https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8250

Kiringa v Republic (Criminal Appeal E021 of 2025) [2026] KEHC 8250 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8250 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Appeal E021 of 2025 RN Nyakundi, J June 11, 2026 Between Emmanuel Kiringa Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon P. Karimi (RM) delivered at Vihiga Magistrate’s Court in Sexual Offence Case No E080 of 2024 on 30th June 2025) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) 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 Appellant was tried and convicted of the offence of defilement and was sentenced to twenty (20) years imprisonment. 3.Being dissatisfied with the said Judgement delivered on 30th June 2025, the Appellant lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 23rd July 2025 based on 4 grounds as follows: -a.That the Learned Trial Magistrate erred in law and fact by failing to establish that the prosecution did not prove its case beyond reasonable doubt.b.That the Learned Trial Magistrate erred both in law and facts in conducting and arriving at a decision relying on evidences that were full of contradictions and without analyzing the evidence on record.c.That the trial Court erred in law and fact in failing to appreciate that the prosecution lacked corroborative evidence to support that the Complainant as in the nature of the Sexual Offences hence null and void.d.That the Learned Trial Magistrate erred in both law and fact in not making a finding the age of the Complainant was not proved beyond reasonable doubt. 4.The Appellant also filed Amended Grounds of Appeal dated 23rd December 2025 which can be summarised as follows: -a.That the Learned Trial Magistrate erred in both law and fact by convicting the appellant without ensuring that penetration was not proved to the required standard.b.That the Learned Trial Magistrate erred in both law and fact by failing to note that the charge sheet was duplex.c.That the trial Court erred in law and in fact by basing a conviction without considering contradictions in the prosecution case. 5.The Appellant sought the following orders from the Amended Grounds of Appeal: -a.Amended Grounds of Appeal be admitted.b.Conviction be quashed.c.Sentence be set aside. 6.The Appeal was canvassed by way of written submissions. Appellant’s Written Submissions 7.The Appellant filed its written submissions dated 30th December 2025. On whether the prosecution had proved its case beyond reasonable doubt, the Appellant did not submit on the issue. On the issue of identification, the Appellant did not also submit on it. On the element of penetration, the Appellant submitted that the evidence of the Prosecution witnesses was full of inconsistencies. He argued that if PW1 testified that she bled, the medical examination results and the underwear that was produced in Court should have corroborated that. He contended that a missing hymen was not a conclusive proof of penetration. 8.To buttress his point, he placed reliance on several cases among them the case of Ndungu Kimanyi Vs Republic (1979) KLR 283 where it was held that the witness in a criminal case upon whose evidence is proposed to rely on should not create an impression in the mind of the Court that he is not a straight forward person or raises suspicion about his trustworthiness or do or say something which makes it unsafe to accept his evidence. He further faulted the Trial Court for failing to avail key witnesses to testify. In this regard, he relied in the cases of Ng’ang’a Vs Republic Appeal No 50 of 1981 and Wenddoh Vs Republic (1953) 20EA 166 where the common thread was that the prosecution must make available all witnesses to establish the truth even if their evidence may be inconsistent. 9.On the issue of the Charge sheet being duplex, the Appellant argued that PW1 testified that the perpetrator was called, “Manu”. He argued that the said name was not included on the charge sheet as alias, therefore, the charge sheet was defective. In this regard, he relied in the case of Martin Oduor Lango & 2 Others Vs Republic [2014] eKLR where the appellant was set at liberty where there were two (2) contradictory names. Respondent’s Written Submissions 10.The Respondent filed its written submissions dated 20th February 2026 through the Learned Prosecution Counsel Mr. Leina Davies. On the issue of whether the prosecution had proved its case beyond reasonable doubt, the prosecution submitted on the issue of age and stated that Charge Sheet indicated that the Complainant, MK (hereinafter referred to as “PW 1”) was fifteen (15) years of age at the time of the commission of the offence. he relied on the case of Musyoki Mwakavi Vs Republic [2014] eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. The Learned Prosecution Counsel contended that PW 1 also testified that she was fifteen (15) old and that the Prosecution produced a Birth Certificate bearing the name of PW 1 and which indicated that she was born on 5th August 2010. He added that as the Appellant did not rebut the said evidence, this ingredient had been proved beyond reasonable doubt. 11.On the issue of identification, the Learned Prosecution Counsel submitted that PW 1 testified that it was the Appellant who was her kin that she had been engaging sexually with for goodies such as lotion and mandazi. It added that they were neighbours. It asserted that Millicent Mmsisi (hereinafter referred to as “PW 2”) found the Appellant who was her kin in PW 1’s bed, thus, evidenced that she could not have been mistaken as to his identity. 12.He contended that the Appellant was, therefore, someone well known to PW1 and could not have been mistaken as to his identity. He pointed out that that was evidence of recognition which was held by Courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others vs Republic (1976-80) 1 KLR 1566, 1568. He was emphatic that there was proper identification as there was prior knowledge of the Appellant and concluded that that there was proper identification as PW1 had prior knowledge of the Appellant. 13.On the element of penetration, the Learned Prosecution Counsel cited Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed Vs Republic [2020] eKLR where it was held that the key evidence relied upon by the Courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. He submitted that the evidence of PW1 corroborated that of the Clinical Officer, Victor Vugigi Luka (hereinafter referred to as “PW 6”) and that penetration was, therefore, proved. Analysis and Determination 14.This being a first appeal, this Court is guided by the principles set out in the case of David Njuguna Wairimu Vs Republic [2010] eKLR where the Court of Appeal stated: -“The duty of the first appellate Court is to analyse and re-evaluate the evidence which was before the trial Court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial Court. There are instances where the first appellate Court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower Court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the Court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 15.Similarly, in the case of Okeno Vs Republic [1972] EA 32 the Court of Appeal set out the duties of the appellate Court as follows: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). 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 finding 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, see Peters vs Sunday Post [1958] EA 424.” This was also set out in the case of Kiilu & Another Vs Republic [2005] KLR 174." 16.I have read and considered th Appellant’s Petition of Appeal and the rival submissions. There are three (3) issues manifest for determination by this Honourable Court: -a.Whether the charge sheet was duplexb.Whether the Prosecution proved its case beyond reasonable doubt?c.Whether sentence meted was harsh and excessive? Whether the Charge Sheet was duplex 17.Amended Ground of Appeal No (2) is dealt with under this head. The rationale for the principle of duplicity is that when a charge is duplex, and an accused person goes through a trial, the fairness of the process is fundamentally compromised. The obvious reason to this is that it would not be clear to him/her what the exact charges do confront him or her. In the end, he/she may not be in a position to prepare himself/herself for a proper defence. This may not only be prejudicial but ultimately amounts to a failure of justice. contrast, the transactions and the subject matter in each of the particulars of the offence are the same, thus representing the same cause of action for each of the transactions. Duplicity can also be represented where the particulars of an alternative charge are a replica of those in the main count. 18.In Reuben vs Nyakango Mose & another Vs Republic, Criminal Appeal No. 606 of 2010, the Court of Appeal referred to the persuasive authority of the High Court of Kenya in the case of Laban Koti V R [1962] EA 439 where the appellant was charged with and convicted of wrongfully attempting to interfere with or influence witnesses in some judicial proceedings, either before or after they had given evidence, contrary to Section 121(1)(f) of the Penal Code. On appeal, it was suggested that the charge might have been bad for duplicity, firstly because it alleged that the appeal “wrongfully attempted to interfere with or influence” witnesses and secondly because it alleged that such attempt occurred “either before or after” the witness had given evidence. It was held that in deciding whether there is duplicity in a charge the test is whether a failure of justice has occurred or the accused has been prejudiced. It was further held in that case that: -“The appellant had been left in no doubt, from the time the first prosecution witness gave evidence … and his defence could not be said to have been prejudiced in any way. Accordingly, there was no miscarriage or failure of justice on the ground that the charge was duplex in alleging that the attempt was made either before or after the witnesses had given evidence” 19.The Court of Appeal also referred to the case of Mahero Vs R [2000] 2 KLR 496 which considered the English case of Ministry of Agriculture Fisheries and Food Vs Nunn Comm & Coal (1987) Limited [1990] LR 268 where it was emphasized that the question of duplicity is one of the fact and degree and that the purpose of the rule is to enable the accused to know the case he had to meet. Further, in the case of Omboga Vs Republic [1983] KLR 340, it was held that;“injustice will be occasioned were evidence is called relating to many separate counts all contained in one count because the accused cannot possibly know what offence exactly he is charged with.” 20.In this instant case, PW1 was categorical as to who defiled her. She was clear that “Manu” was his cousin and the Appellant herein. She pointed at him while at the dock during trial. Therefore, there was no mistaken identity as to who was “Manu” as alleged by the Appellant herein. Whether the Prosecution proved its case beyond reasonable doubt? 21.Amended Grounds of Appeal No (1), (3) and (4) were dealt with under this head. 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. 22.The act of defilement is defined by Section 8 (1) of the Sexual Offences Act that provide thus: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. The Ingredients of defilement were stated in the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 where Court delivered itself thus: -“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 23.To prove the case to the required standard, the prosecution was required to prove existence of the following ingredients: -a.Age of the victimb.Proof of penetration.c.Positive identification of the perpetrator of the act. a. Age 24.The prosecution was required by Section 8 of the Sexual Offences Act to prove the age of the child either by producing a birth certificate, medical age assessment, through direct testimony of the parent, guardian or the victim or through expert testimony. This Court had due regard to the case of Kaingu Elias Kasomo Vs Republic Criminal Case No. 504 of 2010 (unreported) where the Court of Appeal stated that the age of a minor in a charge of defilement could be proved by medical evidence and documents such as baptism cards, school leaving certificates. 25.In the case of Jon Cardon Wagner Vs Republic (Criminal Appeal No. 404 of 2009), Warsame SCJ (as he then was) emphasized that: -“….in defilement cases, the age of the complainant is proved either by medical evidence or through other evidence since the Sexual Offences Act has different categories of ages and sentences for different ages” 26.Equally, in the case of Musyoki Mwakavi Vs Republic Criminal Appeal No. 172 of 2012, Mutende J elaborated that: -“…. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…” 27.Further, in the case of Hadson Ali Mwachongo Vs Republic (2016) eKLR, the Court of Appeal stated that: -“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello Vs Republic Cr. App. No. 203 of 2009 (Kisumu), this Court stated as follows;“In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).” 28.In the instant case, No. 88xxx CPL Catherine Nekesa (hereinafter referred to as “PW 5”) tendered in evidence the aforesaid Birth Certificate which indicated that PW1 was born on 5th August 2010. The incident happened on 6th December 2024, which meant that she was approximately fourteen (14) years of age. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut this evidence by adducing evidence to the contrary, this Court is satisfied that PW1’s age was proven and that she was a child at all material times. Identification 29.A perusal of the proceedings showed that PW1 testified that on the material day at 1. 00p.m, she found Mannu, the Appellant, in her room. She said that he had told her that he would come so she should let him in. She stated that he was her cousin. It was her further testimony that the Appellant had come severally previously to her room and they would have sex when he spent in her room. 30.She added that on the material day, he was caught by her father and when the father tried to beat him, he ran away. She pointed that the Appellant had promised her lotion and mandazi and that he brought her the items and they had sex. She added that they both undressed and have sex. She felt pain and bled. She pointed at the Appellant in Court. 31.This Court noted that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial Court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. Notably, the proviso of Section 124 of the Evidence Act 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).” 32.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. Other corroborating evidence such as proof of penetration could assist the trial or appellate Court to come with a determination as to who between the opposing witnesses was being truthful. The Courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that: -“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.” 33.PW1 positively identified the Appellant as the perpetrator of the offence. She was emphatic that it was him who was her cousin that defiled her. She said Appellant would come to her room severally and they would have sex. She added that they had agreed to meet on the material day. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This Court thus comes to a firm conclusion that the Prosecution proved the ingredient of identification which was by recognition. Penetration 34.Notably, PW6 testified that on examining PW1, she had white vaginal discharge, the hymen was not intact and the vagina had epithelial and red blood cells. He opined that there was penetration. He produced the treatment notes and the Post Rape Care (PRC) Form as exhibits during trial. 35.In his defence, the Appellant denied the charges and only narrated how he was arrested when he went to demand for his dues at PW1’s father’s home. Weighed against the evidence that was adduced by the Prosecution witnesses, this Court did not find the Appellant’s defence evidence to have been watertight enough to have weakened the inference of guilt on his part. This is because the Prosecution had demonstrated the elements of the offence of defilement Notably, PW1’s evidence was corroborated by the scientific evidence of PW6. 36.This Court, therefore finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW1 on the material date as there was proof of defilement as PW 6 testified. 37.In the premises, Amended Grounds of Appeal No (1), (3) and (4) are therefore not merited and the same be and are hereby dismissed. Whether the sentence meted was harsh and excessive? 38.The Appellant did not raise the issue of sentence as a ground of appeal herein. For completeness of record, this Court deemed it prudent to consider the legality or otherwise of his sentence. On its part, the Respondent made reference to section 8(3) of the Sexual Offences Act and placed reliance on the case of Supreme Court Petition No E018 of 2023 Republic Vs Joshua Gichuki Mwangi. The Prosecution Counsel further relied in the case of Shadrack Kipchoge Kogo Vs Republic Criminal Appeal No 253 of 2003 (Eldoret) where it was held that sentence was essentially an exercise of the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied. 39.He cited Section 329 of the Criminal Procedure Code and submitted that the trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. He urged the Court to uphold the sentence herein as it was safe. 40.It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution, A further leapfrog development; under article 50(2)(p) of the Constitution: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing 41.In Philip Mueke Maingi & Others Vs Rep, Petition No E17 of 2021 specifically outlawed mandatory minimum sentence. It stated;“There is nothing which prevents the Court from applying decisional law and ordering sentence review in cases where the penalty imposed was mandatory penalty in law even if the cases are finalized. To me, denying an accused the benefit of Court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this Court has jurisdiction to determine and/or review sentences where appropriate." 42.The Appellant herein was sentenced under Section 8(3) 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 twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” 43.This Court could not fault the trial Court for sentencing the Appellant to twenty (20) years imprisonment as that was lawful. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that: -“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 44.The Judiciary Sentencing Policy Guidelines provides that: -“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …Time already spent in prison by the convict…” 45.The requirement to comply with section 333(2) CPC is mandatory in computation of the sentence to be served by the Convict upon establishing the nature of the sentence to be imposed. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed. 46.The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR. 47.The Appellant herein was sentenced to twenty (20) years imprisonment which is the minimum mandatory sentence. A perusal of the trial Court’s proceedings showed that the Learned Trial Magistrate considered the time the Appellant had spent in custody during trial while sentencing him in accordance with Section 333(2) of the Criminal Procedure Code. In particular, the learned Trial Magistrate stated as follows, “I hereby sentence the accused to serve term of twenty (20) years’ with effect from 9/12/2024 being time spent in custody.” 48.In view of the foregoing, the Appellant’s Petition of Appeal dated 23rd July is not merited and the same be and is hereby dismissed. The Trial Court’s Judgment be and is hereby upheld. The sentence of 20 years imposed by the Trial Court shall run from 9th December 2024 in consonant with Section 333(2) of the Criminal Procedure Code to factor in pretrial detention period. Orders accordingly. DATED, SIGNED AND DELIVERED VIA CTS AT VIHIGA THIS 11TH DAY OF JUNE 2026..............................R. NYAKUNDIJUDGERepresentation:Mr. Leina Davies for the State