PKM v Republic (Criminal Appeal E160 of 2025) [2026] KEHC 5151 (KLR) (22 April 2026) (Judgment)

PKM v Republic (Criminal Appeal E160 of 2025) [2026] KEHC 5151 (KLR) (22 April 2026) (Judgment) Neutral citation: [2026] KEHC 5151 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E160 of 2025 DR Kavedza, J April 22, 2026 Between PKM Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 4th December 2025 by Hon. Kahuya I.M at Kibera Chief Magistrate’s Court, Sexual Offences Case No. S.O E028 of 2025 Republic vs Paul Kithanze Mutuku) 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(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence as per the charge sheet were that on diverse dates between January 2024 and 12th July 2025 at [particulars withheld] in Kibera Slums Langata Sub-County within Nairobi County, the appellant intentionally caused his penis to penetrate the vagina of I.M.K a child aged 15 years. He was sentenced to serve twenty (20) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. 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, I.M.K (PW3), testified that she used to reside with her grandmother until the current year, when the appellant, her father, took her and her sibling to live with him in his bedsitter. She shared a bed with her brother, J.K (PW4), whilst the appellant slept alone on a separate bed. 5.On one occasion, she recollected that the appellant carried her to his bed and defiled her, an act witnessed by PW4 as the curtains were open, permitting light from a nearby construction site to illuminate the room. PW4 urged her to report the matter, but she opted to remain siilent out of fear that the appellant would harm her due to his threats. 6.On 12th July 2025 the appellant returned home in the evening while she was doing laundry outside and called her inside. He forced her onto his bed despite resisting resistance and inserted his penis into her vagina. On 14th July 2025 she reported the matter to her teacher, GB (PW1), at [particulars withheld] Primary School. She denied colluding with PW1 to fabricate the case against the appellant because of his strictness. She affirmed that the appellant had defiled her on several occasions and that she had spent only one night at a friend’s house. 7.The complainant’s brother, J.K (PW4), testified that the offence occurred inside their house whenever the appellant was present. He confirmed that PW3 had occasionally spent nights outside the house. He vehemently denied that PW1 was the perpetrator, asserting that PW1 was a Good Samaritan who had helped them find refuge. He added that he had witnessed the offence on one night. 8.PW1, GB, a teacher at [particulars withheld] Primary School, testified that PW3 had reported to him that she had been defiled over a prolonged period by her father, the most recent incident having occurred two days earlier. He informed his colleague Joseph Kombo (PW2). In cross-examination he stated that he was not aware of PW3’s truancy and denied colluding with her, noting that the appellant was a disciplinarian. He further denied being the perpetrator of the offence. 9.PW2, Joseph Kombo, testified that he learned of the offence from PW3. He added that he had met the appellant only on the day the victim was enrolled at the school. 10.PW5, Clinician Susan Murage of Coptic Hospital, testified that she had examined PW3’s genital area and found irregular hymenal margins with an old tag consistent with penetration. 11.PW7, No. XXXX SSgt Mwakio, the investigating officer at Langata Police Station, testified that after speaking with the teachers and the accompanying social worker she conducted a one-on-one interview with PW3, who disclosed an incestuous relationship with her father, the latest episode having occurred three days earlier. She recorded PW3’s witness statement and referred her to Coptic Hospital for treatment. Following the medical and age-assessment evidence she engaged PC Mutichi (PW6) and community policing officials, resulting in the appellant’s arrest on 20th July 2025 at 8 pm by the roadside. 12.Upon interrogation the appellant denied the offence, claiming he loved his children. In cross-examination she denied that the appellant had told her PW3 often spent nights away from home or days at PW1’s house, or that PW1 had coached her to give false evidence, and denied that PW1 was the perpetrator. 13.PW8, Dr Esther Lovega of Mbagathi Hospital, testified that she had analysed PW3’s X-ray report and approximated her age at 15 years. In cross-examination she stated that she did not know whether PW3 had told PW5 she was 13 years old, but her assessment indicated an approximate age of 15 years. 14.PW6, No. 120152 P.C. Mutichi, testified that he assisted in the arrest of the appellant on 20th July 2025 at 8 pm by the roadside with the help of community policing officials. 15.In his unsworn defence, the appellant denied committing the offence. He claimed that PW3 was a truant who often spent nights elsewhere whenever he was away from home. As a responsible father he had administered corporal punishment, which had not pleased the real perpetrator, PW1. He asserted that PW1 and PW3 had colluded to fabricate the present case against him on account of the grudge between them. 16.After a full trial, the appellant is accordingly found guilty as charged. 17.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 18.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.” 19.Further, section 8(1) and (3) 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.(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. 20.On the element of age, the complainant, PW3 testified on oath that she was born on 4th April 2010. An age assessment was carried out which placed the complainant at approximately 15 years old. The prosecution therefore established beyond reasonable doubt that the complainant was a child under the age of eighteen years, as required by section 8(1) of the Sexual Offences Act. 21.On the element of penetration, PW3 gave clear, direct and cogent evidence in her sworn testimony. She stated that after the appellant who was her father often forcibly defiled her. Due to the threats by him, she did not disclose about the several incidents. He brother PW4 witnessed one of these incidents. 22.This direct oral evidence of penetration was materially corroborated by the medical examination conducted at Nairobi Women’s Hospital. PW5 Susan Murage produced the PRC form which recorded a broken hymen with old tags consistent with prior penetrative trauma. No alternative explanation for the injury was advanced or supported by the evidence. The trial court was satisfied that penetration was proved beyond reasonable doubt. 23.On the identity of the perpetrator, PW3 was firm, consistent and unshaken in her identification of the appellant as the person who defiled her. The appellant is her father. She gave a detailed account of the various incidents of defilement including the one witnessed by her brother. There was no suggestion of mistaken identity, and her evidence on identification withstood thorough cross-examination. The appellant was positively identified by PW3 and PW4 as the perpetrator 24.The appellant, in his defence, gave unsworn statement denying the offence. He stated that the case was a fabrication since he was a strict disciplinarian and the complainant was a truant. The trial magistrate, however, found the appellant’s defence implausible when weighed against the prosecution’s evidence. 25.Upon careful consideration of the whole evidence, the trial magistrate found PW2’s testimony to be credible, detailed, coherent and consistent throughout. It was not shaken on cross-examination. Pursuant to section 124 of the Evidence Act (Cap. 80), which permits conviction in a sexual offence case on the uncorroborated evidence of the victim alone where the court is satisfied that she is telling the truth (and records reasons for that belief), the magistrate expressly believed PW3 and relied on her evidence. The magistrate rejected the defence case as failing to raise any reasonable doubt. All elements of the offence of defilement contrary to section 8(1) of the Sexual Offences Act were proved beyond reasonable doubt, and the conviction was proper and is affirmed. 26.On sentence, the appellant was sentenced to serve (20) years’ imprisonment. The record shows that the trial court considered the pre-sentence report, the appellant’s mitigation and the fact that he was a first offender before arriving at that sentence. The sentence imposed was legal and I see no reason to interfere. 27.In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF APRIL 2026...................................D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMr. Mutuma for the RespondentKarimi Court Assistant.