https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1474

Byegon v Republic (Criminal Appeal E009 of 2025) [2026] KECA 1474 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1474 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal E009 of 2025 JM Mativo, PM Gachoka & MB Kairaria, JJA July 24, 2026 Between Dennis Kiprotich Byegon Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Bomet (R. L. Korir, J.) delivered on 31st January, 2022.inHCCR.A No. E013 of 2021) Judgment 1.The appellant, Dennis Kiprotich Byegon, was arraigned before the Principal Magistrates court at Bomet and charged with the offence of defilement contrary to section 8[1] as read with Section 8[2] of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 30th day of November 2019 at around 20.30 at [Particulars Withheld] village Chesoen location within Bomet County, the appellant intentionally caused his penis to penetrate the vagina of V.C a child aged 8 years. He faced an alternative charge of committing an indecent act with a child contrary to Section 11 [1] of the Sexual offences Act. The particulars of the offence were that on the 30th day of November, 2019 at [Particulars Withheld] village Chesoen location within Bomet County the appellant intentionally touched the vagina of V.C a child aged 8 years with his penis. 2.When the charges were read out to him on 22nd June 2020 before Hon. P.J Aduke [RM] the appellant pleaded not guilty and the case proceeded to full trial before Hon. K. Kibelion [SRM]. The prosecution called five witnesses in a bid to prove its case while the appellant elected to give unsworn testimony and called no other witness in his defence. At the end of the trial the magistrate considered the evidence of the prosecution against that of the appellant. He found that the prosecution had proved the ingredients of the offence of defilement namely; penetration, the age of the complainant and the identity of the perpetrator beyond reasonable doubt and convicted the appellant under Section 215 CPC in a judgment delivered on 1st April 2021. No finding was made on the alternative count. 3.The appellant was sentenced to serve life imprisonment which is the statutory mandatory sentence provided for under Section 8[2] of the Sexual Offences Act for defilement of children aged 11 years and below. 4.The appellant was aggrieved by the decision of the trial court and on 7th April 2021 lodged an appeal against the conviction and sentence before the High Court at Bomet in Criminal Appeal No. E013 of 2021. 5.The High Court [R. L. Korir J] heard the appeal on 4th November, 2021 and following a re-evaluation of the evidence on record dismissed the appeal and upheld both the conviction and sentence in a judgement dated 31st January, 2022. 6.The appellant was dissatisfied with the decision of the High Court and has lodged the present appeal seeking to overturn the concurrent findings of guilt by the two courts below on grounds that:a.the ingredients of the offence of defilement were not proved;b.the charges were founded on a grudge between the appellant and PW2 and;c.the mandatory minimum life sentence is unconstitutional. 7.We heard the appeal on 25th March, 2026. The appellant was present virtually at Naivasha Maximum Security Prison and relied on his written submissions dated 10th March, 2026 in support of his appeal, while Mr. Omutelema learned Senior Assistant Director of Public Prosecutions Prosecution represented the respondent and relied on the written submissions dated 23rd March 2026 in opposition to the appeal. 8.This being a second appeal our jurisdiction is by dint of section 361[1] [a] of the Criminal Procedure Code, limited to considering matters of law. The Section provides that:“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 that Section:a.on a matter of fact ,the severity of sentence is a matter of fact; orb.against sentence ,except where a sentence has been enhanced by the High Court unless the subordinate court had no power under section 7 to pass the sentence.’’ 9.The first ground of challenge is that the ingredients of the offence of defilement were not proved. In his submissions the appellant correctly noted that those ingredients are three to wit; penetration, identification or recognition of the offender, and age as set out in the case of George Opondo Olunga vs. Republic. He does not contest his identification and recognition by the complainant neither does he contest that the complainant was aged 8 years at the time the complaint leading to the charge was laid against him. 10.Of the three ingredients of the offence he only contests the fact of penetration which he submits is a key element of the offence which the prosecution was required to establish through credible, consistent and cogent evidence. In this regard, he cited George Owiti Raya vs. Republic {2015} 266 {KLR} to buttress his submission that the prosecution must demonstrate actual penetration, however slight, in order to secure a conviction. He challenges the medical evidence adduced by the prosecution and submits that it does not conclusively establish penetration. According to him there was discrepancy in PW1’s evidence in that she testified that she had her clothes on and the appellant had his clothes. The appellant contended that it was not possible for him to defile the complainant with their clothes on and argued that the two courts should have seen this discrepancy and found penetration was not proved. 11.Secondly, the appellant submitted that PW1’s evidence on penetration was not truthful, that she said she did not tell anyone about the incidence, then said she only told Tetio her elder sister which does not match the testimony of PW2 her aunt who testified that PW1 told her that she was defiled. He complained that Tetio was not availed to testify whether V.C told her that she was defiled and added that if the prosecution had availed Tetio, she could have shed light on whether the complainant told her she was defiled. 12.Thirdly, the court should have taken the evidence of PW2 with caution because she was married to him and separated and there was a possibility that PW2 framed the appellant. The appellant further contended that there was no independent corroborative evidence linking the appellant to any act of penetration because PW4 who examined her on 3rd December 2019 told the court that, there were no visible injuries but her panty had blood stains, therefore his evidence was not consistent. Further, no DNA was conducted to test whether the blood in the complainant’s panty was her blood. He urged us to find that the High Court judge erred in failing to find that there was a grudge between him and PW2, that had the two courts considered that there was a vendetta with his former wife then they would have found that the charges were instigated, that he was framed and the charges should not stand. 13.On unconstitutionality of the mandatory sentence, the appellant submitted that it is evident that the trial court did not exercise discretion when sentencing the appellant and did not consider his mitigation but relied on the text of Section8[2] of the Sexual Offences Act. He complained that he was given a blanket sentence which did not put into account the circumstance of the offence and his mitigation. He argued that the non derogable fair trial right guaranteed under Art. 50[2](q)of the Constitution includes the right of an accused person to present mitigation before sentencing and the indeterminate nature of the life sentence passed on him is discriminatory and violates his right to dignity. 14.Based on those submissions, the appellant urged us to allow the appeal, quash the conviction and sentence and set him at liberty or in the alternative substitute the life sentence with a lesser sentence in the event that the appeal on conviction fails. 15.For the respondent, it was submitted that penetration was proved by the evidence of PW1 and PW4. PW4 recorded in the P3 form that upon medical examination the victim’s genitalia had bruises on the labia minora with swelling, while PW1 testified that the appellant dragged her to the store and did bad manners to her by inserting his thing into the place she uses to urinate and she felt pain when he inserted his thing. Counsel argued that the High Court reviewed and reevaluated the evidence of the victim [PW1] and the medical officer [PW4] and concluded that the evidence of PW1 was undoubtably believable and the evidence of PW4 confirmed that penetration was sufficiently established. It was further submitted that the appellant’s defence was considered and rightfully rejected as was no evidence of vendetta between the appellant and the victim’s family. Further the appellate failed to demonstrate any vendetta between himself and the complainant’s mother. Counsel noted that there was no evidence of any vendetta between the appellant and the victim’s mother before the two courts below and it is not a matter deserving further consideration by this Court. 16.On the constitutionality of the life sentence, the respondent submitted that the sentence is provided for under Section 8[2] of the Sexual Offences as a mandatory sentence to be handed down to any person who is convicted of the offence of defilement with a child aged eleven years or below. He added that sentencing is a matter of discretion guided by the law and limited to the extent provided in the specific law in respect of which an accused person is charged. He added that the Supreme Court addressed the question of minimum and mandatory sentences under the Sexual offences Act and held that “mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law.” In view of this, the respondent submitted that the sentence meted on the appellant is lawful and within the parameters of sentencing set by parliament. In conclusion, the respondent submitted that it supports both the conviction and sentence and implored us to uphold the judgement of the High Court and dismiss the appeal in its entirety. 17.We have carefully considered the grounds of appeal, the record of appeal, the rival submissions and the cited case law. As previously observed though the appellant challenged his conviction on the basis that all the ingredients of the offence of defilement were not proved, his submissions before us was only targeted on the single ingredient of penetration. And penetration is not just important but foundational without which the other two ingredients cannot independently stand to form the basis of a conviction for the offence of defilement. So was penetration proved by the evidence tendered by the prosecution at the trial or did the two courts below err in finding that penetration was proved beyond reasonable doubt? Penetration is defined under section 2 of the Sexual Offences Act as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18.The two courts below made concurrent findings of fact that penetration was proved on the basis of the evidence of PW1 [the complainant] and PW4 [the medical] officer. We have independently reviewed that evidence and we are satisfied that the two courts did not err at all. The evidence of PW1 was credible and compelling. She testified on 19th November 2020. Part of her testimony as recorded at the trial reads:“I remember on 30 /11/ 2019 at 6.00pm I was coming from the store at our home. Dennis dragged me. He held me by my hand. I knew Dennis before that date. He is our neighbor. He dragged me into the store. He had a knife. He dragged me into the store and did bad manners to me. The accused had clothes on. I had a trouser and a blouse. In doing bad manners he inserted his thing into me [points between the legs]. The place he inserted his thing is the one I use to urinate. He inserted his thing in me once. I felt pain when he inserted his thing. I did not scream because there was a handkerchief put in my mouth by the accused. He covered my mouth with a handkerchief.” 19.PW4 on his part testified that he examined V.C on 3rd December 2019 and filled a P3 form which he produced at the trial marked as PEXH2a. He stated that the degree of injury was harm and she had bruises and swelling on the labia majora and brown discharge. He concluded that there was penetration. 20.In the face of that clear and uncontroverted evidence the appellant’s contention that penetration was not proved beyond reasonable doubt and that the charge was fabricated against him by PW2 due to vendetta and grudge against him because they had separated is clearly not supported by the record. In the circumstances, we find no reason to depart from the concurrent findings of the two courts below. We are satisfied that the appellant defiled V.C and was lawfully convicted. 21.Regarding the life sentence, we find that there is nothing unconstitutional about it. It is what parliament has provided under Section 8[2] as a fitting mandatory sentence for the offence of defilement where the victim is aged 11 years and below. The complainant in the instant case was aged 8 years thus within the age blanket under Section 8[2]. Furthermore, the Supreme Court has clarified that the mandatory and minimum sentences prescribed under the Sexual Offences Act are constitutional and lawful.[ See Republic vs. Joshua Gichuki Mwangi,Initiative for Strategic Litigation in Africa [ISLA] & 3 Others [Amicus Curiae] Petition E018 of 2023] [2024] KESC 34[KLR]. That is the current state of the law as pronounced by the highest court in the land. Its decisions are binding on all courts including this Court by dint of Art. 163[7] of the Constitution of Kenya [2010]. The first appellate court did not err in upholding the sentence handed down by the trial court. 22.In the end, we come to the conclusion that the appellant’s appeal on both conviction and sentence lacks merits. It fails and is accordingly dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 24TH DAY OF JULY, 2026J. MATIVOJUDGE OF APPEAL...........................................M. GACHOKA C.Arb, FCIArb.JUDGE OF APPEAL...........................................MURUNGI B. KAIRARIAJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR