9.The appellant submitted that the trial court convicted him without satisfying itself that the evidence on identification was satisfactory. That the offence was said to have been committed at 2pm but no evidence was adduced as to the lighting that was available at the time. The appellant referred to the case of Charles O Maitanyi V Republic  2 KAR 75 where the Court of Appeal considered the kind of evidence expected to be adduced where identification takes place in difficult circumstances and held that:
10.The appellant also cited the case of Wamunga v Republic  KLR 424 where the same court held that:
11.The appellant submitted that there was no identification parade conducted in the case. Further that there was no forensic evidence adduced in the case yet the prosecution suspected that the appellant`s clothes were stained with the blood of the victim.
12.The appellant submitted that the trial court failed to consider that he was 17 years old thus infringing his right on equal protection before the law as stipulated in article 27(1)(4) of the Constitution.
13.The appeal was opposed by the learned prosecution counsel, Mr WP Ochieng, who submitted that the charge against the appellant was proved beyond reasonable doubt. That the appellant was a person known to the victim. That the victim stayed with the appellant for a while and talked to him so that she was certain who the appellant was. That the evidence was one of recognition which was assuring and reliable.
14.Counsel submitted that the evidence of the victim was corroborated by PW2 who was also attending the traditional dance when the appellant approached the victim and left with her. That PW2 was very clear on the identification of the appellant and even knew his name. That the evidence of the two witnesses remained unshaken even upon rigorous cross-examination.
15.It was submitted that even though an identification parade was not conducted it was clear that the identification of the appellant was satisfactory. That the same was spontaneous, voluntary and emotional, a clear confirmation that it was genuine and honest. That the appellant was equally found with clothes that were bloodied and gave no proper explanation on the same. That though a DNA analysis was not done it could only have amounted to additional evidence that would have made the evidence better. That the evidence adduced in the case meets the threshold required in a criminal trial.
16.Counsel submitted that the age of the victim was proved by production of age assessment report and the evidence of the victim`s mother. That evidence of penetration was proved by the victim, her mother who noted that she was bleeding from her private parts and the doctor who confirmed conclusively that she had been penetrated.
17.It was submitted that the trial court considered the appellant`s mitigation and sentenced him to 25 years imprisonment instead of the possible life imprisonment. That the sentence was in accordance with section 2 of the Sexual Offences Act.
Analysis and Determination
18.This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and draw its own independent conclusions while keeping in mind that the trial court had the advantage of seeing and hearing the witnesses testify - see Okeno v Republic (1972) EA 32. In the case of David Njuguna Wairimu v Republic  eKLR the Court of Appeal put this duty to be as follows:-
19.The appellant challenged the judgment of the lower court on the grounds that his identification as the perpetrator of the offence was not satisfactory, that no identification parade was conducted to test whether the complainant was sure on her identification and that no forensic evidence was conducted to connect him with the offence.
20.The trial magistrate considered the issue of identification and held as follows:
21.The trial court therefore convicted the appellant for the offence, first, on the basis that he was identified by both the victim PW1 and her friend PW2, and secondly on the basis of circumstantial evidence. The trial magistrate however never stated the nature of the circumstantial evidence adduced against the appellant. In my examination of the evidence I do not find any circumstantial evidence in the case.
22.In her evidence in court, the victim PW1 testified that the appellant was a person well known to her. That he approached her while she was attending a Turkana traditional dance and offered to buy her sweets. That she accompanied him to the river bed where he defiled her. That she went home and reported the matter to her mother. That she described the appellant to her mother who took action by reporting the matter.
23.In cross-examination the witness stated as follows:
24.The victim`s friend PW2 stated in her testimony that she was attending the dance with PW1. That the appellant approached them. He held them by their hands and led them towards the river. That she managed to let go but that PW1 proceeded with the appellant.
23.PW2 further stated that she and PW1 saw the appellant clearly though there were many people at the dance. That she had known the appellant very well for a while and that his name was Jame Tioko.
25.Though the victim PW1 stated in her evidence that she knew the appellant even before the date of defilement, she did no explain why she only gave his description to her mother yet she claimed to have known him before. She did not explain whether her mother gave her the name of the appellant before or after the incident. The victim was not asked how she had known the appellant if at all she knew him. In the premises, it was not clear whether the victim knew the appellant before the date of the incident.
26.Similarly, PW2 was not asked how or the circumstances that led to her knowing the appellant before the date of the incident. There was thereby no sufficient evidence that PW2 knew the appellant before the date of the incident.
27.Both PW1 and PW2 stated that it was night time when they were attending the dance. They however never gave indication as to the sort of night it was- whether it was a dark night or whether there was moonlight. They therefore never indicated how they were able to identify the person who led PW1 away as appellant yet it was at night. In the case of Wamunga v Republic (supra) the court emphasized that where the case against an accused person hinges on identification the court must examine the evidence carefully so as to be satisfied that the evidence is free from the possibility of error. In Maitanyi v Republic (supra) it was held that where identification is at night the evidence should be tested with greatest care and the court should inquire on the nature of light that was available, the sort of light, its size and its position relative to the suspect. That it is not a careful test if none of those things are known. In this case no evidence was brought out on the nature of light that enabled the witnesses to identify the appellant. Without such, the evidence cannot be said to be free from the possibility of error. There was thereby no evidence that the circumstances were favourable for positive identification. The evidence of PW1 and PW2 on identification was not safe to be the basis of a conviction on the appellant. The possibility of a mistaken identity has not been discounted.
28.There was no identification parade conducted after the arrest of the appellant so as to test whether the PW1 and PW2 could identify the appellant as the perpetrator of the offence. In John Mwangi Kamau v Republic  the Court of Appeal stressed the importance of holding identification parades and held that:
29.The evidence of PW1 and PW2 was not tested in an identification parade on whether they were in a position to identify the appellant as the perpetrator of the offence. Failure by the investigating officer to conduct an identification parade left the evidence of PW1 and PW2 weak and unreliable to the extent that it was not sufficient to form the basis of a conviction.
30.The prosecution suspected that the blood stains that were found on the clothes that were found in the appellant`s bag were those of the victim, PW1. However, the investigating officer never collected blood samples from the appellant and did not thereby forward the clothes for forensic examination. This was a big blunder on the part of the investigating officer as this is the kind of evidence, if positive, that would have tended to link the appellant with the offence.
31.On my own independent analysis of the evidence, I find that there was no sufficient evidence pointing at the appellant as the perpetrator of the offence. The upshot is that the conviction is quashed and the sentence meted on the appellant set aside. I accordingly order that the appellant be set at liberty forthwith unless otherwise lawfully held.