https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1365

Chambisa v Republic (Criminal Appeal E171 of 2022) [2026] KECA 1365 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1365 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E171 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Cornelius Wafula Chambisa Appellant and Republic Respondent (Being an appeal arising from the Judgment of the High Court of Kenya at Bungoma (Ali-Aroni, J.) dated 8th June, 2017 in HCCR No. 44 of 2016) Judgment 1.The appellant, Cornelius Wafula Chambisa, is before us dissatisfied with the judgment of the High Court (Ali-Aroni, J. (as she then was)) at Bungoma delivered on 8th June 2017 in Criminal Appeal No. 44 of 2016. In that judgment, the High Court dismissed the appellant's appeal against both conviction and sentence arising from the Chief Magistrate's Court at Bungoma in Criminal Case No. 596 of 2012, where the appellant was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act and sentenced to life imprisonment. 2.In his memorandum of appeal dated 11th June 2018, the appellant raises five grounds of appeal in addition to the numerous grounds raised in his undated supplementary memorandum of appeal. Through the combined grounds of appeal, which we have taken the liberty to abridge, the appellant complains that: his constitutional rights were violated; he was convicted based on a defective charge sheet; his conviction was unsafe for want of comparative DNA tests; the learned Judge failed in her duty as a first appellate court; that his conviction was erroneous as it was based on contradictory evidence; and, that there was failure to comply with the provisions of section 124 of the Evidence Act and section 19 (1) of the Oaths and Statutory Declarations Act. 3.This being a second appeal, our jurisdiction, as per the provisions of section 361(1)(a) of the Criminal Procedure Code, is confined to matters of law. On matters of fact, we are required to defer to the concurrent findings of the two courts below unless they either failed to consider crucial evidence or their findings were so perverse that no reasonable tribunal could have arrived at such conclusions. This position of the law has been reiterated in several decisions of the Court, including Mwangi vs. Republic [2026] KECA 640 (KLR) wherein it was held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings.” 4.To establish the case against the appellant, the prosecution called four witnesses. B.N. testified as PW1. She was approximately seven years old. In her sworn evidence, she stated that at the material time she lived with the appellant and his wife, Rose. The appellant was a relative. Her mother had allowed her to stay with the appellant, who was a boda boda operator, because his home was near her school. She recounted that the appellant defiled her on two separate occasions. On the first occasion, she had just come from school, while on the other occasion, she was cooking “githeri”. She testified that the appellant would remove his trousers and her clothes, then lie on top of her and defile her. She stated that he would do this during the day when his family members were away. 5.She further testified that the appellant threatened to slaughter her if she revealed the incidents. She therefore did not disclose her ordeal to anyone until her mother noticed that she was swollen and took her to hospital. She confirmed that she identified the appellant to the police and that he was the person in the dock. PW1 insisted that she knew the appellant well, that he had taken her to school and bought her books, and that he had defiled her twice. She testified that she only left the appellant’s house to go and stay with her mother after the appellant disagreed with his wife. The witness denied the suggestion that her mother had fabricated the case against the appellant. 6.Police Constable Levi Obare (PW2) testified that on 15th March 2012 at about 10.00 a.m., members of the public took the appellant, B.N., and the mother of B.N. to the police station. He stated that members of the public reported that the appellant had defiled B.N. He noted that the girl walked with her legs astride and was in pain. Upon talking to her, the child informed him that the appellant had defiled her on several occasions and that pus was oozing from her vagina. He discovered that the girl's mother had left her under the care of the appellant, as the appellant was known to the mother. The witness confirmed that he knew the appellant prior to the incident as a boda boda rider in Chwele. He stated that the report made to them was that the girl's mother screamed when she found the appellant in the act of defiling the girl, and that is when members of the public responded and arrested him. 7.Dr. Ranzan Mansur (PW3), a clinical officer attached to Bungoma District Hospital, testified that he filled the P3 form in respect of the victim, B.N., aged 7 years. He stated that the girl had a history of having been defiled by a person known to her. Upon examination, the minor was found to be in fair condition. Abdominal and vaginal examination revealed palpable lymph nodes, suggesting an infection. The vaginal area had redness of the labia minora, and the hymen was not intact. The entrance to the vagina was painful to touch, and there was a whitish, foul-smelling discharge. He produced, as exhibits, the P3 form and an age assessment report that showed the apparent age of the child as seven years. He also produced the appellant’s treatment notes dated 14th March 2012. According to the witness, a urinalysis of the appellant’s urine showed pus cells and red blood cells, indicating infection. The HIV test was reactive, meaning that he was HIV positive. The appellant was put on medication and enrolled in the HIV clinic. The witness stated that he could not tell if it was the appellant who defiled the child and conceded that the P3 form did not indicate if the victim was tested for sexually transmitted diseases. PW3 denied the suggestion that the reports he had produced were false. 8.Corporal Teresia Muhia (PW4) testified that she investigated the case. She stated that on 14th March 2012 at about 1.00 p.m., she was at the Children and Gender Desk at Bungoma Police Station when administration police officers from Chwele arrived with the appellant, the minor complainant, and the complainant’s mother. They reported that the appellant, a distant relative of the minor, had been defiling her for two months. She noted that the minor was walking with difficulty and had a foul discharge from her vagina. She had, however, been treated at Chwele District Hospital and referred to Bungoma District Hospital for further treatment. 9.She locked up the appellant in the cells and later took him for medical examination at Bungoma District Hospital. The examination results revealed that the appellant was HIV positive, while the minor was HIV negative. The doctor recommended a further test on the minor after three months. She stated that the period of defilement was between 26th January 2012 and 6th March 2012, during which time the minor was staying with the appellant. PW4 testified that the minor positively identified the appellant as her defiler. The witness confirmed that the appellant was arrested by members of the public and taken to the administration police officers. She denied that the minor's mother had demanded money from the appellant. She disclosed that the minor was not taken for the recommended second HIV test. 10.In his sworn defence, the appellant denied the charges, testifying that he was a businessman and a boda boda rider from Musese, Chwele. He recalled that on 13th March 2012, while going about his business, he received two customers and took them to Chwele Administration Police Camp as per their request, only to be locked up in the cells by PW2. He did not receive any answer when he asked why he was arrested. Later, the complainant's mother went to the cells and taunted him that he had been caught. He was then removed from the cells and taken to a police vehicle, where he saw the complainant. He was taken to Bungoma Police Station, and the following day, he was taken to Bungoma District Hospital, where his urine was analyzed. He was given drugs, his fingerprints were taken, and subsequently charged with the offence. The appellant conceded that the victim was taken to his house by her mother to stay with his family, where she stayed with them until 26th January 2012. He denied ever meeting her in February 2012, as she was no longer living with them. The appellant also denied having sexual intercourse with the child. 11.The appeal was heard on 29th April 2026 with both the appellant, who was virtually present from Kisumu Maximum Prison, and learned Senior Assistant Director of Public Prosecutions, Mr. Tanui, relying on their written submissions, which were already on record. 12.In support of his appeal, the appellant argued that penetration was not proved beyond reasonable doubt, as the complainant did not adequately describe the act of penetration, and the medical evidence of a broken hymen and redness of the labia minora was not conclusive proof of penetration. He relied on P.K.W. vs. Republic [2012] eKLR, where courts were cautioned against assuming that the absence of the hymen is conclusive proof of penetration. 13.The appellant also contended that his constitutional rights under Articles 25(c), and 50(2)(j) & (k) of the Constitution were violated because he was not supplied with witness statements and the P3 form before the trial, and that his application for the case to be reopened and heard de novo was rejected by the trial court. 14.Finally, the appellant argued that the life sentence imposed upon him is unconstitutional for violating Articles 25(c), 27(1), 28, and 50(2)(p) of the Constitution. 15.Mr. Tanui, for the respondent, submitted that the appeal lacks merit and should be dismissed in its entirety. With regard to the ingredients of the offence, counsel referred to the evidence on record and argued that the offence was proved to the required standards. Citing Alfayo Gombe Okello vs. Republic [2010] eKLR for the holding that the age of the victim is a necessary ingredient of the offence of defilement, which must be proved beyond reasonable doubt, counsel asserted that the age of the complainant was indeed proved. 16.Counsel also submitted that the trial court properly warned itself of the danger of convicting an accused person on the evidence of a single witness, and was also satisfied, as permitted by the proviso to section 124 of the Evidence Act, that PW1 was telling the truth. With respect to the appeal against sentence, counsel posited that the sentence of life imprisonment meted upon the appellant is the lawful and mandatory sentence provided by section 8(2) of the Sexual Offences Act for an accused person who defiles a child aged eleven years or less. In answer to the claim of violation of constitutional rights, counsel submitted that the appellant did not raise the issue before the trial court and, in any event, failed to particularise how the rights were infringed, thus failing to discharge the burden of proof placed upon him by section 107 of the Evidence Act. Finally, counsel cited Kuria Waithanji Peter alias Osama vs. Republic [2024] KECA 1124 (KLR) to submit that under section 361(1)(a) of the Criminal Procedure Code, the Court’s jurisdiction on a second appeal is limited to matters of law. 17.We have duly considered the record and submissions by the parties.A resolution of the question whether the offence was proved and whether the appellant was granted a fair hearing determines this appeal. 18.In order to secure a conviction for the offence of defilement in section 8(1) of the Sexual Offences Act, the prosecution must prove beyond reasonable doubt three essential ingredients: (a) the age of the victim; (b) penetration; and (c) the identity of the perpetrator. 19.The appellant contends that the complainant's age was not proved.We disagree. The trial court heard evidence from PW1 herself, who stated she was seven years old. The evidence of PW3, which was confirmed by the production of an age assessment report, estimated the victim’s age to be seven years. We reiterate that proof of age can be established by various means, including oral evidence of the child, parents or guardians, medical evidence, or documents such as a birth certificate. In the present case, there was oral evidence from the complainant and medical evidence from the age assessment report. We find that the findings of the two courts below on the age of the complainant were based on evidence and are not open to challenge on a second appeal. 20.As regards penetration, the appellant argues that it was not proved, contending that the complainant's testimony was ambiguous and the medical evidence was inconclusive. We find this argument unpersuasive. Section 2 of the Sexual Offences Act defines penetration as "partial or complete insertion of the genital organs of a person into the genital organs of another person." PW1 gave a clear account of how the appellant would remove his trousers and her clothes, lie on top of her, and defile her. She testified that this happened on more than one occasion. The medical evidence adduced by PW3 corroborated her testimony. The doctor found that the vaginal area had redness of the labia minora, the hymen was not intact, and there was a whitish, foul-smelling discharge. The doctor formed the opinion that the girl had been defiled. 21.Although we appreciate that it is true that a broken hymen alone is not conclusive proof of penetration by a particular accused person, in the present case, the evidence of penetration did not rest solely on the broken hymen. It was based on the complainant's direct testimony and the totality of the medical findings, including the redness of the labia minora, discharge, and pain on examination. The trial court and the first appellate court were indeed satisfied that penetration was proved. Upon perusal of the record, we find their conclusion to be proper, and there is thus no basis upon which we can interfere with their finding that the child was penetrated. As for the appellant's reliance on the caution in P.K.W. vs. Republic [2012] eKLR against assumptions based solely on a broken hymen, we find that the decision does not in any way establish that evidence of a broken hymen is entirely irrelevant. In the present case, the medical evidence was part of a larger body of evidence that included the complainant's credible testimony. The trial court, having observed the witnesses, was entitled to make a finding on their demeanor. We reiterate that the concurrent findings of the two courts below on penetration were based on evidence and are not open to interference in this second appeal. 22.The appellant does not seriously challenge his identification as the defiler, recognizing that the complainant knew him well as a relative whom she lived with. The identification was one of recognition, which is generally more reliable than the identification of a stranger. In any event, both courts below properly considered the evidence and found that the appellant was positively identified. On our part, we are also satisfied that the appellant was well known to the child. In fact, in his defence, the appellant admitted that he stayed with her for some time and that her mother referred to him as an uncle. We are therefore satisfied that the appellant’s identity was never in doubt. 23.From the foregoing, we have no doubt that the offence was proved against the appellant. The appeal on these grounds, therefore, lacks merit and is hereby dismissed. 24.We now turn to the appellant’s argument that his constitutional rights were violated because he was not supplied with the witness statements and the P3 form in advance of the trial, and that his request to have the case re-opened was rejected. We have carefully examined the record. On 7th April 2015, after the appellant requested copies of witness statements, the court directed that he be supplied with them. On 14th May 2015, the appellant stated that he had not been supplied with the statements, and the court again ordered that he be supplied with them forthwith. On 16th June 2015, the appellant still claimed he had not been supplied with the statements, and the court again ordered that they be supplied. On 27th July 2015, the appellant requested a copy of the P3 form, and the court ordered that one be prepared for him. We therefore find that the trial court sufficiently safeguarded the appellant’s rights. 25.In respect to the appellant’s application for the trial to start afresh, we observe that on 24th September 2015, the appellant applied for the case to be reopened and heard de novo. The trial court rejected this application, noting that the case was old, having commenced in 2012, and the appellant had been supplied with the witness statements when he requested for them. The court proceeded with the defence hearing. The learned Judge on first appeal considered this issue and found that the appellant had been supplied with the statements before the defence hearing and had no valid grievance. In the circumstances, it cannot be said that the appellant was in any manner prejudiced, considering that at the commencement of the trial on 12th June 2012, he clearly indicated that he was ready for the trial. He suffered no handicap because he thereafter extensively cross-examined all the prosecution witnesses. We therefore agree with the learned Judge that the appellant was not prejudiced. 26.Concerning the appellant’s other grounds of appeal, we do not find any merit in the appellant’s claim that the charge was defective. Also without merit is the claim that the learned Judge failed in her responsibility as a first appellate Judge. A perusal of the judgment confirms that she considered the evidence adduced at the trial afresh before making her own independent conclusions. The same fate befalls the complaints that the lack of comparative DNA tests weakened the prosecution case; that the conviction was anchored on contradictory evidence; and, that there was non-compliance with section 124 of the Evidence Act and section 19(1) of the Oaths and Statutory Declarations Act. A perusal of the record and our analysis above confirms compliance with the law and that the conviction was based on sound evidence. All the other grounds of appeal, therefore, collapse. 27.Finally, in answer to the appeal against sentence, we note that the appellant was sentenced to life imprisonment. This is the minimum sentence prescribed for the offence under section 8(2) of the Sexual Offences Act. As held by the Supreme Court in Petition No. E018 of 2023, Republic vs. Joshua Gichuki Mwangi, the sentence is not discretionary. The appeal against the sentence therefore fails. 28.For the foregoing reasons, we find this appeal to be without merit, and it is dismissed in toto. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY 2026.M. GACHOKA C.Arb, FCIArb………………………. JUDGE OF APPEALW. KORIR…………………………. JUDGE OF APPEALL. M. NDOLO…………………………. JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR