Seda v Republic (Criminal Appeal E138 of 2025) [2026] KEHC 4795 (KLR) (15 April 2026) (Judgment)

Seda v Republic (Criminal Appeal E138 of 2025) [2026] KEHC 4795 (KLR) (15 April 2026) (Judgment) Neutral citation: [2026] KEHC 4795 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E138 of 2025 DR Kavedza, J April 15, 2026 Between Geoffrey Ochieng Seda Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 8th September 2025 by Hon. A. Mwangi (C.M) at Kibera Chief Magistrate’s Court, Sexual Offences Case No. S.O 072 of 2019 Republic vs Geoffrey Ochieng Seda) 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 16th August 2019 at [Particulars Withheld], in Kibra Sub County Nairobi County, the appellant intentionally caused his penis to penetrate the vagina of M.B.N a child aged 13 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.PW1 (the minor complainant) gave unsowrn evidence that she was 13 years old and a pupil. On 16th August 2019 at around 8:00 p.m., while alone in her house (her parents had travelled upcountry and her 11-year-old brother had gone to watch television at a neighbour’s house), the appellant suddenly entered. She asked him to leave but he refused. The appellant hugged her tightly, closed the door, removed her skin-tight trousers, made her lie on the mattress, removed his trousers and inner wear, and had sexual intercourse with her. She saw blood but felt embarrassed and removed her clothes before PW2 arrived. 5.The appellant slept in the house until 5:00 a.m. When he left, neighbour Rose saw him and later questioned PW1, who disclosed what had happened. Rose called PW1’s grandmother (PW2). PW1 was taken to Nairobi Women’s Hospital and the matter was reported at the Chief’s Office, leading to the appellant’s arrest at his house by police officers. Statements were recorded at Kilimani Police Station. The following day she was issued with a P3 form and her PRC form was completed at Nairobi Women’s Hospital. She identified the forms and her birth certificate indicating she was born 21st December 2005. 6.She identified the appellant as their neighbour whom she had known for a few months. She confirmed there were electric lights in the house and corridor. She stated it was her first sexual intercourse, she did not scream because the appellant held her tightly, and her brothers did not return home that night. The mattress was blood-stained and later burnt by her mother. 7.PW2 (grandmother of PW1) testified that on 17th August 2019 she was called by her grandchild Okali Felix and informed that something had happened. She went to the house where PW1 told her that the appellant had locked her in the house and defiled her. PW2 took PW1 to Nairobi Women’s Hospital for treatment and they received a PRC form, after which they were referred to the DC’s Office, Kibera. Police officers accompanied them to the appellant’s house where he was arrested and taken to Kilimani Police Station. She identified the appellant in the dock. She stated she did not know the appellant prior to his arrest. She confirmed PW1 was living with her mother but her mother had travelled upcountry at the time, and PW1’s brother spent the night at the neighbour’s house. In re-examination she stated it was Rose who informed her of the incident. 8.PW3 John Njuguna a Clinician at Nairobi Women’s Hospital testified on behalf of Clinician Muchai Matonye who examined the complainant but was not available to testify. He gave evidence that PW1 was examined on 17th August 2019 on allegations of penile vaginal penetration by a person known to her in her house. On examination, no external injuries were noted on her body; her hymen was broken, her labia minora had a tear, and she had whitish vaginal discharge. Laboratory findings were normal with no spermatozoa detected. PW1 returned on 21st August 2019 for the P3 form. PW3 produced the P3, PRC and GVRC forms as exhibits. On cross-examination he stated PW1’s underpants were not blood-stained. On recall he confirmed the hymen was broken due to blunt penetrative trauma, the injury was fresh, and the age of the injury was not indicated. 9.PW4 the Investigating Officer testified that on 17th August 2019 PW1 and PW2 reported that PW1 had been defiled by the appellant on 16th August 2019 while alone in her house. The appellant was arrested by neighbours. She visited the scene which was a single-roomed house with a bed and sofa set with the minor. She produced PW1’s birth certificate. She charged the appellant and identified him in court. In cross-examination she stated she interviewed neighbour Rosemary Baisi who declined to testify. 10.In his sworn defence, the appellant stated that on 16th August 2019 he worked at a hotel (Gaucho) around Yaya Centre in the morning, left at 3:00 p.m., went to his house, then to his sister’s house at DC Kibera because his mother was ill. He arrived at 7:00 p.m., helped raise funds for his mother’s hospital treatment, watched a football match at the centre with his friend Alas, returned to his sister’s for supper, and went home to sleep. The next day he worked from 8:00 a.m. to 3:30 p.m. Twenty minutes after returning home, a police officer arrested him and took him to Kilimani Police Station where he learned of the defilement allegation. 11.The appellant told the court that he knew PW1 as a neighbour but denied defiling her. He alleged that he suffered from erectile dysfunction and could not engage in sexual intercourse. Further, neither his sister nor neighbours heard any scream. In cross-examination he confirmed he worked at Gaucho that day, his sister was in Uganda at the time of trial, he had no documentation for his claim of erectile dysfunction, and he and PW1 lived two doors apart. 12.After a full trial, the appellant was convicted accordingly. 13.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 14.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.” 15.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. 16.On the element of age, PW1 testified that she was born on 21st December 2005. This was confirmed by her birth certificate which was produced as an exhibit. At the time of the alleged incident on 16th August 2019, she was 13 years old. The prosecution therefore established beyond reasonable doubt that PW1 was a child under the age of eighteen years, as required by section 8(1) of the Sexual Offences Act. 17.On the element of penetration, PW2 gave clear, direct and cogent evidence in her unsworn testimony. She stated that on 16th August 2019 at around 8:00 p.m., while alone in her house, the appellant suddenly entered. Despite her request for him to leave, he hugged her tightly, closed the door, removed her skin-tight trousers, made her lie on the mattress, removed his trousers and inner wear, and had sexual intercourse with her. She felt pain and saw blood. The appellant slept in the house until 5:00 a.m. the following morning. 18.This direct oral evidence of penetration was materially corroborated by the medical examination conducted at Nairobi Women’s Hospital on 17th August 2019. PW3 (Clinician) examined PW2 and produced the P3, PRC and GVRC forms which recorded that her hymen was broken, her labia minora had a tear, and she had whitish vaginal discharge, consistent with blunt penetrative trauma. The injury was described as fresh. No alternative explanation for the injuries was advanced or supported by the evidence. The trial court was satisfied that penetration was proved beyond reasonable doubt. 19.On the identity of the perpetrator, PW2 was firm, consistent and unshaken in her identification of the appellant as the person who defiled her. She knew him well as their neighbour whom she had known for a few months and who lived two doors away. She gave a detailed account of the events leading to and including the act of defilement, which occurred in her house on the material night. There was no suggestion of mistaken identity, and her evidence on identification withstood thorough cross-examination. The appellant was positively identified by PW2 as the perpetrator. 20.The appellant, in his defence, gave a sworn statement denying the offence. He asserted that on 16th August 2019 he worked at Gaucho hotel around Yaya Centre, left at 3:00 p.m., visited his sister at DC Kibera because his mother was ill, watched a football match with his friend Alas, had supper at his sister’s house and returned home to sleep. The following day he worked until 3:30 p.m. and was arrested shortly after returning home. He knew PW2 as a neighbour but denied defiling her. He alleged he suffered from erectile dysfunction and could not engage in sexual intercourse. He called no witnesses. The trial magistrate, however, found the appellant’s defence uncorroborated and implausible when weighed against the prosecution’s evidence. 21.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. 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. 22.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. 23.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 15TH DAY OF APRIL 2026D. KAVEDZAJUDGEIn the presence of:Appellant PresentMutuma for the RespondentKarimi Court Assistant.