Kemei v Republic (Criminal Appeal 008 of 2021) [2026] KEHC 4381 (KLR) (2 April 2026) (Judgment)

Kemei v Republic (Criminal Appeal 008 of 2021) [2026] KEHC 4381 (KLR) (2 April 2026) (Judgment) Neutral citation: [2026] KEHC 4381 (KLR) Republic of Kenya In the High Court at Kapsabet Criminal Appeal 008 of 2021 JR Karanja, J April 2, 2026 Between Stephen Kiptoo Kemei Appellant and Republic Respondent (Case No. 25 of 2017 at Chief Magistrate’s court by Hon. P.W. Wasike, SPM delivered on 14th December 2019) Judgment 1.The Appellant, Simon Kiptoo Kemei was arraigned before the Senior Resident Magistrate at Kapsabet with the offence of defilement of an imbecile, Contrary to Section 146 of the Penal Code and in the alternative with the offence of committing an Indecent Act with a child, Contrary to Section 11[1] of the Sexual Offences Act. 2.It was alleged that on 30th October 2017, at [Particulars Withheld] Village – Kabiyet, Nandi county the Appellant had carnal knowledge of BJ, an imbecile girl aged thirteen [13] years or that he committed an indecent act with the girl by coming into contact with her female sexual organ through his male sexual organ. 3.After trial, in a judgment dated 17th December 2019, the trial court convicted the Appellant and sentenced him to twenty [20] years imprisonment on the basis of the amended charge sheet filed in court on 10th September 2019 in which the main count was defilement under Section 7 of the Sexual Offences Act. 4.Being aggrieved by the conviction and sentence, the Appellant filed this appeal on the basis of the grounds set out in the petition of appeal and the amended grounds of appeal in which he faults the trial court for disregarding the provisions of Section 214 of the Criminal Procedure Code, and those of Article 50[2] [g][h] of the Constitution of Kenya 2010. Also faulted by the Appellant is the trial court’s failure to find that the ingredient of penetration was not proved beyond reasonable doubt. 5.The Appellant therefore prayed that this appeal be allowed by setting aside and quashing of his conviction by the trial court thereby setting him at liberty.The appeal was not opposed by the State/ Respondent on grounds that the charge sheet was defective and incurable under Section 382 of the Criminal Procedure Code and that the trial court erred in law by relying on Section 186 of the Criminal Procedure Code to convict the Appellant under Section 8[1] and [2] of the Sexual Offences Act, yet the offence was not a minor charge nor a cognate offence. 6.Despite the concession by the State/ Respondent the duty of this court was to revisit the evidence and draw its own conclusions taking into account that the trial court had the advantage of seeing and hearing the witnesses.In that regard, the evidence adduced by the prosecution through the first to the fifth prosecution witnesses [i.e. PW1, 2, 3, 4 & 5] was given due consideration against and that offered by the Appellant and his witnesses [DW1] in his defence. 7.The trial court in its judgment found that the fact that the Complainant PW1 was an imbecile and that the Appellant had necessary knowledge of the fact was not proved by the prosecution to the required standard. This court agrees with that finding as there was inadequate evidence from the prosecution to prove the Complainant’s alleged mental state and if it indeed existed, the Appellant’s knowledge of the same was also not proved. 8.The finding was sufficient enough to acquit the Appellant for want of sufficient evidence to prove beyond reasonable doubt the entire charge against the Appellant. However, the trial court applied the provision of Section 186 of the Criminal Procedure Code to convict the Appellant on a charge of defilement under Section 8[1] read with Section 8[2] of the Sexual Offences Act. 9.Section 186 of the Criminal Procedure Act allows a court to convict a person of a Sexual Offence under the Sexual Offences Act, even if not originally charged with it, provided the court finds them guilty of that lesser or related offence during a trial for defilement of a girl under 14 years.The provision provides for alternative conviction and ensures that if the specific charge of defilement under the penal code fails, the Accused does not escape criminal responsibility if a related sexual offence is proven. 10.However, in this case the provision of the Sexual Offence Act under which the Appellant was convicted was not a cognate or lesser offence to Section 146 of the Penal Code under which the Appellant was charged and underwent trial in respect thereof.A cognate offence is generally a lesser offence sharing common elements with more serious or greater offence often falling within the same legal category. Thus, a court may convict an Accused person of a similar but lighter charge if the evidence fails to prove the main offence. 11.The conviction of the Appellant by the trial court on a more serious or greater offence under the Sexual Offence Act on the basis of Section 186 of the Criminal Procedure Code was unlawful and erroneous. It was obvious that the determinant ground of the Respondent’s action to concede the appeal was the aforementioned error of law committed by the trial court. 12.Consequently, this appeal succeeds on both conviction and sentence. The Appellants conviction by the trial court is hereby quashed and the sentence imposed upon him is set aside for him to be set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED THIS 2ND DAY OF APRIL, 2026HON. J. R. KARANJAH,JUDGE