Muchine v Republic

had sodomized him in his house; that he had also threatened and warned him not to disclose the incident to anyone; and that, if he reported the matter, he would later regret it because the Appellant would use his powers against him. PW1 reported the matter to village elders and, on 17th January 2021, she went with the complainant to the area chief’s oce whereupon they were referred to the police. She proceeded to Mpeketoni Police Station and PW4 was taken for a medical examination at Mpeketoni Sub- County Hospital. He was later referred for psychiatric assessment at Coast General Hospital in Mombasa. PW1 produced the complainant’s health card and identied the P3 form and treatment notes, as well as the psychiatric report from Coast General Hospital. She further testied that PW4 had previously been diagnosed as anaemic and had learning diculties. He was in class 5, and had earlier repeated classes. During cross-examination, PW1 stated that she had known the Appellant for over ten years as a pastor and neighbour, and that her family previously attended his church. She denied fabricating the allegations or colluding with other persons to frame the Appellant. 5. PW2, also a farmer residing at Sinambio and the complainant’s elder sister, was informed by her cousin MWM, PW3, that the complainant had disclosed to PW3 that he was being sodomized by Pastor John Muchine, the Appellant. When she questioned him, he informed her that the Appellant had repeatedly sodomized him and threatened to kill him if he disclosed the incidents. The witness stated that, accompanied by other family members, they proceeded to the Appellant’s church area and later to the police. PW2 stated that the complainant frequently visited the Appellant’s home, and that he would send the other children to the shops leaving the complainant behind; that she knew the Appellant as a pastor, and that the complainant had interacted closely with him for some time; and that the complainant always appeared fearful. During cross-examination, PW2 denied having any grudge against the Appellant or his church. She denied coaching witnesses or conspiring with others to falsely accuse him. 6. After the conduct of a voire dire examination, MWM, PW3, a pupil in Class 5, gave unsworn testimony. She stated that the Appellant was known to her as a pastor, and that their brother, DM-PW5, had informed her that, while alone with the Appellant in his house, the Appellant held him and performed “bad manners” on the complainant; that the complainant then stated that, after the incident, the Appellant gave him Kshs.10 and warned him not to disclose what had happened. During crossexamination, she denied that she had been coached and maintained that she was telling the truth regarding what the Appellant had done to her and the complainant. 7. Following a voire dire examination, PW4, the complainant, stated that he was a student in class 5 aged 17 years, and that the Appellant was a pastor known to him; and that the Appellant committed “bad manners” to him on several occasions in his house, in bushes and near a mango tree. He stated that, during the incidents, the Appellant removed his clothes and inserted his genital organ into his anus after applying oil on his buttocks; that, thereafter, the Appellant would give him money, airtime and gifts including Kshs. 20 and bread and would sometimes send him to the shop before remaining alone with him; that the Appellant threatened to kill him if he disclosed the incidents and warned him not to tell anyone; and that he eventually informed Mercy Wangari and his brother Dennis about what had happened. 8. DM, PW5, a pupil, also gave an unsworn testimony after a voire dire examination. He stated that he often accompanied the complainant to the Appellant’s home. PW5 further stated that on one occasion he saw the complainant lying on a bed while the Appellant lay on top of him, and that the complainant later informed him that the Appellant had inserted his penis into his anus and warned him to keep quiet; that the Appellant frequently sent children to the shops and remained behind alone https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 2

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with the complainant, and that, after the incidents, the complainant appeared distressed. He denied being coached and maintained that he witnessed suspicious conduct involving the Appellant and the complainant. 9. Police Constable Fatuma Wasiku Salim No.10xxx3, PW6 attached to Mpeketoni Police Station investigated the case. She produced the psychiatric evaluation form, the disability form from Lamu Hospital, and the birth certicate of ‘BG’, the complainant. She stated that the witnesses informed her that the complainant frequently visited the Appellant’s house; that similar acts had allegedly occurred on several occasions; and that the complainant identied the Appellant as the perpetrator. 10. Musyoki Kisilu, PW7, a clinical ocer at Mpeketoni Sub-County Hospital, examined the complainant aged 17 years. The examination showed bruises around the anal opening, and that the complainant complained of pain while passing stool; and that there were no tears or ssures but bruising measuring about 0.5 centimetres was present. PW7 found that the complainant was mentally challenged and psychologically disturbed, and that he concluded that there had been anal penetration consistent with sodomy. He produced the treatment notes and the P3 form. 11. In his defence, the Appellant, DW1, gave unsworn evidence. He stated that he was a farmer and pastor residing at Sinambio, and that he had been a pastor for many years. He produced a certicate of ordination dated 19th September 2015. He denied having deled or assaulted the complainant or any child, claiming that they were fabrications by members of the complainant’s family in order to tarnish his reputation and destroy his church ministry, Christian Worship International Ministry; that the complainant’s family were previously his church members, but later developed hostility towards him. He stated that there were inconsistencies in the prosecution evidence, including the dates and details of the alleged incidents. DW1 denied sending inappropriate messages or gifts to the complainant and denied ever being found in compromising situations with him. He further testied that his house had large windows and no hidden holes through which witnesses could have peeped as alleged. 12. Upon considering the evidence, the trial court found that the complainant was a minor within the meaning of Section 8 of the Sexual Offences Act. Based on the Child Health card, the court was satised that, at the time of the alleged oence, the complainant was 17 years and 5 months old. Further, the court was satised that the prosecution had proved the oence of delement beyond reasonable doubt and consequently convicted the Appellant and sentenced him to serve 15 years imprisonment. 13. Aggrieved, the Appellant led an appeal to the High Court, which upheld both the conviction and sentence, and dismissed the appeal in its entirety. 14. Aggrieved by the High Court’s decision, the Appellant has led an appeal to this Court on the grounds that: the learned judge was in error in law by failing to appreciate the provisions of Sections 108, 109, 110 and 111 of the Evidence Act; in upholding a conviction that violated both Article 49 (1) and Article 50 (2) of the Constitution; in failing to appreciate that the medical and documentary exhibits were unreliable and in contravention of Sections 33 and 77 of the Evidence Act; and in failing to consider the Appellant’s defence. 15. Both the Appellant and the Respondent led written submissions. When the appeal came up for hearing on a virtual platform, the Appellant appeared in person while learned prosecution counsel Ms. Mutua, Assistant Director of Public Prosecution, appeared for the Respondent. 16. In his written submissions, the Appellant submitted that the prosecution did not discharge its obligation to prove the case beyond reasonable doubt, particularly with regard to the age of the complainant, proof of penetration, and positive identication of the perpetrator. In support of this position, the Appellant relied on the case of Miller vs Minister of Pensions [1947] 2 All ER 372– 373 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 3

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for the principle that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, but requires the evidence to leave no reasonable uncertainty in the mind of the court, and that, where doubt exists, it must be resolved in favour of the accused. 17. The Appellant further submitted that the prosecution evidence was riddled with inconsistencies and contradictions which went to the root of the prosecution’s case; that the key witnesses who were allegedly present or had material information were neither called to testify nor did they record statements, thereby weakening the prosecution’s case. He also contended that the trial court failed to properly analyze the gaps and contradictions in the evidence, which, if correctly evaluated, ought to have led to an acquittal. 18. It was also the Appellant’s submission that his constitutional rights under Articles 49(1) and 50(2) of the Constitution were violated as the prosecution failed to demonstrate when and how he was arrested, and whether his rights upon arrest were observed; and that the manner of conduct of the trial oended the right to a fair trial, particularly with respect to the admission and evaluation of the evidence. 19. On the admissibility and reliability of documentary and medical evidence, the Appellant contended that the trial court was wrong to rely on exhibits that were inconsistent, contradictory, and unreliable, contrary to Sections 33 and 77 of the Evidence Act. He contended that there were discrepancies in the dates and entries in the Child Health Card, the P3 form, the treatment notes, and other medical documents, which raised serious doubts as to their authenticity and probative value. 20. The Appellant further submitted that the trial court failed to consider and properly evaluate his alibi defence, arguing that once an alibi was raised, the burden remained on the prosecution to disprove it. In this regard, he relied on the case Ozaki vs S (Suit No. 130/1988) [1990] NGSC 2 (11 January 1990) and Ricky Ganda v State and Ricky Ganda vs The State [2012] (ZAFSHC 59) for the principles that an accused person does not bear the burden of proving an alibi and that the court must weigh the alibi against the totality of the prosecution evidence. It was submitted that his defence, taken together with the weaknesses in the prosecution case, raised reasonable doubt which ought to have been resolved in his favour. 21. In conclusion, the Appellant submitted that the cumulative eect of the inconsistencies in the prosecution’s evidence, the unreliability of the documentary exhibits, the violation of his constitutional rights, and the failure to properly consider his defence rendered the conviction unsafe. He therefore urged us to allow the appeal, quash the conviction, and set aside the sentence. 22. On their part, learned prosecution counsel submitted that the appeal is devoid of merit and ought to be dismissed in its entirety; that both the trial court and the rst appellate court properly directed themselves on the law and the evidence and correctly found that the prosecution proved all the ingredients of the oence of delement beyond reasonable doubt. 23. Counsel submitted that the age of the complainant was conclusively proved through the testimony of the complainant’s mother and the production of the child immunization card, thereby satisfying the age requirement under Section 8 of the Sexual Offences Act. On penetration, it was submitted that the complainant’s detailed testimony which was corroborated by the eyewitness account of PW5 and the medical evidence that showed bruising around the anal area, suciently proved penetration as dened under Section 2 of the Sexual Oences Act. Counsel contended that the identity of the Appellant was proved by recognition, as the complainant and the Appellant were well known to each other, which eliminated any possibility of mistaken identity. 24. On the alleged violation of constitutional rights under Article 49(1), counsel submitted that the Appellant failed to plead or demonstrate any violation with precision, as required by Anarita Karimi https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 4

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Njeru vs Republic [1979] KLR 154, a position rearmed in Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR. Counsel argued that the record does not disclose any breach of the Appellant’s right to a fair trial, and that the Appellant fully participated in the proceedings. 25. With regard to the alleged misapplication of Sections 36 and 37 of the Evidence Act, counsel submitted that these were inapplicable as no documentary hearsay or books of account were relied upon by the prosecution, and that the P3 form and treatment notes were properly produced without objection; that the proviso to Section 124 of the Evidence Act was duly complied with and, in any event, corroboration existed through both eyewitness accounts and medical evidence. 26. On the credibility of the witnesses, counsel relied on the case of Ndung’u Kimanyi vs Republic [1979] KLR 282 and submitted that the prosecution witnesses were consistent and credible, and that no basis existed for interfering with the trial court’s ndings on their credibility. 27. Finally, it was submitted that the Appellant did not raise a proper alibi defence, but merely made speculative and unsubstantiated claims in an unsworn statement, which did not displace the consistent prosecution evidence. Counsel urged that the appeal be dismissed. 28. This is a second appeal where the mandate and jurisdiction of this Court is limited to matters of law as dened in Section 361 of the Criminal Procedure Code. This Court will not interfere with concurrent ndings of fact by the two courts below unless it is shown that the ndings were based on no evidence, or were based on a misapprehension of the evidence, or that the courts acted on wrong principles. 29. This was armed by this Court in the case of David Njoroge Macharia vs Republic [2011] eKLR as follows: “ That being so only matters of law fall for consideration –see section 361 of the Criminal Procedure Code. As this Court has stated many times before, it will not normally interfere with concurrent ndings of fact by the two courts below unless such ndings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the ndings – see Chemagong v. R [1984] KLR 611.” 30. 31. While appreciating the scope of this Court’s mandate as expounded above, having given due consideration to the record of appeal, the memorandum of appeal and submissions. This appeal raises the following issue for determination: i. Whether the Appellant’s constitutional rights under Articles 49(1) and 50(2) of the Constitution were violated; ii. Whether the prosecution proved the oence beyond reasonable doubt; iii. Whether the prosecution failed to call crucial witnesses; iv. Whether the medical and documentary evidence was improperly admitted or unreliable; and v. Whether the defence raised by the Appellant was properly considered. Regarding the rst issue, the Appellant’s claims that his constitutional rights under Articles 49(1) and 50(2) of the Constitution were violated, our consideration of the record reveals that this issue was neither substantively raised nor determined before the High Court sitting as the rst appellate court. The appeal before the High Court principally challenged the suciency and credibility of the prosecution evidence, the alleged inconsistencies in the testimony of witnesses, and the nding that the oence had https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 5

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been proved beyond reasonable doubt. Consequently, the issue of constitutional violation does not properly arise for determination in this second appeal. 32. However, even assuming that the issue was properly before this Court, the Appellant merely made generalized allegations without demonstrating with precision the nature of the alleged violations, the manner in which the constitutional provisions were infringed, or the prejudice occasioned to him. Further, the record shows that the Appellant actively participated in the proceedings before the trial court. He cross-examined the prosecution witnesses, tendered his defence, and was accorded the opportunity to fully ventilate his case. There is nothing on record to suggest that the trial was conducted in a manner inconsistent with the guarantees of a fair hearing under Article 50(2) of the Constitution. In the circumstances, the complaint relating to the alleged violation of constitutional rights is devoid of merit. see Ng’etich vs Republic (Criminal Appeal 25 of 2015) [2023] KECA 1153 (KLR). 33. We now turn to consider whether the prosecution proved the oence of delement beyond reasonable doubt. The Appellant was charged with the oence of delement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(1) of the Act provides that: “ Any person who commits an act which causes penetration with a child is guilty of an oence termed delement.” Section 8(3) goes on to provide that: “ A person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 34. In so far as the oence of delement is concerned, it is necessary for the prosecution to established three essential ingredients, namely: the age of the complainant, proof of penetration, and the identity of the perpetrator. In the case of John Mutua Munyoki vs Republic [2017] eKLR, this Court stated: “Under the Sexual Offences Act, the main elements of the oence of delement are as follows: i. The victim must be a minor, and ii. there must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suce iii. Proof of the identity of the perpetrator.” See also Muthama vs Republic (Criminal Appeal 3 of 2018) [2022] KECA 1214 (KLR). 35. On the age of the complainant, both the trial court and the High Court found that the complainant was aged 17 years at the time of the oence. 36. With regard to proof of age, this Court in the case of Edwin Nyambogo Onsongo vs Republic [2016] eKLR stated as follows: “ ... the question of proof of age has nally been settled by recent decisions of this court to the eect that it can be proved by documents, evidence such as a birth certicate, baptism card or by oral evidence of the child if the child is suciently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 6

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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.” 37. The evidence on record shows that the complainant’s mother produced a Child Health Card which indicated his date of birth. As were the trial court and the High Court, we too are satised that the age of the complainant was proved beyond reasonable doubt. 38. On penetration, Section 2 of the Sexual Offences Act provides that “genital organs” includes the whole or part of male or female genital organs and for purposes of this Act includes the anus;” 39. Section 2 further states that, “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;” 40. The complainant gave detailed evidence of how the Appellant repeatedly sodomized him and described the manner in which the acts were committed. He stated that the Appellant repeatedly performed “bad manners” on him by removing his clothes, applying oil on his buttocks, and inserting his genital organ into his anus; that the incidents occurred at several locations, including the Appellant’s house, in nearby bushes and under a mango tree. His testimony was consistent and remained unshaken during cross-examination. 41. The evidence of the complainant was corroborated by PW5, who testied that, on one occasion, he saw the complainant lying on a bed while the Appellant lay on top of him. PW5 further stated that the complainant later informed him that the Appellant had inserted his penis into his anus and warned him not to tell anyone. Further corroboration was provided by the medical evidence of PW7, a clinical ocer at Mpeketoni Sub-County Hospital who, upon examination of the complainant, observed bruises around the anal opening measuring approximately 0.5 centimetres and stated that the complainant complained of pain while passing stool. He concluded that the ndings were consistent with anal penetration occasioned by sodomy. The P3 Form and treatment notes which conrmed those ndings were produced in evidence. 42. Concerning the medical and documentary exhibits and their reliability, the Appellant asserted that the learned Judge failed to appreciate that there were inconsistencies and discrepancies in the complainant’s child health card, the P3 Form, treatment notes and other medical documents which undermined their authenticity and evidentiary value. 43. However, the record shows that the impugned documents were produced through competent witnesses during the trial. Musyoki Kisilu, PW7, a clinical ocer at Mpeketoni Sub-County Hospital, who testied that he personally examined the complainant and prepared the treatment notes and P3 Form which he subsequently produced in evidence. Similarly, the complainant’s child health card was produced through PW1, the complainant’s mother, for purposes of establishing his age. The Appellant was accorded full opportunity to cross-examine the witnesses on the contents and authenticity of all the documents. Further, the Appellant did not object to their production when they were tendered in evidence before the trial court. Consequently, the documents properly formed part of the evidentiary record upon which the two courts below were entitled to rely. See Robert Onchiri Ogeto vs Republic [2004] eKLR. 44. We would add that the medical evidence was not adduced in isolation. As stated above, the ndings contained in the P3 Form and treatment notes materially corroborated the direct evidence of the complainant as well as the testimony of PW5 concerning the acts committed by the Appellant. The evidence, taken cumulatively, consistently pointed to anal penetration which both the trial court and the High Court relied upon as proof of the oence of delement. Given the oral and documentary evidence, as were the courts below, we are satised that the element of penetration was proved by the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 7

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prosecution beyond reasonable doubt. See Madegwa vs Republic (Criminal Appeal E080 of 2021) [2024] KECA 350 (KLR). 45. This brings us to the third element of identication. The identity of the Appellant was proved by recognition. The complainant and the Appellant were well known to each other. The Appellant was a pastor in the locality and the complainant and his family had attended his church. The evidence is also clear that the complainant frequently visited the Appellant at his house where the incidents occurred. As a consequence, the possibility of mistaken identity did not arise. See Ng’etich vs Republic (Criminal Appeal 25 of 2015) [2023] KECA 1153 (KLR). 46. The Appellant’s next complaint was that his defence was not taken into account. But the record as presented does not lend support to this allegation. On the contrary, the record shows that the trial court expressly considered the Appellant’s unsworn defence in which he alleged that the charges were fabricated by members of the complainant’s family in order to tarnish his reputation and destroy his ministry. The High Court re-evaluated that defence and found it to be speculative and implausible. For our part, our re-analysis of the record leads us to conclude that the courts below properly considered the Appellant’s defence alongside the prosecution’s case and rightly rejected it. 47. Regarding the alleged alibi defence alluded to, a further interrogation of the Appellant’s defence does not point to his having indicated that he was elsewhere at the material time. In point of fact, the prosecution evidence squarely placed him at the scene and positively identied him as the perpetrator. Clearly, the allegations concerning the failure to consider his defence are unfounded and are accordingly dismissed. 48. The Appellant also argued that the prosecution failed to call crucial witnesses, such as Dr. Robinson, Kuria, Josephine Muturi, Paralegal ocer, and Denis Mbugua, who were allegedly present or had material information were neither called to testify nor record statements, thereby weakening the prosecution’s case. 49. With regard to the number of witnesses, Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. 50. In the case of Joseph Kiptum Keter vs Republic [2007] eKLR, this Court observed that: "Bukenya v Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superuity of witnesses, but only such witnesses as are sucient to establish the charge beyond any reasonable doubt.” 51. In the present case, the prosecution called several witnesses, including the complainant, PW5 who saw the Appellant in the act, the doctor who produced the medical evidence, and the complainant’s mother who produced the birth certicate. The two courts below found, and rightly so, that the witness evidence suciently proved the essential ingredients of the oence. In the circumstances, the prosecution having proved its case, it was not required to call a superuity of witnesses, more so because his complaint does not disclose the gaps in the evidence that the persons named were required to ll. In the circumstances, this ground is without merit and fails. 52. In the nal analysis, we are satised that the prosecution proved that the oence of delement was committed by the Appellant beyond reasonable doubt. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety. 53. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 8

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A. K. MURGOR ........................... JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ............................... JUDGE OF APPEAL G. W. NGENYE-MACHARIA ........................ JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1721/eng@2026-09-25 9

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