https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6486

George v Republic (Criminal Appeal E075 of 2024) [2026] KEHC 6486 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6486 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E075 of 2024 JN Njagi, J May 8, 2026 Between Festus Ngonja George Appellant and Republic Respondent (Appeal from the original conviction and sentence by Hon. R. Amwayi, PM, in Kaloleni Principal Magistrate`s Court Sexual Offence Case No. E021 of 2024 delivered on 22/7/2024) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and was sentenced to serve 15 years imprisonment. The particulars of the offence being that on the 12th day of May, 2024 at [Particulars Withheld] in Kaloleni Sublocation, Kaloleni Sub County in Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of B.S (herein referred to as the complainant), a child aged 16 years. 2.Aggrieved by the sentence and the conviction of the trial court, the Appellant lodged an appeal on the following grounds of appeal:1.That the learned trial magistrate erred both in law and fact in convicting the Appellant on uncorroborated inconsistent and impossible testimony of the complainant.2.That the learned trial magistrate erred in law and fact in relying on the hearsay evidence of PW2.3.That the learned trial magistrate erred both in law and in fact in failing to draw an adverse inference against the prosecution for failing to call crucial witnesses in the case.4.That the learned trial magistrate erred both in law and fact by failing to find that the medical evidence adduced in the case did not support the charge of defilement and was insufficient to link the Appellant to the alleged offence.5.That the learned trial magistrate erred in law and fact in failing to find that the investigations in the case were grossly inadequate, incomplete and contradicting, thereby rendering the conviction unsafe.6.That the learned trial magistrate erred in law and fact in failing to consider and properly evaluate the defence evidence.7.That the learned trial magistrate erred in convicting the Appellant against the weight of evidence when the case was not proved beyond reasonable doubt.8.That the learned trial magistrate erred in law and fact in imposing a sentence that was harsh and excessive. 3.The prosecution called 5 witnesses in the case while the Appellant defended himself and did not call any witness. Prosecution’s case 4.The case for the prosecution is that the complainant was at the material time a secondary school student. She was living with her grandmother PW3. Her father PW4 was working away from home. 5.It was the evidence of the complainant PW2 that she was at the material time of the age of 16 years. That on 12/5/2024 she was going to the salon at 2pm when she met the appellant on the way. He greeted her by and proceeded with her journey. She went to the salon but she did not find the saloonist. She started her way back home and again found the appellant on the way. He again asked her to greet him by her hand. She did so after which did not comprehend what happened next. That she woke up at night and found herself at the appellant’s house on his bed. She was naked and the appellant was also lying naked next to her. 6.She stated that she abruptly tried to put on her clothes but the Appellant woke up and they struggled. He pushed her back to bed and penetrated her vagina with his penis. He threatened to kill her if she told anyone. That he penetrated her vagina three times that night. At 10am, the appellant received a phone call and left the house. He left the phone in the room and locked her from outside. She tried to call her grandmother but her phone was off. The appellant came back later, opened the door and she managed to escape. She went home and reported to her grandmother what had happened. He grandmother called her father and informed him. Her father travelled home after a few days and they reported the matter at Kaloleni Police Station. 7.The grand grandmother to the complainant PW3 testified that on 12/5/2024 the complainant left home for the salon at 2pm. She did not come back home. She reported the matter to her parents. That she returned home on the following day at noon and upon interrogating her, she told her that the appellant took her to his home and had sexual intercourse with her. She examined her private parts and noticed that there were injuries on her vagina and blood. She reported to her father who came after five days and reported the matter to the police. It was her evidence that the Appellant was their delivery man. 8.The father to the complainant PW4 testified that he was on 12/5/2024 in hospital after being involved in an accident when re received a phone call from his mother that his daughter PW2 was missing from home. She called him on the following day at 2pm and informed him that his daughter had returned home. He was discharged from hospital on 16/5/2024 when he went home. He interrogated his daughter and she told him what transpired. They reported the matter to the police. They took her to hospital and she was examined. 9.The testimony of a Clinical Officer at Mariakani sub county hospital PW1 was that the complainant was taken to the hospital on 17/5/2024 with a complaint of having been defiled by someone known to her. That he examined her and found her with painful lower abdomen; normal external genitalia; loose vaginal sphincter muscles and an absent hymen. He formed the opinion that there was penetration. He filled the P3 form to that effect. 10.The case was investigated by PC Wambua PW5 of Kaloleni police station. It was his evidence that he was at the report office on the 17/5/2024 when he noted that this matter had been minuted to him for investigations. He called the mobile phone number provided in the report and the complainant was taken to the police station by her father. He interrogation the minor who told him that on 12/5/2024 she was going to the salon when she met the appellant who greeted her. She greeted him and left. She proceeded to the salon and found it closed. She decided to go back home. That on the way she met the appellant who greeted her by hand. That after that she did not have a recollection of what transpired and she only found herself at the appellant’s house at night in his bed naked. The Appellant was also naked beside her. That the appellant had forceful sexual intercourse with her when she attempted to leave. He threatened to kill her if she called for help. 11.That on the morning of 13/5/2024, the appellant received a call. He locked her in the house and left. That he came back and she managed to escape. She went home and informed her grandmother what had happened. They later reported the matter to the police. That on 19/5/2024 the father to the complainant called the Appellant and asked to meet him at a certain bar. The Appellant went there and PW5 arrested him. He called the complainant who identified the Appellant. 12.During the hearing of the case in court the complainant PW2 produced her birth certificate as exhibit, P.Exh.6. The clinical officer PW1 produced the P3 form, the Post Rape Care form, the treatment noted, the lab request form and the GBV form as exhibits, P.Exh. 1-5 respectively. Defence Case 13.The appellant stated in his defence that he is a bodaboda operator and a delivery man. That the complainant`s family used to send him to deliver goods to them. That on 10/4/2024 he was with the complainant father at a club and he, the complainant`s father, bought him drinks. That they were having an affair and they had a disagreement. He then said that he was involved and he was arrested on 17/5/2024 and charged with the offence. He denied committing the offence. Submissions 14.The appeal was heard via written submissions. The appellant submitted that the complainant did not present herself as a credible witness and that her evidence was rife with inconsistencies, contradictions and omissions thereby rendering it unsafe for her evidence to sustain a conviction. That the complainant’s testimony of allegedly having been greeted twice before finding herself in the appellant’s house is wholly unsupported by any independent or corroborative evidence. 15.Counsel submitted that when a witness is found to be dishonest or unreliable in material particulars, the entire testimony becomes suspect and unsafe to act upon. He relied on the case of Joseph Ndungu Kimanyi v Republic (1979) eKLR where the court held that:“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness…which makes it unsafe to accept his evidence.” 16.The Appellant submitted that the trial court made reliance on sole evidence of the complainant without any legal basis. That the complainant said that the incident occurred on 12th May, 2024. That her grandmother said that the complainant left home at 2:00 p.m. and only returned the following day, 14th March, 2024 at noon. That apart from the complainant’s narrative, no other evidence was adduced to corroborate the allegation that she had been at the appellant’s house on 12th May, 2024 and 13th May, 2024. That no independent witness testified to having seen her either enter or leave the appellant’s residence. 17.Counsel also submitted that the appellant was denied an opportunity to make closing submissions which was a breach of the appellant’s constitutional right to a fair trial under Article 50(1) and 50 (2) (d) of the Constitution. 18.The Respondent on the other hand submitted that the prosecution had proved it case beyond reasonable doubt. That all the ingredients of defilement; of age of the complainant, penetration and identification were all proved. That the age of the complainant was proved via the Age Assessment report produced by PW5 that proved that the complainant was a minor of 16 years. That penetration was proved by the evidence of PW1 and the clinical officer who confirmed he examined the complainant and found that she had painful lower abdomen and loose vaginal sphincter muscles thereby concluding that the complainant was defiled. 19.On identification, counsel for the prosecution relied on the case of Peter Musau Mwanza vs Republic (2008) eKLR and submitted that the complainant knew the appellant as he was their rider. That the appellant in his defence confirmed to being their delivery person. On whether the testimony tendered by the prosecution was reliable and lacked corroboration, counsel relied on the case of INM v Republic (2025) KEHC 1957 (KLR) and submitted that the evidence of the complainant was corroborated by that of the clinical officer and her grandmother despite corroboration not being a requirement in sexual offences. Analysis and determination 20.This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:“…the duty of the first appellate court is to analyse and reevaluate 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 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 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 decision”. 21.The Appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No.3 of 2006. The sections provide as follows:“ 8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)……(3)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 22.The appeal is based on the grounds that the charge against the appellant was not proved beyond reasonable doubt for reasons that the evidence adduced in the case was unreliable and uncorroborated and that the trial court failed to consider the Appellant`s defence and mitigation. 23.The ingredients of the offence of defilement are: proof the age of the victim, penetration and the proper identification of the perpetrator - see George Opondo Olunga vs. Republic [2016] eKLR. 24.A birth certificate, P.Exh.6 was produced in the case that showed that the complainant was born on 13/9/2009 which placed her age in May 2024 at 15 years. Though the Appellant was convicted for defiling a girl aged 16 years. The age of the complainant was therefore proved at 15 years. 25.The next issue is whether the Appellant penetrated the complainant. Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person 26.It was the evidence of the complainant that she met the Appellant during the day and that after shaking his hand she lost her senses and later at night found herself naked on his bed with the Appellant lying naked next to her. She tried to put on her clothes but the Appellant woke up and after a struggle he pushed her back to bed and penetrated her vagina with his penis. He threatened to kill her if she told anyone. He penetrated her vagina three times that night. 27.The trial court in its judgment set out the evidence of the prosecution witnesses and held that penetration was proved against the Appellant. The court said that the defilement was confirmed by the clinical officer PW1. That the Appellant did not show any reason why the complainant would have fabricated the case against him. That there was no grudge between him and the prosecution witnesses. That the Appellant`s defence was a mere denial and an afterthought. 28.The evidence of the clinical officer PW1 was that he examined the complainant and found her with a missing hymen. There was nothing else significant that was found. The mere act of the complainant being found with a missing hymen was not by itself proof of defilement. There was no evidence that the Appellant is the one who broke the complainant`s hymen on the material day. Consequently, I find that there was no medical evidence to link the Appellant on any defilement committed on the complainant. 29.The law is however that absence of medical evidence in support of the offence of defilement is not fatal to the case as defilement can be proved by way of oral or circumstantial evidence. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 30.Further to this, the complainant was a child under the age of 18 years. Section 124 of the evidence Act allows the courts in sexual offences involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for such a finding. This means that the court can convict on the sole evidence of the victim without any other evidence corroborating it. 31.The evidence that the complainant spent the night of 12th and 13th May 2024 away from her home was corroborated by her grandmother PW3. PW3 testified that when the complainant returned home on the following day, she told her that it is the Appellant who had detained her and defiled her. In my consideration there was no reason for the complainant to lie that it is the Appellant who hijacked her, took her to a house and defiled her throughout the night. The Appellant hijacked her in broad day light. She saw him at night when he defiled her and in the morning when he left the house at 10 am and locked her in the house. She saw him when he returned to the house before she escaped. There is no way that all this evidence could have been a fabrication. The Appellant`s counsel extensively cross-examined the complainant and the same did not shake her evidence. There was every reason to believe the evidence of the complainant that the Appellant defiled her on the stated date. The argument by the Appellant that her evidence was unreliable and uncorroborated has no basis. The trial court was justified in believing her evidence. Penetration on the complainant by the Appellant was therefore proved. 32.The Appellant was a person well known to the complainant and her grandmother. He was their deliveryman. He admitted as much. His identification was therefore not an issue because he was well known by the witnesses and he was identified by name. The complainant is the one who identified him at the time of his arrest. Identification of the Appellant was therefore proved. 33.The Appellant alleged that the trial court did not give reasons for dismissing his defence. This is however far from the truth as trial court did give reasons for dismissing the defence and termed it as an afterthought. The Appellant alleged that the charges were fabricated after he developed differences with the complainant`s father PW4. Whereas PW4 said during his testimony that he had no differences with the PW4, the counsel for the Appellant did not ask him on whether there were any pre-existing differences between him and the Appellant. The fact that the Appellant mentioned such differences in his defence and failed to raise it with PW4 when he testified in court can only mean that the same was an afterthought. In any case it is not the complainant`s father PW4 who came up with the accusations against the Appellant. It is his daughter, the complainant, who did so. He PW4 said that he was informed of the incident by his mother PW3. PW3 confirmed the same. I find that the trial court was right in dismissing the Appellant`s defence as an afterthought. It was all a made-up story. 34.In view of the foregoing, I find the Appellant was convicted on solid and overwhelming evidence. The appeal is unmerited and is thereby is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH DAY OF MAY 2026.J. N. NJAGIJUDGEIn the presence of:Mr Oluoch for RespondentAppellant- present virtually at G.K. Prison MalindiCourt Assistant - Nasra