Mori v Republic (Criminal Appeal E028 of 2025) [2026] KEHC 5177 (KLR) (24 April 2026) (Judgment)

Mori v Republic (Criminal Appeal E028 of 2025) [2026] KEHC 5177 (KLR) (24 April 2026) (Judgment) Neutral citation: [2026] KEHC 5177 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E028 of 2025 DK Kemei, J April 24, 2026 Between Samuel Abala Mori Appellant and Republic Respondent (Appeal against the conviction and sentence of Hon Eric Malesi (PM) in Madiany PMCR S.O No. E004 of 2025 dated 5/6/2025) Judgment 1.The Appellant herein Samuel Abala Mori was 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 were that 10th March 2025 at 1900hours at Memba sub location, East Asembo Location in Rarieda Sub County within Siaya County intentionally caused his penis to penetrate the vagina of N.A. O child aged nine (9) years 2.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars were that on 10th March at 1900hours at Memba Sub location, East Asembo Location in Rarieda Sub County within Siaya County and 19th June 2025 at Akom Sub Location, South Asembo Location within Rarieda Sub County in Siaya County, intentionally touched the vagina of N.A.O a child aged nine (9) years with his penis. 3.The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called five (5) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. By judgment delivered on 25th May 2025, the Appellant was convicted and sentenced to serve life imprisonment. 4.Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction and sentence on four (4) grounds of appeal on the face of his petition of appeal dated 16th September, 2025:i).That the learned trial magistrate erred in law and fact when he convicted the Appellant on unproven prosecution evidence.ii).That the learned trial magistrate erred in law and fact when he convicted the Appellant when there was no nexus between the injuries sustained and the Appellant.iii).That the learned trial magistrate erred in law and fact when he relied on the provisions of section 124 when there was no reason to do so.iv).That the learned trial magistrate erred in law and fact when he failed to accord the Appellant’s constitutional rights under articles 50(2), (b), (c), (g) and (h).v)That the learned trial magistrate erred in law and fact when he dismissed the Appellant’s alibi and mitigation.The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside. 5.This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 6.The evidence tendered before the trial court was as follows; 7.DAO alias AA (PW1) the mother of the complainant, testified that the minor is her daughter who was born on 3/10/2016 and that she identified the birth certificate which was marked as Mfi-1. That her daughter usually stays with her grandmother in [name withheld] and attends [name withheld] primary school in Grade two. That she knows the Appellant as she had bought land from their family. That on the material date, she was called by her mother to take the child to hospital. That she first went home and met her husband whom she alerted of the bad news. On reaching home, she found her daughter walking with difficulty. That she checked the minor’s private organ and that she saw mucus like substance on the child’s underpants. That the minor claimed that ‘’Baba Odhiambo had done to her bad manners. That the child claimed that the Appellant had warned her not to reveal anything to people otherwise he would kill her. That the child also claimed that she had gone to the home of the Appellant for traditional treatment. That the Appellant had led the minor into a bush and ordered her to remove her clothes and then did bad manners to her. That she took the child to hospital the following day after reporting the matter to the police. That she identified the treatment notes, P3 form and the complainant’s underpants which were marked as Mfi-2, Mfi-3 and Mfi-4 respectively.During cross-examination, she stated that she did not witness the incident. That she reported the matter at Ndori police station. 8.GA (PW2), testified that she is mother to PW1and grandmother to the complainant. That the complainant who is aged eight and half years old resides with her and who attends [name withheld] primary school in Grade 2. That she knows the Appellant as they had bought land from their family. That she noticed the complainant walking with difficulty when she arrived from school and that on confronting her, she claimed that she had been pricked by a stick. That she threatened to beat her with a stick and that she agreed to reveal what had happened. That the minor claimed that the Appellant had done bad manners to her. That she confronted the Appellant who was their neighbour and who denied the allegations. That she called the child’s mother to come and take her to hospital. That the Appellant had earlier accompanied the minor to the river to pour some medicine into the steam. That the Appellant has a wife and seven children. 9.N.A.O (PW3) was the complainant and that upon a voire dire examination, she tendered unsworn testimony. That she is a pupil in Grade 2 at [name withheld] primary school and stays with her grandmother. That the Appellant sent his two children who were younger than her and that she agreed and went to the Appellant’s home. That the Appellant later took her to a certain bush where he removed her clothes and ordered her to lie down. That the Appellant did to her ‘’tabia mbaya’’ (bad manners) by inserting his penis into her vagina. That she tried to scream but the Appellant covered her mouth and later warned her not to tell anybody as to what had happened. That she went to join her grandmother but did not inform her about what had happened. That later she started walking with difficulty which compelled her grandmother to call her mother to take her to hospital. That she revealed to her mother as to what had happened. She identified her underpants in court (Mfi-4). That she had not gone to school again due to ridicule by her school mates.On cross-examination, she stated inter alia: that she dressed up after the incident and went home; that a stick had pierced her on the back while in school; that she was afraid to tell her grandmother about what had happened; that she normally slides down ant hills. 10.Robert Donde (PW4) was a registered clinician at Bondo Sub County Hospital testified that he examined the minor on 15/3/2025. That he noted laceration on both labias and that the hymen was intact. That there was a whitish creamy discharge coming out of her vagina. That he established that there had been an attempted penile penetration. That the discharge had bloodstains. He produced the P3 form as exhibit 2.During cross-examination, he stated inter alia; that the hymen was intact; that the penile shaft might have been too big to achieve full penetration; that the lacerations are the one which caused the blood stains in the discharge. 11.No.12015 Pc Wilfred Maina (PW5) was the investigating officer based at Ndori police station. That he referred the victim to hospital after issuing a P3 form. That he visited the scene later and noticed that it was a bush where the incident took place. That he established the age of the victim through the birth certificate which he produced as exhibit 1. That he also recovered a creamy underpants belonging to the victim and which he produced as exhibit 3. 12.The trial court later established that a prima facie case had been made by the Respondent and thus placed him on his defence. He opted to give sworn testimony. 13.Samuel Abala Mori (DW1), testified that he was arrested on 20/3/2025 at around 5.00 AM and taken to Ndori police station. That earlier he had been working on people’s farms and that the allegations were false. On cross-examination, he stated inter alia; that he knew the complainant and her grandmother who are his neighbours with whom he has no problems as they are in good relationships. That the mother of the complainant framed him because her brother used to send him money for a farm project. 14.When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code. 15.The appeal was canvassed by way of written submissions. Both parties duly complied. 16.I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case beyond reasonable doubt. 17.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 18.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: -(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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 19.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... 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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added). 20.Regarding proof of age, and as noted above it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 21.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years, there are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a 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 -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of 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 decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal 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...” 22.In the present case, the prosecution discharged this burden through the birth notification (Exhibit 1) produced by PW5, which established that the minor was born on 3/10/2016, making her age as eight years seven months and seven days at the time of the incident. This was further corroborated by the Clinical Officer (PW4), satisfying the legal threshold. The Appellant’s ground of appeal alleging a "grudge" or procedural prejudice under Article 50 fails to challenge this specific ingredient, as the documentary proof of age is an objective fact that cannot be fabricated by a family dispute. Consequently, the sentence of life imprisonment was legally anchored on the proven age of the victim. I find that the age of the minor was proved beyond reasonable doubt. 23.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 24.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 25.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 26.In the present case, PW3 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW4’s medical findings such as attempt of penile penetration, inflammation, lacerations on the labias and discharge. 27.The Appellant’s defense of a grudge is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 28.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 29.In this case, the ingredient of penetration, the prosecution relied on the unsworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW4. The Clinical Officer noted lacerations on the labia minora and concluded that there was attempt of penile penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 30.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 31.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as ‘’Baba Odhiambo’’and their neighbour since she used to attend the same school as his children at [name withheld] primary school. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. 32.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to PW1 and PW2 without hesitation. 33.Finally, on identification, the complainant recognized the Appellant as ""Baba Odhiambo’’, a close neighbour living nearby. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the "grudge" defense and found it implausible that a mother (PW1) would subject her 9 year-old to the trauma of a medical examination and trial for a domestic squabble. Indeed, I find that it was highly unlikely that the mother of the victim would use her young and vulnerable daughter as a victim of defilement just to fix the Appellant because of an alleged dispute over payments. The identification was thus safe, and the defense was rightly rejected as a diversionary tactic. 34.In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because he admitted being within the same neighbourhood, and in Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 35.Furthermore, the Appellant’s own conduct reinforced the prosecution’s case on identification. His presence with the complainant shortly before the incident, his inconsistent explanations, and the absence of any credible contrary account undermine the defense and strengthen the recognition evidence. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately and that PW1 and PW2 confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. It is highly unlikely for the parents of the victim to use their young and vulnerable daughter as a victim of a sexual act so as to settle scores with the Appellant. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 36.On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of life imprisonment pursuant to Section 8(2) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged eleven years or below. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 37.In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion judicially, noting the mandatory nature of the provision and the need to deter such conduct. 38.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” (Emphasis added) 39.As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was merely 9 years old, a child of extremely tender years who required protection rather than predation. Furthermore, the Appellant was a close neighbour whose children attend the same school with the complainant and thus he occupied a position of trust and authority over the child. 40.In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also attempting to silence her with money and threats, which speaks to his moral blameworthiness. 41.As regards proportionality and protection of the public, the sentence of life imprisonment is proportionate to the offense and serves the interests of justice. The victim impact statement noted the trauma suffered by the child, and the medical evidence confirmed physical injury (laceration on both labias) to a 9-year-old. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as a "grudge," the life sentence ensures the protection of the public and serves as a deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Further, the conduct of the Appellant who was at the time a married man with seven children some of whom attend the same school like the complainant must be deprecated. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Hence, as matters stand, the sentence of life imprisonment is the appropriate sentence which was imposed by the trial court. Iam therefore not inclined to interfere with the sentence imposed by the trial court as the same is the minimum possible in law and was warranted in the circumstances. 42.In the result, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed. The conviction and sentence by the trial court is hereby upheld DATED AND DELIVERED AT SIAYA, THIS 24TH DAY OF APRIL 2026.HON. D. KEMEIJUDGEIn the presence of :Samuel Abala Mori.......................Appellant.Mocha.......................................for Respondent.Mourine.....................................Court Assistant.