https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11340

EMO v Republic (Criminal Appeal E027 of 2025) [2026] KEHC 11340 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11340 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E027 of 2025 AM Okutoyi, J July 23, 2026 Between EMO Appellant and The Republic Respondent (Being an appeal from the Conviction and Sentence in Criminal Case Number MCSO E015 of 2025 by Hon. V. M Nyaga in the Principal Magistrate’s Court at Etago) Judgment Introduction 1.The Appellant was on 30th July 2025 convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act (SOA) in Etago Principal Magistrate Sexual Offence Case No. E015 of 2025. The particulars of the offence is that on 4th May 2025 at [Particulars Withheld] Sub Location, in Gucha South Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of SM, a child aged 9 years old with mental disability. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA). Following a full hearing the Appellant was convicted and sentenced to serve life imprisonment. 2.Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein vide a Petition of Appeal dated 12th August 2025. In his seven grounds the Appellant states that, the trial court erred in law and facts by failing to consider that the prosecution did not prove its case beyond reasonable doubt threshold, his rights to fair trial infringed and the court denied him an option to seek legal services, the prosecution case was riddled with contradiction & inconsistencies arising from a shaky and shoddy investigations. Lastly, he prayed for trial proceedings to enable him erect more grounds of Appeal under Section 350(2)(v) of the Criminal Procedure Code. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence of life imprisonment. 3.On 21st May 2026 parties took directions on disposal of the Appeal which was to be canvassed by way of written submissions. The Appellant filed his written submissions dated 7th April 2026. The Respondent equally confirmed filing and service of its written submissions dated 3rd March 2026. 4.To start with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. The Prosecution Case 5.PW1, JOO testified that on 4th May 2025 at around 5PM he was at his home in company of the complainant who is aged 9 years and with disability. He is the grandfather to the Complainant, whose mother is deceased. He testified that he stepped out for a call of nature to a toilet situated 100 meters away leaving the Complainant behind. Upon return he heard the Complainant crying and saw the Appellant, who is his nephew fleeing from his house. He examined the Complainant and found her pair of trousers half removed and mattress soaked with blood. He screamed for help attracting one Kwamboka, who came and informed him that she saw the Appellant escape to his maize farm. They trailed him and apprehended the Appellant at the maize plantation with the help of members of the Public. Thereafter, the Appellant was taken to the scene of crime wherein he admitted to have committed the act, subsequently he was taken to Nduru Sub County Hospital. 6.PW2 Victor Muga, a Clinical Officer at Nduru Sub County Hospital testified that on 6th May 2025, he examined the Complainant and observed that she was a vulnerable child with mental disability, she was in pain and unable to walk. Upon further examination, the Complainant’s hymen was freshly torn with minimal bleeding and small tears on the vaginal wall, On the genitalia the Labia majora and minora was swollen. The clitoris was swollen and tender. The pregnancy and HIV tests were negative. Vaginal swabs and urinalysis exhibited numerous red blood cells while no spermatozoa were seen. In winding his testimony, he testified that it was his finding that the examinations sustained a finding of defilement. Treatment notes and P3 forms were produced as evidence. 7.PW3, P.C. Lilian Onyango, the investigating officer attached to Nyamarambe Police Station, testified that the complainant was brought to the station on 4th May 2025. She commenced investigations and accompanied the Appellant and the Complainant to Nduru Sub County Hospital. The Complainant was examined and he recovered the Appellant’s inner wear which was stained with blood. Upon a scene visit she recovered the Complainant’s mattress which was soaked with blood. In her further testimony she established that the Appellant was identified by PW1 as he left PW1’s house. That PW1 heard the cries of the complainant and upon arrival he found out that PW1 trousers were half removed, this triggered a cry for help, wherein neighbours and members of the public came and apprehended the Appellant. She produced an age assessment report capturing that the Complainant was 9 years old and also the Appellant’s blood stained boxers and blood stained mattress. 8.At the close of the Prosecution's case on 14th July 2025, the Court on the even date found the Prosecution had established a prima facie case and the Appellant to had a case to answer. He was placed on his defence and elected to give sworn testimony as the sole witness. Defence Case 9.The Appellant denied committing the offence. He stated that he was arrested on his way to work, assaulted and taken to Nyamarambe police station. That there is no evidence to connect him with the offence further he was not examined by the doctors. 10.At the end of the Defence case, the trial Court found that the Prosecution had proved its case beyond a reasonable doubt, guilty of the offence of Defilement and convicted him. The trial court before sentencing the Appellant noted that the Appellant took advantage of a vulnerable child. In consideration of Section 8 (2) of the Sexual Offences Act the trial court sentenced the Appellant to serve life imprisonment. Appellant's Submissions 11.The Appellant in support of his appeal primarily argues that the conviction was unsafe because the sole testimony of PW1, the complainant's grandfather gave testimony riddled with contradictions and gaps. The Appellant submits that PW1 testified in chief that he saw the Appellant leaving the house and identified him as his nephew, yet on his own account he only learned of an escapee from Kwamboka after he screamed meaning he could not himself have seen the Appellant leaving. He also gave inconsistent accounts of the escape route maize farm in chief, river on cross-examination. The Respondent submitted that the bloodstained mattress was never subjected to DNA analysis to confirm the blood was the complainant's, nor produced with a forensic report; the recovered inner-wear was not clarified as to source. 12.As to whether the testimonies or evidences were sufficiently corroborated, the Appellant submits that neither Kwamboka nor the members of the public who allegedly chased and arrested the Appellant recorded statements or testified, despite being central to the arrest narrative. He submits that no OB number was produced to verify the report was booked; the Appellant was never medically examined to link him to the offence, and no witness explained why it was Appellant. 13.The Appellant in picking out further inconsistencies states that PW2 testified he never examined him and he was never presented to PW2, directly conflicting with PW3's testimony that she personally accompanied the complainant and the accused to Nduru Sub-County Hospital. He submits that PW1 named the victim and placed the hospital visit on 4th May 2025, also PW2 referred to the complainant and placed the hospital visit on 6th May 2025 raising doubt as to whether the same victim/incident was being described. The complainant, who could not speak due to disability, could not have reported the perpetrator's identity to PW2 as claimed, since PW2 also said she was unable to walk or talk. 14.The Appellant invoked the general evidentiary principle that two contradictory testimonies cannot both be relied upon, one must be false, and uncorroborated, conflicting evidence cannot ground a safe conviction. The submission rests on internal record inconsistencies and the stated evidentiary principle. The Appellant submitted that the appeal be allowed, conviction quashed, sentence set aside, and the Appellant set at liberty. Respondent's Written Submissions 15.The Respondent opposed the appeal on the basis that it is bad in law, lacks merit, and is an abuse of process, urging dismissal and upholding of the life sentence. The Respondent submits that the three essential elements of defilement were proved beyond reasonable doubt. Age via proved via age assessment report showing the victim was 9 years old. penetration was proved via P3 form, PRC form and treatment notes which was undisputed and identity of the perpetrator via circumstantial evidence, justified because the victim could not speak due to disability. Further, on identification PW1 raised an alarm, saw the Appellant fleeing, and members of the public pursued and arrested him in a maize plantation, dismissing his claim of having been arrested elsewhere is characterized as a bare denial. The Appellant is said to have admitted the offence upon arrest as per PW1's testimony at page 7 of the trial court proceedings and to have initially pleaded guilty before changing his plea. Thus, the prosecution evidence is characterized as consistent and coherent, with the Appellant having failed to substantiate the massive contradictions he alleges. On sentence the Respondent submits that section 8(2) of the Sexual Offences Act prescribes a mandatory minimum of life imprisonment, making the sentence lawful; the trial is said to have been fair, with the appellant's contrary allegations unsubstantiated. 16.Before delving into the crux of the appeal, the court notes that the Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This Court takes note that the Appellant was served the record of appeal on 4th February 2026. The Appellant subsequently didn’t seek leave under Section 350 2 (v) or the Criminal Procedure Code or raised any other supplementary grounds, as such the ground is moot. Analysis and Determination 17.This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty 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 v R, [1957] EA 336) 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. (Shantilal M Ruwala v 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 findings and conclusions; it must make its own findings and draw its own 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 v Sunday Post, [1958] EA 424.” 18.I have independently analyzed the trial record and appeal in its entirety as well as the respective parties’ submissions. The following issues arise for my determination: -a.Whether the Prosecution proved its case beyond reasonable doubt.b.Whether the sentence was harsh and excessive.c.Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed Whether the Prosecution proved its case beyond reasonable doubt. 19.The Appellant faced a charge of defilement and one which is against a person with mental disability. 20.The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that the main elements of the offence of defilement are as that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice. 21.As to whether the Complainant is a minor. In Mwalango Chichoro Mwanjembe V. Republic, Mombasa Criminal Appeal No. 24 of 2015 the Court stated:“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense.” 22.As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. The Complainant’s age was proved via an age assessment form and the Age assessment report confirmed the Complainant’s age as 9 years old. This was equally captured in the P3 form as 9 years and the Nduru Sub County outpatient card captured that the Complainant age as 9 years. This evidence was corroborated by PW1, PW2 & PW3. Therefore; the age of the minor was sufficiently proved. 23.On penetration, the Complainant could not testify for reasons that she has a mentally disability. The trial court noted that the complainant was a child with disability and that she could not testify, thus she was brought to court by PW1 for observation. The trial court relied on circumstantial evidence of PW1, PW2 and PW3 testified. PW1 testified that saw the Appellant, who is his nephew fleeing from his house. He examined the Complainant and found her pair of trousers half removed and mattress soaked with blood. 24.PW3 Clinical Officer Victor Muga, a clinical officer at Nduru Sub County Hospital examined the Complainant and he observed that the Complainant was a vulnerable child with mental disability, she was in pain and unable to walk. Upon further examination the Complainant hymen was freshly torn with minimal bleeding and small tears on the vaginal wall. On her genitalia, the labia majora and minora was swollen. The clitoris was swollen and tender. The pregnancy and HIV tests were negative. Vaginal swabs and urinalysis exhibited numerous red blood cells while no spermatozoa were seen. In support He produces the P3 form and Treatment Notes. 25.On his defence, the Appellant denies the incident and that he was only arrested on his way to work and there is no evidence that connects him to the offence. He was also not examined by the doctors to confirm if he had committed the offence. 26.Penetration is defined under Section 2 of the Sexual Offences Act as follows:“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 27.The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete. 28.The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR, expressed itself on what amounts to penetration as follows: -“…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….” 29.PW1 testified that he saw the Appellant, his nephew fleeing from his house. Upon entering the house, he found the complainant half undressed on a blood soaked mattress. This mattress together with the Appellant’s blue underwear were produced as evidence, soaked as they were, the same were not denied or rebutted. Crucially, PW2 testimony who examined the Complainant 10 hours later observed freshly torn vaginal walls, swollen clitoris and labia all this confirming a penetration. It is the PW1’s testimony that that the Appellant upon arrested admitted to the commission of the offence. 30.The trial court found the complainant to be a vulnerable witness as per the meaning of Section 31 of the Sexual Offences Act and directed that the grandfather be the intermediary. The discretion of appointing an intermediary was and circumstances were discussed in Njoroge v Republic (Criminal Appeal E015 of 2022) [2023] KEHC 1312 (KLR), where the Court stated that it is at the discretion of the Court to appoint an intermediary where the circumstances allow. The Court observed that an intermediary is a person authorized by the Court, on account of expertise or experience, to give evidence of a vulnerable witness, and may include a parent, relative, psychologist, counsellor, guardian, children’s officer or social worker, as provided under Section 2 of the Sexual Offences Act. 31.The High court while cited the Court of Appeal in MM v Republic [2014] eKLR, where the Court stated:“It is clear from sections 31 (2) and 32 that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we have earlier observed, can on its own motion, through voire dire examination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable) can likewise apply to the court for the declaration. The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder. The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed.” 32.In this case the intermediary was procedurally appointed by the Trial Court after observing the state of the Complainant. This court as well guided by Section 31 (1) which provides that a court shall not convict an accused person charged with an offence solely on the uncorroborated evidence of an intermediary. This court finds that the evidence of PW1 was sufficiently corroborated by PW2 medical evidence and PW3 investigative evidence. 33.This Court has carefully re-evaluated the above evidence in its totality. PW1’s evidence on penetration was based on his own observation after the fact which was corroborated by PW2’s medical evidence and Appellant’s own admission. 34.On positive identification and/or recognition of the perpetrator, PW2 stated that the Appellant is his nephew and he identified him in court, he was equally identified by PW3. He was circumstantially placed at the scene. 35.Consequently, this court finds that the Prosecution has proved beyond reasonable doubt all the ingredients of the offence of defilement perpetuated by the Appellant. Whether the sentence was harsh and excessive. 36.As to whether the sentence to serve life imprisonment was harsh and punitive? The Appellant did not particularly raise any ground seeking to disturb the Trial Court findings on sentence. But in general he sought the sentence to be set aside. The trial court while convicting the Appellant noted that the accused was charged with Section 8 (1) of the Sexual Offences Act thus convicted under Section 8 (2) of the Sexual Offences Act wherein it provides that A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 37.The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 38.On constitutionality of Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable The Apex court held as follows“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.” 39.This Court notes that the Complainant was not only a child of tender years but also with mental disability, rendering her exceptionally vulnerable to sexual exploitation. The Appellant took advantage of this vulnerability and violated her bodily integrity, dignity and innocence. Such conduct attracts the highest degree of moral blameworthiness and calls for a sentence that adequately reflects the gravity of the offence, protects vulnerable children and deters like-minded offenders. 40.After careful consideration of the evidence on record, the mitigating circumstances and the aggravating factors, this Court is satisfied that this is a proper case for the sentence prescribed by law. Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed 41.On the right to seek legal services, Article 50(2)(g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result. 42.A review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili which a plea of guilty was entered and subsequently changed, the record indicates that both English and Kiswahili was used in court. The Appellant comprehensively cross examined all the witnesses. Similarly, when called upon to give his defence, the record shows that he lodged a defence without any difficulty. Clearly the Appellant actively participated during and he was not denied to seek legal counsel. 43.As such the court finds no basis to the Appellant’s claim that his rights to a fair trial were violated. Disposition 44.This court finds that the appeal is devoid of merit, The conviction entered by the trial was safe and found on credible and sufficient evidence which proved the offence beyond reasonable doubt. Equally, the sentence of life imprisonment imposed by the trial court was lawful, proportionate and commensurate to the gravity of the offence and the aggravating circumstances. 45.Accordingly, this Court hereby dismisses the appeal against conviction and sentence in its entirety. JUDGMENT DELIEVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 23RD DAY OF JULY 2026ANNE M. OKUTOYIJUDGEJudgment delivered in the Presence of:Enock Moruani Onserio -Appellant in person from Naivasha Maximum Prison.Ms. Mugo for the State.Ruth Mokeira-Court Assistant.