https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12449

Gitami v Republic (Criminal Appeal E022 of 2025) [2026] KEHC 12449 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12449 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Appeal E022 of 2025 KL Kandet, J July 30, 2026 Between John Ndichu Gitami Appellant and Republic Respondent (Being an appeal from the conviction and sentence of ten (10) years’ imprisonment imposed by Hon. M.A. Opondo (SPM) on 19th February 2025 in Kiambu Magistrate’s Court Sexual Offences Case No. E046 of 2021) Judgment Background 1.The Appellant, Conrade Jacob Odhiambo, was charged in Kiambu Magistrate’s Court Criminal Case (Sexual Offences) Case No. E046 of 2021 with offence of sexual Assault contrary to Section 5(a)(i)(2) of the Sexual Offences Act, No 3 of 2006. 2.The particulars are that on the 4th day of June, 2021 in [Particulars Withheld] area, Tinganga location within Kiambu County, the Appellant unlawfully used his fingers to penetrate the vagina of JWW, a child. 3.The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the prosecution called 7 witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and placed him on his defence. He then gave an unsworn testimony and called no other witness. By the Judgment delivered on 19/2/2025, the Appellant was convicted of the lesser offence of Committing committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act pursuant to section 179 of the Criminal Procedure Code and sentenced to 10 years imprisonment. 4.Dissatisfied with the decision, the Appellant filed an appeal on 12/03/2025 against both conviction and sentence raising the following grounds:i.The learned trial Magistrate erred in law and in fact by failing to find that the prosecution did not adduce any iota of evidence to establish the ingredients forming the offence of attempted defilement as dictated by the law.i.That the evidence tendered by the complainant did not placate the steps taken to demonstrate the Actus reus and Mens for the offence of attempted defilement.ii.The learned trial magistrate misapplied the law which prescribes the necessary components to be established to satisfy the offence in question.ii.The learned Trial Magistrate erred in law and fact by not appreciating that the prosecution evidence was filled with inconsistencies and contradictions which contrived the credibility of the witnesses.iii.The learned Trial Magistrate erred in law and fact by failing to take into account the cogent and probative defence testimony, with respect to the critical facts of a case tendered by the accused. In any case, he had no burden of proof whatsoever.iv.The Learned Trial Magistrate erred in law and fact by failing to find that the prosecution did not tender sufficient evidence to proof its case beyond any reasonable hypothesis to discharge the factum probandum as required in law. Attracting a conviction in any criminal procedure, requires proof of the charge beyond any reasonable doubt. Prosecution evidence 5.PW1 was the complainant, JWW. She testified that the Appellant grabbed her, covered her mouth, laid her down and touched her private parts using his fingers. She further testified that the Appellant attempted to remove both her clothes and his own before the incident was interrupted by the arrival of her grandmother, whereupon the Appellant fled. 6.PW2, the complainant's grandmother, testified that upon hearing the complainant scream, she rushed to the kitchen where she found the Appellant touching the complainant's private parts. Upon being confronted, the Appellant fled from the scene. 7.PW3 testified that shortly after the incident the complainant narrated to her what had transpired and stated that the Appellant had grabbed her, covered her mouth and attempted to remove their clothes. 8.PW4, the area Nyumba Kumi elder, testified that the matter was reported to him after the incident and that he participated in the events leading to the Appellant's arrest. 9.PW5, the arresting officer, testified that members of the public escorted the Appellant to the police station where he was booked into custody. 10.PW6, the investigating officer, informed the trial court that she took over the investigations following the demise of the original investigating officer. She produced, among other exhibits, the complainant's birth certificate, the P3 Form and the Post Rape Care (PRC) Form. 11.PW7, the Clinical Officer, testified that upon examining the complainant, he found no injuries to the genitalia, no bleeding, bruising or discharge, and that the hymen was intact. He nevertheless produced the medical documents as exhibits. 12.At the close of the prosecution case, the trial court found that the Appellant had a case to answer and placed him on his defence. Defence Case 13.The Appellant elected to give an unsworn statement and called no witnesses. 14.He denied committing the offence and narrated that on the material day he had gone to work, earned Kshs.100, handed the money to his wife, later consumed alcohol and went home to sleep. According to him, he only learnt of the allegations the following day. 15.The Appellant further stated that he had previously been married to PW2's daughter but that the relationship deteriorated after he married another wife. He maintained that PW2 and her family harboured ill feelings towards him and that the allegations were fabricated to settle family differences. Hearing of the Appeal 16.The Appeal was canvassed by way of written Submissions. The Appellant filed Submissions on 6th of January 2026. The Respondent did not file any written submissions. Appellant’s Submissions 17.The Appellant filed written submissions urging this Court to allow the appeal, quash the conviction and set aside the sentence. He submitted that the prosecution failed to prove the offence beyond reasonable doubt and that the conviction was founded on contradictory, inconsistent and unreliable evidence. 18.The Appellant submitted that the prosecution witnesses gave materially inconsistent accounts regarding the circumstances under which the alleged offence was committed. He argued that the contradictions, particularly between the testimonies of PW1 and PW2, went to the root of the prosecution's case and rendered the conviction unsafe. He relied on the decision in Ndungu Kimanyi v Republic [1979] KLR 282 to underscore the importance of consistency in the evidence of prosecution witnesses. 19.He further submitted that the complainant's account was inherently improbable, contending that the alleged offence was said to have occurred in a kitchen occupied by several people, yet no satisfactory explanation was given as to why no one intervened or raised an alarm. To reinforce this submission, he cited Keter v Republic [2020] eKLR, JWN v Republic [2022] eKLR and Mohamed v Republic [2021] eKLR. 20.The Appellant also challenged the evidence of PW3 and PW4, submitting that PW3 introduced unsubstantiated allegations while PW4's testimony amounted to hearsay and opinion evidence, having not witnessed the alleged offence. In that regard, he relied on Peter Mwangi v Republic [2023] eKLR, Bukenya v Uganda [1972] EA 549, Republic v Leonard Kipkemoi [2021] eKLR, Republic v Joseph Ndung'u Mwangi [2022] eKLR and Samuel Karanja v Republic [2020] eKLR. 21.The Appellant further submitted that the learned trial magistrate failed to properly evaluate his defence that the charges were motivated by a longstanding family grudge arising from his previous marriage to PW2's daughter. He argued that the strained family relationship provided a motive for false implication which the trial court failed to consider. To buttress this argument, he relied on R v Turnbull [1976] 3 All ER 549. 22.The Appellant further contended that his defence was coherent, plausible and remained unchallenged by the prosecution. He argued that the trial court failed to evaluate the defence alongside the prosecution evidence and thereby shifted the burden of proof onto him. 23.In conclusion, the Appellant submitted that the cumulative effect of the contradictions in the prosecution evidence, the alleged family grudge, the failure by the prosecution to rebut his defence and the failure to prove the charge beyond reasonable doubt rendered the conviction unsafe. He accordingly urged this Court to allow the appeal, quash the conviction, set aside the sentence and order his release unless otherwise lawfully held. Analysis and Determination 24.This being a first appeal, this Court is obligated to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination and to draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In undertaking that duty, the Court must give due allowance for the fact that the trial court had the advantage of observing the demeanour of the witnesses. This principle was authoritatively stated in Okeno v Republic [1972] EA 32. 25.The issues that therefore remain for determination in this matter are the following:i.Whether the prosecution proved the offence beyond reasonable doubt.ii.Whether the prosecution evidence was credible, consistent and reliable.iii.Whether the learned trial magistrate properly evaluated the Appellant's defenceiv.Whether this Court ought to interfere with the sentence imposed by the trial court. 26.Before addressing those issues, it is necessary to observe that although the Petition of Appeal refers to attempted defilement, the record clearly shows that the Appellant was acquitted of the principal charge of sexual assault and was instead convicted of the lesser cognate offence of committing an indecent act with a child pursuant to section 179 of the Criminal Procedure Code. This appeal shall therefore be determined with reference to the conviction that was actually entered by the trial court. Whether the prosecution proved the offence beyond reasonable doubt. 27.The Appellant contends that the prosecution failed to prove the offence beyond reasonable doubt and that the learned trial magistrate erred in convicting him despite finding that the principal charge of sexual assault had not been established. He submits that the evidence adduced was insufficient to sustain a conviction for the lesser offence of committing an indecent act with a child. 28.The burden of proving every element of a criminal offence rests upon the prosecution. The standard of proof is proof beyond reasonable doubt. It follows that where doubt exists, the benefit thereof must be accorded to the accused person. 29.The Appellant was initially charged with the offence of sexual assault contrary to section 5(1)(a)(i) as read with section 5(2) of the Sexual Offences Act. The particulars of the charge alleged that he unlawfully used his fingers to penetrate the complainant's vagina. 30.After evaluating the evidence, the learned trial magistrate found that penetration had not been proved beyond reasonable doubt. Consequently, the Appellant was acquitted of the principal charge. However, the trial court proceeded to convict him of the lesser cognate offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act pursuant to section 179 of the Criminal Procedure Code. 31.Section 179 of the Criminal Procedure Code provides that where a person is charged with an offence consisting of several particulars, and only some of those particulars are proved, thereby reducing the offence to a lesser offence, the accused may be convicted of that lesser offence although it was not expressly charged. 32.The rationale for the provision is that an accused person who has been called upon to answer a more serious charge is, by necessary implication, put on notice of the factual ingredients of any lesser cognate offence disclosed by the evidence. The Court of Appeal in John Irungu v Republic affirmed that a conviction under section 179 is proper where the evidence fails to establish the principal charge but sufficiently proves all the essential ingredients of the lesser cognate offence, provided no prejudice is occasioned to the accused. 33.The offence of committing an indecent act with a child is created under section 11(1) of the Sexual Offences Act. Section 2 of the Act defines an indecent act as an unlawful intentional act which causes contact between any part of the body of one person with the genital organs of another person but excludes an act that causes penetration. 34.Consequently, for the prosecution to establish the substituted offence, it was required to prove beyond reasonable doubt:a.That the complainant was a child;b.That the Appellant intentionally and unlawfully caused contact with the complainant's genital organs; andc.That the Appellant was positively identified as the person who committed the act. 35.The complainant's age was not disputed during the trial or on appeal. PW6 produced the complainant's birth certificate which confirmed that she was a child within the meaning of the Children Act and the Sexual Offences Act. I am therefore satisfied that the first ingredient of the offence was proved beyond reasonable doubt. 36.The principal issue is whether the prosecution proved that the Appellant intentionally and unlawfully touched the complainant's genital organs. 37.PW1 testified that the Appellant grabbed her, covered her mouth, laid her on the floor and touched her private parts using his fingers before fleeing upon the arrival of PW2. PW2 testified that after hearing the complainant scream, she rushed to the kitchen and found the Appellant touching the complainant's private parts before he escaped. 38.Although the medical evidence did not establish penetration, that finding was entirely consistent with the trial court's acquittal on the principal charge. The offence for which the Appellant was ultimately convicted did not require proof of penetration. It required proof of unlawful and intentional contact with the complainant's genital organs. 39.Having independently re-evaluated the evidence, I am satisfied that the trial court correctly distinguished between the offence charged and the offence ultimately proved. The evidence, while insufficient to establish penetration, did prove an indecent act as defined under the Sexual Offences Act. 40.I therefore find that the learned trial magistrate properly invoked section 179 of the Criminal Procedure Code and did not err in law by convicting the Appellant of the lesser cognate offence. Whether the prosecution evidence was credible, consistent and reliable 41.The Appellant further contends that the conviction was founded upon contradictory and inconsistent evidence. He argues that the prosecution witnesses materially contradicted one another and that the learned trial magistrate failed to properly evaluate those inconsistencies. 42.It is now settled that not every inconsistency or discrepancy in the evidence of witnesses is fatal to the prosecution case. Minor discrepancies attributable to differences in observation, perception or recollection are common in honest testimony. What the Court must determine is whether the inconsistencies relate to material particulars of the offence and whether they create a reasonable doubt as to the guilt of the accused person. 43.This Court has carefully reconsidered the evidence of the prosecution witnesses. 44.PW1 gave a direct account of the incident. She testified that while she was in the kitchen, the Appellant grabbed her, covered her mouth, laid her down and touched her private parts using his fingers. According to her testimony, the Appellant fled immediately PW2 arrived at the scene. 45.PW2 testified that upon hearing the complainant scream, she rushed to the kitchen where she found the Appellant touching the complainant's private parts. She stated that the Appellant immediately fled upon seeing her. 46.The Appellant argued that PW1 and PW2 contradicted each other as to whether the Appellant had removed his trousers before PW2 entered the kitchen. I have considered this contention. 47.In my view, that inconsistency, if any, does not go to the substance of the offence for which the Appellant was convicted. The trial court expressly found that penetration had not been proved and acquitted the Appellant of the principal charge. The conviction under appeal is therefore not dependent upon whether the Appellant had removed his trousers, but upon whether he intentionally and unlawfully touched the complainant's genital organs. 48.On that central issue, the evidence of PW1 and PW2 was substantially consistent. PW1 maintained that the Appellant touched her private parts, while PW2 testified that she found the Appellant touching the complainant's private parts immediately before he fled. Those accounts corroborate each other on the material ingredient of the substituted offence. 49.PW3 did not witness the incident. Her testimony related to the report made by the complainant shortly after the occurrence. The evidential value of her testimony therefore lies in the consistency of the complainant's account following the incident rather than in proving the commission of the offence itself. 50.Likewise, PW4, the Nyumba Kumi elder, did not witness the incident. His evidence merely established that a report was made and that the matter was subsequently pursued. Standing alone, it could not prove the offence and I accordingly attach limited evidential weight to it on the question of guilt. 51.The medical evidence was tendered through PW7, the Clinical Officer, who testified that upon examination of the complainant, no injuries, bruises, bleeding or discharge were observed and that the hymen was intact. Those findings did not support the allegation of penetration and indeed reinforced the trial court's conclusion that the principal charge of sexual assault had not been proved. 52.However, the absence of medical evidence of penetration does not necessarily negate the commission of an indecent act. The offence under section 11(1) of the Sexual Offences Act does not require proof of penetration. Consequently, while the medical evidence failed to prove the principal charge, it neither disproved nor rendered impossible the commission of the substituted offence. 53.Having independently analyzed the evidence, I find that the inconsistencies relied upon by the Appellant related principally to the sequence of events and peripheral details rather than to the essential ingredients of the offence. The prosecution evidence remained substantially consistent on the material fact that the Appellant intentionally touched the complainant's genital organs before fleeing upon the arrival of PW2. 54.I am therefore satisfied that the prosecution evidence, viewed as a whole, remained credible, coherent and sufficient to sustain the conviction for the offence of committing an indecent act with a child. Whether the learned trial magistrate properly evaluated the Appellant's defence 55.The Appellant contends that the learned trial magistrate failed to properly consider his defence and, in particular, his assertion that he had been falsely implicated owing to a longstanding family dispute arising from his previous marriage to PW2's daughter. He maintains that the allegations were fabricated out of malice and that the trial court failed to evaluate the possibility of false implication before arriving at a finding of guilt. 56.It is a fundamental principle of criminal law that a trial court is under a duty to consider the defence advanced by an accused person, however improbable it may appear. A conviction cannot be sustained where the defence is ignored or rejected without consideration. Equally, an accused person bears no obligation to prove the truth of his defence. The burden remains throughout on the prosecution to prove the charge beyond reasonable doubt. 57.In his unsworn statement, the Appellant denied committing the offence. He stated that on the material day he had gone to work, later consumed alcohol and retired to his house. He denied ever assaulting the complainant and asserted that he was only informed of the allegations on the following day. He further explained that he had previously been married to PW2's daughter but that the relationship ended after he married another wife. According to the Appellant, this created animosity between him and PW2's family, culminating in the present allegations. 58.I have carefully considered the record to determine whether the defence raised a reasonable doubt as to the prosecution's case. While the Appellant alleged that there existed a family grudge, there was no evidence on record from either the prosecution or defence case demonstrating that the alleged disagreement had previously manifested itself in false accusations or that PW2 had threatened to fabricate criminal allegations against him. The allegation of a grudge therefore remained a bare assertion unsupported by objective evidence. 59.Although the Appellant suggested that the charges were motivated by the strained relationship between himself and PW2, there was no evidence demonstrating that the complainant had been coached, influenced or prevailed upon to falsely implicate him. The complainant gave a direct account of the incident and was subjected to cross-examination, during which no material basis for fabrication emerged. 60.I agree that the learned trial magistrate ought to have expressly analysed the defence of fabrication and the alleged family grudge in greater detail. Nevertheless, that omission is not, in itself, fatal to the conviction. As a first appellate court, I am required to independently re-evaluate the entire evidence on record. Having done so, I find that the defence did not raise a reasonable doubt capable of displacing the prosecution's evidence. 61.The mere existence of a previous family disagreement does not, without more, render the prosecution case unreliable. Equally, the Court cannot dismiss such an allegation simply because it is advanced by the accused. Where a defence of fabrication is raised, the Court must evaluate it against the totality of the evidence and determine whether it creates a reasonable doubt. In the present case, the allegation of fabrication finds no support in the evidence on record. 62.Upon evaluation of the entire record, I am satisfied that the prosecution evidence remained cogent and consistent notwithstanding the Appellant's defence. The defence amounted to a general denial coupled with allegations of a family grudge which were not substantiated by any evidence capable of weakening the prosecution's case. I therefore find that the learned trial magistrate's failure to analyze the defence in greater detail did not occasion a miscarriage of justice, and this ground of appeal consequently fails. Whether this Court ought to interfere with the sentence imposed by the trial court 63.The Appellant also challenges the sentence of ten (10) years' imprisonment imposed by the learned trial magistrate, contending that it was harsh and excessive in the circumstances. 64.The principles governing appellate interference with sentence are well settled. Sentencing is an exercise of judicial discretion and an appellate court will not ordinarily interfere with that discretion merely because it would have imposed a different sentence. Intervention is only justified where it is demonstrated that the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant consideration, imposed an unlawful sentence, or where the sentence is manifestly excessive or manifestly lenient. This principle was stated in Wanjema v Republic [1971] EA 493. 65.The record shows that after convicting the Appellant of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, the learned trial magistrate considered the Appellant's mitigation before sentencing him to ten (10) years' imprisonment. 66.Section 11(1) of the Sexual Offences Act provides that a person convicted of committing an indecent act with a child is liable to imprisonment for a term of not less than ten years. The sentence imposed by the trial court was therefore the minimum sentence prescribed by law. 67.I have considered the Appellant's mitigation, the circumstances of the offence and the sentence imposed by the trial court. I have also considered whether the learned trial magistrate exercised his sentencing discretion injudiciously or failed to take into account any relevant mitigating factors. The record does not disclose any such error. 68.In the present case, the learned trial magistrate imposed the minimum sentence provided under section 11(1) of the Sexual Offences Act. The Appellant has not demonstrated that the sentence was unlawful, that the trial court acted on wrong principles, or that it failed to consider any relevant factor before imposing sentence. In the circumstances, I find no basis upon which this Court can interfere with the sentence. 69.Accordingly, the appeal against sentence is without merit and is hereby dismissed. Disposition 70.The upshot is that this appeal lacks merit. It is hereby dismissed in its entirety. The conviction and sentence imposed by the trial court are affirmed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 30TH DAY OF JULY 2026.KENNEDY KANDETJUDGEIn the Presence of:Appellant in Person from Maranjao PrisonMs Ngondi h/b Muriu for the State