https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12427

Derrick Sisia alias Kuka v Republic (Criminal Appeal E015 of 2025) [2026] KEHC 12427 (KLR) (27 July 2026) (Judgment) Neutral citation: [2026] KEHC 12427 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E015 of 2025 JN Kamau, J July 27, 2026 Between Derrick Sisia alias Kuka Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon P. Karimi (RM) delivered at Vihiga in the Principal Magistrate’s Court in Sexual Offence Case No E62 of 2024 on 13th May 2025) Judgment Introduction 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The Learned Trial Magistrate, Hon P. Karimi (RM) convicted him of the main charge and sentenced him to life imprisonment. 3.Being dissatisfied with the said Judgement, he lodged the appeal herein. His Petition of Appeal was dated 19th May 2025 and filed on 21st May 2025. He set out four (4) grounds of appeal. 4.His Written Submissions were dated 6th October 2025 and filed on 14th October 2025. Those of the Respondent were dated 19th November 2025 and filed on 21st November 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. Legal Analysis 5.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7.Having looked at the Appellant’s Petition of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution proved its case beyond reasonable doubt;b.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. 8.The court therefore dealt with the said issues under the following distinct and separate heads. I. Proof of Prosecution’s Case 9.Ground of Appeal No (1), (2) and (3) of the Petition of Appeal were dealt with under this head as they were all related. 10.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement. 11.It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 12.The Appellant did not submit on the issue of age. The Respondent was emphatic that age was proved by production of an Age Assessment Report which indicated that the Complainant (hereinafter referred to as “ PW 1”) was nine and a half (9½) years old. It asserted that although the Charge Sheet indicated that PW 1 was ten (10) years old, the same was still in the bracket of 11 years under Section 8(2) of the Sexual Offences Act. 13.Notably, No 10xx53 PC Lilian Akinyi (hereinafter referred to as “PW 4”) was the Investigating Officer. She produced the Age Assessment Report from Vihiga Referral Hospital which indicated that PW 1 as aforesaid. The Appellant did not object to the production of the said Age Assessment Report. It was therefore, the finding of this court that age was proved to the required standard. B. Penetration 14.The Appellant’s case was that the circumstances of the case were not considered. He asserted that the incident occurred at night yet he was arrested during the day at his house and he was not at large. He stated that he was not intoxicated and nothing was recovered from him to suggest that he was at the scene of crime. He further stated that after examination, his private parts were normal which vindicated him since he would not have gone without lacerations and blood cells due to the extent of injuries that were sustained by PW 1. 15.He faulted the Trial Court for failing to invoke Section 36 of Sexual Offences Act and order for DNA analysis. In this regard, he cited the case of John Maina Kamau vs Republic HCCRA. No. 422 of 2013, where the court faulted the medical evidence which found the presence of spermatozoa yet DNA was not done to connect the appellant therein with the alleged sperms. 16.He asserted that though the medical evidence showed that PW1 had been penetrated, the circumstances could not link him to the offence. 17.On its part, the Respondent argued that PW 1’s evidence was corroborated by Kelvin Kadenge Amadalo (hereinafter referred to as “PW 5”), who was the Clinical Officer. It averred that he produced the treatment notes and P3 form as exhibits in this case. He pointed out that although PW 1 used the term "tabia mbaya," the Court of Appeal had in the case of Muganga Chilejo Saha vs Republic (2017) eKLR acknowledged that this was an acceptable description of defilement especially where penetration was established. It was emphatic that penetration was proved. 18.It also argued that there was no need of corroboration of PW1’s evidence as the court opined in Oloo vs Republic (2009) KLR, that corroboration of evidence of a child of tender years was only necessary where such a child gave unsworn evidence. It submitted that PW 1’s evidence was on oath and was corroborated by the medical reports that PW 5 tendered in evidence. 19.It pointed out that there was no indication of spermatozoa seen in the virginal swab to warrant a DNA. It submitted that Section 36 of the Sexual Offences Act was not crafted in mandatory terms hence, courts ordered for DNA depended on the circumstances of each case. 20.A perusal of the proceedings showed that PW1 told the court that the Appellant whom she referred as Kuka raped her. She said that “Alini-rape”, “Alinifanyia tabia mbaya”, “Aliweka dudu yake kwa dudu yangu”. The Trial Court noted that she touched her private parts. She further told the court that she had not slept with her trouser because she did not want to wet them and so, she had only worn a blouse. She testified that the Appellant had a skyboy shorts which he removed to insert his dudu in hers. 21.She pointed out that in the morning when she went to the toilet, she noticed that she was bleeding and her mates asked her why there was blood on her blanket. 22.PA (hereinafter referred to as “PW 2”) told the Trial Court that in the morning, they heard someone outside and that when they opened the door, they found PW 1 and she went to sleep. She stated that when she woke up to go to the toilet, they saw that she was bleeding from her private parts. They contacted her mother and she was taken to hospital. 23.MA (hereinafter referred to as “PW 3”) was PW1’s mother. She said that she was contacted by a neighbour and when she went home, she found PW 1 on the seat. She said that there was blood on the blanket and on the seat and so she tied her with a leso on her pelvic area and they went to police station and later to hospital. She stated that she was asked to consent for PW1 to be stitched on her private parts which was done. 24.PW 4 told the court that at police station, they found PW 1 who was lying on the floor in a room while covered with a leso bleeding. She asserted that she helped PW 3 to hold down PW1 so that she could be stitched by the doctor. 25.PW 5 stated that he examined the Appellant and PW1 and he filled the treatment notes, P3 and PRC forms which he produced as exhibits. He testified that PW1 was covered with a leso and had blood stains on her private parts which had dripped to her thighs. He pointed out that she was still bleeding and she was in pain on touch. He stated that she had tears on her vagina on different positions, the hymen was torn, she had blood on her urine, she had a bacterial infection and there was blood on high vagina swab. He observed that the injuries were approximately twelve (12) hours old. He testified that although he examined the Appellant and his private parts were normal, he nonetheless concluded that penetration had occurred. 26.Notably, the proviso of Section 124 of the Evidence Act Cap 80 (Laws of Kenya) states that:-“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 (emphasis).” 27.Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. 28.Having evaluated the evidence before the Trial Court, it was the view of this court that the evidence before the Trial Court was sufficient to have found that penetration was proved. The Appellant even in his submissions admitted to this fact that penetration was proved. 29.As the Respondent correctly submitted, there was also no need to conduct DNA since PW 5 never mentioned that there were spermatozoa that were seen. PW 1’s evidence was cogent and consistent and was corroborated by the evidence of PW 2, PW 3 and PW 4 and further by the scientific evidence of PW 5 that was proved by medical evidence that was tendered in court as proof of penetration. 30.Having found that penetration was proved, the question that remains was whether the Appellant was the perpetrator. C. Identification 31.According to the Appellant, identification was not proved. He claimed that although PW 1 testified that she identified him through the moonlight, there was no indication as to whether there was eye contact or description of the body posture. He asserted that if PW 1 heard the perpetrator breaking into the house, her psychological status was unsettled hence her state of mind could not have allowed such an identification. He stated that although she claimed to have been carried off into the bush, in the absence of an illustration that there had been eye contacts, her evidence was rendered as weak and unbelievable. 32.He argued that even if there was moonlight, the stage and phase of the moon and the intensity of the light was not determined bearing the fact that at sometimes, it would have been insufficient even to see something that was 30cm away. He placed reliance on the case of Cleophas Otieno Wamung vs Republic (1989) eKLR, 424, where the court called for careful examination of evidence of identification of a suspect at night so as to avoid possible incidences of miscarriage of justice through mistaken identities. He also cited Maitanyi vs Republic (1986) KLR 198, where the court held that an inquiry as to the intensity of light was essential in testing the accuracy of evidence of identification. He also cited other cases to justify his claim that identification was not proved. 33.He maintained that going by the circumstances of this case, identification was neither positive nor free from error and ought not to have been acted upon since the time of the offence was past midnight, PW 1 claimed that the Appellant broke into the house and that there were other five (5) children inclusive of PW 2 who were older than her. 34.The Respondent on its part argued that identification was proved since PW 1 had seen the Appellant several times and there was moonlight, she was able to see him. It said that she even referred to him as “Kuka” which name the Appellant admitted to be his. It argued that the time PW 1 spent with him as he committed the heinous act of defilement, presence of moonlight and having previous seen the perpetrator on the road several times, averted any chance of mistaken identity of the perpetrator. It asserted that it was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568. 35.PW 1 told the Trial Court that the Appellant broke into their kitchen at night and carried her to the bushes while she was screaming. Her friends heard her and he punched and slapped her on her head. Her evidence was that the ordeal, she crawled back to the verandah outside the house and she told them that the Appellant had carried her outside. She stated that she had seen the Appellant several times on the road. She was emphatic that she saw and recognised him because even it if it was 1.00 am, there was moonlight, a fact that she reiterated when she was cross-examined. She repeated during her cross- examination that he took her to the bushes and at the time, he was wearing a skyboy which is an underwear for boys, trouser and blouse. 36.PW 2 testified that they were sleeping at their grandmother’s house and one J woke up and said that PW1 was not in the house. They heard screams from outside calling “Mama! Mama!.” She said that they woke up and turned on the light and noticed that PW1 was not in the bed. She said that they checked outside and since they could not see her, they locked the door and slept. 37.She told the Trial Court that in the morning, they heard someone outside and when they opened, they saw PW1 and when they asked her where she was, she said the Appellant had slapped her and threatened her to keep quiet or he would kill her. She stated that she knew the Appellant who was Vella’s uncle and who was a neighbour on the opposite side of the road. 38.When she was cross-examined, she stated that PW1 informed her that she saw him in the moonlight. She confirmed that there was moonlight outside when they were searching for her. 39.PW 3 told the court that PW 1 informed her that the Appellant who was Bella’s uncle had defiled her in Allan’s farm. She averred that she had seen the Appellant several times on the road, a fact that she reiterated when she was cross-examined. She testified that the Village Elder arrested the Appellant in his house. 40.PW 4 said that when she interviewed PW 1, she said that she was defiled by the Appellant who was their neighbour. She further stated that PW 1 identified the Appellant through the moonlight and he was known to her. 41.In his sworn defence, the Appellant only testified on how he was arrested but on cross- examination, he denied knowing PW 1 and PW3. He confirmed that “Kuka” was also his name but he could not recall what he was wearing at the material time. 42.In the case of R vs Turnbull [1976] 3 ALL ER 549, it was held that court should closely examine the circumstances in which identification by each witness came to be made. It held that the duration of how long the witness had the accused under observation, at what distance, in what light, the impediment of observation in any way, for example, by passing traffic or a press of people, familiarity of the witness with the accused before and how often and if only occasionally, if there were any special reason for remembering the accused, what period had elapsed between the time of the original observation and the subsequent identification to the police, existence of material discrepancies in the description between the time the witness reported to the police of first appearance and his actual appearance were all pertinent issues. 43.Applying the above tests in our instant case, this court noted that the circumstances surrounding identification were at night. From the foregoing evidence, the Appellant was a neighbour, He was well known to PW 1, PW 2 and PW 3.Despite the act having being committed at night, both PW1 and PW 2 confirmed that there was moonlight on that night. PW1 even identified the clothes the Appellant was wearing. Further, she knew him and she referred him as Kuka, a name that the Appellant admitted to be his. She told PW2, PW3 and PW4 that it was the Appellant who dragged her out of the house and took her into thickets and defiled her. At no time did she change or mention any other name. Even though she did not mention the time she spent with the Appellant, it might have been a considerable time since he was defiling her. 44.Identification was, therefore, by way of recognition. Given the circumstances above, it was, therefore, the view of this court that the Appellant was identified as the perpetrator. 45.In the premises foregoing, Ground of Appeal No (1) (2) and (3) of the Petition of Appeal were not merited and the same be and are hereby dismissed. IV. Sentence 46.The Appellant submitted that it was harsh to let one spend the rest of his life in prison and it was not dignifying if a first offender was not offered a second chance in life. He asserted that it was against humanity if an offender was treated as non-responsive to rehabilitative measures. He argued that the sentence infringed on his right to freedom and security of the person pursuant to Article 29(d & f) of the Constitution. 47.He urged the court to consider the circumstances of the case and weight it against the sentence and find the former as disproportionate to the latter and interfere with the sentence by invoking section 26(2) of the Penal Code. He also urged the court to substitute the sentence with the least punitive form of a determinate custodial sentence. 48.On its part, the Respondent submitted that the sentence was legal as was stated by the Supreme Court in Republic vs Joshua Gichuki Mwangi and others Petition No. E018 of 2023(2024) KESC 34 KLR. 49.Notably, the Appellant was sentenced under Section 8(2) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: -“A person who commits an offence of defilement with a child between the age of eleven years or less shall upon conviction be sentenced to imprisonment for life” 50.This court could not therefore fault the Trial Court for having sentenced him to life imprisonment as that was lawful. 51.Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 52.However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. 53.As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. Disposition 54.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 19th May 2025 and filed on 21st May 2025 was not merited and the same be and is hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe. 55.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 27TH DAY OF JULY 2026J. KAMAUJUDGE