https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8073

Gikonyo v Republic (Criminal Appeal E055 of 2024) [2026] KEHC 8073 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8073 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E055 of 2024 S Mbungi, J June 5, 2026 Between Samuel Kanyi Gikonyo Appellant and Republic Respondent (Being an appeal against the judgement and sentence of Hon. M.K Mutegi -PM delivered on 27th July 2024 in Kangema SPM’S Court SO case No.40 of 2020) 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. The particulars of the offence were that on diverse dates between March 2023 and 20th December 2023 at Kirian in Murang’a County, the Appellant intentionally caused his penis to penetrate the vagina of CWN, a child aged 15 years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on diverse dates between March 2023 and 20th December 2023 at Kiriani within Murang’a County, the appellant intentionally touched the vagina of CWN, a child of 15 years with his penis. Facts at trial 3.The appellant pleaded not guilty to all the charges and the case then went to full trial; the prosecution called 5 witnesses. 4.PW1 was CWN, the complainant, a female minor aged 15 years at the time of testifying, having been born on 10th August 2008 as per her birth certificate (MFI-1). She stated that she lived in Kiriani with her mother and grandmother. PW1 testified that between March 2023 and December 2023, on Sundays, when the complainant and her mother were from church. At 2:00 pm on their way home, the appellant would stop her as her mother went ahead and take her to his house where he would remove the complainant’s clothes, cup her mouth and rape her. In fear of the appellant beating her and that her mother would beat her, she was quiet about the repeated instances. PW1 further testified that the appellant was their farm hand who harvested their tea and milked their cows. On Sunday, 17th December 2023, the appellant was drunk. At about 4:00pm, in the absence of her mother, the appellant raped her at the cow pen. Her grandmother was in the house but because of her illness is unable to walk. The complainant’s uncle called her mother. The complainant told her mother all that happened and later the appellant was called and the complainant repeated everything she told her mother. The appellant denied. The complainant and her mother reported the matter at Kiriani Police Station and later the same day reported the matter at Nyakianga Hospital. 5.PW2 was FW the complainant’s mother, residing in Kiriani. She testifies that the complainant is her child born in August 2008. The complainant’s mother testifies that she knows the appellant as he was her employee in the month of December 2023 working as a farm hand. She discovered that her daughter and the appellant were having a “love affair”. She further testified that she was called by William Ngure (PW3) on 20th December 2023 who went to visit her ailing mother. He saw the appellant and the complainant standing at the store’s door. The complainant was resting her head on the appellant’s chest as the appellant fondled her breasts. When she inquired about the matter, her daughter opened up and told her that the appellant on many occasions ever since he started working for them in March 2023 had sex with her. The complainant’s mother testified further that she asked the appellant about the matter which he denied at first but later agreed. She reported the matter at Kiriaini Police Station. She had the treatment notes from Kangema Level iv Hospital dated 2nd December 2023, P3 form and PRC form. The appellant was then arrested. The complainant told her mother that’s the appellant warned her against tell anyone. 6.PW3 duly sworn and states that he is William Ngure from Kiriaini. A mason. On the material day, he had gone to visit Mama Gikonyo. When he reached the home, he found that the gate was open. He entered and near the store, he saw the shamba boy and a girl called CWN standing on the 3rd door. He saw that they were standing very close to each other and the farm boy was touching her breasts. He passed and went into the house. He later called the girl’s mother and advised her to investigate the relationship between her daughter and the shamba boy. Later, he was called to record my statement. 7.PW4, a medical doctor, testified that he was duly sworn. He stated that on 2nd December 2023, he examined the complainant at Kangema Level IV Hospital. The treatment notes were produced and marked as (MFI‑2). He further filled the P3 Form (MFI‑3) and the Post Rape Care (PRC) Form (MFI‑4). Upon examination, he observed that the complainant's hymen was broken and there was a whitish discharge. He concluded that the findings were consistent with penetration. During cross‑examination, PW4 admitted that the hymen may be broken by other factors and that he did not know what specifically caused the hymen to be broken. He further stated that whitish discharge is a sign of infection, and such an infection is common to women. 8.PW5 was No. 23xx43 Corporal Veronica Nthenya from Kiriaini Police Station. She testified under oath that she was the Investigating Officer in this matter. On 22nd December 2023, a case of defilement was reported at Kiriaini Police Station by the victim, who was accompanied by her mother. The victim had previously sought treatment at Nyakinga Hospital before reporting. The accused was a casual worker at the victim’s home. PW5 testified that the accused intended to escape to Nyeri. She dispatched two officers who arrested the accused the same day. She later escorted the victim to Nyakinga Hospital for the P3 Form to be filled. The victim alleged that she had been defiled mostly on Sundays and could only remember two specific instances: 10th December 2023 and 17th December 2023. On 23rd December 2023 at around 15:00 hours, PW5 visited the scene of crime in the company of the complainant and her mother. At the scene, she saw a cattle boma where the defilement allegedly took place, and also the accused’s house. The accused was later charged accordingly. The age of the complainant, as per the birth certificate produced as Exhibit 1, was 15 years. A sketch plan of the alleged scene of crime from Kiriaini direction was produced as Exhibit 5. The accused was present in court. On cross‑examination, PW5 confirmed that she came in the company of the victim and was shown the scene of crime. She stated that her purpose was to verify that a cattle boma existed at the scene. Defense Case 9.The Appellant, who was the Accused person before the trial court, presented an unsworn statement of defense. He stated that he is from Nyeri County and was employed by the complainant’s mother (PW2) in March 2023. He contended that after about one month of his employment, he and the complainant’s mother (PW2) became lovers, a relationship that continued up to December 2023. He claimed that during this period, he was unaware that PW3 was also a lover to PW2. He asserted that when PW3 discovered the love affair between the Appellant and PW2, quarrels began to emerge in the household.At the hearing of the appeal, this court has re-evaluated the entire evidence on record, including the unsworn defense of the Appellant, alongside the prosecution’s case, as is the duty of a first appellate court. The Appeal 10.Having been dissatisfied by the decision if the trial court, the accused lodged present appeal vide a memorandum of appeal citing the following grounds;a.That, the learned trial court magistrate erred in law and fact by finding that the age of the complainant was proved beyond reasonable doubt, yet the evidence on record was inconsistent, untested and insufficientb.That, the learned court magistrate erred in law and fact by holding that penetration was proved yet the medical evidence was inconclusive and contradicted the prosecution’s theory.c.That, the learned trial court magistrate erred by relying on inconsistent, contradictory and uncorroborated testimony of the complainant.d.That, the learned trial court magistrate erred by shifting the burden of proof to the Appellant and dismissing the defense without analysis.e.That, the learned trial magistrate erred in law and fact by imposing a sentence of twenty (20) years’ imprisonment, which in the circumstances of this case was manifestly harsh, excessive and disproportionate to the offense committed Appellant’s Submissions 11.The appellant submitted that the prosecution failed to prove the age of the complainant to the strict standard required in law. He contended that no birth certificate was produced to establish the complainant's age and that no age assessment report was conducted or produced. Despite the complainant being a school-going minor and the alleged offence covering a long period from March 2023 to December 2023. The charge sheet itself alleged "diverse dates from March 2023 to December 2023," yet the complainant was allegedly born in August 2008, meaning that for part of the alleged period, she was 14 years old, while for another part she was 15 years old a distinction that materially affects both the charge and sentence under Section 8 of the Sexual Offences Act. The trial magistrate merely stated that the birth certificate "dispenses with the first ingredient" without critically analyzing the evidence. The appellant relied on the case of Fapiano Mutua Ngui v Republic [2012] eKLR, where the Court of Appeal held that proof of age is a fundamental requirement in sexual offence cases and that failure to do so renders the conviction unsafe. 12.The appellant further submitted that penetration is a core and indispensable ingredient of the offence of defilement under Section 2 of the Sexual Offences Act, which defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." He argued that the medical evidence was fundamentally weak. The trial magistrate misdirected himself by treating the doctor's opinion that "there was penetration" as conclusive, without reconciling it with other non-sexual causes. The appellant cited JOO v Republic [2015] eKLR, where the Court of Appeal warned: "Where the evidence of penetration is doubtful and the medical evidence does not support the prosecution case, the benefit of doubt must be resolved in favour of the accused." 13.The appellant submitted that the complainant's testimony was riddled with material inconsistencies and contradictions. The appellant relied on Twehangane Alfred v Uganda, where the Court of Appeal held that grave contradictions in the prosecution's case, unless satisfactorily explained, lead to the evidence of a witness being rejected. 14.The appellant submitted that the trial court implicitly shifted the burden of proof to the defense by failing to critically analyze whether the prosecution evidence met the threshold of proof beyond reasonable doubt. He cited Kioko v Republic [1983] eKLR, where the Court of Appeal stated: "A conviction cannot be sustained where the trial court fails to consider the defense evidence and by shifting the burden of proof to the accused, even subtly." He further relied on Okethi Okale v Republic [1965] EA 555, where the former East African Court of Appeal emphasized: "The onus of proof in a criminal case is always on the prosecution and the court must not shift the burden to the accused to explain away the prosecution evidence." 15.The appellant submitted that the sentence of twenty (20) years' imprisonment was manifestly excessive and disproportionate because: the trial magistrate failed to consider that the appellant was a first offender; the trial magistrate failed to consider mitigating factors, including the appellant's age, family circumstances and the period spent in remand. Section 333(2) of the Criminal Procedure Code requires that the period spent in custody prior to sentencing be taken into account and the sentence was imposed mechanically without meaningful consideration of proportionality or individual circumstances. Respondent’s submission 16.The respondent submitted that this being a first appeal, this Honourable Court is entitled to expect the evidence to be subjected to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and that the appellate court must itself weigh conflicting evidence and draw its own conclusions (Okena v The Republic [1972] EA 32, 36; Shantilal M Ruwala v R [1957] EA 570). The respondent contended that the trial court properly discharged its duty and that the prosecution proved all elements of the offence of defilement beyond reasonable doubt. 17.The respondent submitted that the age of the complainant was sufficiently proved through the testimony of PW2 (the complainant's mother), who testified that the complainant was born in August 2008; the birth certificate of the complainant, which was produced as an exhibit and confirmed that she was 15 years old at the time of the commission of the offence; and the evidence of PW1 herself, who testified that she was 15 years old and a Form One student. The respondent relied on Edwin Nyambogo Onsongo v Republic [2016] eKLR, where the Court of Appeal held that age in defilement cases can be proved by documents, oral evidence of the child, evidence of parents or guardians, or medical evidence, and that whatever the nature of evidence preferred, it must be credible and reliable. The respondent argued that the birth certificate and the mother's testimony met this threshold. The respondent further submitted that the appellant did not bring any evidence to dispute the age of the minor or challenge the birth certificate and that the alleged "diverse dates" in the charge sheet did not materially affect the charge since the complainant was below 16 years throughout the entire period. 18.The respondent submitted that penetration was proved to the required standard through: the direct and cogent testimony of PW1, who testified that the appellant removed her clothes, panty and inserted his penis into her vagina; the medical evidence of PW4, who found that the hymen was broken or absent and concluded that there had been penetration; and the corroborative evidence of PW3, who saw the appellant fondling the complainant's breasts. The respondent relied on Mark Oiruri Mose v Republic [2013] eKLR and Mwalango Chichoro Mwanjembe v Republic [2016] eKLR, where the courts held that the testimony of a complainant in sexual offence cases, if credible, is sufficient to establish penetration even where medical evidence is inconclusive. The respondent argued that while PW4 admitted that a broken hymen may result from other factors, the totality of the evidence including the complainant's consistent testimony, the whitish discharge and the context of the allegations supported the finding of penetration. The respondent cited Kassim Ali v Republic [2006] eKLR, where the Court of Appeal held that "medical evidence is vital in sexual offence cases as it corroborates the evidence of the complainant. Where such evidence is inconclusive, the court must be cautious and ensure that the remaining evidence irresistibly points to guilt." 19.The respondent submitted that the alleged inconsistencies in the complainant's testimony were minor and did not go to the root of the prosecution case and the respondent relied on Michael Saa Wambua & Another v Republic, where the court held that minor inconsistencies are satisfactorily explained and do not affect the overall credibility of the witness. The respondent argued that the complainant's inability to recall every specific date was understandable given the trauma and the passage of time, her failure to scream or immediately report the incidents was consistent with the dynamics of child sexual abuse, where victims often remain silent due to fear, shame or threats and the trial magistrate conducted a proper voire dire examination and was satisfied that PW1 understood the nature of an oath and was telling the truth. The respondent further submitted that the trial court properly invoked Section 124 of the Evidence Act, which permits a court to convict on the sole and uncorroborated evidence of a victim of a sexual offence if the court is satisfied that the victim is telling the truth and provides reasons for that finding. 20.The respondent submitted that the trial magistrate properly placed the burden of proof on the prosecution and did not shift it to the appellant. The respondent argued that the trial court considered the appellant's defense that he was framed due to quarrels with the complainant's mother and found it lacking in credibility. The respondent relied on Bukenya v Uganda [1972] EA 549, where the court held that "the court must consider all the evidence adduced by the prosecution and the defense before reaching a conclusion." The respondent contended that the trial magistrate did precisely this and was entitled to reject the defense as unconvincing. 21.The respondent submitted that the sentence of twenty (20) years' imprisonment was lawful and appropriate because Section 8(3) of the Sexual Offences Act provides for a minimum sentence of twenty (20) years' imprisonment for defilement of a child aged between 12 and 15 years, the trial magistrate properly applied the mandatory minimum sentence prescribed by statute and the appellant was not a minor at the time of sentencing, and there were no exceptional circumstances warranting departure from the statutory minimum. The respondent relied on Republic v Mwangi [2024] KESC 34 (KLR), where the Supreme Court affirmed that mandatory minimum sentences under the Sexual Offences Act are lawful, while the respondent also cited Bernard Kimani Gacheru v Republic, where the Court of Appeal stated that "sentence is a matter that rests in the discretion of the trial court" and that appellate courts will not easily interfere unless the sentence is manifestly excessive or based on wrong principles. The respondent prayed that the appeal be dismissed in its entirety and the conviction and sentence be upheld. Analysis and Determination 22.I have carefully considered the record of appeal, the grounds of appeal, the submissions of both parties and the applicable legal principles. As this is a first appeal, I am duty-bound to re-evaluate the evidence afresh, weigh the conflicting evidence and draw my own conclusions, while making due allowance for the fact that I did not have the opportunity to see and hear the witnesses testify (Okeno v Republic [1972] EA 32). 23.The offence of defilement under Section 8(1) as read with Section 8(3) of the Sexual Offences Act requires the prosecution to prove three essential elements beyond reasonable doubt:i.The victim must be a child (aged below 18 years)ii.There must be penetration of the genital organ; andiii.The penetration must be intentional and unlawful.iv.The identity of the perpetrator. 24.I have considered the grounds for appeal the evidence adduced in the lower court and submission of both parties. I find the main issues of determination to be;i.Whether the Age of the Complainant Was Provedii.Whether penetration was proved.iii.Whether the Appellant was the perpetrator.iv.Whether the PW1’s statement was inconsistent and contradictoryv.Whether the trial court shifted the burden of proofvi.Whether the sentence was manifestly excessive 25.Whether the Age of the Complainant Was Proved. The appellant argued that no birth certificate was produced and that the “diverse dates” created uncertainty. The record shows PW2 (mother) testified the complainant was born in August 2008, a birth certificate was produced and PW1 confirmed she was 15years. The Court of Appeal in Edwin Nyambogo Onsongo v Republic [2016] eKLR held that age may be proved by documents or oral evidence. The birth certificate and mother’s testimony were credible and reliable. The appellant did not challenge them. The “diverse dates” do not affect the charge because the complainant was below 16years throughout. This ground fails. On whether penetration was proved. 26.The appellant vigorously challenges the finding on penetration, pointing to the alleged weakness of the medical evidence and the concessions made by PW4 under cross-examination. It is well established that medical evidence is not mandatory in every sexual offence case. However, where it is adduced and is inconclusive or contradictory, the trial court must exercise great caution before relying on it to convict (Kassim Ali v Republic [2006] eKLR). PW4 testified that upon examination, the complainant's hymen was broken or absent, there was whitish discharge and a yeast or fungal infection. Under cross-examination, he admitted that "the hymen may be broken by other factors" and that "whitish discharge is common in women." While these concessions somewhat weaken the probative value of the medical findings, they do not entirely negate them. The medical evidence must be considered in conjunction with the complainant's testimony. PW1 gave a clear and consistent account of penetration, describing how the appellant removed her clothes and inserted his penis into her vagina. Her testimony was corroborated by PW3, who saw the appellant fondling the complainant's breasts near a store. The Court of Appeal in PKW v Republic [2012] eKLR stated: "The absence of medical evidence or the presence of inconclusive medical findings does not automatically lead to an acquittal; however, where medical evidence is adduced and does not support the prosecution case, a conviction based solely on such evidence is unsafe."In the present case, the conviction is not based solely on medical evidence. The complainant's direct testimony, corroborated by the medical findings and PW3's observations, provides sufficient proof of penetration. The trial magistrate was entitled to accept PW1's testimony as truthful and reliable, particularly after conducting a voire dire examination. I therefore find that penetration was proved beyond reasonable doubt. Ground 2 fails. Whether the PW1’s statement was inconsistent and contradictory. 27.PW1's evidence contained minor inconsistencies and contradictions. She alleged repeated defilement from March to December 2023 but could only recall two specific dates (10th and 17th December 2023), this is possible given the long period the alledged defilement took place. Whether the trial court shifted the burden of proof. 28.The appellant contends that the trial court failed to properly evaluate the prosecution evidence and implicitly shifted the burden of proof to the defense. Having reviewed the trial court's judgment, I find that the learned magistrate properly directed himself on the burden of proof. He evaluated the prosecution evidence, considered the defense and found the prosecution case proved beyond reasonable doubt. The trial court's rejection of the appellant's defense was based on its assessment of credibility, not on any improper shifting of the burden. The principle in Woolmington v DPP [1935] AC 462 that the burden of proof in criminal cases rests on the prosecution was properly applied. The trial court's finding that the appellant's defense was unconvincing does not equate to shifting the burden of proof. Ground 4 fails. Whether the sentence was manifestly excessive. 29.The appellant was sentenced to 20 years’ imprisonment, the minimum under Section 8(3) of the Sexual Offences Act. He argued it was excessive and that the remand period (from 27th December 2023 to sentencing) was not considered as required by Section 333(2) of the Criminal Procedure Code. The sentencing record is silent on the remand period an error in law Dismas Wafula Kilwake v Republic [2018] eKLR. 30.Mandatory minimum sentences are lawful Republic v Mwangi [2024] KESC 34. This ground fails. 31.Appellant was arrested on 22.12.2023 and sentenced on 24.7.2024, approximately 8 months. There was no evidence on the record that he was out on bond, so 8 months shall be reduced from the sentence he was sentenced to serve. 32.For the reasons set out above, I make the following findings:i.On Ground 1 of Appeal (Age): The proof of age was sufficient to establish that the complainant was a minor. This ground fails.i.On Ground 2 of Appeal (Penetration): On Ground 2 (Penetration): The medical evidence was conclusive and proved penetration beyond reasonable doubt. The prosecution successfully established this essential ingredient. This ground fails.iii.On Ground 3 of Appeal (Inconsistencies in PW1's Testimony): PW1's testimony was materially inconsistent, contradictory, and improbable. The trial court properly evaluated these inconsistencies. They did not go to root of the case, therefore this ground fails.iv.On Ground 4 of Appeal (Burden of Proof): The trial court properly considered the defense and did not implicitly shift the burden of proof to the appellant. This ground fails.v.On Ground 5 of Appeal (Sentence): The sentence meted of twenty (20) years imprisonment is the minimum mandatory sentence provided by the law. Therefore, the ground also fails. 33.The appellant has the right of appeal to the Court of Appeal with 14 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 5TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’a/VelmaMr. Ndege for ODPP present online.Appellant present online.