https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8742

Chirchir v Republic (Criminal Appeal E004 of 2025) [2026] KEHC 8742 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8742 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E004 of 2025 JK Ng'arng'ar, J June 23, 2026 Between Nickson Kibet Chirchir Appellant and Republic Respondent (IN THE MATTER OF THE CHILDREN'S ACT AND IN THE MATTER OF THE ADOPTION OF WALCOT WAFULA WANGILA, (A CHILD)) Judgment 1.NKC (now Appellant) was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge were that between 24th January 2022 and 27th January 2022 at [Particulars Withheld] in Sotik Sub-County within Bomet County, the Appellant intentionally caused his penis to penetrate the vagina of A.C, a child aged 14 years. 2.The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were that between 24th January 2022 and 27th January 2022 at [Particulars Withheld] in Sotik Sub-County within Bomet County, he intentionally touched the vagina of A.C, a child aged 14 years with his penis. 3.The Appellant pleaded not guilty to the charge before the trial court and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Appellant and he was put on his defence. The Appellant gave sworn testimony and called two witnesses in aid of his defence. 4.At the conclusion of the trial, the Appellant was convicted of the offence of defilement and sentenced to serve fifteen (15) years in prison. 5.Being dissatisfied with the Judgment of the trial court the Accused, NKC appealed against his conviction and sentence. 6.This being the first appellate court, I am conscious of the duty to re-evaluate the evidence given at the trial court and come to my own independent conclusion and decision. I now proceed to summarize the Prosecution’s case and the Appellant’s defence in the trial court and their respective submissions in the present Appeal. The Prosecution’s/Respondent’s Case. 7.It was the Prosecution’s case that the Appellant defiled A.C (PW3) between 24th January 2022 to 27th January 2022. PW3 testified that she ran away from home on 21st January 2022 and went to the Accused’s place who was her husband. PW3 further testified that on 23rd January 2022, the Accused had sexual intercourse with her. 8.Wesley Rono (PW4) who was the clinical officer at Ndanai Sub-County Hospital testified that he examined PW3 on 27th January 2022, three days after the sexual intercourse. PW4 further testified that PW3 had a long-standing broken hymen and further that there were no positive findings in the laboratory results. 9.Through their written submissions dated 13th April 2026, the Respondent submitted that the victim’s (PW3) was proved through the health card (P. Exh 1) which showed that the victim was born on 5th August 2007. The Respondent furter submitted that they proved penetration through the victim’s evidence which was corroborated by PW1 and PW2 that she disappeared from home between 21st January 2022 and 24th January 2022. That there was no reason to doubt the victim’s testimony. They relied on section 124 of the Evidence Act. 10.It was the Respondent’s testimony that the victim identified the Appellant as her husband. That they had stayed in the same house for three days and there was zero error as to the positive identification of the Appellant. It was the Respondent’s further submission that the 15-year sentence was not harsh but lenient. The Accused’s/Appellant’s Case. 11.The Appellant, NKC (DW1) testified that he was arrested on 24th January 2022 at Aunet Centre and was taken to Ndanai Police Station. DW1 further testified that he was being framed. 12.Ismael Tonui (DW2) testified that he knew the Accused and that the Accused was arrested on 24th January 2022 at Aunet Centre. Anthony Arap Bii (DW3) testified that the Accused was his neighbour and that the Accused was arrested on 24th January 2022 at Aunet Centre. 13.Through his written submissions dated 8th November 2025, the Appellant submitted that the ingredients of age, identification and penetration were not proved. The Appellant further submitted that the charge sheet was defective as he was arrested on 24th January 2022 yet the charge sheet related to events between 21st January 2022 to 24th January 2022. That there were no amendments made to the charge sheet. 14.It was the Appellant’s submission that the Judgement was defective as the Judgement used to convict him belonged to Aron Kipkurui Turgut. That the events contained in the charge sheet related to Aron Kipkurui Turgut and that proved his innocence. It was the Appellant’s further submission that Emily was not brought as a witness. That Emily was a person of interest. 15.The Appellant submitted that he had an alibi on the material day. That he was at his place with Annah and Kiplangat. That he did not call Annah as a witness as they had disagreements. 16.I have gone through and given due consideration to the trial court’s proceedings, the Record of Appeal, the Appellant’s written submissions dated 8th November 2025 and the Respondent’s written submissions dated 13th April 2026. The following issues arise for my determination: -i.Whether the Charge Sheet was defective.ii.Whether the Prosecution proved its case beyond reasonable doubt.iii.Whether the Defence placed doubt on the Prosecution case.iv.Whether the sentence preferred against the Appellant was harsh. Whether the Charge Sheet was defective 17.The Appellant submitted that the charge sheet was defective as it related to events that occurred between 21st to 24th January 2025 yet he was arrested on 24th January 2025. That no amendments had been effected on the charge sheet. The substantive law on defective Charge Sheets is Section 134 of the Criminal Procedure Code which provides as follows: -Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 18.The Court of Appeal in the case of Isaac Omambia v Republic [1995] KECA 156 (KLR) stated as follows: -“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.” 19.From the trial court record, 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. The Appellant took plea on 31st January 2022 and the trial commenced and proceeded with five prosecution witnesses who were all cross examined by the Appellant. When the Appellant was placed in his defence, he testified, called two witnesses and closed his case. The Appellant was fully aware of the charge he faced from the beginning and actively participated in the trial and the trial culminated with his defence. 20.The key issue in determining whether a charge sheet is defective or not is the prejudice it would cause the Appellant. The Court of Appeal in Benard Ombuna v Republic [2019] KECA 994 (KLR) held as follows: -“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 21.Having considered the trial court record, I am satisfied that the Appellant faced no prejudice as he had the opportunity to present his defence, which he did. In essence, the charge sheet was not defective and I therefore dismiss this ground of appeal. Whether the Prosecution proved its case beyond reasonable doubt. 22.It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender have to be proved. 23.On the issue of age, Rule 4 of the Sexual Offences Rules of Court 2014 provides that: -When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document. 24.No. 230087 Cpl Michael Ochuodo (PW5) produced a clinical card as P. Exh 1. I Have looked at the clinical card and I agree with the Respondent’s submission that the name contained in the card appeared interfered with. The name on the clinical card could not be ascertained therefore this court will not use the exhibit as a basis of determining the victim’s (PW3) age. However, the testimony of a parent or a guardian may be used in determining a victim’s age. In the case of Onsongo v Republic [2016] KEHC 4738 (KLR) in which the court cited the case of Mwolongo Chichoro Mwanyembe Vs Republic, Mombasa Criminal Appeal No.24 Of 2015 (UR) the Court of Appeal held that: -“… 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……” 25.Anthony Kipkirui Kosgey (PW1) who testified as the victim’s father testified that the victim (PW3) was born on 5th August 2007. It is therefore my finding that PW3 was aged 14 years old at the time of the commission of the offence. 26.With regard to the issue of identification, the victim (PW3) testified that the Appellant was her husband and had promised to marry her. PW3 further testified that she ran away from home on 21st January 2022 and stayed with the Appellant until 24th January 2022. This testimony was uncontroverted upon cross examination. From my analysis of the above, I am satisfied that this was evidence of recognition. I am guided by Peter Musau Mwanzia v Republic [2008] KECA 92 (KLR) where the Court of Appeal held: -“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognise a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident……” 27.From the evidence above, I am clear that the victim (PW3) and the Appellant were not strangers and knew each other well. Therefore, I have no reason to disbelieve or doubt that the positive identification of the Appellant by the victim (PW3). There was no possibility of mistaken identity. 28.With regards to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. The Prosecution has to prove penetration or act of sexual intercourse to sustain a charge of defilement. 29.Penetration can be proved through the evidence of the victim corroborated by medical evidence. In the instant case, I shall carefully evaluate the victim’s testimony and the medical evidence tendered. 30.Regarding medical evidence, Wesley Rono (PW4) a clinician based at Ndanai Sub-County Hospital testified that he examined PW3 on 27th January 2022, which was three days after the commission of the offence. PW4 testified that PW3 had a long-standing broken hymen and further that there were no positive findings on the laboratory tests. From PW4’s testimony it was clear that the medical evidence was inconclusive in determining penetration. 31.However, courts can still convict solely on the testimony of the victim and the only caveat is that the trial court has to believe the testimony of the victim and record the reasons why it believed the victim. In Section 124 of the Evidence Act provides: -Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 offence, 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. 32.In the present case, the trial court in its Judgement noted that the victim’s evidence was believable. That the victim confirmed and pointed out to the Appellant as the one who had penetrated her. I have carefully gone through the record and considered the circumstances of the case and I have found no reason to disbelieve the testimony of the victim that she was penetrated by the Appellant. It is my finding therefore that the victim was penetrated by the Appellant on the material day. 33.Based on the totality of the evidence before me, it is my finding that the Prosecution satisfactorily established the age of the complainant, proof of identification and penetration. It is also my finding that Prosecution proved its case against the Appellant beyond reasonable doubt. Whether the Defence placed doubt on the Prosecution’s case. 34.The Appellant’s (DW1) defence was aptly captured in detail earlier in this Judgment. The Appellant denied committing the offence and testified that he was arrested on 24th January 2022. His two witnesses (DW2 and DW3) testified as to the events of 24th January 2022 and corroborated DW1’s testimony of being arrested on 24th January 2022. I agree with the trial court that the Appellant testified only to the events of 24th January 2022 and avoided the dates referenced by the victim being 21st to 23rd January 2022. 35.The Appellant submitted that on the material day he had an alibi. That he was with Annah and Kiplangat. In the case of R vs Sukha Sign S/O Wazir Singh & 7 Others (1939) 6 EACA 145, the former Court of Appeal for Eastern Africa held that: -“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the interval, secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into the alibi and if they are satisfied as to its genuineness, proceedings will be stopped”. 36.It is trite that once the Appellant raised an alibi defence, the onus was on the Prosecution to displace the defence of alibi after the defence raises it at the trial. This was held in the Court of Appeal case Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR) as: -“It is trite law that the burden of proving falsity, if at all, of an accused ‘s defence of alibi lies on the prosecution”. 37.The Court of Appeal in the case of Wangombe Vs Republic (1980) KLR 149 held as follows: -“……. In Ssentale vs. Uganda (1968) EA 365, 368 (Sir Udo Udoma CJ)…. said that a prisoner who puts forward an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout the prosecution. We agree, we have ourselves said so on more than one occasion. . . .The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible”. 38.In the present case, the Appellant’s defence of alibi was raised in his written submissions and not at the beginning of the trial thus denying the Prosecution an opportunity to verify the alibi. I have also noted that the issue of the alibi was not put across the Prosecution witnesses during cross examination. This in my view was an afterthought by the Appellant. The same is dismissed. 39.It is my finding that the Appellant’s defence as a whole was a denial and an afterthought and did not displace the Prosecution case which I have already found proven. Whether the sentence preferred against the Appellant was harsh. 40.Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. 41.The penal section for this offence is found in section 8(3) of the Sexual Offences Act which states that: -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. 42.I have considered the circumstances of this case and the fact that the victim was aged 14 years old at the time the offence was committed. I have also considered the Appellant’s mitigation in the trial court. 43.As stated above, the minimum sentence for the offence of the present offence was 20 years. In regards to the law stated above, the trial court was lenient. It is my finding therefore that the trial court did not err when it sentenced the Appellant to serve 15 years imprisonment. 44.For avoidance of doubt, I uphold the Appellant’s conviction and sentence. 45.In the end, the Appeal filed on 12th March 2025 has no merit and is dismissed. JUDGMENT DELIVERED, DATED AND SIGNED THIS 23RD DAY OF JUNE, 2026.........................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment delivered in the presence of;Siele/Susan – Court AssistantsMs Koech for the StateAppellant