https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1317

BKW v Republic (Criminal Appeal 23 of 2019) [2026] KECA 1317 (KLR) (10 July 2026) (Abridged Judgment) Neutral citation: [2026] KECA 1317 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 23 of 2019 S ole Kantai, A Ali-Aroni & AO Muchelule, JJA July 10, 2026 Between BKW Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Murang’a (Kimondo, J.) dated 21st February 2019 in HCCRA No. 103 of 2015)) Abridged Judgment 1.Simon Kibisu Makanga, the appellant herein, is before this Court by way of a second appeal. In a second appeal, the Court’s mandate is circumscribed by section 361 of the Criminal Procedure Code in the following terms:1.A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—a.on a matter of fact, and severity of sentence is a matter of fact; orb.against sentence, except where the High Court has enhanced a sentence, unless the subordinate court had no power under section 7 to pass that sentence. 2.On any such appeal, the Court of Appeal may, if it thinks that the judgment of the subordinate court or of the first appellate court should be set aside or varied on the ground of a wrong decision on a question of law, make any order which the subordinate court or the first appellate court could have made, or may remit the case, together with its judgment or order thereon, to the first appellate court or to the subordinate court for determination, whether or not by way of rehearing, with such directions as the Court of Appeal may think necessary. 3.The appellant was initially charged before the Senior Principal Magistrate’s Court at Kandara with the offence of defilement contrary to section 8 (1)(3) of the Sexual Offences Act (the Act). The particulars of the offence were that, on 21st December 2014 at [Particulars Withheld] Village in Kandara District within Murang’a County, he caused his penis to penetrate the vagina of L.W.K, a child aged 14 years. 4.He faced an alternative charge of indecent act with a child, contrary to section 11(1) of the Act, the particulars being that on the same date and place as in the main charge he intentionally and unlawfully touched the vagina of L.W.K. 5.The appellant pleaded not guilty to both counts, and the matter proceeded to trial, where the prosecution called 6 witnesses. The appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the trial magistrate convicted the appellant of the offence of defilement and sentenced him to 20 years’ imprisonment. Dissatisfied with the verdict, the appellant preferred an appeal to the High Court, which dismissed it; the conviction and sentence were affirmed, precipitating this appeal. 6.To contextualise the matter, we shall summarise the evidence presented in the trial court PW1 L.W.K., the complainant, a child of 14 years, described as being retarded and ably challenged, testified that on the material day, the appellant took her to a location near an avocado tree at Gachanja's place, where he forced her to lie on her back, and removed her clothing. In her words, “did put something”. She felt pain and saw blood oozing. The appellant held her mouth and told her not to tell her parents. Her trousers, a nicker, and a piece of cloth she had were blood-stained during the incident, which she identified as the clothes she wore on the said day. She knew the appellant, who was her aunt's son. 7.PW2, Dr Bernard Kiiru, produced the P3 form and informed the court that he filled the same based on treatment notes of the day after the incident, which indicated that the complainant, who suffers from epilepsy and mental retardation, arrived at the hospital with fresh blood on her clothes and a history of sexual assault by a known person. Clinical examination revealed physical injuries, including lacerations on the thighs and vagina, a broken hymen, and blood from the vulva. Tests done confirmed the presence of blood cells and spermatozoa. The injuries showed that there had been sexual assault, and the doctor concluded that she had been defiled. 8.PW3, J.K.K., PW1’s father, testified that on 21st December 2014, while at the Magomano shopping centre at around 6:30 p.m., he saw PW1. He asked his nephew, the appellant, to take PW1 home, which the appellant agreed to. PW3 trusted the appellant because the appellant had taken PW1 home on a previous occasion. He got them a motorcycle for the journey; however, when PW3 got home much later at around 7:00 p.m., he found PW4 searching for PW1, who eventually arrived home after him and appeared to have blood on a white cloth as well as on her trousers and panties. Although PW3 did not ask PW1 what had happened to her, he later learned from PW4 that the appellant had defiled her. He left to search for the appellant, found and apprehended him, and took him to the police. He confirmed that the appellant was his sister’s son. 9.PW4, AWK, PW1’s mother, testified that on 21st December 2014, PW1, who had gone to Magomano, had not returned by nightfall. She unsuccessfully searching for her. PW1 was eventually brought home by a person she believed to be the appellant. PW1 wore a white cloth that was bloodstained. Her daughter N. asked PW1, in her presence, what had happened to her, and she told them that she had been at the tree bushes with the appellant. 10.PW5, Peter Kinyara Kariuki, testified that at approximately 8:30 p.m. on the night of the incident, PW3 called him to ask about the whereabouts of the appellant. Together, they went to the Magomano shopping centre, where they found the appellant, arrested him, and took him to the Githumu Police Station, where PW5 learned of the allegations against the appellant. 11.PW6, P.C. Felix Kipgoskey, testified that on 21st February 2014, PW1 went to the police station at about 8.30 p.m. in the company of a lady. Her father, PW3, informed the police that he had seen PW1 at the Magomano shopping centre and requested the appellant to escort her home. Later that evening, he learnt from his wife, PW4, that she had searched for PW1 and had been informed by a young boy that PW1 had been seen heading to a tea plantation with the appellant, and that the appellant had thrown stones at the children who tried to follow them. PW1 eventually went home when PW4 noticed that her clothes were blood-stained. She informed PW3, who told her that he had left PW1 in the care of the appellant. The appellant was subsequently located at Magumano bar and taken to Githumu Police Station by members of the public. The witness later recorded statements and collected physical evidence, including a white cloth, a black-and-yellow pair of trousers, and a pair of pants, which were produced as exhibits in court. 12.Upon the close of the prosecution's case, the appellant was found to have a case to answer and was placed on his defence. He denied the offence and testified that he had a grudge with his uncle, PW3. He confirmed that he met PW3 and took PW1 as directed by PW3. He denied defiling PW1. 13.The trial court, in its judgment, formed the view that the ingredients of the offence of defilement had been established and the charge proven beyond any reasonable doubt. The High Court, in a judgment dated 21st February 2019, affirmed the trial court's decision, which precipitated this appeal. 14.In his amended grounds of appeal to this Court the appellant faults the High Court on grounds that the trial court erred in upholding the conviction: yet the age of the victim was not proved, neither was penetration; relying on a defective charge sheet; failing to note that essential witnesses were not called to testify; identification was of poor quality; the prosecution evidence was inconsistent; the prosecution case did not proved the case against the appellant beyond reasonable doubt, he also alluded to the sentence meted out urging this Court to consider a lenient sentence. 15.In his submissions, the appellant contends that the prosecution failed to prove the case against him beyond reasonable doubt. He argues that the complainant's age was not supported by tangible evidence, such as a birth certificate or age assessment. To support this claim, he relies on Jan Cardon Wagner & Others vs. Republic [2011] KEHC 3272 (KLR), where the court held that age assessment must be substantiated by a birth certificate or direct evidence which is reliable insofar as the age of the complainant is concerned. 16.The appellant further asserts that penetration was not established, noting that the medical evidence of a broken hymen is inconclusive and that the victim’s testimony only described him putting something inside her, which he argues does not prove penile insertion. In support, he relies on Jacob Odhiambo Omuombo vs. Republic, Criminal Appeal No. 80 of 2008, where this Court held that penetration is an important ingredient in a charge of defilement under the Sexual Offences Act, which must be proved by the prosecution. 17.The appellant further claims that the charge sheet was defective because the evidence provided at trial varied from the specific particulars of the charge. He claims that there are gaps in the charge sheet in that it states that “the appellant intentionally caused his penis to penetrate the vagina…” yet PW1 in her evidence stated that he put something in her. He also highlights that the record reads that the patient went to the hospital with a history of assault, and also says the injuries showed that there was sexual assault. In support of this assertion, he relies on Omambia vs. Republic (Criminal Appeal 47 of 1995) [1995] KECA 156 (KLR), where the Court held that particulars of a charge are an integral part of the charge. 18.He also submits that the prosecution's failure to call two alleged eye witnesses, namely, Wanjiku and Caro, who witnessed the act and saw the appellant remove PW1’s sweater and lay her down on her back was contrary to section 150 of the Criminal Procedure Code. 19.On identification, he submits that identification is not whether the victim knew the accused but rather whether he is identified as the perpetrator of the offence. He argues that PW1 had said she did not know him and therefore dock identification was worthless. In support of this contention, he cited Njoroge vs. Republic [1982] eKLR. 20.On inconsistencies, he submits that there was a discrepancy in the description of the panty that was said to have been worn by PW1. 21.Learned counsel for the respondent filed submissions dated 10th June 2025 and argues that this is a second appeal and therefore the court's jurisdiction is limited to matters of law and the court should not interfere with concurrent findings of fact unless they were unsupported by evidence. In support of this contention, he relies on Karingo & 2 Others vs. Republic [1982] KECA 23 (KLR). 22.Counsel maintains that all key ingredients of the offence of defilement: age, penetration, and identification, were proven beyond reasonable doubt and relies on GOA vs. Republic [2018] eKLR, where the Court outlined the elements of the offence. Counsel submits further that the evidence on record established that PW1, the appellant's cousin, was 14 years old at the time of the incident, and that the appellant had been tasked by PW4 to take her home, which he did after defiling her. PW’s evidence of defilement was corroborated by medical evidence showing physical trauma and the presence of spermatozoa, as well as blood-stained clothing produced as exhibits. On identification, counsel submits that the appellant was properly identified as a relative of the victim and was therefore known to her prior to the incident. This, he urged, was a case of identification by recognition. 23.Regarding the appellant's challenge to the proof of age, counsel asserts that age was established through the testimony of the victim, her parents, and a medical officer, noting that oral evidence is a settled and credible form of proof in such cases. In support of this argument, reliance is placed on Mwalango Chichoro Mwanjembe vs. Republic [2016] eKLR, where the court held that age can also be proved by observation and common sense, and that whatever the nature of the evidence presented in proof of the victim’s age, it has to be credible and reliable. 24.Counsel further urged that the charge sheet was not defective as the appellant clearly understood the allegations in support of this contention. He cites BND vs. Republic [2017] eKLR, where the court held that the principle governing charge sheets is that an accused should be charged with an offence known in law. 25.Counsel also submits that the discrepancies as to the clothing PW1 wore on the material day are a non-issue. Counsel also dismisses the appellant’s claim regarding missing witnesses, asserting that the prosecution is only required to call enough witnesses to establish the facts, which were achieved through the six witnesses who testified. He cites in support Bukenya & Others vs. Uganda [1972] EA 549, where the Court held that the duty of the prosecution is to make available all witnesses who are necessary to establish the truth. 26.In conclusion, counsel emphasises that the appellant abused a position of trust as a relative to a mentally challenged and epileptic minor and argues that the 20-year sentence is appropriate and consistent with mandatory minimum sentences upheld by the Supreme Court, ultimately praying for the dismissal of the appeal. 27.Having carefully considered the record of appeal, the grounds of appeal, the submissions by both parties and the law, we are minded to stay the path circumscribed by section 361 of the Criminal Procedure Code on matters of law. Secondly, we are mindful that we should not interfere with findings of fact established by the courts below unless they were based on no evidence or on a wrong principle of law; and thirdly, the Court should not consider issues that were not raised before the two courts below. The Court, in discussing its mandate in Karingo & 2 Others vs. Republic (supra), stated the following:“A second appeal must be confined to points of law, and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari c/o Karanja vs. R (1956) 17 EACA 146).” 28.Owing to the strict nature of the Court’s mandate, this Court cannot delve into considering matters that are being raised before it for the first time. In Okello vs. Republic (Criminal Appeal 203 of 2009) [2010] KECA 319 (KLR), the Court restated that matters not raised in the courts below ought not to be considered for the first time on a second appeal. Several grounds raised in this appeal, namely: there being a defective charge sheet; inconsistencies in the prosecution evidence; and failure to call relevant witnesses, were not raised in the first appellate court, it therefore follows that they were not considered by the two court’s below and cannot be considered as issues arising at this stage, coupled with the fact that the said issues are matters of fact that cannot be raised on second appeal. 29.Bearing the above in mind, we find that only two issues turn for determination by this Court, namely: -a.Whether the prosecution proved the offence of defilement beyond reasonable doubt;b.Whether the sentence meted out was lawful. 30.On whether the prosecution proved its case beyond reasonable doubt, we shall dissect the various elements of the offence of defilement. It is trite law that in order to establish the offence of defilement, the prosecution needs to prove the identity of the perpetrator of the offence, the age of the victim and whether penetration occurred. 31.On whether the age of the complainant was proved, the appellant argued that no birth certificate or age assessment report was produced in evidence. However, the record demonstrates that PW1, PW3, PW4, and the medical evidence all consistently placed PW1’s age at 14 years. A reading of the record also reveals that the Probation Officer's profile report indicates the victim was born in 2000. Given that the offence occurred on 21st December 2014, this mathematically aligns with PW1 being 14 years old at the time of the incident. 32.This Court has stated repeatedly that the age of a child can be established through documentary evidence such as a birth certificate, an age assessment report or by oral testimony of the victim or a parent or can be deduced from observation. In Mwanjembe vs. Republic (Criminal Appeal 24 of 2015) [2016] KECA 183 (KLR) (26 February 2016) (Judgment), this court elaborately considered the issue of age and stated, which we agree with: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.” 33.We agree with the prosecution, therefore, that the age was proved to the required standard and is a non-issue. 34.On whether penetration was proved, PW1 gave a clear account of the incident. She stated that the appellant removed her clothes, forced himself on her and put something into her vagina, causing pain and bleeding. Her testimony was corroborated by PW2, the doctor, who confirmed lacerations on the vagina, a broken hymen, blood oozing from the vulva and the presence of spermatozoa, concluding that defilement of PW1 was evident. The trial Judge had this to say on penetration:From the evidence of the doctor (PW2) and the mother of the complainant, I entertain no doubt whatsoever that the complainant was defiled. She had lacerations on her thighs and vagina. There was blood on the vulva; and, the hymen was broken. There was a bloody discharge. A detailed examination revealed blood cells and spermatozoa.” 35.In Mark Oiruri Mose vs. R [2013] KECA 67 (KLR), this Court held that penetration is proved by even the slightest insertion of the male genital organ into the genital organ of a female. Further, in George Owiti Raya vs. Republic [2015] KECA 266 (KLR), the Court emphasised that it did not matter whether the complainant's hymen was found intact; it was sufficient that there was evidence of partial penetration. With the evidence on record, we find no merit in the appellant’s contention that penetration was not proved. 36.As regards identification, the appellant was not a stranger to PW1. In her testimony, PW1 identified him as her aunt’s son, and the one who took her to the bush, removed her clothes and defiled her. Indeed, PW3 entrusted her to him, and he and PW4 confirmed that he had previously escorted PW1 home. This was therefore a case of recognition rather than mere identification. The trial Judge held that,“The next key question is whether the appellant perpetrated this heinous crime. The issue is intertwined with identification of the appellant. The complainant and appellant were relatives. There was no doubt about identification. The appellant admitted that on the material day, he was instructed by PW3 to take the complainant home. He was last seen with the complainant before the incident.PW1 was emphatic that it is the appellant who defiled her. She gave this information to her sister and her mother immediately after the sexual assault. That evidence was not shaken on cross-examination. Her evidence was corroborated by her mother and the doctor.” 37.In Anjononi vs. Republic (Criminal Appeal 480, 208 and 209 of 1978) [1980] KECA 23 (KLR), this Court held that recognition of an assailant known to a witness is more satisfactory and reliable than identification of a stranger. In this case, PW1 placed the appellant at the scene, and the surrounding circumstances corroborated her account, which leaves no doubt whatsoever that the appellant was the perpetrator of the offence. 38.On the issue of sentence, not much turns on this ground. The appellant, having been convicted of the offence, was sentenced by the trial court to 20 years' imprisonment, which is the prescribed sentence. Neither the trial court nor the first appellate court could have meted out any other sentence. As for this Court, sentencing being a matter of fact as stipulated under section 361 of the Criminal Procedure Code and the sentence being lawful, we would have no basis to interfere with the same. 39.In the end, upon our own consideration of the record, we are satisfied that both the trial court and the first appellate court properly analysed the evidence and arrived at the correct conclusion that the prosecution proved beyond a reasonable doubt that the appellant defiled the PW1, a mentally unstable and vulnerable minor aged 14 years. The sentence of twenty (20) years imprisonment was lawful under section 8(3) of the Act. 40.Consequently, we find that the appeal lacks merit and it is hereby dismissed in its entirety. The conviction and sentence are hereby upheld. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY, 2026.S. ole KANTAI.........................................JUDGE OF APPEAL ALI-ARONI..........................................JUDGE OF APPEALA. O. MUCHELULE..........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR