Kaifa v Republic (Criminal Appeal E130 of 2022) [2026] KECA 732 (KLR) (10 April 2026) (Judgment)

Kaifa v Republic (Criminal Appeal E130 of 2022) [2026] KECA 732 (KLR) (10 April 2026) (Judgment) Neutral citation: [2026] KECA 732 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E130 of 2022 JM Mativo, PM Gachoka & WK Korir, JJA April 10, 2026 Between John Kaifa Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Eldoret (J. Wakiaga, J.) dated 19th November 2019 and delivered on 27th November 2019 (S. M. Githinji, J.) in CRA No. 25 of 2019) Judgment 1.John Khalifa (the appellant) was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act at the Chief Magistrate’s Court at Eldoret in Criminal Case No. 227 of 2016. The particulars of the offence were that on 1st August 2016 at (particulars withheld) in Wareng Sub-county within Uasin Gishu County, he intentionally and unlawfully caused his penis to penetrate the vagina of JWM, a girl aged 6 years. He faced an alternative count of committing an indecent act with a child contrary to section 11 (1) of the Act. It was alleged that on the above date and place, he intentionally and unlawfully caused his penis to come into contact with the vagina of JWM, a girl aged 6 years. 2.The prosecution case rested on the evidence of 5 witnesses. A summary of their evidence as presented before the trial court is necessary. The complainant (PWl) stated that the appellant used to live near them and she knew him. She described him as a herdsman. On the material day, she said she was with her young brother when the appellant called her and pulled her into his house made of bricks, he removed her clothes, lied on her and inserted his penis into her genitals. She felt pain causing her to cry. It was her evidence that this was not the first time because the appellant used to do this to her after she came from school. Previously, she informed her grandmother about it but nothing was done. The appellant elected not to cross-examine her. 3.PW2, then aged 3 years said he knew John (the appellant), he used to come to their house. It was his evidence that this was not the first time the appellant defiled the complainant. He said the appellant gave them one shilling and told them to go and buy sweets. He stated that PW1 was crying during the incident. Further, the appellant dressed PW1 with a pant and let them go home. PW2 maintained that he saw the appellant defiling the complainant, and, that they informed their grandmother that the appellant gave PW1 some shillings. 4.PW3, the complainant’s grandmother stated that on 1st August 2016 she returned home from work at 8p.m. and PW1 told her that her thighs were paining, and that John threatened to kill her if she told her that he had defiled her. She physically examined PW1’s genitals and noted some whitish discharge on her vagina and thighs and her hymen was broken. She reported the incident at Kiambaa Police Station, she was issued with a P3 form and took PW1 to the hospital. She stated that the complainant was 6 years old. In cross-examination she said that the appellant was a herdsman and he lived near their home. 5.PW4, Dr Eunice Timet produced the P3 form prepared by Mary Yatich who had since left the hospital and whose signature she was familiar with. The findings on examination were an old healing hymeneal tears at position 9 and 12 o’clock and redness on her labia minora which were consistent with defilement. 6.PW5, Cpl Edwin, the Investigating Officer re-arrested the appellant who had been arrested by administration police officers and took him to Kiambaa Police Station, from where he was charged with the offence. 7.In his defence, the appellant stated that he was a herds boy, he lived at Rehema, and he was arrested on 6th February 2017 at 1p.m while going back home for something he did not know. 8.The trial magistrate in his judgment dated 17th January 2019 was satisfied that the prosecution had proved its case beyond reasonable doubt and convicted the appellant accordingly. On 7th February 2019, the learned magistrate upon considering the probation officer’s report and the appellant’s plea in mitigation sentenced the appellant to life imprisonment stating that that is the sentence provided under the law. 9.Aggrieved by both conviction and sentence, the appellant appealed in Eldoret High Court Criminal Case No. 25 of 2019 contending that: (a) the charge sheet was defective, (b) he was denied the chance to cross-examine the complainant, (c) the prosecution evidence was contradictory and inconsistent to support a conviction, and (d) the evidence was not properly evaluated. He prayed for the conviction and sentence to be set aside. After evaluating the record, the grounds of appeal and the party’s submissions, Wakiaga, J. held that the appeal lacked merit and affirmed the trial court’s judgment. 10.In his quest for justice, the appellant appealed to this Court.In his initial undated grounds of appeal, he cites 4 grounds of appeal, namely: (a) he was not furnished with witness statements; (b) section 200 (3) of the Criminal Procedure Code was not complied with; (c) vital prosecution witnesses were not called; and (d) the complainant’s age was not proved. 11.In his supplementary grounds of appeal dated 30th January 2026, in addition to replicating some of the above grounds, the appellant contends that: (a) the learned Judge erred in law in upholding his conviction and failing to consider that the mandatory life sentence under section 8 (2) of the sexual offences Act denies the Judicial Officer legitimate jurisdiction to exercise discretion to impose an appropriate sentence based on the evidence adduced and peculiar circumstances of the case which is unconstitutional and unfair and contrary to Article 27 (1)(2) (4) of the Constitution, hence, the sentence is unlawful. The appellant prays for orders that the conviction be quashed and the sentence be set aside. 12.We heard this appeal virtually on 17th February 2026. The appellant was unrepresented. The respondent was represented by learned counsel Mr. Kirenge, Prosecution Counsel. Both parties adopted their respective written submissions. 13.In support of his appeal, the appellant contended that the trial magistrate did not comply with the mandatory provisions of section 200 (3) of the Criminal Procedure Code which imposes a duty on a magistrate who takes over a partly-heard case to explain to the accused his rights to recall the witnesses who had testified. Urging that this duty cannot be presumed, inferred, or shifted to the accused, the appellant cited Ndegwa vs. Republic [1985] KLR 535 in support of the proposition that the provisions of section 200 should be invoked sparingly, and only in cases where the exigencies of the circumstances so dictate, therefore, failure to comply with this provision is not a mere irregularity. According to the appellant, his statement that “I do not want the case to proceed” did not satisfy the requirements of section 200 (3). He relied on Pius Orina & Ano. vs. Republic [2017] eKLR in support of the holding that waiver of the rights provided under section 200 must be clear and unambiguous. Also, the appellant cited Muiruri vs. Republic [2003] KLR 552 which held that serious offences require stricter compliance with section 200 (3) and contended that prejudice is presumed in serious cases. 14.Regarding sentence, the appellant described life imprisonment as harsh and argued that courts are not mere custodians of statutory texts but they are required to develop jurisprudence that aligns with international standards. According to him, the Sexual Offences Act, though well intentioned was drafted in a haste and without the nuanced moral complexities of our communities. In his view, if courts fail to interpret and apply the law with sensitivity and fairness, especially towards the boy child, prisons will become dens of young men whose mitigating circumstances were never considered. Further, the rigid application of this law creates inequality in total violation of Article 27 of the Constitution, and posited that many people have had their life sentences substituted with definite jail terms while many are languishing in jail for similar offences. 15.In opposition to the appeal, Mr. Kirenge responding to the argument that the appellant was not provided with witness statements pointed out that on 8th May 2017, the appellant confirmed receipt of the statements and even requested for time to read through the same before the Investigating Officer could testify. The Investigating Officer was stood down and a further hearing date taken by the parties. 16.Regarding the alleged failure to comply with section 200 (3) of the Criminal Procedure Code, Mr. Kirenge stated that contrary to the appellant’s assertion, a reading of page l6 of the proceedings shows that section 200 (3) of the Criminal Procedure Code was complied with and the appellant responded to the same. Lastly, counsel urged this Court not to disturb the findings by the two courts below. 17.This is a second appeal; therefore, our jurisdiction is limited to considering matters of law as stipulated by section 361 of the Criminal Procedure Code. A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings. (See David Njoroge Macharia vs. Republic [2011] eKLR). 18.We will first address the question whether the key ingredients of the offence were established to the required standard. In criminal law, the "ingredients" of an offence (also known as the elements of the crime) are the specific legal components that the prosecution must prove beyond a reasonable doubt to secure a conviction. By requiring proof of specific ingredients, the law ensures that the state cannot punish individuals based on mere suspicion or broad, undefined moral wrongs. (See the South African Constitutional Court decision in S vs. Molimi (CCT 10/07) [2008] ZACC 2). To secure a conviction in the offence under section 8 (1) and (2) of the Sexual Offences Act, the prosecution was required to prove beyond doubt the following three elements: (a) penetration; (b) age of the complainant, and (c) whether the appellant was properly identified as the offender. 19.Regarding the first ingredient, namely, whether penetration was proved, PW1 narrated how the appellant found her with PW2, gave her some coins, held her hand and pulled her to his brick house and defiled her. She felt pain and screamed. He threatened her not to dare tell her grandmother about the incident. PW2, also a minor, confirmed PW1’s account. He saw the appellant holding PW1 and pulling her to his brick house. He saw him defiling PW1. He said they were given some coins to go and buy sweets. He heard PW1 screaming. PW3, the complainant’s grandmother, said on the material day upon arriving from work at 8pm, PW1 told her that her thighs were paining, and that John threatened to kill her if she told her that he had defiled her. She physically examined PW1’s genitals and noted some whitish discharge on her vagina and thighs. She also noted that her hymen was broken. Lastly, PW4, Dr Eunice Timet who produced the P3 form stated that findings on examination revealed that PW1 had old healing hymeneal tears at position 9 and 12 o’clock and redness on her labia minora which are consistent with defilement. 20.What emerges from the account by the above 4 witnesses is that even though an accused person can be convicted on the evidence of a single witness, as provided in section 143 of the Evidence Act, PW1’s evidence was supported by the testimony of PW2 and corroborated by that of PW3 and PW4. The classic definition of corroboration, established in R vs. Baskerville [1916], 2 KB 658 continues to provide the conceptual framework for what counts as corroborating evidence, which are;(a)Independent Source. It must be independent testimony that does not originate from the witness being corroborated.(b)Material Particulars: It must confirm a "material particular" of the evidence—not every detail needs to be supported, but enough to show the witness is telling the truth on essential facts. (c) Implication of the Accused. It must connect or tend to connect the accused with the crime. Corroborative evidence does not need to be another eyewitness; it can include; (a) Medical evidence such as a doctor’s report of opinion, DNA matches or evidence of physical injury. We are satisfied that PW1’s evidence, though it was materially strong, and credible to sustain a conviction, it was sufficiently confirmed by the evidence of PW2, 3 and 4 which enhanced its probative value. 21.We therefore find that penetration as defined in section 2 (1) of the Sexual Offences Act, which is "the partial or complete insertion of the genital organs of a person into the genital organs of another person" was proved. Upon evaluating the evidence, we find no reason to doubt the concurrent findings by the two courts below on the issue of penetration. In our view, penetration was proved to the required standard. 22.The next question is whether the appellant was identified properly as the offender. PW1 was clear in her evidence that John (the appellant) defiled her. She described him as a herdsman who lived near them, a fact the appellant confirmed in his defence. There is no dispute that he was known to PW1 and PW2. Therefore, this was a case of recognition. There is a clear distinction between recognition (knowing the person) and identification (identifying a stranger). It is a recognized principle that evidence of recognition (identifying someone known to the witness) carries significantly higher probative value than evidence of identification (identifying a stranger). A second Appellate Court defers to concurrent assessment of the witnesses’ honesty and the reliability of their recognition unless a clear misdirection is proven. In this case, as severally stated, the appellant was known to PW1 and PW2. We find no reason to fault the trial court and the first Appellate Court’s findings on identification. We are satisfied that the evidence of identification was free from error. 23.The third ingredient is whether the complainant’s age was proved to the required standard. There are many decisions by our Superior Courts underscoring that proving the victim's age is a critical ingredient of any charge under the Sexual Offences Act because the specific age of the victim determines the statutory minimum sentence to be imposed in the event of a conviction. This makes the victim’s age an essential element that the prosecution must prove beyond reasonable doubt. As was held by this Court in Kaingu Elias Kasomo vs. Republic [2010] eKLR, failure to prove the victim's age beyond a reasonable doubt means the offence itself is not proven. In Hadson Ali Mwachongo vs. Republic [2016] eKLR the Court emphasized that "cogent evidence" of age is necessary because the sentence depends on it. In Edwin Nyambogo Onsongo vs. Republic [2016] eKLR, it was established that age can be proven through credible documents (birth certificates, baptismal cards) or oral testimony from parents/guardians. In this case, the complainant’s grandmother gave her age as 6 years. This evidence was not challenged. In any event, prove of age is an issue of fact. An Appellate Court will only disturb a lower court’s finding on this issue if there has been a demonstrable and material misdirection, or if the finding is clearly wrong based on the recorded evidence. If the trial court and the first Appellate Court accepted a birth certificate or credible testimony, the second Appellate Court will not interfere simply because another conclusion is possible. It must find that the two lower courts’ conclusion was patently wrong or lacked a rational basis in the evidence. In the absence of a material misdirection, a second Appellate Court is bound by the factual findings of the two courts below. We find no reason to disturb the concurrent findings by the two courts below. 24.The appellant contents that the provisions of section 200 (3) of the Criminal Procedure Code were not complied with. However, the appellant’s assertion on this issue is not supported by the record. As has been correctly pointed out by counsel for the respondent, a reading of page l6 of the proceedings shows that section 200 (3) of the Criminal Procedure Code was complied with. The record clearly shows that Madam Mwaniki, the prosecutor is quoted saying: “the matter is part heard, we ask to take directions under section 200 of the Criminal Procedure Code.” The appellant is recorded saying “I don't want the case to proceed, I didn't do anything.” Clearly, the appellant was objecting to the case proceeding maintaining that he was innocent. He was not objecting to the hearing proceeding from where the case had reached. He did not indicate he desired to have the witnesses recalled. The learned magistrate directed that the case shall proceed from where it had reached. We are satisfied that the section 200 (3) of the Criminal Procedure Code was complied with. 25.The appellant states that he was not supplied with witness statements. As was submitted by the respondent’s counsel, the record shows that on 8th May 2017, the appellant confirmed receipt of the statements and even requested for time to read through the same before the Investigating Officer could testify. The Investigating Officer was stood down and a further hearing date taken by the parties. We say no more. 26.The other ground urged by the appellant is that crucial witnesses were not called to testify. This Court in Julius Kalewa Mutunga vs. Republic [2006] eKLR stated that as a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an Appellate Court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive. 27.The East African Court of Appeal in Bukenya & Others vs. Uganda [1972] EA 549 was categorical that: (a) the prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent, (b) the court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case, (c) where the evidence called is barely adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution. However, the court was categorical that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not sufficient or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case. In order for the adverse inference to be made, the evidence of the missing witness must be such as would have elucidated a matter. The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. Our analysis of the entire evidence leaves us with no doubt that there were no gaps in the prosecution evidence and as discussed in the issues addressed herein above, all the ingredients of the offence were proved. 28.Arising from our analysis of the issues discussed above and the conclusions arrived at, we find no basis upon which we can interfere with the trial court’s findings on conviction. Accordingly, the appeal against conviction fails. 29.Regarding the sentence, it is noteworthy that the mandatory minimum sentence provided for the offfence of defilement of a child aged 11 years or below under section 8(2) of the Sexual Offences Act is the life imprisonment. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) affirmed the lawfulness of life imprisonment prescribed under the Sexual Offences Act. Therefore, the appellant is serving a lawful sentence. His argument urging this Court to find that the said sentence is harsh and unconstitutional is an invitation to this Court to go against the above decision which would be a grave affront to Article 163 (7) of the Constitution.We decline the invitation to travel that prohibited route. In conclusion, arising from our findings on all the issues determined herein above, we find that this appeal is without merit and the same is hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF APRIL, 2026.J. MATIVO....................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALI certify that this a true copy of the original.Signed.Deputy Registrar