Chelimo alias Kamama v Republic (Criminal Appeal E154 of 2025) [2026] KEHC 4674 (KLR) (9 April 2026) (Judgment)

Chelimo alias Kamama v Republic (Criminal Appeal E154 of 2025) [2026] KEHC 4674 (KLR) (9 April 2026) (Judgment) Neutral citation: [2026] KEHC 4674 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E154 of 2025 DR Kavedza, J April 9, 2026 Between Ambrose Chelimo alias Kamama Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 6{{^th}} November 2025 by Hon. A. Mwangi (CM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E147 of 2024 Republic vs Ambrose Chelimo alias Kamama) Judgment 1.The appellant was charged and after full trial convicted by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on diverse dates between the month of August 2024 and 2nd December 2024 at [particulars withheld] area in Kibra Sub-County within Nairobi County, intentionally caused his penis to penetrate the vagina of M.N.W. a child aged 7 years. He was sentenced to serve forty (40) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The complainant (PW1) testified after a voir dire examination. On 1st December 2024, the minor complainant (PW1) met the appellant, her neighbour, after church. The appellant lured her to his house, covered her mouth with a t-shirt to prevent her from crying out, removed her clothes, and lay on top of her. In her own words, the appellant did “bad manners” to her, meaning he defiled her. 5.The following day, Monday 2nd December 2024, PW2 (the minor’s mother) sent PW1 to the shop. The appellant again took her to his house and defiled her. Thereafter, the appellant left her outside a bar and threatened to kill her if she disclosed what had occurred. He gave her Kshs.20 to buy earrings and samosa. 6.PW1 returned home crying and walking with difficulty. She was unable to sit or walk properly. She disclosed the incidents to her mother, PW2. PW2 called their neighbour, Jackie, who spoke to PW1. Jackie informed PW2 of what the minor had said. PW2 then contacted the Children’s Officer and took PW1 to Coptic Hospital the following morning for medical examination and treatment. They later reported the matter at Kibera Police Station. 7.At Coptic Hospital, PW3, Daisy Kerubo Rioba, a clinician, examined PW1. The P3 form and clinical notes recorded that the hymen was not intact, with a small tear at the 6 o’clock position and redness. There was whitish creamy vaginal discharge and a urinary tract infection. The clinician concluded that penetration had occurred, consistent with penile penetration as per the history given by PW1. 8.PW2 testified that prior to the incident the appellant had complained to her that her children were rude to him, specifically mentioning Sammy. Sammy had stated that the appellant looked at PW1 in a strange way. PW2 also stated that a neighbour had seen the appellant walking with PW1. 9.PW4, Rosemary Otieno, the Children’s Officer, confirmed that PW2 reported the defilement. She interviewed PW1, who repeated the same account, and referred the matter to the police. 10.PW5, PC Esther Kagera, the investigating officer at Kibera Police Station, corroborated the reports, the arrest of the appellant, and the investigation conducted. 11.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 12.To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 13.Further, section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus:8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)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. 14.On the element of age, PW1, produced her immunization card in evidence, establishing that she was born on 19th April 2017. She was therefore seven years of age at the time of the alleged offence. The age ingredient of the offence of defilement under section 8(2) of the Sexual Offences Act was proved beyond reasonable doubt. 15.On the element of penetration, section 2 of the Sexual Offences Act defines the act to include any partial or complete insertion of the genital organs of one person into those of another. PW1 gave a clear and detailed account. She testified that on the material dates, the appellant called her and he took her to his house, covered her mouth with a t-shirt, and then proceeded to defile her. He then threatened that he would kill her if he told anyone what had transpired. The appellant repeated the same act the next day as she was going to buy breakfast. 16.This direct evidence of penetration was corroborated by the medical report produced by PW3 Daisy Kerubo Rioba, a clinician at Coptic Hospital. The P3 form and accompanying clinical notes recorded a recently torn hymen at 6 o'clock and redness. She also had a whitish creamish discharge on her vagina. These findings were consistent with recent penile-vaginal penetration and supported PW1’s account of the act. 17.On identification, PW1 was resolute that the perpetrator was the appellant, whom she knew well as their neighbor. She provided a consistent and unshaken narrative of the incident throughout her evidence-in-chief and under cross-examination. PW2, her mother, Sarah Aluso, confirmed that the appellant was their neighbor and positively identified him. PW2 testified that the appellant was seen with a neighbor walking around with PW1. 18.The appellant’s defence was that he was a neighbour but the allegations herein as a result of a strained relationship between him and PW2, the mother of PW1. He states that she would sometimes cook and clean for him and would at times spend the night at his house. When he informed PW2 of his job transfer, she alleged he was seeing other women and threatened her with dire consequences. She owed her Kshs. 400 but promised to pay her. He was then arrested by police officers, he denied the allegations of defilement. 19.During cross-examination, he states that he was in a romantic relationship with PW2 for two and a half months, and she would visit him occasionally. He also states PW2 never told her that she had kids, nor was she married. 20.DW2, Alice Gori, gave her sworn testimony that she is an experienced nurse with over 30 years of experience. She challenged and reviewed the medical evidence adduced by the clinician, stating that the presence of a whitish discharge was noted 48 hours later, as a result of UTI. If there had been spermatozoa, then it would have been detected. She also states that her hymen is still growing, hence not expected to be intact, as to get torn, as severe tears would have been observed. 21.During cross-examination, she states she never examined the victim, and the tear at 6 o'clock in the vagina was inconsistent with penetration. She also states that it can be ejaculation, as in the same sperm might find their way to the vagina. 22.During re-examination, she states that a fully penetrated vagina of a child would be bleeding, painful, and there would be the presence of spermatozoa. 23.Upon review, this court concurs. He suggested fabrication. This version is wholly implausible and unsupported by any evidence. It raises no reasonable doubt against the cogent, consistent, and mutually corroborative prosecution case, which was proved beyond a reasonable doubt. 24.The prosecution therefore proved all the essential elements of defilement contrary to section 8(2) of the Sexual Offences Act beyond reasonable doubt. The appellant’s defence raises no reasonable doubt. The conviction is affirmed. 25.The appellant was sentenced to forty (40) years imprisonment. During sentencing, the court considered the pre-sentence report, the appellant's mitigation, and that he was a first offender and sentenced the appellant accordingly. In the premises, I see no reason to interfere. 26.In the end, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF APRIL 2026....................................D. KAVEDZAJUDGEIn the presence of:Appellant PresentMr. Mutuma for the RespondentKarimi Court Assistant.