https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11377

Abuga v Republic (Criminal Appeal E020 of 2025) [2026] KEHC 11377 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11377 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E020 of 2025 AM Okutoyi, J July 23, 2026 Between James Mogusu Abuga Appellant and The Republic Respondent (Being an appeal from the Conviction and Sentence in Criminal Case Number MCSO E116 of 2023 by Hon. I R Rono in the Resident Magistrate’s Court at Ogembo) Judgment Introduction 1.The Appellant, James Mogusu Abuga alias Obondi Kirioni was on 11th November 2024 convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act (SOA) in Ogembo Chief Magistrate Sexual Offence Case No. E116 of 2023. The Particulars of the offence are that on 9th October 2023 and 17th October 2023 at [Particulars Withheld] Vilage, Kenyanya Sub County, within Kisii County intentionally caused his penis to penetrate the vagina of RN a child aged 8 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA). Following a full hearing the Appellant was convicted and sentenced to serve life imprisonment. 2.Aggrieved by both the conviction and sentence, the Appellant foremost sought leave to file an appeal out of time via Kisii HCCRMISC APP No. E183 of 2024. He subsequently preferred the Appeal herein vide a Petition of Appeal dated 20th June 2025. In his Seven grounds the Appellant states that, the trial court erred in failing to consider that the prosecution did not prove its case beyond reasonable doubt threshold, his elderly age was not factored, the prosecution case was riddled with glaring inconsistencies, that he was not accorded a fair trial in compliance to Article 50 (2) (g) & (h). Lastly, he prayed for trial proceedings to enable him erect more grounds of Appeal under Section 350 (V) of the Criminal Procedure Code. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence of life imprisonment. 3.On 21st May 2026 parties took directions on disposal of the Appeal which was to be canvassed by way of written submissions. The Appellant filed his written submissions dated 25th February 2026. The Respondent equally confirmed filing and service of its written submissions dated 3rd March 2026. 4.To start with, this Court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. The Prosecution Case 5.In support of its case, the prosecution called 4 witnesses at the trial court. PW1, the Complainant's mother, testified that on 18th October 2023 she left the Complainant at home while she went to fetch water and work on the farm. On her return, she found the Complainant unwell, and upon insistence, the Complainant disclosed that the Appellant had injured her and warned her not to tell anyone. PW1 examined the Complainant's private parts and noted redness, then took her to hospital and reported the matter to police, who visited the scene and observed the bed in question. 6.PW2, the Complainant RN, a minor aged 8, gave unsworn testimony following voire dire examination. She stated that the Appellant, her grandfather, threw her onto his bed after she had fetched water and cleaned for him, removed her black trousers and his own, lay on top of her and committed "tabia mbaya" touching her groin area with "kitu yake" and his hands. She testified he gave her Kshs. 20 afterward, which she used to buy sweets, and that she felt pain in her groin area before being taken to hospital. 7.PW3, Francis Onyango, a Clinical Officer at Kenyenya Hospital, testified that the Complainant was presented with a history of defilement. On examination he found pink stained underpants, neck injuries, reddish labia minora and majora, a partially broken hymen, and creamish deposits on the upper vulva. Laboratory testing revealed epithelial cells indicating friction and pus cells indicating bacterial infection, though no spermatozoa was found. He conducted an age assessment confirming the Complainant was 8 years old, concluded the offence was defilement with injuries incurred within the preceding 24 hours, and produced the P3 form, PRC form, and Age Assessment as exhibits 8.PW4, PC Stephen Kipyegon Maina, the Investigating Officer, took over investigations from PC Japheth Maroko. He testified that the matter was reported on 19th October 2023 by PW1, alleging that her 8-year-old daughter had been defiled by her grandfather on 9th and 17th October 2023, and that the family had already sought medical attention. He visited the scene, took photographs and produced it as exhibits. 9.At the close of the Prosecution's case, the trial Court found the Appellant to have a case to answer. He was placed on his defence and elected to give sworn testimony as the sole witness. Defence Case 10.DW1, the Accused, James Mogusu Abuga alias Obondi Kirioni, gave sworn testimony and called no witness. He denied defiling PW2 whom he described as his Granddaughter, though he nonetheless sought forgiveness from the Court. He stated that on 9th October 2023 at 3.00pm he was away grazing his goats and was not with the Complainant on the material date. He contended the Complainant was lying, and suggested the mother had fabricated the charge and coached the Complainant to lie against him because he had lent her Kshs. 2,000 for her merry-go-round "chama" group, which she was avoiding repaying. 11.At the end of the Defence case, the trial Court found the Appellant guilty of the offence of defilement and convicted him. Subsequent to the conviction he was acquitted the alternative charge of Indecent act with a child. 12.The trial Court before sentencing the Appellant called for a social inquiry report. The court in consideration of the report which sought to recant the complainant’s witness, and in reaffirming its duty to protect children, and as guided by the Supreme Court Decision in R v Joshua Gichuki Mwangi & 4 Others (Amicus Curiae) Petition No. E018 of 2023 sentenced the Appellant to serve life imprisonment. Appellant's Submissions 13.The Appellant in his submissions to support his appeal restated that the trial magistrate erred in law and fact by rendering a conviction not proven to the required standard. Foremost, the Age of the victim was not properly established. On identification the same was unsafe for reason that PW1's account of the child's whereabouts before the incident shifted and also PW2 first implicated a different person, "Ontonyi," as her earlier defiler before her account turned to the Appellant, undermining reliability. 14.On Medical evidence it is the Appellant’s Submission that hymen was only partially broken, no PV bleeding, no spermatozoa, no DNA test conducted. He submits that this evidence is equally consistent with the earlier alleged incident involving Ontonyi and does not specifically implicate the Appellant. 15.As to whether a proper investigation was undertaken., the Appellant’s submits that the Investigation undertaken by PW4 fell short of the required standards riddled with delays and discrepancy between offence dates and OB booking, no DNA test and the Appellant was never examined. During trial, the Appellant’s submits that he was denied his right to legal representation under Article 50(2)(g)/(h); was unrepresented and had to cross-examine witnesses himself. Also, his defence on the motive for false implication tied to a money dispute involving the Complainant's mother was disregarded. Lastly, the Sentence of life imprisonment was harsh and excessive. In summation, the Appellant prayed that the Appellate court sets aside conviction and sentence and release the Appellant. Respondent's Submissions 16.The Respondent opposed the appeal on three main grounds; That the Appeal is bad in law, lacks merit, and is an abuse of court process. In summary, the Appellant submits that all the three elements of defilement were proved: age was proved via age assessment report, penetration through PW2 Testimony as corroborated through P3 form, PRC form, & Treatment notes, and positive identification through PW2 own testimony. The Respondent submits that the Appellant was accorded his right to fair trial under Article 50(2)(g), he was informed of his right to counsel, confirmed readiness to proceed without one, and cross-examined witnesses extensively, no prejudice shown, and the complaint is a mere procedural technicality. The Respondent further submitted that life imprisonment is the mandatory minimum sentence under section 8(2) of the Sexual Offences Act, the trial court acted strictly within the law and had no discretion to impose less. Thus, praying that the Appeal be dismissed and conviction and sentence upheld. Analysis and Determination 17.This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M Ruwala v R, [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424.” 18.Before delving into the crux of the appeal, the court notes that the Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This Court takes note that the Appellant was served the record of appeal on 4th February 2026. The Appellant subsequently didn’t seek leave under section 350 (v) or the CPC or raised any other supplementary grounds, as such the ground is moot. 19.I have extensively read the respective parties’ submissions, given due consideration to the trial court’s proceedings, the Petition of Appeal dated 20th June, 2026, the Appellant’s written submissions dated 25th February 2026 and the Respondent’s written submissions filed on 3rd March 2026. The following issues arise for my determination: -a.Whether the Prosecution proved its case beyond reasonable doubt.b.Whether the sentence was harsh and excessive.c.Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed. Whether the Prosecution proved its case beyond reasonable doubt. 20.The Appellant was charged under Section 8(1), as read with Section 8(2), of the Sexual Offences Act, which states“(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 21.The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are as that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice. 22.As to whether the Complainant is a minor. In Mwalango Chichoro Mwanjembe V. Republic, Mombasa Criminal Appeal No. 24 of 2015 the Court stated:“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.” 23.As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. The Complainant on voire dire testified that she doesn’t know her age. An age assessment was undertaken and the Complainants age was ascertained to be 8 years. The Age assessment report dated 20th October 2023 confirmed the Complainant’s age as 8 years. This was equally captured in the P3 form as 8 years and the PRC Form captured that the Complainant was born in the year 2015. This evidence was corroborated by PW4. Therefore; the age of the minor was sufficiently proved. 24.On penetration, the Complainant testified twice on 6th December 2023 and recalled on 18th October 2024 that the Appellant had sex with her. She narrates that Appellant, threw her onto his bed, exhibit 2 (c) after she had fetched water and cleaned his shoes, removed her black trousers and his own, lay on top of her and committed "tabia mbaya" touching her groin area with "kitu yake" and his hands. That the Appellant touched her in a bad place (pointing her groin area) That he also told her to put her legs up. The Appellant finished and gave her Kshs20 for sweets. PW1 states that the Complainant equally informed upon insistence that the Appellant had injured her, she examined her and she observed her private parts were reddish and she took her to the Hospital. 25.PW3 Clinical officer Francis Onyango working at Kisii county testified that he examined the Complainant and he observed stained pink underpants, neck injuries, reddish labia minora and majora, a partially broken hymen, and creamish deposits on the upper vulva. Laboratory testing revealed epithelial cells indicating friction and pus cells indicating bacterial infection, though no spermatozoa was found. In support, he produced the P3 form, Post Rape Care form and Age Assessment Report. 26.On his defence, the Appellant whilst seeking forgiveness denied having defiled the Complainant. On the fateful day he was taking care of his goats and the Complainant is a liar. 27.This Court observes that the Complainant testified that she was done tabia mbaya which entailed the appellant inserting kitu yake on her genitalia. In support of her testimony the medical examination noted the existence of a broken hymen, epithelial cells evidencing penetration and pus cells attributed to bacterial infection. 28.Penetration is defined under Section 2 of the Sexual Offences Act as follows:“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 29.The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete. 30.The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR, expressed itself on what amounts to penetration as follows: -“…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….” 31.The complainant unsworn testimony on penetration was equally backed up by medical evidence. 32.Based on the evidence adduced, this Court finds that the prosecution established beyond reasonable doubt that penetration did indeed occur. 33.On positive identification and/or recognition of the perpetrator, the Complainant stated that it was the Grandfather ‘Sokoro,’ the Appellant a person well known to him, he would cook, clean, and fetch water for him. The Appellant in his testimony equally confirms that she knows the Complainant as the Granddaughter and she cooks and clean at his homestead. She confirms it was the Appellant who defiled her the last. She states that she has been defiled twice. The first time by the Appellant and that Ontonyi defiled her also. 34.The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth.” (Underlined for emphasis) 35.The Trial court upon ascertaining that the Complainant was 8 years of age, she unsworn testimony, a trial court must be satisfied that the Complainant is telling the truth. The trial court noted that the Complainant is intelligent but she may not appreciate the purpose of the oath. In its judgment, the trial court was persuaded that the Complainant of 8 years identified the Appellant in broad daylight, she had an ample time to observe what was happening and he positively identified the assailant as the Grandfather who was placed at the scene on 18th October, 2023. The trial court rightfully found that the Appellant’s defence was a mere denial. This court rightly observes that the Complainant positively identified the Appellant. 36.On glaring contradictions, the Appellant pointed out that that the charged sheet captured that the offence was committed on the 9th and 17th October 2023. This anomaly was pointed out by the trial court. The trial observed that there may have been a mix up on dates, which was clarified by the testimonies PW1, PW3 & PW4 which was sequential and consistent. Further the substratum of the charges was effectively explained to the Appellant who understood it to warrant a rebuttal of the same. This court notes that no such rebuttal or defense was raised. It has been held that a court must consider the defects in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi v Republic [2014] Eklr 37.Section 214 (2) of the Criminal Procedure Code addresses this scenario. The section provides;“S 214 (2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. 38.In interpretation of the foregoing section the Court of Appeal in Obedi Kilonzo –vs- R [2015] eKLR stated;“We have perused the record and have seen that the charge sheet indicates that the date of the offence was on 10/2/2013 while the facts of the case as read out by the prosecutor refer to 9/2/2013 as the date of the offense. The test applicable by an appellate court when determining firstly the existence of a defective charge, and secondly its effect on an appellants’ conviction is whether the conviction based on the alleged defective charge occasioned a miscarriage of justice resulting in great prejudice to the Appellant. In the case of JMA v. Republic (2009) KLR 671, it was held inter alia that:“It was not in all cases in which a defect detected in the charge on appeal would render a conviction invalid. Section 382 of the CPC was meant to cure such an irregularity where prejudice to the appellant is not discernible.” 39.Similarly, in this appeal the incident as per the charge sheet was committed on 9th and 17th October 2023. However as per the evidence adduced the same occurred on 18th October 2023. This was an omission and the discrepancy. Section 382 of the Criminal Procedure Code provides;“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 40.From a perusal of the Charge sheet and the records it is established that the offence was committed on the 18th October 2023. A day after the date it was indicated in the charge sheet. The error, omission and/or discrepancy did not prejudice the Appellant and that no miscarriage of justice has been occasioned as a result of the difference in dates. The errors on the dates cannot make the charge sheet defective or the conviction a nullity. This defect is therefore curable under Section 382 CPC. Resultantly, the charge sheet framed in that manner is not defective to warrant a fatality. 41.It is this Court’s finding therefore that the charge sheet as framed contained, a statement of the specific offence with which the Appellant was charged, together with such particulars as to place, period and manner of commission as was necessary for giving reasonable information as to the nature of the offence charged. The Appellant was not prejudiced by the error. Whether the sentence was harsh and excessive. 42.As to whether the sentence to serve life imprisonment was harsh and punitive? The Appellant states that the trial court erred and acted on wrong principles without withstanding that the minimum maximum sentences were declared unconstitutional, hence harsh and excessive. The trial Court before meting out the sentence called for a sentencing report, considered it and subsequently allowed the Appellant to mitigate, wherein he prayed for leniency and non-custodial sentence due to his age and that he was framed by the Complainant’s mother because of a Kshs 2,000 debt. The Court further considered that the Appellant is a first offender and sentence him to serve a life sentence in jail. 43.This Court equally notes that the Appellant is a grandfather who should be a shining example in protection of children. The Complainant was defiled when she was 8 years. Section 8 (2) of the Sexual Offences Act wherein it provides that A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 44.The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 45.On constitutionality of Mandatory Minimum sentences, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable. The Apex court held as follows“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.” 46.I have carefully considered the sentence imposed by the trial court in light of the applicable law and the circumstances of this case. The Complainant was a child of tender years, entitled to the highest level of protection under the law. More significantly, the Appellant was the Complainant’s grandfather, a person who bore a moral and social duty to nurture, guide and protect her. Instead of discharging that solemn duty, he exploited the relationship of trust and confidence to perpetrate a grave sexual offence which undoubtedly will continue carry profound long lasting effects both physically and mentally. As such, this Court finds the sentence imposed by the trial court proportionate to the offence and aggravating factors. Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed. 47.On the right to counsel, Article 50(2) (g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result. 48.A review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili and Ekegusii, which a plea of not guilty was entered, the record indicates that both English, Kiswahili and Ekegusii were used in court. The Appellant comprehensively cross examined all the witnesses. Alike, when called upon to give his defence, the record shows that he lodged a defence without any difficulty. Clearly the Appellant actively participated during and he was not prejudiced by for failure to have counsel on record. An option he did not elect. 49.As such, this Court does not find any basis on the Appellant’s claim that his rights to a fair trial were violated. Disposition 50.Consequently, this Court finds that the appeal is devoid of merit. The conviction entered by the trial Court was safe and found on credible and sufficient evidence which proved the offence beyond reasonable doubt. Equally, the sentence of life imprisonment imposed by the trial Court was lawful, proportionate and commensurate to the gravity of the offence and the aggravating circumstances. 51.Accordingly, this Court dismisses the appeal against conviction and sentence in its entirety. JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 23RD DAY OF JULY 2026ANNE M. OKUTOYIJUDGEJudgment Delivered in the Presence of:James Mogusu Abuga-Appellant in person from Naivasha Maximum PrisonMs. Mugo for the StateRuth Mokeira-Court Assistant