Jedidah v Republic (Criminal Appeal E033 of 2024) [2026] KECA 724 (KLR) (10 April 2026) (Judgment)

Jedidah v Republic (Criminal Appeal E033 of 2024) [2026] KECA 724 (KLR) (10 April 2026) (Judgment) Neutral citation: [2026] KECA 724 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal E033 of 2024 JM Mativo, PM Gachoka & AO Muchelule, JJA April 10, 2026 Between David njuguna Jedidah Appellant and Republic Respondent (An appeal by the judgment of the High Court of Kenya at Nakuru (H.M. Nyaga, J.) delivered on 13th June 2024 And Republic Respondent in HCCRA No. E029 of 2023 Criminal Appeal E029 of 2023 ) Judgment 1.The appellant, David Njuguna Jedidah, was charged with the offence of defilement contrary to section 8 (1) as read with section 8(3)of the Sexual Offences Act in the Nakuru Chief Magistrate’s Court Criminal Case (SO) No. E115 of 2021. The particulars of the offence were that on diverse dates between 3rd July 2021 and 5th July 2021, at [particulars withheld], Nakuru West sub-county, Nakuru County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of SO, a child aged 15 years old. 2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the appellant unlawfully and intentionally committed an indecent act with a child, namely SO, a child aged 15 years old by touching her vagina and buttocks using his penis. 3.The appellant was arraigned before the trial court to answer to the charges, where he pleaded not guilty. After a full trial, the appellant was convicted on the main charge and sentenced to 20 years imprisonment. Aggrieved, the appellant appealed before the Nakuru High Court in Criminal Appeal No. E029 of 2023. In his judgment dated 13th June 2024, Nyaga, J dismissed his appeal on conviction. On the sentence, the Judge set aside the sentence of 20 years and substituted it with 15 years’ imprisonment. 4.The appellant is dissatisfied with those findings. He has filed his undated notice of appeal dated 25th April 2018. He also filed his memorandum of appeal dated 18th March 2025 that raised six grounds disputing the findings of the learned judge. In summary, he lamented that the conviction was unsubstantiated as the prosecution failed to prove beyond reasonable doubt that he committed the offences that he was charged with; that the appellant did not have ample time to prepare for the case; and that the sentence meted out was harsh and excessive. For those reasons, the appellant prayed that his appeal be allowed by quashing the conviction and setting aside the sentence. 5.This appeal was heard virtually on 11th February 2026. The appellant, who was present virtually, was represented by Ms. Maina, Advocate, while the respondent was represented by Senior Assistant Director of Public Prosecutions Mr. Omutelema. The parties adopted their respective written submissions. 6.The appellant’s written submissions dated 3rd June 2025 argued that the prosecution only proved the age of the victim but failed to prove the other ingredients beyond a shadow of doubt. Learned Counsel challenged the medical evidence, arguing that in his cross- examination, the Doctor admitted that the minor was sexually active and had an old broken hymen. Further, the Doctor did not indicate the approximate age of the injuries in the PRC form. The Doctor also admitted that her labia majora was not inflamed. Additionally, the PRC form was not indicative that there was presence of spermatozoa. Counsel submitted that, considering this evidence, penetration was not proved. On the sentence, Learned Counsel submitted that it was harsh and excessive. She thus urged this Court to allow the appellant’s appeal on conviction and sentence. 7.The respondent filed written submissions, a case digest and a list of authorities all dated 18th June 2025. Mr. Omutelema submitted that all the ingredients of the offence of defilement were proved beyond reasonable doubt. In essence, the prosecution discharged its burden of proof to the required standard. On the sentence, it was submitted that the sentence of 15 years imprisonment, as substituted by the High Court, was unlawful. He thus prayed that the sentence be set aside to a lawful sentence of 20 years imprisonment. 8.Our jurisdiction as a second appellate Court is couched in section 361 of the Criminal Procedure Code. It is trite that this Court will not interfere with findings of fact by the two courts below unless it is demonstrably clear that the two courts considered matters that they ought not to have considered, failed to consider matters that they ought to have or were plainly wrong. (See Karani v R [2010] 1 KLR 73). 9.To sustain a charge for defilement, the prosecution must establish three essential conjunctive ingredients: the age of the complainant, penetration, and the identification of the perpetrator. We shall therefore examine the facts and determine whether those ingredients were established to the required standard of proof. According to PW1 CE, PW3’s mother, the complainant was born on 2nd August 2005 as per her birth certificate. PW3 SO, the complainant, also testified that she was 15 years old at the time of the offence. Gathered from this, we can conclusively establish that the minor was 15 years old and that the age of the complainant was proved beyond reasonable doubt. Indeed, even the appellant did not challenge this finding. 10.On penetration and the identity of the perpetrator, PW1 testified that between 3rd July 2021 and 5th July 2021, PW3 did not come home. After being advised, PW1 made a report of a missing child to the Rhonda Police Post. She later suspected that PW3 was in the appellant’s house. The appellant was their neighbour living in the same plot. Together with an elder, an Administration Police and a lady, PW1 went to the appellant’s house, forcibly entered and found him. After being asked several times, the appellant admitted that PW3 was in his house. In fact, she was found hiding under the bed. The appellant was then arrested. 11.PW3 testified that she knew the appellant very well. She referred to him as ‘daddy’. He was their neighbour at that time. Her evidence was that she was at home on 3rd July 2021 with her sister V. She further testified that a girl, living with the appellant, gave her the keys to the appellant’s house at around 2:00 pm with instructions that ‘daddy’ had invited her to his house. She waited until 7:30 pm, when she left her home and went to the appellant’s house. It was her evidence that it was not the first time she had visited the appellant. 12.PW3 continued that the appellant came home later from work. He cooked; they ate and slept. He then had sexual intercourse with her. The following day, he left the house and came back at 11:00 am. They stayed together the whole day and had sexual intercourse that night. On 5th July 2021, the appellant left for work and returned to his house at 7:00 pm with two children. They were eating apples. After they were done, the appellant escorted the children and came back home. 13.Later at 9:00 pm, PW3’s sister V, PW1 and Police Officers came to the appellant’s house. When the door was opened, the appellant was arrested while she was taken to the hospital. Upon his arrest, PW2 PC Fatma, the Investigating Officer, collected the evidence, interrogated the witnesses and recorded witness statements. She then preferred the charges against the appellant. She stated that what PW3 testified before the trial court was the account of events given to her by PW3 during the investigations. 14.Meanwhile, PW1 took PW3 to Nairobi Women’s Hospital. She was issued with a P3 form. According to PW4, Dr. Njoroge, a Medical Officer working at the said facility, on observation, the minor had an old broken hymen. She was sexually active. It was observed that she had taken a bath. The conclusion formed was that there was blunt trauma penetration to the vagina. The degree of injuries sustained to her were classified as harm. The P3 form and PRC form, both dated 6th July 2021, were filled and produced in evidence. 15.From the above evidence, we are satisfied that PW3’s evidence was truthful and credible. She knew the assailant very well and there was no chance of mistaken identity. She referred to the appellant as ‘daddy’, who was her neighbour. Furthermore, she was found in his house, hiding under the bed, after disappearing for two days. She confirmed having sexual intercourse with the appellant for two days. The medical evidence adduced by PW4 further established that, indeed, penetration was apparent. 16.When placed on his defence, the appellant’s alibi was that he was taking care of his mother at her house. One evening, as he went to check on his house, he met the complainant on the way, who asked for water. In reply, the appellant told her to get water from her friends. His evidence was that he arrived home and changed. As he was leaving the house, he was arrested by 10 Police Officers. He denied committing the offence stating that the prosecution witnesses were lying. He further confirmed that he held no grudge against PW1 or PW3. 17.The appellant also called DW2 Jedidah Muthoni, his mother, as a witness. Her evidence was that the appellant was at her home on 3rdand 4th July 2021 and left on 5th July 2021. She was thus very surprised that he had been arrested. 18.Having looked at the evidence of the appellant, we find that it did not dislodge the prosecution’s case. Furthermore, while the appellant testified that he was taking care of his ailing mother, DW2 made no such assertions. This questions their credibility. Nonetheless, they did not shake the prosecution’s evidence. His alibi was considered by the trial court and just like the two courts below, we are satisfied that all the ingredients to the offence were established to the required standard. It is therefore our finding that the two courts below properly concluded that the appellant’s conviction was safe. Accordingly, we do not hesitate to find that the appellant’s appeal against his conviction lacks merit. The conviction is upheld. 19.On sentencing, the appellant was sentenced by the trial court to 20 years imprisonment. This sentence was set aside and substituted with that of 15 years imprisonment on a first appeal. We are alive to the fact that section 8 (1) as read with section 8 (3) of the Sexual Offences Act condemns a convicted person to a minimum sentence of 20 years imprisonment. 20.Additionally, the Supreme Court in the cases of Republic v Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic v Manyeso [2025] KESC 16 (KLR) stated that minimum sentences are lawful and courts have no discretion to impose no less than what is prescribed in statutes. 21.We therefore find that the sentence that the appellant is serving is unlawful. Though the respondent raised this issue at the penultimate and ultimate paragraphs of its submissions, it did not procedurally offer a warning or a notice of enhancement before the appeal was heard. It is trite that for a sentence to be enhanced, the respondent ought to have issued a formal written notice. To ambush the appellant at the submissions stage falls far below the standards of a fair hearing. An appellant who is issued a formal warning may opt to withdraw an appeal, more so in a case like this, in which the respondent did not appeal against what is an obviously illegal sentence. Thus, while the sentence remains unlawful, we cannot do much owing to this crucial step that was not taken. 22.In the end, we find that the present appeal is unmerited and it is hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF APRIL, 2026.J. MATIVOJUDGE OF APPEAL........................................M. GACHOKA C.Arb, FCIArb.........................................JUDGE OF APPEAL........................................A. O. MUCHELULEJUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR