he fled the scene. She was taken by her mother to the same police station and hospital that morning. 9. On 10th February, 2016 FK was on her way from school, accompanied by her school friends including, JW (PW4), when at 6 p.m., they met the appellant, whom she recognized as the person who had attempted to defile her. When she told her friends that the appellant was the man who had injured her as he attempted to defile her, “JW” ran back to school and summoned teachers. Meanwhile, FK and her other friends followed the appellant, who entered a bar in Ntulele, and when the teachers arrived https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 2

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they were joined by members of the public and apprehended the appellant who was handed over to police. According to her: “ …I identified him because I had marked his face. He was also walking while stooping like this - witness demonstrates a stooping gait…” 10. That narration of events by FK was confirmed by her friend JW who testified how on 10th February, 2016 upon FK recognizing the appellant as her assailant, she (JW) ran back to school, summoned help from teachers and the appellant was arrested from a bar. 11. MK, FK’s mother, testified that her daughter was 11 years old, having been born on 9th May, 2004 (she had a medical card to prove that fact). She was summoned to school on 25th January, 2016 where, upon arrival, she was informed that her daughter had been defiled. When she interrogated her daughter, she was told that the daughter had been waylaid next to a maize plantation; that FK could identify the assailant from his physical appearance and “…he was walking with his face and neck bent and he was bald headed…” She took her daughter to the police and hospital, where she was treated. 12. Karai Jillo, Chief Clinical Officer at Isiolo County Referral Hospital, first testified in the absence of the appellant after he (the appellant) had marched off abandoning the proceedings. He was recalled and testified again, in the presence of the appellant. He produced a P3 Form for MK, a girl aged 12 years. On physical examination, he found soft tissue injuries on the head and bruises on the neck. The thorax had soft tissue injuries, and she had bruises on right wrist. On the lower limbs both thighs were tender and swollen. The injuries were about 30 minutes old. When he examined the genital area he found bruises in the labia majora and minora areas with the hymen broken. There was a lot of discharge around the perimial area and vaginal swab disclosed spermatozoa and few blood cells. The doctor concluded that the perforated hymen and presence of spermatozoa indicated sexual activity; that the child was defiled. He produced the lab request and the P3 Form into evidence. 13. He also examined FK, a girl aged 15 years. He found her clothes to be full of blood, and on examination, she had a cut wound on forehead and was bleeding; she had human bite marks on right chin; she had nail marks suggesting strangulation of the neck- three in number; she had soft tissue injuries on both knees and the injuries were about 3 hours old caused by a sharp object. He produced a P3 Form into evidence. 14. The last prosecution witness was Corporal Adrian Kinoti previously of Isiolo Police Station who on 25th January, 2016 was at the station when two reports were made by parents on the alleged defilement of the two girls. He visited the scenes of crime and found the scene where FK was assaulted to be disturbed. He confirmed the ages of the complainants and recorded statements from witnesses. The appellant was arrested on 10th February, 2016 after he was recognized by FK. He produced MK’s clinic card, FK’s birth certificate and FK’s bloodied jacket as evidence. 15. The prosecution case was then closed and the appellant was put on his defence where he elected to give a sworn statement and called 3 witnesses. He denied committing the offences stating that on 24th January, 2016 he with his uncle attended a funeral at Nanyuki of his aunt, one Mary Kaimuri where they spent the night and returned to Archer’s Post on 26th January, 2016. On 10th February, 2016 after completing work, he went to the Home Basebar but was arrested on allegations of defilement and charged in court. 16. The appellant’s first witness, Josephat Raichena, a shoe repairer, stated that the appellant was his friend; that on 25th of a month, he could not remember whether he and the appellant attended his sister’s https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 3

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funeral at Nyeri and returned on 26th; that the appellant was arrested 5 days later. He denied the funeral was at Nanyuki. 17. Patrick Muthomi, a clothes seller, could not recall the month in 2016 when he and the appellant attended Mary Kaindi’s funeral in Nyeri. 18. Pauline Makena, a friend of the appellant, recalled that on 24th January, 2016 she and the appellant attended their employer Mary Kayuni’s funeral in Nyeri, where they returned to Isiolo on 26th January, 2016. 19. Those were the two sides of the case made before the trial magistrate, who as we have seen, convicted the appellant and sentenced him accordingly, and the first appeal was determined as we have seen. 20. In homegrown “Grounds of Appeal” the appellant faults the Judge in matters of law by failing to note that the prosecution did not prove the case to the required standards of proof beyond reasonable doubt; that the Judge erred by failing to find that the prosecution witnesses' evidence was contradictory, inconsistent and was not corroborated; that the Judge erred in law by not finding that the appellant’s defence was not considered; that the Judge erred in law by failing to note that the case was as a result of a family conflict; that the evidence before the trial court could not sustain a conviction and that the appellant wished to be present at the hearing of the appeal. 21. When the appeal came up for hearing before us on 29th May, 2025 the appellant was present in person from Meru Prison while the respondent was represented by learned State counsel the late Mr. Muriithi. 22. The appellant in highlighting his written submissions told us that he was at a funeral on the date he was alleged to have committed the offences; that he called witnesses to confirm that fact and that his defence was not considered. He has listed “Amended Grounds of Appeal” in written submissions, where he faults the Judge for not notifying that he had given an alibi defence which was not discredited by the prosecution; that the Judge erred in law by not finding that evidence of identification was not watertight; that the first report did not link him directly to the offence and that the Judge erred in law in not noting that vital witnesses were not called. 23. The first part of the appellant’s written submissions is a plea that we admit new or additional evidence. This cannot be done in submissions as there is a procedure for asking this Court to allow new evidence. but there is no explanation before us to that effect or reasons advanced why we should admit new evidence in a second appeal. We reject the invitation to do so. 24. In further submissions the appellant says that identification was not proved to the required standard as no identification parade was conducted. The appellant cites the case of Norman Ambichi Miero & Another vs. Republic (Criminal Appeal No. 279 of 2005) for the proposition that the name or description of a suspect should be given on a complainant making a first report. 25. The appellant submits that a vital witness, the 8 year old boy who accompanied the complainant in Count 1 was not called; that his evidence could have added weight to the prosecution case before allowing such evidence to be excluded. He cites Bukenya vs. Uganda [1972] EA 549 on the need for the prosecution to call all available witnesses in support of its case. The appellant wonders why the 8 year old boy was not called to shed light on what had happened to his sister on their way to school. 26. In written submissions the respondent submits that the Judge re-appraised the evidence on first appeal as he was required to do and reached conclusions on facts and the law. The case of M’Irungi vs. R. (supra) is cited for the proposition that we should respect findings of facts of the two courts below. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 4

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27. It is submitted by the respondent that the defence of alibi was an afterthought as it was not raised at the earliest opportunity during the trial so as to grant the prosecution an opportunity to test its veracity. 28. On whether there were inconsistencies in the prosecution case the respondent relies on section 382 of the Criminal Procedure Code and submits that if there were any they were not fundamental and did not cause prejudice to the appellant. We are urged to dismiss the appeal. 29. We have considered the record, submissions made and the law. 30. We have already identified our mandate on a second appeal like this one. 31. As we have already stated we cannot at this stage, consider additional evidence without a proper application to do so but in any event the photographs sought to be included are factual matters outside our mandate 32. The appellant complains that his alibi defence was not considered. 33. The trial magistrate considered that defence where the appellant contended before the magistrate that he and his witnesses were attending his aunt’s funeral at Nanyuki; but the witnesses said that the funeral was at Nyeri; the witnesses said that the deceased was not the appellant’s auntie but was the appellant’s employer or friend. Neither the appellant nor his witnesses impressed the trial court as truthful or reliable witnesses. 34. An alibi defence was raised before the Judge, who found it untruthful and inconsistent. 35. It is contended for the respondent that the alibi defence was an afterthought, as it was not raised at all during the prosecution’s case. We agree with this submission. The appellant did not during the prosecution case raise any issue of having been at a funeral on the date of the offence. This issue was only raised during his defence, and the prosecution was therefore denied an opportunity to examine that allegation. The appellant alleged to have travelled to Nanyuki for a funeral between 24th - 26th January, 2016. He called witnesses who did not know when the funeral was; who was dead; where it was; or how the deceased was related to the appellant. The witnesses were sure that the funeral was in Nyeri, while the appellant’s case was that the funeral was at Nanyuki. That defence was, in any event, discounted by the clear evidence of “MK” who, was with the appellant for a whole hour during the ordeal and that of “FK” who testified that she saw the appellant clearly as he approached her from the front and, after greeting her, grabbed her by the neck and assaulted her. The defence of alibi was properly discounted as it was proved to the required standard that the appellant was at the crime scene on the morning of 25th January, 2016. 36. The appellant complains that he was not properly identified as the perpetrator of the offence. The Judge on first appeal found that “FK” identified the appellant as her assailant on 10th February, 2016, barely 2 weeks after the assault. 37. The record shows how “MK” and “FK” separately met the appellant that morning, and the way he assaulted them. FK, on the identity of the appellant stated: “ …I identified him because I had marked his face. He was also walking while stooping like this - witness demonstrates a stooping gait…” 38. FK further stated that the appellant had not covered his face, he was of medium height and build, and he had no facial marks. She identified the clothes he wore that morning. 39. FK stated that her confrontation with the appellant took about 30 minutes. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 5

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40. MK, who stated that the defilement took 1 hour, stated that she was able to see the appellant clearly during her ordeal; it was at 7 a.m. She described his clothing, and upon reaching school, she told her teacher and later her mother that she could identify her assailant which she did when she saw him at the police station on 10th February, 2016 after he had been arrested after being identified by FK. 41. The Judge on first appeal noted that it should have been necessary for the police to have conducted an identification parade as dock identification is generally worthless - Gabriel Kamau Njoroge vs. Republic [1982-88] 1KAR 1134 - a Court should not place such reliance on dock identification unless preceded by a properly conducted identification parade. The Judge found that the general rule (that dock identification is generally worthless) had various exceptions, as he has been found by this Court in various decisions of this Court, such as Nakuru Criminal Appeal No. 369 of 2012, Robert Kariuki Wachiuri vs. Republic [2016] eKLR and Muiruri & 2 Others vs. Republic [2002] KLR 274. 42. The Judge considered the record on the issue of identification and the need to conduct an identification parade and exceptions thereto and had this to say at paragraphs 44 – 48 (inclusive) of the judgment: “ 44. Applying the foregone to the case at hand, the incidents occurred in the morning between 7:00am and 8:00am. It was not raining. The assailant spent considerable time with the victims. The victims also vividly narrated the ordeal they underwent in the hands of the assailant. They both confirmed that the assailant walked with a gait. They demonstrated such before the trial court. F.K. saw the assailant from the front as he walked towards her. M.K. saw the assailant as he walked away after the ordeal. The record generally does not raise circumstances which can obviously be said to have hindered the victims from clearly seeing the assailant. 45. On the issue of a Court warning itself in such instances, I agree that caution must be exercised. I hereby so caution myself. A look at the evidence of M.K ad F.K. against the defence further leads to another aspect. The Appellant was very determined to rely on an alibi defence. He marshalled 3 witnesses to that effect. The end of it revealed the Appellant as someone who was out to mislead the trial court on his whereabouts on 25/01/2016. 46. 1 must also consider the nature of the case. This is a sexual offence under the Sexual Offences Act. Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya comes to play. It states 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 6

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is satisfied that the alleged victim is telling the truth. (emphasis added) 47. The trial court heard the witnesses testify. It also observed their demeanors. The court had the following to say about the complainants: ... The two complainants, though minors, gave evidence on oath and were very consistent and neither was shaken by the serious cross-examination which the defence counsel (sic) subjected them to. They gave very candid and convincing evidence ... they were very categorical that they could easily pick him out owing to his appearance and style of walking. 48. The trial court therefore gave reasons why it believed the victims were truthful. Since the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence then due allowance for that must be accorded by this Court. There is nothing put forth herein which successfully challenged the demeanor of the witnesses.” 42. We agree with the findings of the Judge that, in the circumstances, the evidence of MK and FK was truthful and the trial magistrate was entitled to rely on that evidence. The two witnesses clearly identified the appellant as their attacker, and there is no merit in the appeal on the issue of identification. 43. The appellant complains that crucial witnesses were not called; that failure to call them prejudiced him. He specifically named MK’s 8 year old brother, who accompanied her as they walked to school. There is no explanation on record why the 8 year old boy was not called as a prosecution’s witness. 44. Section 143 of the Evidence Act gives discretion to the prosecution on the number of witnesses to call in proof of any fact. The general rule is that the prosecution should call crucial witnesses in proof of its case. That issue was discussed in Bukenya & Others (supra) where it was held: It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.” 45. The Judge found, on the evidence, that it was not necessary to call the 8 year old boy who ran away when MK was attacked or to call the boy who happened at the scene when FK was being assaulted. We agree. The evidence by MK and FK, backed by medical evidence, proved the case to the required standard. 46. We have found no merit in this appeal, which we accordingly dismiss in its entirety. DATED AND DELIVERED IN NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ……………………………… https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 7

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JUDGE OF APPEAL J. LESIIT ……………………………… JUDGE OF APPEAL ALI-ARONI ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2133/eng@2025-11-28 8

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