https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10938

Ainga v Republic (Criminal Appeal E028 of 2025) [2026] KEHC 10938 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10938 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E028 of 2025 AM Okutoyi, J July 16, 2026 Between Douglas Ainga Appellant and The Republic Respondent (Being an appeal from the Conviction and Sentence in Criminal Case Number SO 127 of 2023 by Hon. I R Rono in the Resident Magistrate’s Court at Ogembo) Judgment Introduction 1.The Appellant Douglas Ainga was on 16th October 2024 convicted of the offence of attempted defilement contrary to Section 9 (1) of the Sexual Offences Act (SOA) in Ogembo Chief Magistrate Sexual Offence Case No. 127 of 2023. The Particulars of the offence are that on 10th November 2023 at [Particulars Withheld] Sub Location, Kenyanya Sub County, within Kisii County intentionally and unlawfully attempted to caused his penis to penetrate the vagina of SM, a child aged 4 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 10 years’ 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. E055 of 2025. He subsequently preferred the Appeal herein vide a Petition of Appeal dated 2nd September 2025. In summary, the appeal was premised on the grounds that the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, the investigation was scanty & shoddy, that the evidence adduced was malicious. Lastly, he states that the trial Court failed to consider the general circumstances of the offence. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. 3.On 21st May 2026 parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his submissions dated 12th March 2026. Respondent equally confirmed filing and service of its written submissions dated 23rd February 2026. 4.Foremost, 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. The Complainant, PW 1 the minor namely SM, a pupil, gave unsworn testimony and stated that the Appellant, whom she referred to as Chege did "tabia mbaya" to her when she had gone to purchase mandazi from him. That he took her to his bed, removed her clothes and did bad things to her. That she reported the incident to her mother. 6.PW 2, namely BBO testified that the Complainant PW 1 is her 1st born child aged 4 years born on 2nd March 2019. She produced her Birth Certificate as evidence. She testified that on 10th November 2023, as she was taking PW1 from the shop, she told her that she felt pain, and that ‘Chege’ had taken her to bed. She testified that she is a person with visual disability and that she took her to hospital at Ogembo. She marked the medical documents for identification before the Court. She noted that she knows Chege, whose other name is Douglas from childhood. On cross examination she admitted that she had sent PW1 to the shop with Kshs 50/= and she didn’t come back with Mandazi. She had to go for her and found her at the Appellant’s kitchen. 7.PW 3 namely Geoffrey Masare, a Clinical Officer based at Gucha Sub-County Hospital testified that the Complainant was presented to their facility on 10th November 2023 with history of being defiled by a person known to her on the previous day. That he filled a P3 Form and sent her for laboratory investigations. The witness testified that there was no penetration of the Complainant's vagina, but there was a tear on the groin. That her hymen was intact. He produced the P3 Form, PRC Form and Treatment notes. He noted that the complainant had taken a birth. 8.PW4 Namely PC Caroline Lang’at No. 1xxx1 testified that she is the investigation officer. She testified that it was reported by the mother of the Complainant that she had sent the Complainant to a hotel whereupon the Appellant took her to his bed and attempted to defile her. That he only stopped when the minor screamed. She stated that at the time she took down the report, the Complainant had already been treated. She noted that she issued them with a P3 Form to be filled. The witness produced a copy of the Complainant's birth certificate at P.Exh1. She finalized by stating that the Complainant identified the Appellant. 9.At the close of the Prosecution's case, the Court found the Appellant to have a case to answer. He was placed on his defence and elected to give sworn testimony. He called one witness Defence Case 10.DW 1, the Appellant namely Douglas Ainga testified that he is a businessman who cooks mandazi's for sale. He noted that on 10th November 2023, he got to his workplace at around 10.00 am and worked until 2.00pm when he went home. That all through at work, he was with his wife Naomi Nyaboke and that they ordinarily get in and leave from work at the same time, as they did so on that particular day. He noted that he cooks the mandazi's as his wife serves them to customers on take-away basis. He stated that he did not see the Complainant on that day. 11.DW 2 namely Naomi Nyaboke testified that she is the wife to the Appellant. That on the said 10th November 2023, she was at their workplace serving mandazi's made by her husband. That they got in and left from work together. On cross examination, she acknowledged that the Complainant came to their shop, purchased mandazi's and left. That all through their time at their workplace on that day, her husband did not leave their premises at any one point. Appellant's Submissions 12.The Appellant in his submissions raised eight grounds: wherein he proceeds to submit thematically on the said grounds. He submits that the trial Court erred by convicting him using uncorroborated child testimony. That PW1 who was 4½ years old gave unsworn evidence that was never independently corroborated as required for a child witness. On Medical evidence, he submits that it contradicts guilt for reasons that PW3 found the hymen fully intact with only a minor groin tear; argues this is medically inconsistent with an adult forcefully attempting penetration, and consistent instead with innocent causes. It is submitted that the Trial court mishandled DW2's evidence, his wife corroborating alibi/exculpatory testimony which was selectively dismissed without reasoned rejection. And the Court proceeded to penalize the Appellant for not disclosing his defence earlier, violating Articles 50(2)(i) and 50(2)(k) of the Constitution of Kenya, 2010 on his right to silence/against self-incrimination. 13.The Appellant relies in the Peter Ndoli Adisa v Republic 2018 eKLR, to buttress his submission that the prosecution's evidence of intact hymen, no vaginal injury falls short of proving bad touch or the actus reus of attempted defilement. On positive identification and recognition, the Complainant’s identification of the Appellant was uncorroborated, with no formal identification parade conducted. On Motive the Appellant suggests the child, sent to buy mandazi and delayed, may have fabricated the story to avoid punishment from her mother. Lastly the Appellant submits that the Complainant’s birth certificate was obtained a month after the incident and after arrest, raising doubts about its provenance and reliability as age proof. He prays for the appeal to be allowed, conviction quashed, sentence set aside, and immediate release. Respondent's Submissions 14.The Respondent opposed the appeal, framing the issues as: age of the victim, proof of attempted penetration and identification, and appropriateness of sentence, relying on John Gatheru Wanyoike v Republic [2019] eKLR and Situma v Republic [2025] eKLR on the elements of attempted defilement. On age, it is submitted that it was proved via birth certificate P. Exh.1 showing the minor was 4 years 7 months at the time of the offence. PW1 testified the Appellant tookher to bed, undressed her and himself; PW3 Clinical officer examined her on 11th November 2023, producing P3, PRC, and treatment notes showing a groin tear though no full vaginal penetration, consistent with an attempt, not completion. Identification was positive and unchallenged in cross-examination, and the Appellant was known to PW1 referred to as "Chege". It is submitted that the 10 years imprisonment is the minimum under section 9(1)(2) of the Sexual Offences Act, correctly and lawfully imposed within the trial court's discretion, citing Simon Oduor Oloo v Republic [2022] eKLR and Benard Kimani Gacheru v Republic (2002) on appellate reluctance to interfere with sentencing discretion absent an error in principle. Analysis And Determination 15.This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. There is now a myriad of case law on this but the well-known case of Okeno V. Republic [1972] EA 32 will suffice. In this case, the Court of Appeal court stated:“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (shantilal M. Ruwala VS. R. (1975) EA 57). 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.” 16.I have carefully read the respective parties’ submissions, given due consideration to the trial court’s proceedings, the Petition of Appeal dated 2nd September, 2025, the Appellant’s written submissions dated 12th March 2026 and the Respondent’s written submissions filed on 23rd February 2026. The following issues arise for the determination of this Court: -a.Whether the Prosecution proved its case beyond reasonable doubt.b.Whether the sentence was harsh and excessive. Whether the Prosecution proved its case beyond reasonable doubt 17.The Appellant was charged under Section 9 (1) of the Sexual Offences Act which provides; -“(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years” 18.The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held in identifying the elements of attempted defilement held as follows:-"The elements of attempted defilement are the same as those of defilement, except that penetration does not occur in attempted defilement. The case of John Gatheru Wanyoike v. Republic [2019] eKLR addressed the elements of an attempted defilement charge and made the following determination: “It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.” 19.As such, the main elements of the offence of attempted defilement are that; the victim must be a minor, positive identification of the accused and there must be an attempted penetration of the genital organ and such penetration need not be complete or absolute. 20.As to the age of the victim, there is no doubt and/or contestation of the age of the Complainant. the Complainant birth certificate was produced as Pexh 1, indicating she was born on 2nd March 2019. She was approximately 4 Years 7 Months old as at 10th November 2023. It is the Appellant’s submission that the certificate was obtained one month later on 15th December 2024 thus disputing its veracity for reasons it was purposefully obtained for this case. 21.The Court of Appeal in Eliud Waweru Wambui v Republic [2019] eKLR, pronounced itself on the importance of age ascertainment in sexual offences cases that:“There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.” 22.The trial court correctly relied on the Complainant’s birth certificate as produced and held that the complainant was aged 4 years 7 months when the offence took place, thus a child with the meaning section 2, 9 Sexual Offences Act as read with Section 2 of the Children Act 2022 to mean someone who has not attained the age of 18 years. In support of the trial position, I am persuaded by the Ugandan case of Francis Omuroni V. Uganda, Criminal Appeal No. 2 of 2000, where the Uganda Court of Appeal stated thus:“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 also be proved by birth certificate, the victim's parents or guardian and by observation and common sense ….” 23.The foregoing case has been cited with approval in our jurisdiction in the case of Mwalango Chichoro Mwanjembe V. Republic, Mombasa Criminal Appeal No. 24 of 2015 where this 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. See Denis Kinywa v R,Cr.Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable. 24.How reliable and credible was the trial court age ascertainment? Apart from Complainant’s own testimony that she’s currently at PP1. PW1’s testified that “She is 4 Years 11 Month. She was Born on 2/3/2019”, She marked her birth Certificate as MF-1 which indicated the year of birth as 2nd March 2019. PW3 produced a P3 form which captured the Complainant age as 4 Years, PRC form captured the date of birth as 02.03.2019 and the Treatment card indicated she was 4 years. 25.In Francis Omuroni v Uganda (Supra), the Uganda Court of Appeal held that medical expert testimony is not the exclusive method for establishing a victim’s age. The court affirmed that age may be competently proved through documentary evidence like birth certificates, clinic cards, baptism cards, lay testimony from parents or guardians, or via judicial observation and common-sense evaluation. 26.Based on the foregoing, there was credible and reliable evidence on the basis of which trial court concluded that the age of the complainant was established to the required standard dissuading any assertions raised by the Appellant. 27.This court is therefore satisfied that it was proved beyond reasonable doubt that the complainant is a minor of tender years. 28.On attempted penetration, the Complainant testified that the appellant did tabia mbaya on her. The Complainant identified that he knows the Appellant, he is Chege and he saw him at his shop when he had gone to buy mandazi and that the Appellant took her to his bed, removed her clothes then he did bad things. 29.Over the years the term “tabia mbaya” is used by young children refers to sexual activities. It should therefore be understood as such, as a small child cannot be able to otherwise describe sexual activities in any other language. The Trial court equally observed that the Complainant could barely talk. The Court of Appeal discussing the meaning and purport of the phrase “Tabia mbaya” by minor children in the case of Muganya Chilegi Saha –vs- Republic (2019) e KLR held that such phrase meaning bad manners connotes Sexual conduct or intercourse that a minor of tender years has no other language to explain to the act. In JE –vs- Republic (2017) e KLR where again the phrase “tabia mbaya” (bad manners) was construed to mean sexual intercourse or conduct. 30.What amounts to an attempt? Attempt is defined by Section 388 of the Penal Code as follows: -“1.When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.2.It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.3.It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.” 31.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.” 32.The above sections bring out the two main ingredients of an attempt 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 overt act towards the penetration. In cases of attempted defilement, the prosecution must prove the accused performed an explicit act toward penetration that fell short of completion, whether due to voluntary desistance or third-party intervention, provided no penetration occurred. 33.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….” 34.The complainant gave unsworn testimony that she knew the Appellant as Chege, the identification was corroborated PW2 the mother who equally confirmed that she knew the Appellant since childhood. She further testifies that she felt the pain after the ordeal, information which relayed to the mother. DW2 confirmed that she knows the complainant and she came to buy mandazi on the said date. As observed by the trial court the Appellant and the complainants are well known to each other and neighbours too. Thus the Appellant was positively identified through recognition. 35.The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the attempted penetration was that of the complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim 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 victim 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 victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” (Underlined for emphasis) 36.The Trial court upon ascertaining that the Complainant was 4 years of age, gave unsworn statement. A trial court must be satisfied that the witness understands the process and is telling the truth. The Complainant testified that the Appellant did tabia mbaya and she reported the incident to the Mother. PW3 testified producing PRC Form, treatment notes and P3 form which showing that the complainant had a tear on her groin an evidence of attempted penetration and struggle, the doctor equally noted that the complainant had taken a bath. 37.In its judgment, the trial Court was persuaded that the testimony of the Complainant was corroborated by Medical evidence, PW2 testimony that she had sent her to the Appellant’s hotel and she found her sitting at the kitchen. This testimony was conceded and corroborated by DW2, thus credible enough to sustain a conviction. The act took place during the day in broad daylight. The trial court rightfully found that the Appellant’s defence was an outright denial coupled with an alibi, the same was not plausible. 38.I find this analysis by the trial court was sound and logical as the facts clearly point out to an intention on the appellant’s part to attempt a defilement which is clearly demonstrated by his acts, evidence and testimony. The Court of Appeal explained intention to commit an offence in Francis Mutuku Nzangi vs. Republic [2013] eKLR as follows: -“…if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfillment. It also matters not that circumstances did in fact exist, unbeknown to the person, that would have rendered his success impossible.” 39.The offence of attempted defilement as defined under Section 9(1) of the Sexual Offences Act is committed when a person attempts to cause penetration with his genital organs, manifested by facts that point to an act of penetration. In an offence of attempted defilement, no penetration takes place, and this is what distinguishes it from the offence of defilement. 40.From the foregoing, this court is satisfied that the prosecution proved beyond reasonable doubt that attempted penetration did indeed occur. Whether the sentence was harsh and excessive 41.As to whether the sentence to serve 10 years imprisonment was arrived at without a basis? The court notes that the Appellant raised this ground in his Petition of Appeal but did not submit on the same. The Appellant only states that the trial court erred for meting out a 10-year sentence yet the prosecution did not prove its case beyond any reasonable doubt and without any credible evidence from the doctor. 42.The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he denied committing the act and the same is a fabrication. The court considered the Appellant’s mitigation, no previous records, its duty to protect children and provision of Section 9(4) of the Sexual Offences Act wherein the offence carries a sentence of imprisonment for a term of not less than ten years.The Trial Court subsequently rendered a minimum sentence of 10 Years imprisonment. The trial court noted that such acts need to be embraced through stringent punishment. 43.This court notes that ten years is the statutory minimum sentence for the offence of attempted defilement. The complainant was four and a half years, a factor that would ordinarily justify careful consideration of a more severe sentence. However, the appeal was solely lodged by the Appellant, the Respondent never filed a cross appeal nor sought enhancement of sentence and no notice to this effect was given to the Appellant. In these circumstances, it would be contrary to the requirements of procedural fairness to enhance the sentence at this later stage of the appeal. 44.I therefore find no legal basis upon which to interfere with the sentence imposed by the trial Court. DispositionConsequently;a.The appeal against both conviction and sentence is dismissed in its entirety.b.The conviction is upheld and the sentence of 10 years imprisonment affirmed. JUDGMENT DELIEVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 16TH DAY OF JULY 2026ANNE M. OKUTOYIJUDGEJudgment Delivered in the Presence of:Mr. Koima for the StateDouglas Ainga-Appellant in person from Kibos PrisonRuth Mokeira-Court Assistant