https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11824

Gikonyo v Republic (Criminal Appeal E020 of 2023) [2026] KEHC 11824 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11824 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E020 of 2023 SC Chirchir, J July 23, 2026 Between Joseph Kariuki Gikonyo Appellant and Republic Respondent (Being an appeal from the Judgment of Hon. V. Ochanda, (SRM) delivered on 28/12/2022 in Sexual Offence Case No. 1 of 2021 in the Chief Magistrate's Court at Murang'a) Judgment 1.The Appellant herein, was charged before the trial court 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. ( The Act). The particulars of the main Charge were that on the 31st day of December 2020 at [Particulars withheld] location in [Particulars withheld] sub-county within Murang'a county, the accused caused his penis to penetrate the vagina of S.W.K, a child aged fourteen (14) years old. 2.In the alternative, he was charged with Committing an Indecent Act with a Child contrary to Section 11(1) of the same Act, with the particulars alleging that he intentionally touched the vagina of S.W.K, a child aged fourteen (14) years old. 3.Following a full trial, he was convicted of the main charge and sentenced to 20 years in prison 4.Dissatisfied with both the conviction and the sentence, the Appellant moved this court via a Petition of Appeal. Grounds of Appeal 5.The Appellant has raised the following grounds:1.The Honorable Magistrate erred in law and fact in failing to consider the prior sexual history, antecedent and behaviour of the complainant2.The Honorable Magistrate erred in law and fact in sentencing the appellant to a harsh, excessive and punitive sentence failing to consider the totality of the circumstances the offence was committed.3.The Honorable Magistrate erred in failing to consider that PW3 had a history of sexual encounters without disclosure of such occurrences.4.The Honorable Magistrate erred in law and fact by failing to consider that the appellant was/ had been unaware that PW3 was of school going age and based on her conduct ought to have considered that he would benefit from the defence provided under Section 8 (5) of the Sexual Offences Act.5.The Honorable Magistrate erred in law and fact in failing to consider the evidence of PW4 particularly being that the minor had been habitually visiting the appellant and they had both agreed to have sex.6.The Honorable Magistrate erred in law and fact in failing to acquit the appellant of the alternative charge yet no evidence was led of having touched the vagina of PW3 during the trial.7.The Honorable Magistrate erred in law and fact in disregarding that the charges that the appellant faced were defective.8.The Honorable Magistrate erred in law and fact in failing to consider the contradictory and uncorroborated evidence of the prosecution witnesses casting doubt on the credibility of the evidence adduced during the hearing. The Prosecution Case 6.PW1 testified that she is the grandmother of the complainant. She recalled that on 31st December 2020, around 6:00 p.m., the complainant disappeared from home. She stated that the minor remained away that Friday night and only returned on Saturday at 6:00 p.m.Upon her return, the minor refused to disclose where she had been. However, PW1 realized that the child was not well and took her to Muriranjas hospital the same day. The doctor further conveyed informed her that the child had been defiled. PW1 reported the matter to Kahuro police station where she recorded her statement. 7.Under cross-examination, she stated that she was the one responsible for the child, as the grandfather was frequently away. 8.PW2 was PC Dorcas Muchiri, the Investigating Officer based at Kahuro Police Station. She testified that she received a report of defilement from the minor’s grandmother on 2nd January 2021. She stated that the complainant, was 14 years old at the time and was a Class 8 pupil at Mara Primary School. She produced a copy of the minor’s birth certificate (Pex 1), which indicated her date of birth as 25th January 2006. She further testified to recording the grandmother's statement and escorting the family to the hospital for the minor's medical examination. 9.On cross-examination, she confirmed that the minor had previously engaged in sexual intercourse with other boys and stated that the medical P3 form noted the child was habitually defiled. PW2 admitted that the minor had no intention of reporting the matter herself, and it was only through the grandmother's initiative that the case was brought to the police. She further stated that the minor had drunk coffee pesticide on two separate occasions, including after the incident in question. 10.PW3 was SWK the complainant, a minor aged 14 years at the material time. She recalled that on 31st December 2020, at 8:00 p.m., she was at the Githagara shopping centre in the company of a friend when the Appellant, whom she knew as Joseph, approached her. They walked together to his house, where he left her on his bed to prepare tea, which they eventually shared. The Appellant then asked if they could have sex, to which she agreed. She testified that he removed her clothes, put on a condom, and penetrated her vagina with his penis. At the time, she noted that she was completely undressed while the Appellant wore only a vest. They stayed together through the night and until 2:00 p.m. the following day, when he escorted her to her cousin’s shop. She eventually returned home at 6:00 p.m. 11.Under cross-examination, PW3 admitted that she had previously engaged in sexual intercourse with two other boys and had not reported those incidences. She described her relationship with the Appellant as a “love relationship”. She admitted that she had initially lied to her grandmother, claiming she had slept at a friend's house, but her grandparents did not believe her and insisted on taking her to the hospital. Finally, she confirmed that she had not informed the Appellant that she was a school-going child and reiterated that she had gone to his house voluntarily and had not been forced. 12.PW4 was the Clinical Officer based at Muririnjas He testified that the complainant was brought to the hospital on 1st January 2021. Upon examination, he found that the minor had no injuries to her private parts and there was no blood in the vaginal canal. However, he noted that her hymen was broken, although he clarified that it was an old rapture of the hymen. He produced the P3 form (PExb. 4), the outpatient treatment notes (PExB 2), and the lab request forms (PExb. 3a, b).He noted that her vaginal area was reddened and she reported having pain in that area. PW4 maintained that these physical findings confirmed her claims that she had been defiled. He also clarified that the fact the complainant had showered and changed her clothes before the examination did not compromise or interfere with his medical findings. The Defence Case 13.The Appellant made unsworn statement. H denied the charges in their entirety, and further denied knowing the complainant. He stated that he was seeing the complainant for the first time in court. It was his testimony that he resides in Mtumba village and was engaged in casual labour at the material time. He further alleged that he was being falsely implicated due to a grudge involving his boss and PW2. He also stated that PW2 had earlier accused him of trying to extort Pw1. He however denied knowing the relationship between PW1 and the complainant. He did not know the complainant’s age or whether she was attending school. 14.The Appeal was heard by way of written submissions. The Appellant’s Submissions 15.The Appellant has submitted that the trial court failed to properly evaluate the evidence regarding the complainant's prior sexual history, antecedent, and behaviour. It was argued that the complainant was a habitual liar whose testimony was unreliable, particularly in light of her past sexual conduct and her habit of lying to her grandmother about her whereabouts. 16.The Appellant contended that he was entitled to the statutory defence under Section 8(5) of the Act as the complainant's conduct led him to reasonably believe she was over 18 years old. He maintains that he was unaware the complainant was of school-going age and that her conduct led him to reasonably believe she was an adult. 17.In support of this position, the Appellant places reliance on the Court of Appeal decision in Eliud Wambui v Republic (2019) KECA 906 (KLR), submitting that the elements constituting the defense of deception in Section 8(5) ought to be read disjunctively rather than conjunctively 18.The Appellant contend that had the trial court properly applied the logic of this precedent, he would have been entitled to an acquittal on the charge. 19.The Appellant further submits that the alternative charge of committing an indecent act was not proved beyond reasonable doubt as the prosecution failed to lead evidence specifically showing the complainant’s vagina was touched outside of the alleged act of penetration 20.Finally, the Appellant challenges the sentence of 20 years imprisonment as harsh, excessive, and punitive, urging this court to interfere with the trial court’s finding and set aside the conviction and sentence in their entirety The Respondent’s Submissions 21.The Respondent maintains that the conviction of the Appellant was based on firm evidence, while pointing out that the offence of defilement is rooted in three main ingredients, being: the age of the victim, proof of penetration, and the proper identification of the perpetrator. The Authority of George Opondo Olunga vs. Republic (2016) eKLR, has been relied on in this regard. 22.On the victim's age, the Respondent cites the testimony of the complainant (PW3) and the Investigating Officer (PW2), supported by a birth certificate (Exhibit 1) which confirmed the victim was 14 years and 11 months old at the time of the offence. 23.On penetration, the Respondent submits that the oral testimony of PW3, who stated that the Appellant put his penis into her vagina, was corroborated by the medical findings of PW4 (the Clinical Officer). The Respondent maintained that the victim's sexual history and the fact that the act was consensual are irrelevant under the law because a minor lacks the capacity to consent. 24.. The Respondent emphasizes that physical findings of reddening and pain in the vaginal area confirmed the claims of defilement, regardless of whether spermatozoa was present. 25.It was further submitted that the Appellant failed to prove the defence under Section 8(5) as he took no steps to ascertain the victim's age. Analysis and Determination 26.This is a first appeal. The Court is therefore required to subject the whole of the evidence to a fresh and exhaustive examination, draw its own conclusions and determine whether the conviction can safely stand, while bearing in mind that it did not see or hear the witnesses. That duty was stated in Okeno v Republic [1972] EA 32 . 27.The court has reviewed evidence on the record, the grounds of appeal and the parties’ submissions and identified the following issues for determination:a).whether age of the victim, penetration , identity of the perpetrator were established beyond reasonable doubt.b).whether the statutory defence under section 8(5) of the Sexual Offences Act was available to the Appellant;c).whether there is a basis for interfering with the sentence. Whether the complainant’s age was proved 28.Age is an essential ingredient of defilement because it determines the applicable penalty. In Eliud Waweru Wambui v Republic [ 2019]KECA906 (KLR), the Court of Appeal emphasized that age must be established by cogent evidence and beyond reasonable doubt. It may be proved by a birth certificate, age-assessment evidence, the testimony of a parent or guardian, or other credible evidence. 29.PW2 produced the complainant’s birth certificate. It recorded the complainant’s date of birth as 25th January 2006. The offence occurred on 31st December 2020; she was therefore fourteen years and eleven months old, at the time of the incident. I am therefore satisfied that the complainant was a child aged between twelve and fifteen years and that section 8(3) of the Sexual Offences Act was the correct penalty provision. penetration 30.Under section 2 of the Sexual Offences Act, penetration “means the partial or complete insertion of the genital organs of one person into the genital organs of another”. Penetration may be proved by credible oral testimony, medical evidence, or both. By the proviso to section 124 of the Evidence Act, a court may convict on the evidence of the complainant in a sexual offence if it believes the complainant and records the reasons for that belief. 31.PW3 gave a clear account that the Appellant took her to his house, asked to have sexual intercourse, wore a condom and inserted his penis into her vagina. She remained with him overnight and until the following afternoon. The use of a condom, together with the fact that she had bathed and changed clothes before examination, may explain the absence of spermatozoa. PW4 found an old broken hymen, but also observed reddening of the vaginal area and recorded the complainant’s complaint of pain. Those findings were consistent with recent penetration even though there were no injuries. 32.Am satisfied that the evidence of the clinical officer corroborated the evidence of the complainant on penetration and therefore satisfied the requirement of section 19 of the Oaths and statutory declarations Act. 33.The complainant’s admission that she had previously engaged in sexual intercourse did not disprove the particular act charged. Section 34 of the Sexual Offences Act restricts evidence of a complainant’s previous sexual experience and permits it only in narrowly defined circumstances, including where it is relevant to a specific issue in the proceedings and its probative value substantially outweighs the danger of prejudice. In the present case, the old broken hymen could have arisen from an earlier act, but the prosecution did not rely upon the state of the hymen. It relied principally on PW3’s direct account, supported by the recent reddening and pain in the vagina, as presented by the clinical officer. 34.The Appellant has further cast doubts on the credibility of the complainant, insisting that she was a liar based on repeated lying to her grandmother (PW1). However, I find this to have been a matter relevant to weight of her evidence and was fully exposed in cross-examination. On the material facts however, including where she went, with whom, what occurred and when she returned, her testimony was detailed and remained consistent. This court takes the view that the admission that she went voluntarily and agreed to the act enhanced, rather than diminished, the credibility of her testimony. 35.The issue of consent alluded to by the Applicant is immaterial, as a child below eighteen years lacks the legal capacity to give consent. Identification of the perpetrator 36.Identification was by recognition. The complainant knew the Appellant as Joseph, walked with him to his house, spent the night and much of the next day with him, and was escorted by him to her cousin’s shop. The interaction was prolonged and occurred in circumstances that eliminated the possibility of a fleeting or mistaken identification. Her evidence was therefore materially different from identification by a stranger under difficult conditions.PW1 too knew the Appellant. He identified him by his name Joseph Kariuki and stated that she was aware that he was in a love relationship with the complainant. 37.The Appellant denied knowing the complainant and alleged that the investigations officer framed him because of a disagreement concerning furniture belonging to his employer. That allegation was not supported by any independent evidence and did not explain why the complainant, and PW1 as opposed to the investigations officer, would identify him. The prosecution bore the burden throughout. Nevertheless, the unsubstantiated allegation of a pre-existing grudge between him and PW2 did not create a reasonable doubt when weighed against the evidence of PW1 and the complainant. 38.The court therefore finds that all the ingredients of defilement met the threshold of proof and the offence of defilement was proved. The defence under section 8(5) of the Act 39.Section 8(5), read with subsection (6), affords an Accused person a defence where the child deceived the accused into believing that he or she was over eighteen years, or where the accused reasonably held that belief having regard to all the circumstances, including the steps taken to ascertain the child’s age. In Eliud Waweru Wambui v Republic (supra), the Court of Appeal held that the two limbs constituting the defence are to be read disjunctively, not conjunctively as submitted by the Appellant, and that the accused bears the burden of establishing the limb relied upon limb on a balance of probabilities. 40.In the present case, the record does not establish either limb. PW3 did not testify that she told the Appellant that she was over eighteen. Her failure to volunteer that she was school-going was not, without more, deception. Voluntarily visiting the Appellant, agreeing to sex or having had earlier sexual encounters could not reasonably represent that she was an adult. Those matters concern conduct, not age. 41.More fundamentally however is the Appellant’s own defence. He stated that he did not know the complainant and first saw her in court. He did not testify that she represented herself as an adult, describe any physical or social circumstance from which he inferred adulthood, or identify any step he took to ascertain her age. His bare assertion that he did not know her age cannot satisfy the statutory burden. 42.Further his submission about the alleged misrepresentation by the complainant in this Appeal is a direct contradiction of his testimony at the trial court where he stated that he did not know her at all. 43.Nevertheless, the Appellant has failed to demonstrate what steps he took to ascertain that the complainant was of the age of the majority. I accordingly find that the Appellant did not establish the defence under section 8(5) of the Act. The alternative count 44.The Appellant has complaint that the trial court made no determination on the alternative count. An alternative count exists for consideration only where the evidence fails to establish the main count, but proves the alternative offence. 45.Having convicted the Appellant on the main count, the trial court correctly left the alternative count in abeyance. It was neither necessary nor lawful to enter a second conviction arising from the same act. The ground seeking an acquittal on the alternative count therefore discloses no prejudice, and is without merit. Sentence 46.The complainant was aged fourteen years and eleven months. Section 8(3) of the Sexual Offences Act prescribes imprisonment for a term of not less than twenty years for defilement of a child aged between twelve and fifteen years. The trial court imposed twenty years, which was the statutory minimum. 47.An appellate court interferes with sentence only where the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant factor, or imposed a sentence that is manifestly excessive in the circumstances: ( see:Bernard Kimani Gacheru v Republic [2002] eKLR). No such error has been demonstrated in the present case. 48.However, a perusal of the record shows that the Appellant remained in custody throughout trial. Thus, in terms of section 333(2) of the criminal procedure, and the powers bestowed on the high court by the provisions of section 362 and 364 of the criminal procedure code the sentence of 20 years is hereby deemed to have taken effect from 2nd January 2021 being the date when the Appellant was arrested 49.In conclusion, save what is stated in paragraph 48 of this judgment which arises by way of Revision, the Appeal against the conviction and sentence is without merit. It is hereby dismissed and the findings of the trial court are upheld. DATED, SIGNED AND DELIVERED AT ISIOLO VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY 2026.S. CHIRCHIRJUDGEIn the presence of :Roba Katelo- Court AssistantThe AppellantMr. Majale for the Respondent.