https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11761

Mwaringa v Republic (Criminal Appeal E044 of 2025) [2026] KEHC 11761 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11761 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E044 of 2025 FN Kyambia, J July 23, 2026 Between Charles Mwadondo Mwaringa Appellant and Republic Respondent (Being an Appeal from decision by Hon. O. onalo Senior Resident Magistrate in Malindi S.O No. E044 of 2021 dated 19th April, 2024) Judgment 1.The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The appellant was adjudged guilty on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He was convicted and subsequently sentenced to serve 18 years imprisonment. 2.The particulars of the main charge in which the appellant was found guilty are that on diverse dates between 12th February, 2021 and 22nd February, 2021 [Particulars Withheld] within Kilifi County intentionally caused his penis to penetrate into the vagina of RKK a girl aged 13 years. 3.The appellant was aggrieved by the conviction and sentence and he lodged this appeal to the High Court. The appellant raised primarily two grounds. Firstly, the appellant faulted the trial court for failing to consider that the evidence adduced by the prosecution was inconsistent, contradictory and uncorroborated. Secondly, the appellant faulted the trial court for not considering his defence of alibi. Ideally, the appellant contention is that the charge was not proved beyond reasonable doubt as required. 4.The prosecution rested on the evidence of four (4) witnesses. In summary, the complainant after voire dire examination told the court that she was aged 13 years. That on 12th February, 2021 she was at her aunt’s place. The appellant who is her uncle came at night and starting touching her. He asked her whether she wanted “tamu” which sounded strange to her, He told her that he will show her what “tamu” is. Unbeknown to her the appellant wanted to have sex with her. 5.The appellant undressed her and inserted his penis to her genital organ. She cried. Her aunt woke up and on inquiring what was the problem she told her what her uncle had done to her. Her aunt warned against telling anybody else her uncle will be imprisoned. 6.Again, the complainant told the trial court that on 22nd February, 2021 the appellant found her with Janet fetching firewood. He told Janet to leave and again defiled her. She narrated what happened to her to her mother who testified as PW2. Her evidence was largely a narration of what she was told by the complainant. 7.PW2 went and reported to the village elder who was not helpful because he could not handle the issue. He referred her to chief who advised her to report to the police. On the advice of the chief, she reported at Lango Baya police station. 8.The complainant was examined at Malindi Sub County hospital by Dr. Ibrahim. Upon age assessment, Dr. Ibrahim estimated her age at 13 years. on genital examination, it was found that her hymen was broken and there was whitish discharge. Based on the victim’s history and his findings, Dr. Ibrahim concluded that there was vaginal penetration. 9.When the matter was reported to PW4, he conducted investigations and charged the appellant in court. 10.The trial court after hearing the prosecution case found that the appellant had a case to answer. The appellant said he will give sworn statement and call one witness. Come date for defence hearing, the appellant said and I quote:“I am ready for defence hearing. I seek the evidence in E043 to apply here.” 11.It is not clear what the appellant meant in the above statement. I will revisit this statement shortly in this judgment. 12.The trial court after considering the whole case, identified the issues for determination as whether defilement was proved as required and whether the appellant defence was sustainable. 13.The trial court found that the elements of the offence of defilement were established as required. The trial court found the appellant’s defence dismal and it failed to absolve the appellant from the crime. 14.The appellant in his undated submissions argued that the prosecution case was marred by inconsistencies and contradictions to warrant conviction. he cited extracts from the record of the proceedings to buttress why the evidence was inconsistent and contradictory. In his view, the complainant was not telling the truth in view of the contradictions and inconsistencies. He cited the case of Dener Kishan Padya vs Republic Appeal No. 106 of 1950 E.A.C.A to assert that where there are contradictions it cannot easily be said who is telling the truth thus affecting the credibility of the witnesses. 15.Finally, the appellant faulted the trial court for not considering his defence. 16.The respondent contested the appeal. In submissions dated 8th May, 2026, the respondent maintained that the charges were proved as required. 17.It was asserted that the evidence tendered by the prosecution was cogent, consistent and corroborative against the appellant. The respondent submitted that all the ingredients of the offence of defilement as charged were proved beyond reasonable doubt to wit, age, penetration and positive identification of the appellant. 18.The respondent heavily relied on the birth certificate as prove of age. The evidence of the complainant and medical evidence as prove of penetration. And that the appellant was known to the complainant and PW2 as prove of identification of the appellant. 19.The respondent argued that the trial court considered the appellant’s defence of alibi and found the same unsupported as it was not substantiated to dislodge the prosecution case. The trial court considered the appellant’s defence as lacking in merit and dismissed it as such. 20.This is being a first appeal to the High Court, and as laid down in the case of Okeno vs Republic (1972) E.A 32 among other decisions of the superior courts and this court, the first appellate court is expected to examine the record, re-evaluate the facts before the trial court and consider the relevant law and make its own independent conclusions. Of course, not overlooking the fact that it did not have the advantage of hearing and seeing the witnesses testify before the trial court. 21.I have examined the record as mandated by the principles laid down in Okeno case. That mandate is to go through the entire record form the trial court. That duty extends to all evidence adduced before the trial court including the appellant’s defence. 22.In the instant case and as I have stated, the appellant made a statement when he was put on his defence. For sake of repeating myself, this is what the appellant said:“I am ready for defence hearing. I seek the evidence in E043 to apply here.” 23.I have perused the record and I find nothing like evidence in E043. Whatever that was, I presume that there was another case probably involving the appellant and that was what he was referring to. The trial court in her judgment recorded defence adduced by the appellant. Unfortunately, I find no defence adduced by the appellant on the record. 24.Certainly, this court was denied the opportunity to examine what the appellant told the court in his defence. Was it a sworn or unsworn testimony? If it was sworn, what did the appellant say in cross-examination? 25.In my considered view the trial court ought to have recorded the appellant’s defence even if he was relying on some evidence adduced in another case elsewhere. This amounted to afront to the right to fair trial as enshrined in Article 50(2) 0f the Constitution. I say so because the appellant has been denied the chance for this court to consider his defence. This is not an omission that can be looked through the eyes of no prejudice or injustice was occasioned to the appellant. Failure by the trial court to record the defence by the appellant was fatal as it denied the appellant the opportunity to have the same interrogated by the appellate court. 26.I would consider this to be a mistrial calling for the matter to be remitted to the lower court for retrial. However, considering the seriousness of the offence and the period the appellant has been in custody, ordering retrial would aggravate the appellant’s violation of his right to fair trial. 27.In the circumstances, I have no option but to acquit the appellant. The finding of the trial court is hereby set aside and the appellant is acquitted. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY 2026.FRANCIS KYAMBIAJUDGE