https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12313

Gitonga v Republic (Criminal Appeal E030 of 2024) [2026] KEHC 12313 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12313 (KLR) Republic of Kenya In the High Court at Chuka Criminal Appeal E030 of 2024 RL Korir, J July 31, 2026 Between David Njeru Gitonga Appellant and Republic Respondent (Being an Appeal from original conviction and sentence in MSCO No. E014 of 2022 delivered by Hon. O. Kinyua (Resident Magistrate) on 18th January 2023 at Chuka Law Courts) Judgment 1.David Njeru Gitonga (Appellant) was charged with the offence of defilement of a child contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of the offence were that on 4th March 2022 at [Particulars Withhheld] location, [Particulars Withhheld] sub-county within Tharaka Nithi County, unlawfully and intentionally caused penetration of his male genital organ namely penis to the female genital organ namely vagina of N.N. a girl child aged 5 years. 3.The Accused faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on 4th March 2022 at [Particulars Withhheld] location, [Particulars Withhheld] sub-county within Tharaka Nithi County, unlawfully and intentionally committed an act of indecency by touching the breasts, buttocks using his hands and used his penis to touch the vagina of N.N. a girl child aged 5 years. 4.At the conclusion of the trial the Appellant was convicted on the main count by Hon. O.Kinyua (R.M) vide a judgement issued on 18th January 2023. He was sentenced to serve 30 years’ imprisonment. 5.Aggrieved by the judgement the Appellant filed the present home-made appeal in which he set out 8 grounds which I have paraphrased and condensed as follows:-i.That the evidence was contradictory, and insufficient to found a conviction.ii.That there was no eye witness who testified to the offence or even saw the Appellant with the victim on the material date.iii.That the trial court relied on the evidence of a single witness without giving reasons.iv.That the trial court rejected the Appellant’s defence without good reason. 6.This is a first appeal. As such my duty is to re-evaluate the evidence before the trial court and make my own conclusions and findings. This duty was restated by the Court of Appeal in the case of Gabriel Kamau Njoroge v. Republic [1987] eKLR as follows:-As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the case are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect. (See Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570). 7.A summary of the case before the trial court follows. 8.The Prosecutor called five witnesses to prove its case. The victim (PW1) testified that the Accused did “something bad” to her. That after removing her clothes he put “his thing” in her. PW2 who was the victim’s mother told the court that she requested the Accused, who was a neighbor to keep watch over her child so that she does not follow her to the road but when she returned, she did not find her at home and on searching found her in the Accused’s house lying on the bed with no pants on. That upon examining her she saw some blood and sperms on the vaginal area. She reported the matter to the police. 9.Dr. Hillary Kangichu (PW5) testified that the minor had a freshly torn hymen and laceration in the vaginal area. The vaginal swap showed epithelial cells but no spermatozoa. That he found evidence of penetration. He produced treatment notes, the PRC Form, and P3 Form. 10.Corporal Gideon Kinyua (PW3) was the arresting officer while PC Mike Mugambi (PW4) was the investigating Officer. 11.The Appellant was placed on his defence and he gave sworn evidence in which he denied the offence and insisted that he had been framed by the victim’s mother because of bad blood between them arising out of a failed relationship between them and also because he revealed to her husband that she had sold their goat to buy a mobile phone. 12.In a judgement dated 18th January 2023, the trial court convicted the Appellant under section 215 of the Criminal procedure Code and sentenced him to 30 years’ imprisonment. The court also ordered that the time spent in pre-trial custody to be deducted from the said sentence. 13.The Appeal was canvassed through written submissions as directed by the court. Appellant’s submissions 14.The Appellant filed submissions dated 8th September 2025. He submitted that he was framed by the victim’s mother (PW2) who had a subsisting grudge with his (Appellant’s) wife and also with him because he had reported her illicit brewing to the sub-chief. 15.The Appellant submitted that PW2 lied before the trial court and also couched the victim on what to say. He faulted the trial court for relying on insufficient evidence as there was no DNA linking him to the offence and neither were the alleged blood-soaked clothes produced before the trial court. 16.The Appellant submitted that the investigating officer neither visited the scene of crime nor produced the victim’s pants alleged to have been collected at the scene. 17.The Appellant submitted that the evidence of the minor needed corroboration as it was inconsistent while the evidence of the mother (PW2) was calculated to frame him to settle scores. He urged that the credibility of the Prosecution witnesses was in doubt and the case was not proved beyond reasonable doubt. He urged that any doubt ought to be resolved in his favour. With respect to sentence, the Appellant submitted that it was harsh and excessive as he had not even committed the offence. Respondent’s submissions 18.The Respondent framed two issues for determination as follows:-a.Whether the Prosecution sufficiently proved all the elements of the offence of defilement and to the required standard.b.Whether the trial magistrate imposed a harsh and excessive sentence upon the Appellant without considering that the Appellant was a first time offender. 19.The Respondent submitted that all the ingredients of the offence were proved to the required standard. On penetration, the Respondent submitted that the medical evidence produced by PW5 proved penetration. 20.On age, the Respondent submitted that the same was proven through the birth certificate. With respect to identification the Respondent submitted that the Appellant was known to the victim and her family as he lived only 100 metres away from the victim’s home. That therefore it was a case of recognition. 21.With respect to sentence, the Respondent submitted that it was lawful and took into consideration the nature of the offence, the public interest and the rights of the minor. 22.I have considered the record, the grounds of appeal and the respective submissions of the parties. The issues for determination are intrinsically linked to the ingredients of the offence being proof of age, penetration and the positive identification of the perpetrator. i. Age of the victim 23.Age is a critical ingredient in a defilement case because by definition the offence can only be committed against a child. Section 2 of the Sexual Offences Act adopts the definition of a child provided in the Children’s Act which means a person below the age of 18 years. 24.Age is also significant because the sentences in the Sexual Offences Act are graduated according to the age of the victim. In the case of Mwalengo Gichoro Mwajembe vs. Republic, Mombasa Appeal No. 24 of 2015 (UR), the Court of Appeal held:-“the question of proof of age has finally been settled by 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 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. See Denis Kinywa vs. Republic, Criminal Appeal No.19 of 2014 and Omar Uche vs. Republic, Criminal Appeal No. 11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable……..” 25.In this case the child victim was said to be aged five. The mother (PW2) testified that the complainant was born on 10th April 2017. She identified her birth certificate (MF1 I). 26.The minor’s birth certificate was produced by the Investigating Officer as Exhibit1. 1 have looked at the birth certificate (Exhibit1). It shows the date of birth as 19th April 2017. By simple calculation she was 5 years and 11 months, which in law is 5 years as she had not attained her 6th birthday. Further, the authencity of the birth certificate was not challenged. 27.It is my finding therefore that the age of the minor victim was proved beyond reasonable doubt. Indeed, the Appellant raised no issue on the age. ii. Proof of Penetration 28.Penetration is defined by section 2 of the Sexual Offences Act as “the complete or partial insertion of genital organs of a person into the genital organs of another person.” It is proved through the evidence of the victim corroborated by medical evidence. The evidence may be direct or circumstantial 29.In the case of DS v. Republic [2022] eKLR the court held:-“The penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.” 30.The trial court made a finding that penetration was proved. In this appeal, the Appellant raised three grounds stating that penetration was not proved. Firstly; that the evidence of the victim was contradictory and that the said minor had been couched by her mother to lie. Secondly; that the evidence of the victim’s mother (PW2) was motivated by a grudge between himself and PW2 over an alleged report he made to PW2’s husband that she had sold their goat to buy a mobile phone. Thirdly; that the Prosecution did not call an independent witness to corroborate the alleged defilement. 31.I have closely examined the evidence on penetration. The victim (PW1) gave unsworn testimony that “ the Accused is called Baba Nanny . He did something bad to me. He removed my clothes and inserted his thing in my thing. We were in his home. He carried me and took me to his house. It was during the day at around 8 am. It was not a school day.” 32.The trial court after conducting a voir dire on the minor ruled that she did not understand the importance of the oath and directed that she gives unsworn testimony. The testimony was brief and the court made no comment or observation on the record to state whether it believed the testimony of the minor. Such evidence therefore called for corroboration. 33.The minor victim was taken to Chuka hospital for medical examination. PW5 Hillary Kangichu Clinical Officer testified that the victim was examined by his colleague one Jacinta who authored the PRC Form. That they did not find any bodily injuries on but genitalia examination found her hymen freshly torn and laceration, and bruises and bleeding in the vagina. They did a vaginal swab which showed presence of epithelial cells but no spermatozoa. PW5 stated that he used the PRC Form to fill the P3 Form. 34.I have looked at the Treatment Notes- Exhibits -2-6. Exhibit 2, it has a record that the hymen was mildly torn with fresh bruises on the walls of the vagina. The Treatment Notes were on the letter head of County Referral hospital Chuka. It details the medical history of the complainant and notes that she was calm, genitalia exam is recorded as “Hymen mildly teared (sic) with fresh bruises on the walls of the vagina, with very minimal bleeding from bruises of outer genitalia and normal.” Laboratory tests showed no sperms and all other tests normal.The treatment notes do not show the treatment that the minor was placed on casting doubt on the authenticity of the findings suggesting penetration. If a child is defiled, they must immediately be protected. 35.I have looked at the Post Rape Care Form (PRC) Exhibits 3. The examining officer is one Jacinta Kaari who also signed the Form on 4th March 2022. The PRC Forms states in the comments fresh mild tear of hymen and “fresh bruises/lacerations on the vaginal wall with minimal bleeding.” 36.PW5 testified that he filled the P3 Form [Exhibit 3] using the Post Rape Care Form authored by his professional colleague Jacinta. He was not therefore the examining doctor and could not vouch on the findings other than the signature of his colleague. 37.The evidence of PW5 was expert evidence. His conclusion based on the Post Rape Care Form and Treatment Notes filled by his professional colleague was that there was penetration. Expert evidence is receivable by the court and must be considered against all other evidence. 38.The question of how expert opinions should be treated by the court is quite clear and established in Kenya. The Court of Appeal in Parvin Singh Dhalay vs Republic (1997) eKLR held:-“It is now trite law that while the courts must give proper respect to the opinion of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so……..” 39.I am persuaded by Mativo J. (as he then was) in the case of Stephen Kinini Wangondu vs The Ark Limited (2016) eKLR where he held that:-“Expert testimony like all other evidence must be given only appropriate weight. It must be as influential in the overall decision making processes it deservers, no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence.Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. While there are numerous authorities asserting in the expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account.Four consequences flow from this:Firstly, expert evidence does not trump all other evidence. It is axiomatic that judges are entitled to disagree with an expert witness.Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formulae against hence actions are the n to be rigidly judged with a mathematical rescission.Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be artificially separated from the rest of the evidence. To do so is a structural failing. A court’s finding will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case, which they accept in order to decide which expert evidence is to be preferred.Fourthly, a judge should consider all the evidence in the case, including that of the experts before making any findings of fact even provisional ones.” 40.It is clear from the above authorities that expert opinions are persuasive to the court and are not binding. 41.In this case I have already made a finding as the trial court did, that the brief and unsworn testimony of the minor victim, needed corroboration. I arrived at this finding because the child neither comprehended the environment nor the proceedings. 42.I have looked at the circumstantial evidence surrounding the case. PW2 who is the mother of the victim told the court that she had two young children whom she usually left with her neighbour Kaari and whom on the material day was not at home. She said that on coming back from the market she found one child at her in-law’s home and traced the victim to the accused’s home where she found her on the accused’s bed without a pant. That the accused responded to her presence by coming out of the room while zipping up his trousers and begged her not to report. That the child refused to talk but later told Kaari (her neighbour) that the accused had defiled her. 43.PW2 stated that she raised an alarm when she saw the child on the Appellant’s bed. She didn’t state whether anyone responded to the alarm. Indeed, it was strange that in the populated area where they lived, no one heard her screams and no neighbour responded. PW2 stated that the child opened up to PW2’s friend one Kaaria that the Accused defiled her. This court finds it strange that the said Kaaria was not a witness. PW2 stated further that when she went to the police station she found the Appellant there trying to make his own report which was not acted on by the police. 44.Looking at the evidence as whole, I did not find the medical evidence credible. 45.The Appellant denied the offence. Throughout the trial, he maintained that he had been framed by PW2. He stated that he went to the police station to record the complaint of a frame up which was dismissed. He cross-examined PW2 extensively on their interactions implying that they knew each other as neighbours with an alleged social relationship where they would go drinking together. He alleged a grudge arising out of their social interactions including telling on PW2 that she had secretly sold a goat belonging to her husband. 46.I have analysed the Appellant’s defence. It cast doubt on the prosecution case for the following reasons. Firstly, the evidence of the minor needed corroboration as found by the trial court and by this court. Secondly, the medical evidence considered against the obtaining circumstances was suspect, and remained not uncorroborative. Thirdly, the evidence of surrounding circumstances raised more questions than answers. 47.The Prosecution called the victim, the victim’s mother, the Clinical Officer and the Investigating Officer. While the Prosecution were not under any duty to call more witnesses, they were under duty to prove the case to the required legal standard. Having re-evaluated the evidence on penetration. I find that the Appellant’s defence cast doubt on the prosecution case. 48.With respect to identification, there was no issue that the Appellant was very well known to the victim (PW1) and her mother (PW2). They were neighbours. PW1 referred to him as Baba Nanny while PW2 stated that his house which was 100 metres away. The Appellant himself admitted that he knew both the victim and her mother. Therefore, there was no issue that the Appellant was well known to the victim and her mother. 49.The ingredients of defilement must be proved conjunctively and not disjunctively. Once one ingredient is not proved, then the charge cannot succeed. In this case I have found insufficient evidence on penetration. 50.In the final analysis, it is my finding that the charge was not proved beyond reasonable doubt. I find that the Appellant’s conviction was not safe as the prosecution evidence was not water tight and Respondent’s defence cast doubt on the Prosecution case. The benefit of such doubt, as the law demands, must go to the Accused. 51.I quash the conviction and set aside the sentence. The Appellant is set at liberty forthwith unless otherwise lawfully held. JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 31ST DAY OF JULY, 2026...........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of the Appellant acting in person at Embu Prison. Ms Rukunga for the Respondent; Muriuki (Court Assistant.)