William v Republic (Criminal Appeal E028 of 2024) [2026] KECA 1476 (KLR) (24 July 2026) (Judgment)

William v Republic (Criminal Appeal E028 of 2024) [2026] KECA 1476 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1476 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E028 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Harrison Kalume William Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Garsen (Thande, J.) delivered on 26th April 2024 in HC Criminal Appeal No. E020 of 2023 Criminal Appeal E020 of 2023 ) Judgment 1.The appellant, Harrison Kalume William, preferred this second appeal seeking to challenge the Judgement of the High Court of Kenya at Garsen delivered on 26th April 2024 by Thande, J. in Criminal Appeal No. E020 of 2023. 2.The appellant was first charged before the Magistrate’s Court at Garsen in Sexual Offence Case No. E032 of 2021 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, Cap. 63A (the Act). The particulars of the offence were that, on diverse dates between 11th and 16th December 2021, at [Particulars witheld] sub- Location, [Particulars witheld] Location in Tana Delta Sub-County within Tana River County, he intentionally caused his penis to penetrate the vagina of M.S., a child aged 14 years. 3.The appellant was also charged with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Act in that, on the same dates and at the same place, he intentionally and unlawfully touched the vagina of M.S., a child of 14 years. 4.According to the complainant who testified as PW3, the appellant, whom she knew as Harrison, and a friend of his brother, approached her with a view to marry her. She declined the request; that, on Saturday 11th December 2021, the appellant went to their home and forced her to follow him to his home in [Particulars withheld]; that, on that day, she slept at the appellant grandmother’s house; that, on the following day, the appellant picked her, and she remained in his house until Thursday 16th December 2021; that they had sex on Monday, Tuesday and Wednesday; that, on Thursday, 16th December, she requested the appellant to take her home, and he did so; that, upon arrival at home, both the appellant and PW3 were handcuffed and taken to Garsen Police Station; and that she was thereafter taken to hospital for examination. She testified that she was born on 26th June 2007. 5.According to the complainant’s mother, SJJ (PW2), after dinner on 10th December 2021, PW3 said that she was going to Sunday school; that, at around 10.00p.m. the complainant’s brother informed her that the complainant was not in her room; that she then called PW1, SKJ, the complainant’s father, to let him know that the complainant was missing; that PW1 reported the matter to the sub- Chief at [Particulars withheld], one Benson Jillo, and the search for the complainant led them to the appellant’s home, who confirmed that the complainant was with him; and that he promised to take her back home. PW1 stated that he was informed by the Elder of [Particulars withheld] Village, one Nasano, of the house where the complainant was taken. In the company of the Village Elder they went to the home of the appellant who admitted that the complainant was at his home, but that she had since left; and that PW1 reported the matter at Garsen Police Station where he recorded a statement. PW2 then called the headman and neighbours who tied up the appellant and the complainant. She stated that police officers came and took the appellant to Garsen Police Station and he was subsequently charged in court. 6.The complainant was examined on 18th December 2021 by PW4, Buya Said Shivo, a Clinical Officer at Garsen Health Centre. He observed that both her labias were normal, there were no lacerations, she had no hymen and she was menstruating. He also found epithelial cells. His conclusion was that the complainant was defiled. 7.PW5, PC Wenslaus Khamasi, a police officer at Garsen Police Station, investigated the case. His testimony was that, after the matter was reported to the police station, he accompanied PW1 to look for his daughter; that this is when they came across the appellant and PW3 tied up by villagers; and that he rescued PW3 but escorted the appellant to the police station where he preferred the charges. 8.The appellant gave a sworn testimony in his defence. He testified that he resided in [Particulars withheld], and that, professionally, he was a boda boda rider. He confirmed that he knew the complainant since they were neighbours, and that he was her brother’s friend; that, on 23rd December 2021, the complainant left her home and went to his home, but that he was not around since he was at [Particulars withheld] Centre watching football; that the complainant slept at the house of Mama Edison (DW2, and that his grandmother questioned him as to why the complainant was in their home. He stated that it is the complainant who wanted him to marry her; and that he was then instructed by his grandmother to take her home and he agreed. He denied having any relationship with the complainant and the fact that they had sex. He attributed the charges against him to a grudge between his brother and the complainant’s brother after his brother cut the complainant’s brother with a knife. He stated that the issue was discussed and the complainant’s brother was compensated, but that the complainant’s mother vowed to teach them a lesson. 9.DW2, SS Said also known as Mama Edison, the appellant’s sister-in-law, reiterated the appellant’s testimony that it is the complainant who visited their village and she allowed her to sleep in her house, but that the appellant was not around; that the following morning, the complainant told her that she had ran away from home because of the problems she was facing; that the complainant had come to her home so that she could get married to the appellant; that she advised the complainant that she was not ready to get married, and she asked her to return home; and that she asked the appellant to take the complainant back home and that is when he was arrested. She stated that it was not true that the appellant defiled the complainant. 10.In her Judgment delivered on 30th November 2022, the learned Magistrate, Hon. L.N. Wasige (Mrs.), PM)) held that the prosecution had proved all the elements of the offence of defilement, namely the age of the complainant by way of a birth certificate; penetration through the evidence of the complainant herself and the medical evidence of PW4; and the positive identification of the appellant as the perpetrator by the evidence of the complainant. Ultimately, the appellant was found guilty accordingly and was sentenced to serve 20 years imprisonment. 11.Dissatisfied, the appellant filed an appeal to the High Court at Garsen vide Criminal Appeal No. E020 of 2023. His grounds of appeal were that Article 49(1) (f) of the Constitution was violated; that the prosecution’s exhibits were unreliable; that the investigations were shoddy; and that the prosecution did not prove its case beyond reasonable doubt. 12.The learned Judge held that the appellant did not dispute the age of the complainant and the fact of penetration as they were reliably proved by way of a birth certificate and medical evidence respectively. The learned Judge observed that the main contestation by the appellant was that he was not the perpetrator, in that the chief’s letter indicated that the person who eloped with the complainant was one Harrison Mwanyale while his name is Harrison Kalume. 13.The first appellate court considered the evidence of PW1, the complainant’s father, which was corroborated by the evidence of PW2, the complainant’s mother, who both testified that the complainant left home on 11th December 2021 and returned on 16th December 2021 in the appellant’s company. The learned Judge also considered the complainant’s testimony when she stated that, the appellant forced her to go to his home and they had sex on Monday, Tuesday and Wednesday; and she dismissed the argument by the appellant about the difference in his name as inconsequential, and an error that cannot found a ground for quashing the conviction. It was further held that the appellant was well-known to the complainant, and that he was not framed. The appellant’s appeal on sentence and conviction was accordingly dismissed. 14.Further dissatisfied, the appellant has now proffered the instant and perhaps the last appeal to this Court. In undated Supplementary Grounds of Appeal filed contemporaneously with written submissions, the appellant appeals on the grounds that:i.the two courts below erred in both law and in fact by failing to appreciate that the prosecution failed to discharge its burden of proof against him on the offence of defilement contrary to Sections 107 and 109 of the Evidence Act;ii.the two courts below erred in both law and in fact by failing to recognize that the trial proceeded without him being supplied with witness statements of PW1 and PW2, thereby violating his constitutional right under Article 50 (2) (j); andiii.the two courts below erred in both law and in fact by failing to consider that the appellant’s defence that the defilement charge was motivated by malice due to grudge of both families hence occasioning a miscarriage of justice and violation of the right to fair trial guaranteed under Article 50 (2) (k) of the Constitution. 15.We heard this appeal on 3rd February 2026. The appellant appeared in person while learned prosecution counsel Mr. Omariba appeared for the respondent. Both parties confirmed filing their respective submissions, which they entirely relied on without oral highlights. 16.The appellant faulted the two courts for placing reliance on the absence of hymen as proof of penetration and cited the decision of this Court in Fappyton Mutuku Ngui vs Republic (2014) KECA 570 (KLR) for the proposition that the mere absence of a hymen does not conclusively prove penetration, nor does its presence disprove penetration; and that, therefore, the lack of virginity cannot be a legal basis to infer sexual penetration in the absence of eye witness’ testimony, without forensic findings which link the alleged crime to an accused, and as was held in Evans Wambugu Musyoka vs. Republic (2019) eKLR that the status of virginity is a moral, and not legal question. The appellant questioned why the complainant did not raise any alarm when she was allegedly taken by force from her home; and that failure to do so cast doubt on the credibility of the complainant’s version of events. 17.As to the failure of the prosecution to furnish him with its witness statements of PW1 and PW2 timeously, the appellant submitted that this denied him the opportunity to adequately prepare his defence and cross-examine the witnesses so as to test their credibility. The appellant argued that this violated his right to a fair trial, which is a sufficient ground to warrant the conviction to be quashed; and that it can only be construed that the complainant left home voluntarily rather than due to victimisation. Reference was made to the decision in Joseph Mwendwa Mutunga vs. Republic (2015) eKLR in which the court observed that failure to raise an alarm or seek assistance when the opportunity is available casts doubt on the credibility of a complainant’s version of events, especially when alleging coercion or force. 18.The appellant further submitted that the defilement charges were motivated by a grudge between the two families after his brother and the complainant’s brother had a violent altercation. 19.The appellant also faulted the prosecution for not calling the Assistant Chief of Idsowe sub-location, who it was said played a central role in tracing the complainant; that the evidence of the Assistant Chief would have been crucial in shedding light as to who Harrison Mwanyale was, being the person he indicated in his letter as the person who was with the complainant; and that the failure to call this Assistant chief can only lead to the conclusion that, had he been called, his evidence would have been adverse to the prosecution’s case as was held by the predecessor of this Court in Bukenya & others vs. Uganda (1972) EA, 549 20.Finally, the appellant submitted that it was erroneous to not consider DW2’s evidence, and who testified that the complainant voluntarily went to his grandmother’s house to look for him; that this negated the inference of force or coercion by him; and that his involvement arose when he was asked to return the complainant home, which he did in good faith. 21.The appellant urged that the appeal be allowed; and that the conviction and sentence be set aside. 22.The respondent relied on written submissions dated 27th November 2025. It was submitted that the prosecution discharged its burden of proof by establishing that the appellant defiled the complainant; and that the complainant’s narrative of the chronology of events leading to the defilement was consistent. On identification, it was contended that the appellant was well known to the complainant since he was her brother’s friend, and that the appellant tried to convince her to marry him, and therefore, this was a case of recognition rather than of identification of an assailant. As to the age of the complainant, it was submitted that it was proved by way of a Birth Certificate; and that penetration was established by the medical evidence of the Clinical Officer who testified that the complainant’s hymen was absent, which then corroborated her testimony that she was defiled. Reliance was placed on the decision in George Opondo Okoth vs. Republic (2019) KEHC 3854 (KLR) that laid down the ingredients of defilement which, it was submitted, were sufficiently established. 23.As to whether the appellant’s defence was considered, it was held that the same was a sham, and so was his alibi evidence, which was an afterthought. The prosecution contended that the trial court analysed the days alleged to have been the dates of the offence and found that DW2 was not in the same house with the appellant and, as such, she could not have witnessed the offence. The respondent posited that the prosecution’s case was not dislodged by the alleged alibi defence, and we were accordingly urged to uphold the decisions of the two courts below and, consequently, dismiss the appeal. The decision of this Court in Yusuf Shiunzi vs. Republic (2019) KECA 963 (KLR) was cited for the proposition that, where an alibi defence does not dislodge the prosecution case, an appellate court would have no alternative but to uphold the decisions of the court(s) below. 24.On the issue of the existence of an alleged grudge between the appellant’s brother and the complainant’s brother, it was submitted that this line of defence was rebutted by DW2, who confirmed that there was no grudge between the two families. 25.Finally, on the issue of sentence, it was submitted that the sentence meted out on the appellant was lawful and in accordance with Section 8(3) of the Sexual Offences Act; that sentencing is a matter of discretion of the trial court, and a second appellate court would have no reason to interfere with the sentence passed by the trial court, unless the trial court overlooked material factors, or irrelevant factors were considered or the sentence was illegal. For this submission, regard was had to the decision of this Court in Manyeso vs. Republic (2023) KECA 827 (KLR and of the predecessor of this Court in Wanjema vs. Republic (1971) EA 493. The respondent accordingly prayed that the appeal be dismissed in its entirety. 26.This is a second appeal, and by dint of Section 362(1)(a) of the Criminal Procedure Code, this Court concerns itself with matters of law only, the issues of fact having been settled in the two courts below. The Court explained its approach in a second appeal as follows, in Dzombo Mataza vs. Republic (2014) KECA 831 (KLR):“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 27.This Court also succinctly explained this approach in Chris Kasamba Karani vs. Republic (2010) KECA 478 (KLR) as follows:“…. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior Court on fact unless it is demonstrated that the trial court and the first appellate Court considered matters they ought not to have considered or that they failed to consider matter they should have considered or that looking at the evidence as a whole they were plainly wrong decision, in which case such omission or commission would be treated as a matter of law.” 28.We have carefully considered the record of appeal, the written submissions, the authorities cited by both parties and the law. In our view, the issues that fall for our determination are: whether the prosecution discharged its burden of proof in establishing the offence of defilement; whether the appellant’s defence was considered; and whether the sentence meted out was lawful and proper. 29.First, we observe that the appellant raised the issue that certain crucial witnesses were not called by the prosecution, which could only lead to the inference that the failure to call them would have had an adverse inference on their case. It is trite law that this Court, sitting as an appellate court, cannot consider a matter of law that has been raised for the first time on a second appeal. This Court in Alfayo Gombe Okello vs. Republic (2010) eKLR underscored the importance of raising all issues in contention at the earliest opportunity at the trial as follows:“…… the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 30.In Sudi Mnalo Mweke vs. Republic (2023) KECA 1527 (KLR), this Court identified itself with the holding by the predecessor to this Court in Alwi Abdulrehman Saggaf vs. Abed Ali Algeredi (supra) where, in its holding, the Court laid down the guiding principle that the course of taking on appeal a point of law which has not been argued in the court below ought not to be followed unless the court is satisfied that the evidence upon which they are asked to decide established beyond doubt that the facts, if fully investigated, would have supported the new plea. The justification for that holding was that:“The appellate jurisdiction is conducted in relation to certain well-known principles and by familiar methods. The issues of fact and law are orally presented by counsel. In the course of the argument it is the invariable practice of the appellate tribunals to require that the judgements of the judges in the courts below shall be read. The efficiency and authority of a Court of Appeal, and especially a final Court of Appeal, are increased and strengthened by the opinions of the learned Judges who have considered these matters below. To acquiesce in such attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the judges in the courts below.It (has) been clear for nearly a century and perhaps more, that the litigant could not take a completely new point of law for the first time on appeal and the Court of Appeal had no jurisdiction to decide a point which had not been subject of argument and decision in the county court.” 31.The rationale for not raising new points of law for the first time on appeal were also underscored by Forbes, VP. in Alwi A Saggaf vs. Abed A Algeredi (1961) EA 767 CA 610 as follows:“… these are assumptions which were never tested at the trial. The minds of the parties simply were not directed to this issue which, apparently, was raised by counsel for the respondent for the first time in his reply at the end of the hearing of the first appeal. In the circumstances, it appears to me that the appellant had no fair notice of this issue, and that the court cannot be satisfied that the facts, if fully investigated, would have supported the new plea.In my view, accordingly, the learned judge ought not to have allowed this issue to be raised, or to have decided the appeal on it.” 32.For the foregoing reasons, we find and hold that we are divested of the power to consider the complaint that the prosecution case was not established on the ground that it failed to call crucial witnesses at this point in time. 33.On proof of the offence charged, the appellant was charged and convicted for the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act, which provides:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 34.In order to secure a conviction for the offence of defilement, the prosecution needs to prove the age of the victim, that penetration occurred, and the positive identification of the assailant. This was reiterated by this Court in John Mutua Munyoki vs. Republic (2017) KECA 376 (KLR) that: -“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:i.The victim must be a minor, andii.There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.” 35.We hasten to add that the issue of the complainant’s age and penetration, which are matters of fact were settled by the two courts below. The two courts held that the same were sufficiently established. However, it suffices for us to state that her age was established by the oral evidence of the complainant who testified that she was born on 26th June 2007. The date was further corroborated by the Birth Certificate produced by PW2, the complainant’s mother. As for penetration, it was conclusively established by the oral evidence of the complainant who testified that, for the period between 11th and 16th December 2021 when she stayed with the appellant, they had sexual intercourse for three days, between Monday and Wednesday. Any doubt to this testimony was erased by the medical evidence of PW1, the Clinical Officer who examined the complainant, and stated that indeed the complainant’s genitalia showed that there was penetration. 36.Turning to the legal issue of identification, the evidence on record undoubtedly points to the fact that the appellant was not a stranger to the complainant and her family. In his defence, he confirmed that there was a grudge between the two families arising from a previous altercation between his brother and the complainant’s brother. Further, the complainant knew the appellant as her brother’s friend. 37.That aside, the complainant testified that the appellant picked her from her home on the night of 11th December 2021 and took her to his home where she stayed for 4 days. During that period, they had sexual intercourse on three consecutive days, Monday, Tuesday and Wednesday. PW1 sought help from authorities to locate the complainant and eventually traced her at the appellant’s home but not at his grandmother’s house. In any event, it is the appellant who returned the complainant home after sensing that continuous holding of the complainant in his house would get him into further trouble. 38.Therefore, the identification of the appellant was by way of recognition, which is more assuring and convincing as was held by this Court in Reuben Taabu Anjononi & 2 Others vs. Republic (1980) KECA 23 (KLR) thus:“This was, however, a case of recognition, not identification, of the assailants; 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.” 39.Further in Lesarau vs. Republic 1988 KLR 783, this Court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. The complainant recognition of the appellant as the perpetrator was also by his name, ‘Harrison’. Although the appellant refutes that he is not one and the same person as Harrison Mwanyale, the name appearing in the Assistant Chief’s letter, he confirmed having been with the complainant for the period in question, a fact that was corroborated by DW2. Furthermore, it is the appellant surrendered the complainant back home to her parents. 40.The appellant argued that if it was factual that he took in the complainant, she did it willingly since she did not resist. He further argued that, during the alleged sexual intercourse, the complainant did not try to scream. It is trite law that a minor cannot consent to sexual intercourse. In Mwika vs. Republic (2025) KECA 1400 (KLR), this Court held that:“We also hold, just as did the two courts below, that the appellant’s defence that he was framed by the complaint’s family or that GK willingly engaged in sex, had no basis and was ousted by the strong prosecution evidence that established the offence of defilement. In any case, Section 42 of the Sexual Offences Act provides that a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. It is trite law that a minor is deemed to be incapable of consenting. GK, being 14 years old lacked capacity to consent to engaging in any sexual acts with the appellant. She is also a person living with mental disability.’’ 41.As at the time when the appellant testified, which was a year after the offence, he was 20 years old. It then follows that he was 19 years old or thereabouts as at the time of the incident. This placed the age difference between him and the complainant at 5 years. The appellant having attained the age of majority ought to have known better than taking advantage of the complainant, who was in her teenage years and needed guidance. It matters not if she was facing an alleged difficult situation at home, which is not uncommon with children of that age. The fact remains that she was a minor and did not have the capacity to consent to having sexual relations. 42.As to whether the appellant’s defence was considered, the learned Judge rendered herself thus:“ 13.The Appellant submitted that the trial Magistrate did not consider his defence. The record shows that the trial Magistrate did in fact consider the Appellant’s defence. She stated that the Appellant was arrested immediately upon taking the Complainant back home as he and not his grandmother was staying with her at his house. As regards the grudge, he claimed existed after his brother cut the Complainant’s brother with a knife, the trial Magistrate found between the same to be an afterthought. She further found that claim not credible as the evidence of DW2 was that there was no grudge between him and the Complainant’s parents. Additionally, the Trial Magistrate found DW2’s evidence as calculated to get the Appellant of the hook as given that they did not live in the same house, there was no way DW2 would have known the says the Appellant had the Complainant in his house. After considering the Appellant’s defence, I find that the trial Magistrate found, and correctly so, that the Appellant’s defence did not shake the prosecution case.” 43.It is therefore not factual that the appellant’s defence was not considered. The learned Judge ably analysed his defence, and found it to be unmeritorious. We find no reason to fault this conclusion as, indeed, the appellant’s defence did not oust the strong prosecution evidence. 44.On the issue of sentence, the appellant complains that what was meted on him was harsh and excessive in the circumstances. Section 8(3) of the Sexual Offences Act provides that:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 45.The section is couched in mandatory terms that a person who commits the offence of defilement against a minor aged between 12 and 15 years shall be sentenced to a minimum of 20 years imprisonment. The sentence meted on the appellant was therefore lawful. We also take to mind the provisions of Section 361(1)(a) of the Criminal Procedure Code which states that:A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section-a)on a matter of fact, and severity of sentence is a matter of fact; or 46.And, for these reasons, we are unable to set aside the sentence of 20 years imprisonment. 47.For the foregoing reasons, we find that the prosecution proved its case beyond reasonable doubt. Accordingly, we hereby uphold the decisions of the two courts below. Consequently, we find that this appeal lacks merit and is hereby dismissed in its entirety. Accordingly, we uphold the Judgment of the High Court of Kenya at Garsen delivered by M. Thande, J. on 26th April 2024. 48.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A. K. MURGOR…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR/