https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8119

Atii v Republic (Criminal Appeal E024 of 2025) [2026] KEHC 8119 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8119 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E024 of 2025 RN Nyakundi, J June 9, 2026 Between Livingstone Atii Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon P. Karimi (RM) delivered at Vihiga in the Senior Principal Magistrate’s Court in Sexual Offence Case No E074 of 2024 on 15th July 2025) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that Livington Atii on the 3rd day of November 2024 at around 1800hrs at [Particulars Withheld] Sub Location, Tongoi Location in Emuhanya Sub County within Vihiga County, intentionally and unlawfully caused his penis to penetrate the vagina of FL a child aged 15 years old. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Appellant was tried and convicted of the offence of defilement and was sentenced to fifteen (15) years imprisonment. 3.Being dissatisfied with the said Judgement delivered on 15th July 2025, the Appellant lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 18th August 2025 based on 4 grounds as follows: -a.That the Learned Trial Magistrate erred in law and facts in not considering that penetration as the main ingredient were not proved to the required standard.b.That the Learned Trial Magistrate erred both in law and facts by not observing that there was overwhelming circumstances that could lead to acquittal of the appellant.c.That the trial court erred in law and fact in not considering that age of the complainant was not proved to the required standard.d.That the Learned Trial Magistrate erred in both law and facts by not considering that prosecution case was marred with contradictions. 4.The Appellant sought the following orders from the Petition of Appeal: -a.Conviction is quashed, sentence of 15 years be set aside and he be set at liberty.b.Appeal succeed to the entirety.c.Any other court may deem just and fit to the Appellant. 5.The Appellant also filed Supplementary Grounds of Appeal dated 17th November 2025 which can be summarised as follows: -a.That the Learned Trial Magistrate erred in both law and fact in not making a finding that the age of the Complainant was not proved beyond reasonable doubt standard.b.That the Learned Trial Magistrate erred in both law and fact in not acquitting the Appellant after the complainant and her mother had made a series of attempts to withdraw the charges against the Appellant. 6.The Appeal was canvassed by way of written submissions. Appellant’s Written Submissions 7.The Appellant filed his Written Submissions were dated 17th November 2025 and filed on 19th November 2025. On the issue of age, the Appellant submitted that that there was no birth certificate and/or age assessment report adduced and produced in court. He argued that the Complainant, FL (hereinafter referred to PW 1)’s testimony, dedication certificate, the Clinical Officer and the Charge Sheet did not suffice to prove her age beyond reasonable doubt. He argued that none of the said witnesses assessed the girl against her age as they were only recipients of what they were told by PW1. 8.He placed reliance on the case of Eliud Ouma Agwara Vs Republic [2015] eKLR where it was held that the age of a complainant in sexual offences could be proved by documentary evidence such as birth certificate, baptism card, school leaving certificate, the school mission letter, a child health clinic card, notification of birth and age assessment report. He, however argued whether the maker of the dedication certificate assessed PW 1 about her age. He added that the maker of the dedication certificate was not called to adduce it hence the same was erroneously produced. 9.In that regard, he cited the case of Nyongesa Vs Republic Criminal Appeal No 123 of 2009 where it was held that age was such a critical aspect in sexual offences that it has to be conclusively proved. This was because the punishment under the Sexual Offences Act is determined by the age of the victim. 10.On the issue of penetration, the Appellant did not submit on this issue but noted that he was desirous to withdraw the matter but was never given a chance to do the same. In this regard, he invoked Article 159(2)(c) of the Constitution of Kenya, 2010, Section 204 of the Criminal Procedure Code and placed reliance on the case of Juma & Others vs AG HCCC Miscellaneous Application No 345 of 2001 (UR) where it was held that the purpose to a criminal prosecution was not to obtain a conviction but to lay before the court what the state considers to be credible evidence relevant to what is alleged to be crime. Respondent’s Written Submissions 11.The Respondent filed his written submissions dated 23rd February 2026 and filed on 12th March 2026. On the issue of age, the Learned Prosecution Counsel placed reliance on the case of Reuben Ombura Muma & Another Vs Republic [2018] eKLR where it was held that the duty of an appellate court was to analyze and re-evaluate the evidence being mindful of the fact that the trial court had the advantage of seeing and assessing the demeanour of the witnesses and the case of Dominic Kibet Mwareng Vs Republic [2013] eKLR where court set out the ingredients of the offence of defilement as age of the complainant, proof of penetration and positive identification. The Learned Prosecution Counsel argued that a Dedication Certificate was produced from the Pentecostal Assemblies of God Church as exhibit in court which showed that as at the material time, PW 1 was fifteen (15) years old. 12.On the issue of identification, the Learned Prosecution Counsel averred that according to PW1, the Appellant was a person well known to her as they had interacted previously and had actually agreed to meet. He added that PW1 spent the entire day and night with the Appellant and therefore, had ample time to get acquainted to him. It was his contention that the identification of the perpetrator was not in dispute. 13.On the issue of penetration, the learned prosecution Counsel submitted that the medical evidence was sufficient to prove penetration and that the same was consistent with PW1’s testimony. He pointed out that the authority to terminate sexual offence cases was only vested with the prosecution as premised under Section 40 of the Sexual Offences Act and not the victim. He added that such cases were also not subject to plea bargains as per the ODPP Guidelines. He further asserted that according to the ODPP diversion policy, this case did not pass the test as one to be addressed. Analysis and Determination 14.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. This being a first appellate court, I am guided by the principle pronounced in the case of David Njuguna Wairimu Vs Republic (2010) eKLR where the Court of Appeal stated that: -“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 15.Having looked at the Appellant’s Grounds of Appeal, Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court notes that the following issues are for determination: -a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. Whether or not the Prosecution proved its case beyond reasonable doubt 16.Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1) and (2) will be dealt with under this head. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considers the ingredients of the offence of defilement. 17.The act of defilement is defined by Section 8 (1) of the Sexual Offences Act that provide thus: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The Ingredients of defilement were stated in the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 where court delivered itself thus: -“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 18.To prove the case to the required standard, the prosecution was required to prove existence of the following ingredients: -a.Age of the victimb.Proof of penetration.c.Positive identification of the perpetrator of the act. a. Age 19.The prosecution was required by Section 8 of the Sexual Offences Act to prove the age of the child either by producing a birth certificate, medical age assessment, through direct testimony of the parent, guardian or the victim or through expert testimony. This court had due regard to the case of Kaingu Elias Kasomo Vs Republic Criminal Case No. 504 of 2010 (unreported) where the Court of Appeal stated that the age of a minor in a charge of defilement could be proved by medical evidence and documents such as baptism cards, school leaving certificates. 20.In the case of Jon Cardon Wagner Vs Republic (Criminal Appeal No. 404 of 2009), Warsame SCJ (as he then was) emphasized that: -“….in defilement cases, the age of the complainant is proved either by medical evidence or through other evidence since the Sexual Offences Act has different categories of ages and sentences for different ages” 21.Equally, in the case of Musyoki Mwakavi Vs Republic Criminal Appeal No. 172 of 2012, Mutende J elaborated that: -“…. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…” 22.In the instant appeal, No. 10xx22 PC Quinter Achieng (hereinafter referred to as “PW3”) tendered in evidence the aforesaid Dedication Card which indicated that PW1 was born on 2nd March 2009. The incident happened on 3rd November 2024, which meant that she was approximately fifteen (15) years of age. In the case of Kaingu Elias Kasono Vs Republic, Criminal Appeal No. 54 of 2010 the Court of Appeal held as follows: -“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim” 23.Further, in the case of Hadson Ali Mwachongo Vs Republic (2016) eKLR, the Court of Appeal stated that: -“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello Vs Republic Cr. App. No. 203 of 2009 (Kisumu), this Court stated as follows;“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).” 24.However, in the case of Richard Wahome Chege Vs Republic Criminal Appeal No. 61 of 2014, the same Court of Appeal, held that: -“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 [the doctor] who examined the complainant, and the complainant herself.” 25.In this instant case, the Appellant did not challenge the production of the aforesaid Dedication Card and/or rebut this evidence by adducing evidence to the contrary hence this court is satisfied that PW1’s age was proven and that she was a child at all material times. The Appellant’s assertion that the maker of the document was not called to produce the same and/or PW1 was not assessed on her actual age falls on the wayside considering the decision in Kaingu Elias Kasomo Vs Republic (Supra). b. Identification 26.I take cognizance that the Appellant did not submit on this issue. A perusal of the proceedings showed that PW1 testified that on the material day of 3rd November 2024 at 6. 00p.m, she had gone to buy sugar at the shops when she met the Appellant who greeted her and pulled her to the side. She said that she wanted to scream but the Appellant threatened her. It was her further testimony, that they went to the Appellant’s house spent the night. She explained that the Appellant made her his wife, forced her into bed and defiled her. She added that she used to see the Appellant severally and that they had spoken and agreed to meet at Mwichio. 27.MC, PW2 testified that she found PW1 in hiding with the Appellant. This court noted that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. 28.Notably, the proviso of Section 124 of the Evidence Act states that: -“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 accused 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 accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis).” 29.Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful. The courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that;“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.” 30.PW1 positively identified the Appellant as the perpetrator of the offence. She was emphatic that it was him who defiled her. She said she used to see the Appellant and that they had agreed to meet on the material day. There could not therefore, have been any possibility of a mistaken identity of the Appellant. This court thus concludes that the Prosecution proved the ingredient of identification which was by recognition. c. Penetration 31.Notably, the Clinical Officer, Paul Muturi Ndungo- PW4 testified that on examining PW1, she had white vaginal discharge, small lacerations on the vagina, inflamed labia minora and majora, the hymen was broken and epithelial cells were present in her vaginal test. He opined that she had penile penetration and sexual activities. He classified the injuries as harm from a human penis. He produced the P3 Form and Post Rape Care (PRC) Form as exhibits during trial. 32.In his defence, the Appellant denied the charges and only narrated how he was arrested. Weighed against the evidence that was adduced by the Prosecution witnesses, this court did not find the Appellant’s defence evidence to have been watertight enough to have weakened the inference of guilt on his part. This is because the Prosecution had demonstrated the elements of the offence of defilement. His argument that he was not given a chance to withdraw the case thus fell by the wayside as sexual offence case was not one that could be terminated under Section 40 of the ODPP Act as submitted by the Respondent. 33.Notably, PW 1’s evidence was corroborated by the scientific evidence of PW 4. This court therefore finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW1 on the material date as there was proof of defilement as PW 4 testified. In the premises, Grounds of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1) and (2) are not merited and the same be and are hereby dismissed. Whether the sentence was harsh and excessive 34.The Appellant did not raise the issue of sentence as a ground of appeal herein. For completeness of record, this court deemed it prudent to consider the legality or otherwise of his sentence. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: -“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” 35.This court noted that the Trial Court sentenced the Appellant to fifteen (15) years imprisonment instead of the twenty (20) years imprisonment that had been prescribed by law. However, it did not fault the Trial Court as the jurisprudence at the time allowed courts the discretion of imposing sentences without adhering to the minimum mandatory threshold. 36.In the case of Joshua Gichuki Mwangi Vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake Vs Republic [2018] eKLR where it held that: -Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 37.However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi Vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. 38.As this court was bound by the decisions of courts superior to it, its hands are tied regarding exercising its discretion to reduce the Applicant’s sentence. It has no option but to leave the said sentence that was meted against the Applicant herein undisturbed. 39.This court is not persuaded to enhance the sentence to twenty (20) years, as submitted by the Respondent as it did not put the Appellant on notice that it would be seeking an enhancement of the sentence which would have allowed him to make an informed decision as to whether he would have wished to proceed with his application or if he would have wished to abandon the same. Enhancing his sentence without giving him to respond would be contrary to the principles of fair trial provided in Article 50 of the Constitution of Kenya 2010. 40.In view of the foregoing, the Appellant’s Petition of Appeal dated 18th August 2025 is not merited and the same be and is hereby dismissed. The Appellant’s conviction and sentence be and are hereby upheld as they were safe. 41.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026……………………………R. NYAKUNDIJUDGE