https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12605

DMM v Republic (Criminal Appeal E093 of 2024) [2026] KEHC 12605 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 12605 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E093 of 2024 WM Kagendo., J May 28, 2026 Between DMM Appellant and The Republic Respondent (An appeal against the conviction in judgment at Chief Magistrate’s Court at Mombasa (Hon. R. Orora (SRM) in Criminal Case No. E101 of 2023 delivered on 15th August 2024) Judgment The Charges 1.The Appellant was charged with the following two counts:i.Count 1-Defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006Particulars are that on 25th September 2023 at [Particulars Withheld] area in Likoni sub county within Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of EW a child aged 10 years.ii.Alternative count-Committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act CAP 63Particulars are that on 25th September 2023 June 2022 at at [Particulars Withheld] area in Likoni sub county within Mombasa County intentionally and unlawfully touched the vagina of EW a child aged 10 years. 2.Four witnesses testified on behalf of the prosecution case, and thereafter the court ruled that he has a case to answer on 16th May 2024. The appellant gave his evidence and a judgment was delivered on 15th August 2024, and the appellant was sentenced to 25 years' imprisonment. Being dissatisfied, he filed this appeal. 3.The grounds of the appeal are:a.That the trial court erred in law and fact by failing to see that the issue of identification and penetration was not proved beyond reasonable doubt.b.The trial court erred in law and fact by failing to see the glaring inconsistencies on the prosecution’s case which couldn’t warrant a safe conviction.c.That the trial court erred in law and fact by dismissing the appellant’s defence offhand without providing cogent reasons for the same while failing to appreciate that the onus of proof lies with the prosecution case. The Law 4.Section 8 (1) of the Sexual Offences Act, which provides for Count 1states that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” Summary of the evidence 5.PW 1 was the victim EW, who stated that she was 10 years old at the material time resided with her parents, siblings, three cousins, and the appellant. She recalled that on 25th September 2023, her father and elder brother had gone to work and the appellant was watching television when she decided to go stretch herself on the bed. Soon thereafter, she opened her eyes, she saw the appellant in blue shorts and he was adjusting the curtains. She described the act as follows:“D slept on top of my body. He put his dudu in my dudu. His dudu and my dudu is used to pee”The following morning, she felt pain in her “private parts” when showering, and that’s when she told her mother, who took her to the hospital. 6.On cross-examination, she stated that the appellant had tried to defile her back in 2021 but the family spoke to him, and the matter was amicably settled without reporting to the police. She added that she could not scream as she did not have a voice. That the lights were off, but there was a light coming through the window. 7.PW 2 Evan Mayieni a clinical officer at Likoni Sub-County hospital. He testified that he was the SGBV coordinator and he produced medical notes, PRC and P3 form. He testified that the victim was treated on 26th September 2023 and on examination she had bruises on vagina and it was also swollen. He added that the vagina was freshly broken and the PRC was freshly filled at Mtongwe dispensary while the P3 form was filled at Likoni Sub-County hospital. 8.PW 3 JM is the mother of the victim and she testified that she has four children and that the victim was born on 11th April 2013. That on 25th September 2023, EW had come from school and later at 7.00pm when she got home she found the victim asleep, and when she went to shower she told her that she feels painful when peeing. When she examined her private part, she saw a white substance. She immediately notified the father and informed him about the infection, and they agreed to go to the hospital the next day. When they arrived at Mtongwe dispensary, the doctor examined the victim and had requested them to step out. She stated that when she was called back in, she was asked about the appellant, and the doctor informed him that the victim had been defiled by the appellant and it was therefore a police case. She stated that the appellant is her nephew and has lived with her for 16 years without any issues save when the appellant had tried to defile EW earlier. On cross examination she disclosed that the appellant tried undressing her and used to be a peeping tom when she was with her husband in their bedroom. 9.PW 4 MH testified that on 26th September 2023 the victim together with another lady reported at Vijiweni police station that she had been defiled by her cousin with whom she was staying with in the same house. They had come from Mtongwe dispensary and she referred them to Manyatta hospital. She further stated that the following day the doctor gave the PRC form which confirmed the defilement and that the victim looked visibly scared when she was recording her statement. She narrated that the appellant entered the victim’s bedroom while she was sleeping and she felt something heavy on her and when she opened her eyes, he saw the appellant pretending to close the bedroom curtain but when she went to the toilet, she felt painful. She added that when her mother examined her she saw dirt and injury on the victim’s private parts. She reiterated that it was not the appellant’s first attempt. She produced a birth certificate showing the appellant was born on 11th April 2013. On cross examination she admitted that she arrested the appellant while in school and that the appellant was an orphan. 10.DW 1 the appellant stated that he was 20 years old and was residing with his uncle. He revealed that his uncle’s wife did not like him. He narrated that he sold water in order to pay his fees because his uncle’s wife advised his uncle not pay his school fees as she alleged that he was a thief. He continued narrated that his uncle decided to pay it later anyways and that his uncle’s wife alleged that he tried to rape her but he denied the offence and he even wanted to run away. Furthermore, he added that his uncle’s wife had threatened that she would take him “somewhere”. The duty of the court 11.As a first appellant court, it is now settled as was held in Okeno V Republic (1977) EA 32 that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its own conclusion on the matter but laws bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them giving evidence and give allowance for that.In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 12.The issues for determination are as follows:i.Whether or not the prosecution proved identification and penetration beyond reasonable doubt?ii.Whether or not there are any inconsistencies in the prosecution’s evidence and testimony?iii.Whether or not the trial court sufficiently considered the evidence of the appellant? 13.The late Justice Majanja, in Peter Mokami Nahashon vs Republic [2014] eKLR stated as follows on the offence of defilement: -“A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person. (Emphasis supplied)” 14.The P3 form dated 26th September 2026 indicates that the vagina was swollen and tender. The labia majora was inflamed and the hymen was freshly broken with a fresh wound. The PRC form of even date was also detailed where the victim had deep red, inflamed, tender and moist vagina. There was also a fresh wound and a freshly broken hymen.In the court’s opinion this is unequivocal evidence that there was recent penetration. 15.When it comes to identification, the victim testified that there was still some light coming through the window. She was able to identify that the appellant who was wearing blue shorts and she also remembers the appellant inserting his “dudu” in her “dudu”. PW 2 testified that when she came home, she found the victim asleep and that was around 7:00 pm. In Maitanyi V Republic (1986) KLR it was held that“It is essential to ascertain the nature of light available.; what sort of light, its size, and its position relative to the suspect, are all important matters in helping to test the evidence with the greatest care.” 16.In Ngui v Republic [2012] KEHC 5491 (KLR) the court held as follows:“To aid in the exercise of this “circumspection, ' our courts have adopted the guidelines for receiving and considering identification evidence set out in the famous English case of Regina v Turnbull [1976] 3WLR 445 are considered very comprehensive. They are nine in number and they instruct a judicial officer who is considering evidence on identification to ask the following questions:a.How long did the witnesses have the accused under their observation?b.What was the distance between the witnesses and the accused person?c.What was the lighting situation?d.Was the observation impeded in any way, as for example, by passing traffic or press of the people?e.Had the witnesses ever seen the accused person?f.If the witnesses knew the accused prior to the current transaction, how often?g.If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused?h.How long elapsed between the original observation and the subsequent identification to the police?i.Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance?” 17.This court has considered the evidence of PW 2 who testified that she had lived with the appellant for 16 years and since the victim was aged 10 years old it was only logical that the victim had known the appellant all her life. The victim was able to distinguish the appellant from other male members of the family. She was able to see the appellant clearly through the natural light from the window and she saw the appellant inserting his penis into her vagina. She was also able to remember that the appellant had blue shorts on. At this point there is irrefutable evidence that the appellant was properly recognized. 18.The court has carefullygone through the evidence on record and has found no inconsistencies glaring or not. Further, it was by the appellant’s own admission that he was 20 years old at the time of the commission of the offence. He referred to PW 2’s spite for him alluding that she framed him for rape charges which clearly is not the case here. The offence is for the defilement of EW a ten year old child whose hymen was seen to be freshly torn and with lacerations. She properly identified the appellant and hence the conviction was safe. The court has no reason to disturb the trial courts finding both the conviction and sentence are upheld .The appeal is dismissed . 19.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 28TH DAY OF MAY 2026.HON. LADY JUSTICE W. K. MICHENIJUDGEIn the presence of:The AppellantMr. Sirima, for the StateBebora Court AssistantSigned By/for:THE JUDICIARY OF KENYAHON. LADY JUSTICE WENDY MICHENIMOMBASA HIGH COURT HIGH COURT CRIMINALDATE: 2026-06-02 17:32:46