https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11745

Abeti v Republic (Criminal Appeal 3 of 2017) [2026] KEHC 11745 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 11745 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal 3 of 2017 RN Nyakundi, J July 28, 2026 Between Benard Lusio Abeti Appellant and Republic Respondent Judgment 1.The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2016. The particulars were that on the 16th day of December 2014 at [Particulars Withheld] village within Uasin Gishu County intentionally and unlawfully caused your genital organ (penis) to penetrate the genital organ (vagina) of IN a girl aged 11 years. 2.In the alternative the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 16th day of December 2016 at [Particulars Withheld] village within Uasin Gishu County intentionally and unlawfully caused your genital organ (penis) to come into contact with the genital organ (Vagina) of IN a girl aged 11 years. 3.The Appellant denied the offence before the trial Court necessitating a full trial and finally the following findings were made by the learned trial Magistrate on both conviction and sentence:At this stage the prosecution closed it’s case. The accused person was put on defence. He denied having committed the offence. I need to establish whether the prosecution has proved its case beyond reasonable doubt and whether the accused’s defence is admissible. The minor positively identified the accused person in Court she said the accused put his thing in his thing. She screamed people came. PW3 confirms that she heard the child scream. She moved forward and found other neighbors standing at the accused’s person door, they asked him to open the door when he opened, they found the child under the accused’s persons bed holding her pants in her hands. Members of the public beat him, they arrested him. PW4 and PW5 confirms having found him already arrested by the members of the public. PW2 the complainant’s mother took the child to hospital and later reported to the police station. The accused person was later re-arrested. I have looked at the accused’s person’s defence. The same amounts to clinical. I have seen the child’s card as well as her medical form the charge sheets the date the act happened. I confirm that the complainant was a minor at the time of the occurrence. I notice that the Ivnestigating Officer and the doctor did not appear in Court to testigy but the evidence before me by the minor has well ben corroborated while writing this judgment I am guided by the finding in the case of Ali vrs Cr Application 54 of 2005 Mombasa. When the High Court Judge stated that the doctor’s evidence though is positive. It is not compulsory to prrof penetration. I am also guided by the hearing in the case of R-vrs- Humphrey and 2 others when it was stated that a criminal case should not collapse simply because the Investigating Officer did not testify. Having said that I am convinced that the accused person is guilty as charged. I proceed to convict him under section 215 of the CPC. 4.On matters of sentence the Appellant was sentenced to life imprisonment on the 3rd day of January 2017. It is from this decision he preferred an appeal based on the following grounds:(a)That the learned trial magistrate erred in law and fact in failing to recognize that charge sheet was defective as it is articulating the defilement contrary to medical report which suggested attempted defilement.(b)That the learned trial magistrate erred in both law and fact by failing to note that the crucial witnesses to this case such as investigating officer and clinical officer were not arraign in Court to testified which was violation of section 144(1) of EA and 150 of CPC.(c)That the learned trial magistrate failed by not considering that there was pre-existing grudge which resulted from separation from our initial love affairs with PW2.(d)That the learned trial magistrate erred in law and fact by not recognizing that the evidence tendered were full of contradiction hence the prosecution witnesses were not eligible.(e)That the learned trial magistrate erred in both law and fact by failing to note that the investigation was shoddy in that the prosecution side did not prove the case beyond reasonable doubt. 5.This being a first appeal, this Court has a duty to revisit the evidence that was before the trial Court, re-evaluate and analyse it and come to its own conclusions. Further, the Court has to bear in mind that unlike the trial Court, it did not have the benefit of seeing the demeanour of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R (1971) EA 32, Eric Onyango Odeny’ v R [2014] eKLR. 6.On matters of defilement, the evidence on appeal must be tested and re-evaluated based on the following three elements: the age of the complainant or victim, proof of penetration and the positive identification of the perpetrator. (See Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013). Just as a reminder, this appeal is on both conviction and sentence. The view taken by the Appellant is that the learned trial Magistrate erred in law and fact in failing to recognize that the charge sheet was defective and further that critical witnesses were never availed in Court rendering the impugned judgment legally flawed. Hence the reason why he moved to this appeals Court. The trial in the Court below was based on the evidence of five witnesses if the evidence on record is anything to go by. 7.In summary, the evidence adduced to prove existence of facts as provided for under Section 107(1), 108, 109, 111 and 112 of the Evidence Act constituted the following witnesses:In the first instance was the victim of the offence VSN who was at the time in Std 2 at [Particulars Withheld] Primary School. She gave a narration that on 16th December 2014 she was at home playing with other children and the Appellant who is an immediate neighbor called her aside and told her to remove her pants and sleep with him. That is when forcibly she was placed on his bed and then committed the act of defilement having also removed her clothes. Thereafter this matter according to the victim was reported to the police and investigation were commenced as supported by the testimony of PW5 AP Shadrack who in company of other Police Officers acted on the report of defilement to arrest the Appellant so as to face the full force of the law. It was also evidence by the prosecution as adduced by PW4 by one Simon Kipkemei who happened to the be the Area Assistant Chief and working with the respective Police Officers took up the matter to ensure justice is done to the victim through the laid down legal procedures to have the accused arrested and charged with the offence of defilement. In the evidence of PW2 SO and also the mother to the victim of the offence. She told the Court that her date of birth was in September 2003 as recognized in the Clinic Card. The mother of the victim further told the Court that she was not at home when the Appellant called her daughter and soon thereafter took her to his house committing the sexual act of defilement. It was in the course of this incident that PW3 Anne Nelimu heard screams of a child from house number 2 and being anxious she also screamed to draw the attention of neighbours as the child was crying out for help that ‘niache, nasikia uchungu’. The neighours as first responders arrived at the scene broke into the door of Appellant, started beating him up as the victim was taken to hospital for treatment. 8.This is the evidence the Appellant is challenging which I have weighed alongside his defence to establish whether indeed the learned Magistrate erred in fact and law in arriving at the decision on conviction and sentence. The jurisdiction of this Court is conduct some kind of rehearing based on the same set of facts and the evidence as a whole with a view to draw inferences based on the doctrine of beyond reasonable doubt. 9.The first element would be for this Court to satisfy itself whether the age of the victim was proved beyond reasonable doubt. The age of the victim in a defilement case can be proved by the direct evidence of parents or guardians who have known her since birth. It is also cognizable that over time jurisprudence around this question has been developed by the Superior Courts. 10.It has been held that the age of the victim in sexual Offences can also be proved by the direct evidence of parents or guardian or by observation by the Court.In Thomas Mwambu Wenyi v Republic eKLR the Court of Appeal cited with approval Francis Omuromi Vs. Uganda, Court of Appeal Criminal Appeal No.2 of 2000 which held that:-“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense....”In Richard Wahome Chege v Republic eKLR the Court of Appeal sitting in Nyeri pronounced itself thus:-“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.” 11.In the instant appeal there is true and credible evidence on the age of the victim from her own biological mother who testified as PW2 SO. There is no any other truth of higher measure of weight on the birth of a child than that of a mother unless it has been shown she suffered some mental infirmity to blur her memory on the calendar of events. There is no rebuttal evidence from the Appellant to prove otherwise that the victim was born on another date than the one shared by her very own mother. In my considered view this element is not impeachable by the Appellant. 12.The offence of defilement is based on an unlawful act against minors who are aged below 18 years. It is the law in Kenya that such children of tender years and below the age of 18 have more capacity to consent to any such invitation to treat by a male person may it be that he is also under the age of 18 or above. This element of penetration is defined under Section 2 of the Sexual Offences Act which expressly states as follows:On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person."It is trite that Courts mainly rely on the evidence of the complainant which is corroborated by medical evidence as was held in Dominic Kibet Mwareng vs. Republic eKLR where the Court stated that:-"...In cases of defilement, the Court will rely mainly on the evidence of the Complainant which must be corroborated by medical evidence..." 13.There is both direct evidence from PW1 and PW3 on the chain of events between the Appellant and PW1 on the 16th day of December 2014 at [Particulars Withheld] village which constituted the offence of defilement. The crime scene was actually the house of the Appellant. It is crystal clear from the testimony of PW3 that she was within the locus in quo when the Appellant committed the offence for she heard screams of a child crying for help ‘niache nasikia uchungu’ and moving closer to that particular house, the door was closed. According to PW3 fearing for the life and safety of the child PW1 she screamed calling for help from the neighbors together they moved into that very scene, broke into and found PW1 on the bed of the Appellant holding pants in her hands. The Appellant was smoked out of his own house by members of the public who included PW3 and soon thereafter he was arrested by the Area Chief accompanied by Police Officers. 14.The defence of the Appellant never contradicted this evidence with any iota of statement or that he was not the one who was found in his house committing the act of defilement of a child who is also his immediate neighbor. This element of penetration has been proved beyond reasonable doubt. 15.The question to be answered is whether this defilement against PW1 was committed by a third person who is not the Appellant before this Court. In answering this question, I place reliance in the principles laid down by the Court of Appeal in Cleophas Otieno Wamunga vs Republic Criminal Case No. 20 of 1989 KLR 424 where it was held that:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification” 16.There is overwhelming evidence from PW1 the victim that on this fateful day she was playing with other children within their own compound and the Appellant who is a neighbor called her aside, took her to his house, locked it, placed her on the bed, forcibly undressed her and correspondingly preparing himself for the unlawful act and proceeded to complete the mission. The cries of the victim were heard by PW3 who was in the same neighbourhood. There is no confusion or mistake on the identity of the person who called aside the victim PW1 and in good faith she responded but she must have been overcome by both the evil intentions of the Appellant which may be to her own best recollection is somebody whom she could have trusted to secure her life. The victim gave a crystal clear description of her assailant who was known to her before this instance. In the present case the Appellant was arrested with the help of the members of public and the Area Chief. There is no mistaken identity of the Appellant as the one who sexually assaulted the victim PW1 on the material day. 17.For those reasons on all the three elements, I concur with the trial Court that this was an offence committed by the Appellant and proved beyond reasonable doubt within the matrix of interpretation and application of Section 107(1), 108, 109, 111 and 112 of the Evidence Act. The best for this appeals Court is to associate myself firmly so with Lord Wright’s decision in Evans vs. Bartlam [1973] A.C 473:“It is clear that the Court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the Court of appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order."In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial Court, the appellate Court is obliged to consider the case put forward by the Appellant in favour of its argument that the trial Court exercised its discretion arbitrarily or incorrectly in the circumstances.What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate Court, even while deciding an appeal against a discretionary order granting an interim injunction, has to:a.Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law. 18.What this means, nothing has been availed by the Appellant for the appeals Court to interfere with the judgment of the trial Court on both conviction and sentence. This is an appeal best described as founded on sinking sand on both law and fact. It is good for dismissal for want of merit. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026……………………………………R. NYAKUNDIJUDGE