https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9964

GPN v Republic (Criminal Appeal E069 of 2025) [2026] KEHC 9964 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9964 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E069 of 2025 NM Orina, J July 9, 2026 Between GPN Appellant and Republic Respondent (Being an appeal from the Conviction and Sentence in Mombasa Chief Magistrate's Criminal Sexual Offence Case No. SO E009 of 2023 delivered by Hon. R. Orora (SRM) on 23rd May 2025) Judgment 1.The Appellant, Gamastone Patrick Nyange, was charged before the Chief Magistrate's Court at Mombasa with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on 6 January 2023, within Mombasa County, he intentionally and unlawfully caused his penis to penetrate the vagina of C.K, a child aged eleven (11) years. Upon conclusion of the trial, the learned Senior Resident Magistrate found that the prosecution had proved its case beyond reasonable doubt, convicted the Appellant and sentenced him to twenty (20) years imprisonment. 2.Being dissatisfied and aggrieved by both the conviction and sentence, the Appellant has preferred the present appeal to this Court on the following grounds:a.That the learned trial magistrate erred in law and fact by failing to appreciate that the Appellant's constitutional right to a fair trial was infringed during the trial.b.That the learned trial magistrate erred in law and fact by failing to give due regard to the numerous discrepancies and contradictions in the prosecution evidence.c.That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution failed to prove its case beyond reasonable doubt.d.That the learned trial magistrate erred in law and fact by imposing a sentence without due regard to the objectives and principles of sentencing.e.That the learned trial magistrate failed to appreciate that, considering the Appellant's age and personal circumstances, the sentence imposed was harsh and excessive. 3.This being a first appeal, this Court is under a duty to re-evaluate and re-analyse the entire evidence tendered before the trial court and arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify. This duty has been firmly recognised in case law and more prominently in Okeno v Republic [1973] EA 32). B. Evidence at Trial 4.The state called six (6) witnesses in support of its case while the Appellant called two (2) witnesses. 5.PW1 (CK), the complainant, testified under oath upon the trial court satisfying itself that she understood the meaning of taking an oath. She testified that she was aged 10 years old and she attended [Name Withheld] School. She stated that on the material day her mother and her aunt had gone to church. At about midday, she went to visit her aunt. Upon arriving at her aunt's house, she found the Appellant, whom she referred to as "Abu", her uncle. She testified that the Appellant instructed her to enter the bedroom, where he pulled her, removed her clothes and removed his private parts, which she described as “kidudu” which he uses to urinate. She testified that he touched her breasts, sucked her tongue, inserted his fingers into her vagina before inserting his penis into her vagina while holding her tightly. She stated that she did not scream because the Appellant had covered her mouth. It was her testimony that after the incident, the Appellant instructed her to take a shower. She thereafter returned home and informed her elder sister and later her mother about what had transpired. Her mother proceeded to the Appellant's house and on the following day they attended hospital before reporting the matter to the police. PW1 positively identified the Appellant in court as the person who defiled her. During cross-examination, she stated that her aunt ordinarily gave her money. She further testified that she did not know whether there existed any disagreement between the Appellant and her parents. The trial court also observed her demeanour, noting that she appeared visibly frightened while testifying. 6.PW2 (Rev. Delta Shada), the complainant's father, testified that on 7 January 2023 while at home he saw his wife, Edna Shali, crying. Their first-born daughter, M informed him that the complainant had visited her aunt's house where the Appellant had allegedly defiled her before instructing her to take a shower and warning her not to disclose the incident. PW2 testified that his wife narrated the incident to him on a Sunday. He stated that he nevertheless proceeded to conduct church service at Agape Ministry Church, Likoni, and later returned home at about 3.00 p.m. His wife subsequently took the complainant to Mama Sauti, an organisation involved in child protection, before they reported the matter at Inuka Police Station and later sought medical attention. He testified that the complainant personally narrated to him how the Appellant had defiled her. PW2 further testified that the Appellant was his brother-in-law and that prior to the incident they had never had any disagreement. Upon cross-examination, he maintained that his daughter had never stolen from the Appellant's shop and reiterated that there had never been any disagreement between them. 7.PW3, Edna Shali, the complainant's mother, testified that on 7 January 2023 she was in the kitchen preparing food when the complainant informed her that she had gone to greet her aunt but found only the Appellant in the house. The complainant narrated that the Appellant held her hand, forced her into the bedroom, pushed her onto the bed, touched her breasts, sucked her tongue, inserted his fingers into her vagina before inserting his penis into her vagina while holding her tightly. She further informed PW3 that the Appellant instructed her to take a shower and warned her not to disclose the incident to anyone. PW3 immediately proceeded to her sister's house where she informed her of what she had been told. She further testified that they later sought assistance from Mama Sauti before reporting the matter to Inuka Police Station and taking the complainant to hospital the following day. PW3 identified the Appellant in court and confirmed that he was her brother-in-law who resided near her home. She further testified that the complainant had never previously had any disagreement with the Appellant. During cross-examination, she stated that they had resided in the area since 1999, had never disagreed with the Appellant, denied blaming him following the death of one of her children, and confirmed that it was not unusual for the complainant to visit the Appellant's house. 8.PW4 (Margaret Shada), the complainant's elder sister, testified that on 6 January 2023, which she recalled was a Friday at about 1.00 p.m., her mother had gone for fellowship together with the Appellant's wife, whom she described as her aunt. She testified that the following day the complainant informed her that she had gone to visit her aunt and narrated what had happened. PW4 immediately informed their mother, who ran out of the house. According to PW4, the complainant disclosed that the Appellant had removed her clothes, sucked her breasts and defiled her. She stated that the Appellant was her uncle and that the matter was reported to Inuka Police Station the following day. During cross-examination, PW4 stated that she was not present during the incident and only narrated what the complainant had told her. She further testified that the complainant had informed her that the Appellant warned that if she disclosed the incident he would cut her into pieces. PW4 denied ever accusing the Appellant of being a devil worshipper and further denied that the family was interested in acquiring his property. 9.PW5 (Victor Obanda Were), a Clinical Officer attached to Likoni Sub-County Hospital, produced the complainant's treatment notes, the Post Rape Care (PRC) Form and the P3 Form. He testified that according to the treatment notes the complainant was first presented at the hospital on 9 January 2023. The history recorded indicated that on 6 January 2023 the complainant had gone to visit her aunt when a neighbour took her into the house, pushed her onto a bed and inserted his fingers into her private parts. Upon examination, he observed that the complainant's hymen was broken, there was whitish vaginal discharge and a painful wound on the vagina. He testified that the PRC Form was completed on 11 January 2023 and that its contents were consistent with those contained in both the treatment notes and the P3 Form. He further stated that the approximate age of the injuries was less than six days and that the probable cause of the injuries was a blunt object. The treatment notes, PRC Form and P3 Form were produced as exhibits. During cross-examination, he confirmed the presence of whitish vaginal discharge and clarified that although he worked at Likoni Sub-County Hospital, he did not operate any private clinic in Likoni. 10.PW6 (Police Constable Mwiyi Mohammed), the investigating officer attached to Inuka Police Station, testified that on 9 January 2023 the complainant and her mother reported a case of defilement. The complainant informed him that on 6 January 2023 she had gone to her uncle's house intending to visit her aunt but found only the Appellant. She alleged that the Appellant took her to the bedroom, inserted his penis into her vagina and thereafter inserted his fingers into her vagina. PW6 referred the complainant to Likoni Sub-County Hospital for medical examination, following which the medical officer confirmed that she had been defiled. He testified that the complainant also informed him that the Appellant had threatened her. PW6 subsequently arrested the Appellant, visited the scene of the alleged offence, prepared a sketch plan which he produced as an exhibit, and eventually charged the Appellant before the trial court. During cross-examination, he stated that he was unaware of any grudge between the complainant's family and the Appellant. 11.Upon the close of the prosecution case, the learned trial magistrate found that the Appellant had a case to answer and accordingly placed him on his defence pursuant to Section 211 of the Criminal Procedure Code. 12.The Appellant testified on oath as DW1. He stated that he was 74 years old. He denied committing the offence and maintained that the case was a fabrication. He testified that Bishop Shada had orchestrated the allegations. He explained that he had previously accommodated the complainant's father in his house and even assisted him with his education before he eventually moved out and got married to the Appellant's wife's sister. According to the Appellant, a dispute later arose after one of the complainant's family's children died, whereupon they accused him of being a devil worshipper. He further stated that after two other children died, they similarly blamed him. Although he intended to report the allegations, his wife prevailed upon him not to do so because they were close relatives. Regarding the date of the alleged offence, he testified that his wife had gone to borrow the church keys from her brother and he knew that she had left home. He stated that he remained away until about 2.00 p.m. He was eventually arrested on 12 January 2023 by police officers accompanied by Bishop Shada and the complainant. He asserted that the complainant's family wanted him imprisoned because he had no children and they wished to inherit his property. He emphatically denied ever defiling the complainant and maintained that the child had been coached to testify against him. 13.DW2 (Nelly Nyange), the Appellant's wife, testified that on the material day she left for church together with the pastor's wife after collecting the church keys. Before leaving, the complainant had asked her when she was going to church. She testified that she returned home at about 4.00 p.m. and found both her husband and the complainant at home. According to DW2, the complainant then remarked while laughing that she had slept with "Abu" and that Abu would be taken to the police station. She further testified that at about 7.00 p.m. on 6 January 2023, the complainant's mother came to her house accusing her husband of defiling the complainant and demanded to know whether she would support her husband or her brother. DW2 stated that her husband was later arrested. She further testified that her brother later requested her to leave her husband and live with them, but she refused. 14.According to DW2, the dispute between the families originated in 2006, when the complainant's family lived in her house and one of their children died, after which they accused her husband of having sacrificed the child through devil worship. During cross-examination, she confirmed that she left her husband at home when she went to church and that although they resided in the same compound, they also had tenants. This marked the close of the defence case. C. Analysis And Determination 11.None of the parties filed written submissions despite directions issued by this Court in that regard. Nevertheless, this Court will undertake its duty as a first appellate court as settled in Okeno v Republic [1972] EA 32, where the Court of Appeal held that a first appellate court is obligated to subject the evidence to fresh and exhaustive scrutiny and draw its own conclusions, while giving allowance for the fact that the trial court had the advantage of observing the demeanour of the witnesses. 12.Having carefully considered the Petition of Appeal, the evidence on record and the applicable law, the issues that arise for determination are:i.Whether the prosecution proved the offence of defilement beyond reasonable doubt;ii.Whether the alleged inconsistencies in the prosecution evidence were sufficient to create reasonable doubt;iii.Whether the Appellant's defence displaced the prosecution case; andiv.Whether there exists any basis for interfering with the sentence imposed by the trial court. Whether the Offence of Defilement was Proved 13.The Appellant's first three grounds of appeal challenge the sufficiency of the prosecution evidence, alleging that the trial court failed to appreciate inconsistencies in the prosecution case, infringed his right to a fair trial and convicted him despite the prosecution allegedly failing to prove its case beyond reasonable doubt. The determination of these grounds necessarily calls for an examination of whether the essential ingredients of the offence of defilement were established. 14.The offence of defilement is created under Section 8(1) of the Sexual Offences Act while punishment depends on the age of the child as prescribed under the subsequent subsections of Section 8. It is now settled that to sustain a conviction for defilement, the prosecution must prove three essential ingredients namely: the age of the complainant, penetration and the identity of the perpetrator. A trial court must be satisfied that these three ingredients have been proved before convicting an accused. Proof of Age 15.Proof of age is a fundamental ingredient because it determines not only whether the complainant was a child within the meaning of the Sexual Offences Act but also the applicable sentence upon conviction. The Court of Appeal in Mwalongo Chichoro Mwanjembe v Republic [2016] eKLR observed that:The question of proof of age has finally been settled by recent 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 if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. 15.In the present appeal, PW1, the complainant, testified that she was 10 years old. PW3, the complainant's mother, on the other hand, testified that the complainant was born on 15 October 2011. The prosecution, however, produced the complainant's Birth Certificate, which shows that the complainant was born on 15 October 2012. The Birth Certificate was admitted into evidence without objection and its authenticity was never challenged by the defence. 16.The discrepancy between the complainant's own estimation of her age, her mother's recollection of the year of birth, and the date reflected on the Birth Certificate is, in my view, a minor inconsistency which does not go to the root of the prosecution's case. Such discrepancies are common where witnesses testify from memory several months or years after the occurrence of an event. Courts of law only pay regard to material inconsistencies and do not accord much premium to minor inconsistencies which do not undermine the substance of a case. In this case, the minor inconsistencies as to the complainant’s age did not affect the prosecution’s case as the complainant’s age could be ascertained from the birth certificate which is the more authoritative evidence of age. 17.In the circumstances of this case, I am satisfied that the birth certificate ascertained the complainant's age and conclusively established that the complainant was born on 15 October 2012. Consequently, she was 10 years and 2 months old at the time of the offence, thereby bringing the offence within the ambit of Section 8(1) as read with Section 8(2) of the Sexual Offences Act. I therefore find that the prosecution proved the complainant's age beyond reasonable doubt. Proof of Penetration 17.The second ingredient is proof of penetration. Section 2 of the Sexual Offences Act defines penetration as, “the partial or complete insertion of the genital organs of a person into the genital organs of another person." 18.The complainant (PW1) gave a detailed account of what transpired on the material day. She testified that upon finding the Appellant alone in her aunt's house, he instructed her to enter the bedroom where he removed her clothes, removed his private parts which she described as “kidudu” which “he uses to pee”, touched her breasts, sucked her tongue and inserted his penis into her vagina while holding her tightly. She further testified that she could not scream because the Appellant had covered her mouth and that after the ordeal he instructed her to bathe before warning her not to tell anyone. Immediately thereafter, she informed her sister and later disclosed the incident to her mother. During trial, she unhesitatingly pointed at the Appellant in court as the person who sexually assaulted her. 19.The complainant's testimony of the act of penetration was materially corroborated by the evidence of PW5. PW5, the Clinical Officer, produced the complainant's treatment notes, the Post Rape Care (PRC) Form and the P3 Form. The treatment notes indicate that upon examination, the complainant had a perforated hymen, a tear at the 9 o'clock position which was not actively bleeding, tenderness and swelling of the genitalia, whitish vaginal discharge, vaginal pain and a wound on the vagina. The PRC Form, completed shortly thereafter, recorded substantially similar findings, confirming the perforated hymen and genital injuries. Likewise, the P3 Form mirrored the findings contained in both the treatment notes and the PRC Form, and assessed the injuries as having been occasioned by a blunt object approximately six days before the examination. The striking consistency running through these three independent medical documents leaves no doubt that the complainant sustained injuries consistent with recent sexual penetration, thereby lending substantial corroboration to her testimony. 20.The Appellant argues that penetration was not proved. The complainant's evidence describing the insertion of the Appellant's penis and fingers into her vagina was direct evidence of penetration. That evidence was independently corroborated by the medical findings of a broken hymen, vaginal injuries and whitish discharge. In Muganga Chilejo Saha v Republic [2017] eKLR, the Court recognised that children of tender years often use simple expressions such as "dudu", "tabia mbaya" or "he used his thing for peeing" when describing acts of sexual penetration and that such expressions are legally sufficient where the surrounding evidence demonstrates penetration. Further, this Court in Abdallah alias Eddy v Republic [2026] KEHC 9547 (KLR) has affirmed that the inability of such minors to articulate the exact act of penetration is caused by the traumatic nature of their experience thus it, “inhibits their ability to describe exactly what happens. The difficulties are not only linguistic but also psychological and emotional making them shy and confused.” 21.Having re-evaluated the evidence given at trial, there is no doubt in my mind that the ingredient of penetration was also proved beyond reasonable doubt. Identity of the Perpetrator 22.The final ingredient concerns the identity of the perpetrator. Unlike cases involving strangers, the present matter was one of recognition. The complainant knew the Appellant very well as her uncle, whom she referred to as "Abu". Recognition has consistently been held to be more reliable than identification of a stranger. In Anjononi & Others v Republic [1980] KECA 23 (KLR), the Court of Appeal observed that:recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. 22.The complainant consistently identified the Appellant from the very first report to her family members, during police investigations and again before the trial court where she pointed at him as the person who defiled her. PW2, PW3 and PW4 all testified that immediately after the incident the complainant identified "Abu" as the perpetrator. PW6, the Investigating Officer, confirmed that when the matter was reported at Inuka Police Station on 9 January 2023, the complainant consistently stated that it was the Appellant who had taken her into the bedroom and sexually assaulted her. The Appellant himself admitted during his defence that he was well known to the complainant and was indeed related to her through marriage. There was therefore no possibility of mistaken identity. I am consequently satisfied that the prosecution proved the identity of the perpetrator beyond reasonable doubt. Whether the discrepancies were material 24.The Appellant faults the trial court for allegedly failing to appreciate numerous discrepancies in the prosecution evidence. Having independently reviewed the record, I observe that there were minor variations regarding the complainant's age as stated by some witnesses and slight inconsistencies concerning the chronology of reporting and narration of events. Such discrepancies are neither unusual nor unexpected where several witnesses recount a traumatic incident from different perspectives. 25.More importantly, none of the discrepancies relates to the essential ingredients of the offence. The complainant consistently identified the Appellant. The medical evidence remained uniform throughout. The birth certificate conclusively established the complainant's age. The treatment notes, PRC Form and P3 Form consistently confirmed recent genital injuries compatible with penetration. Consequently, the alleged inconsistencies do not affect the substance of the prosecution case. 26.The discrepancies relating to the complainant's age and the dates alluded to by the Appellant are minor and inconsequential. The documentary evidence, particularly the birth certificate, the P3 Form, the PRC Form and the treatment notes, consistently established the complainant's age and the occurrence of the offence. These documents, read together with the oral testimony of the prosecution witnesses, present a coherent and consistent account of the events. The minor inconsistencies in the oral testimony neither go to the root of the prosecution's case nor occasion any prejudice to the Appellant. They do not create any reasonable doubt as to the commission of the offence or the identity of the perpetrator. I am guided by the decision of the Court of Appeal in Richard Munene v Republic [2018] KECA 186 (KLR), where the court held as follows in regards to insignificant inconsistencies which do not occasion prejudice:It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it. 24.Applying that principle to the present appeal, I find that the inconsistencies relied upon by the Appellant are merely peripheral and do not undermine the otherwise cogent, credible and corroborated evidence led by the prosecution. Whether the defence displaced the prosecution case 27.Upon being placed on his defence, the Appellant denied committing the offence. He maintained that the complainant's family falsely implicated him because of longstanding family disagreements dating back to 2006 following the deaths of children whom they allegedly accused him of sacrificing through witchcraft. He further asserted that because he had no children, the complainant's family intended to inherit his property and therefore fabricated the allegations against him. DW2 substantially reiterated this account. 28.While an accused person bears no burden of proving his innocence, the trial court is required to weigh the defence alongside the prosecution evidence. Having done so, I find that the Appellant's defence remained a bare allegation unsupported by any independent evidence. No material was placed before the trial court demonstrating that such family disagreements existed or that they were capable of motivating the complainant, a young child, to falsely accuse her own uncle of so grave an offence. More significantly, the defence failed to explain away the compelling medical evidence confirming recent penetration or the complainant's consistent account from the first report through to trial. The trial court therefore correctly rejected the defence, and I equally find that it did not raise any reasonable doubt. Whether the sentence should be interfered with 29.The Appellant lastly contends that the sentence imposed was harsh and excessive considering his age. Sentencing is primarily a matter within the discretion of the trial court, and an appellate court will only interfere where it is demonstrated that the trial court acted on wrong principles, considered irrelevant factors, failed to consider relevant ones or imposed an unlawful sentence. 30.The complainant's age placed the offence squarely within the sentencing framework prescribed under Section 8 of the Sexual Offences Act. Section 8(2) of the Sexual Offences Act provides,“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 31.The minimum sentences prescribed under the Sexual Offences Act are in recognition of the seriousness of the offences and the potential life-time impact on the victims. These sentences were set by the legislature and they can only be changed through a legislative process. This court is keenly aware that exercise of discretion in sentencing is part of the independence of the judiciary but must underscore that a necessary balance must be achieved so that courts do not upend clear legislative intent in setting deterrent sentences. That discretion must, therefore, be exercised within statutory limits while taking into account the circumstances of each case. 32.The record shows that the trial court considered the Appellant's mitigation before imposing sentence. The state has not placed any arguments before me that would warrant an enhancement of that sentence pursuant to Section 354(3) of the Criminal Procedure Code. I, therefore, find no reason to interfere with the trial court’s sentence. 33.In the premises, I find that the conviction entered by the learned trial magistrate was safe and founded on sound evidence. I equally find no basis for interfering with the sentence imposed. Consequently, the appeal lacks merit and is hereby dismissed in its entirety. The conviction and sentence of the trial court are accordingly upheld. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:the AppellantLinda - Court Assistant