https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1660

Kosgei v Republic (Criminal Appeal E089 of 2023) [2026] KECA 1660 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1660 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E089 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Benard Kosgei Appellant and Republic Respondent (Being an Appeal from the judgment of the High Court of Kenya at Kisumu, (Ochieng, J) dated 26th August, 2022 in HCCRA No. E036 of 2021) Judgment 1.The appeal before us is against the judgment of the High Court of Kenya at Kisumu in Criminal Appeal No. E036 of 2021, which itself arose from the judgment rendered by the Principal Magistrate’s Court at Tamu in Criminal Case No. E008 of 2021 (the trial court). 2.In the trial court, the appellant, Benard Kosgei, was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars were that on 23rd February 2021 at [Particulars Withheld] Location in [Particulars Withheld] West Sub-County, Kericho County, the appellant intentionally caused his penis to penetrate the vagina of S.C, (real name redacted for legal reasons) a child aged nine months. He pleaded not guilty to the charge and his trial thereafter ensued. At the conclusion thereof, the appellant was convicted of the offence whereupon he was sentenced to life imprisonment, a decision which was upheld by the High Court on first appeal. This second appeal therefore challenges both the conviction and sentence by the trial court as affirmed by the first appellate court. 3.The prosecution evidence was that PW1, DK (real name again redacted), the mother of SC, and the estranged wife of the appellant on the material day had left her asleep in her employer’s kitchen as she went to work. On her way, she met the appellant and exchanged pleasantries, whereupon the appellant proceeded to the kitchen and took away SC. When PW1 went to collect SC from the appellant the following day, she found her crying without her pants on, and bearing visible injuries on her genitalia. She immediately rushed her to Fort Ternan Hospital, where PW2 (Alex Ngetich) a clinical officer, examined her. His examination revealed that the victim had fresh lacerations, inflammation, and hyperemia of the vulva. He further observed whitish discharge and epithelial cells in the urine, all of which pointed to penetration of her genitalia. 4.PW3 (PC Rose Loye) the investigating officer, received a report of defilement whereupon she accompanied SC to hospital for examination and treatment, and subsequently arrested the appellant and charged him with the offence. 5.The appellant in his sworn defence alleged that he had been framed by (PW1) and her family who were unhappy with their separation and swore to teach him lesson. The Court on its own motion summoned CW1 (Ronald Kiprono Rotich), in whose kitchen PW1 had left SC, who confirmed that on the material day he saw the appellant and PW1 by the roadside while the appellant was carrying SC. He however denied that the SC had been left in his kitchen as claimed by PW1. 6.The trial court, after considering both the prosecution and the defence cases concluded, that the prosecution had proved its case against the appellant as required. That the medical evidence by PW2, coupled with the circumstantial evidence tabled by PW1 and the fact that SC was last seen in the custody of the appellant, left no doubt at all as to the appellant’s culpability. The court therefore convicted him of the offence and, sentenced him to life imprisonment. 7.On appeal to the first appellate court, the appellant challenged both conviction and sentence on grounds that: the sentence imposed was harsh and excessive; the evidence led was insufficient to found a conviction; the offence was a fabrication and was shoddily investigated; and lastly, blamed the trial court for failing to consider his mitigation. 8.The first appellate court upon re-evaluating the evidence, found that the medical findings were conclusive of penetration, that SC was last seen in the custody of the appellant, and that the defence of fabrication was unsubstantiated. The court held that the trial court had accorded the appellant opportunity for mitigation, which was considered and weighed it against the aggravating circumstances. Ultimately, it dismissed the appeal in its entirety. 9.The appellant aggrieved with the judgments of two courts below is before us on second appeal, contending that the said courts erred in law in: not considering and reconciling the contradictions, discrepancies and inconsistencies in the prosecution case in his favour; failing to make a finding that there were co-existing circumstances that destroyed the inference of his guilt; not appreciating the appellant’s defence; failing to make a finding that the circumstances of the case pointed at the appellant’s innocence; and meting out an indefinite and indeterminate sentence. 10.When the appeal was called out for plenary hearing, the appellant appeared in person on our virtual platform from Kisumu maximum prison while the respondent was represented by Ms. Busienei, learned Prosecution Counsel. Both opted to rely entirely on their respective written submissions that they had filed and exchanged. 11.The appellant submitted that the two courts erred in failing to reconcile material contradictions, discrepancies and inconsistencies in the prosecution case, which impeached the credibility and reliability of the witnesses and rendered their testimony unsafe for conviction. The appellant invoked Ndungu Kimanyi v Republic [1979] KLR 283, where this Court held that a witness whose testimony creates suspicion about trustworthiness or indicates unreliability makes it unsafe for the court to accept and act on such evidence. 12.The appellant maintained that PW1 and CW1 gave contradictory accounts regarding whether SC was left asleep in CW1’s kitchen and who was carrying her. PW1’s account of when she discovered that SC was unwell was equally inconsistent. These contradictions and the absence of corroborative medical or eyewitness evidence meant that the prosecution failed to prove its case beyond reasonable doubt. The appellant’s defence was cogent and raised reasonable doubt, yet the two courts failed to properly evaluate and appreciate it. 13.On sentence, the appellant submitted that the two courts erred in meting out an indefinite and indeterminate life sentence in circumstances where the evidence was unclear and inconclusive and was therefore unjust and unfair. He accordingly prayed that the appeal be allowed in its entirety. 14.Counsel for the respondent, while opposing the appeal, submitted that the conviction and sentence were properly entered against the appellant and should be upheld. She submitted that the prosecution proved all the ingredients of the offence beyond reasonable doubt, citing Charles Wamukoya Karani v Republic - Cr. Appeal No. 72 of 2013, in support thereof. On age, PW1 testified that SC was nine months old, and PW3 had produced the birth notification confirming the same. On penetration, PW1 testified that SC was taken by the appellant and later found without a panty, crying, and with visible injuries on her genitalia. PW2, the clinical officer, confirmed fresh lacerations, a torn hymen, inflammation, and whitish discharge, concluding that SC had been defiled. On identification, PW1 testified that she found the appellant sleeping with the child the following morning. The circumstances pointed clearly to the appellant as the perpetrator. Counsel submitted that the alleged contradictions in the prosecution’s evidence were minor and of no consequence. 15.Lastly, the respondent argued that life imprisonment was the only lawful and mandatory sentence under section 8(2) of the Sexual Offences Act. She relied on the Supreme Court decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae), Petition E018 of 2023, which reaffirmed the legality of mandatory minimum sentences in the Sexual Offences Act. Counsel stressed that SC was of extremely tender age and that the appellant showed no remorse, making the sentence appropriate and proportionate. In conclusion, counsel prayed for the dismissal of the appeal in its entirety. 16.The role of this Court as second appellate court was set out in Karani v R [2010) 1 KLR 73 thus:“This is a second appeal. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior court on fact unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong, in which case such omission or commission would be treated as a matter of law.” 17.Having gone through the record, the submissions of both parties, the concurrent findings of the two courts below and the law, the issues that arise for our determination are threefold, namely, whether: the prosecution proved its case against the appellant; the alleged contradictions and inconsistencies in the prosecution case undermined the prosecution case; and whether the sentence of life imprisonment was appropriate in the circumstances. 18.On the first issue, the two courts reached concurrent findings that the prosecution had proved all the essential ingredients of the offence of defilement. Under section 8(1) of the Sexual Offences, it is provided that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”Further, section 8(2) stipulates thus:“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.” 19.Thus, under the Sexual Offences Act, the key elements of the offence and which must be proved to the satisfaction of the court are: the victim is a child, there must be penetration of the genital organ of the Victim and such penetration need not be complete or absolute. Even partial penetration will suffice and finally, the identity of the perpetrator. 20.The age of SC was established to be nine months through the oral testimony of PW1 and documentary evidence being the birth notification form. Penetration was again proved by the evidence of PW1 and medical evidence by PW2 who noted fresh lacerations, a torn hymen, and inflammation on SC’s genitalia and confirmed that there had been penetration. Identification of the perpetrator was established by the fact that the child was last seen in the appellant’s custody. In any event, the victim was his daughter who had spent a night with him. The first appellate court upon re-evaluation, affirmed that the medical findings were conclusive of penetration and age, and that the circumstantial evidence placed SC in the custody of the appellant soon before and after the incident. We are in the premises satisfied of no misdirection in law in those concurrent findings. 21.On contradictions and inconsistencies in the prosecution case as noted by the Uganda Court of Appeal in Twehangane Alfred Vs Uganda - Crim. App. No 139 of 2001, [2003] UGCA, it is not every contradiction that warrants rejection of evidence. As the court put it:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 22.This Court had occasion to address this issue recently in Phillip Nzaka Watu vs. R [2016] eKLR, where it expressed itself thus:“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed it has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and couching.” 23.Both courts considered this argument and found that the discrepancies were minor and did not go to the root of the prosecution case. The core evidence of PW1 and PW2 remained consistent and credible, and the medical findings corroborated the SC's account. We agree with the two courts that the alleged contradictions were not fatal to the prosecution’s case. 24.On the third issue, the appellant challenges the sentence of life imprisonment as indefinite and indeterminate. Section 8(2) of the Sexual Offences Act provides for life sentence if an accused commits the offence with a child aged eleven years or less. SC was aged nine months at the time. 25.The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae), (supra), reaffirmed the legality of the mandatory minimum sentences under the Sexual Offences Act, holding that so long as section 8 of the Sexual Offences Act remains valid, the mandatory sentences therein remain lawful. In the light of the foregoing, the sentence imposed was not only lawful but also demanded by the gravity of the offence. SC was hardly nine months, of extremely tender age, and thus fell squarely within the statutory provision. The aggravating factor of the complainant’s infancy, coupled with the appellant’s lack of remorse, elevates the offence to one of the most heinous in nature. In such circumstances, the imposition of life imprisonment was not only proportionate but the only sentence permissible in law. Any lesser punishment would have amounted to a derogation from the express command of Parliament and a failure to vindicate the rights of the victim. Accordingly, the sentence was both lawful and just, and this Court is bound to uphold it. 26.In the result, we are satisfied that the appeal lacks merit and is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA……………………………………JUDGE OF APPEALE.C. MWITA……………………………………JUDGE OF APPEALB. ONGAYA……………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR