https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8473

Murigi v Republic (Criminal Appeal E002 of 2026) [2026] KEHC 8473 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8473 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E002 of 2026 DR Kavedza, J June 18, 2026 Between Henry Karanja Murigi Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 15th December 2025 by Hon. Z. Abdul (PM) at Kibera Chief Magistrate’s Court, Sexual Offences Case No. S.O E100 of 2023 Republic vs Henry Karanja Murig) Judgment 1.The appellant was charged by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. In the alternative he was charged with committing an Indecent Act with a Child Contrary to Section 11 (1) of the Sexual Offences Act No. After a full trial, he was convicted on the alternative count and sentenced to serve ten (10) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court, but bearing in mind that it never saw the witnesses testify. 4.PW1, the complainant (a minor), testified after voir dire examination that while playing at an abandoned building, the appellant approached him and inserted his ‘dudu’ (penis) into the back of his private part. He told the court that the appellant ‘did tabia mbaya’ to him. The appellant thereafter asked when PW1 would again give his ‘back’ (anus) but he refused. PW1 refused. The appellant then asked PW1 to suck his ‘dudu’. After the incident, PW1 reported the matter to his friends, the security guard, his aunt, and Manson. PW1 confirmed he sees the appellant in the neighbourhood. 5.In cross-examination, PW1 stated the appellant arrived with a young child who could not speak. 6.PW2, OMC, mother of PW1, testified that she was informed by Manson that PW1 had been defiled. Manson reported that PW1 had disclosed the incident in the presence of other children. PW2 found PW1 had been taken to Nemo Hospital and referred to Nairobi Women’s Children Hospital. Due to bleeding, he was taken to Oswald Hospital. The matter was reported at Waithaka Police Station and PW1 was referred to Nairobi Women’s Hospital. PW1 narrated the full incident to her. She confirmed the appellant frequently bought water at their premises. In cross-examination, PW2 confirmed PW1 played at the building with friends. 7.PW3, John Njuguna, Clinical Officer at Nairobi Women’s Hospital, produced the medical documents. Examination revealed no physical or genital injury. The conclusion was normal findings. In cross-examination, PW3 stated there was no discrepancy between the medical report and the history given, which referred to touching of the penis. 8.PW4, Manson Angima, testified that PW1 reported the appellant had attempted to penetrate his anus with his penis. PW4 informed PW1’s mother. He stated the appellant locked himself in his house after being identified. The appellant confessed to attempting to defile PW1. In cross-examination, PW4 confirmed the children did not witness the incident but were told by PW1. 9.PW5, PC Teresia Wanjiru, Investigating Officer, testified that the minor recorded a statement at the station. She noted PW1 was a child with special needs. PW1 reported that the appellant had penetrated his anus. PW1 narrated the incident to his friends after leaving the building. 10.In his defence, the appellant, denied the allegations. He testified that on the material day he attended to fix an aerial at DW2’s house. DW2’s son, who knew him, cried when she left. He bought snacks for the child. Children were playing at a nearby building under construction. Upon leaving, he met a crowd accusing him of defilement and was assaulted by members of the public. He noted the absence of corroborating medical evidence. In cross-examination, DW1 stated he had seen PW1 only twice when purchasing water. 11.DW2, Damaris Mutua, testified that she called the appellant to connect her aerial, which he did. When she left, her son cried and the appellant took him to buy snacks. In cross-examination, DW2 confirmed the appellant arrived around 3:30 pm and she was unaware of subsequent events. 12.Section 2 of the SOA defines an indecent act as: -An unlawful intentional act which causes— any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration; exposure or display of any pornographic material to any person against his or her will. 13.The prosecution was required to prove beyond reasonable doubt the essential ingredients of the offence of defilement contrary to Section 11 of the Sexual Offences Act, No. 3 of 2006, namely the age of the complainant and the commission of the unlawful act. 14.On the first element, PW2 produced birth notifications establishing that the minor complainant (PW1) was born on 9th September 2011. As at 17th August 2024, the material date, PW1 was a child well below the age of eighteen years within the meaning of the Act. This element was conclusively proved by cogent documentary evidence and was not rebutted by the defence. 15.On the second element, PW1 testified after a voir dire examination that while playing at an abandoned building the appellant approached him and inserted his ‘dudu’ (penis) into the back of his private part (anus). The appellant defiled him thrice. Thereafter, the appellant asked when PW1 would again give his ‘back’ private part, to which PW1 refused. The appellant then demanded that PW1 suck his ‘dudu’. After the incident, PW1 promptly reported the matter to his friends, the security guard, his aunt, and Manson (PW4). PW1 further confirmed seeing the appellant regularly in the neighbourhood. 16.Manson (PW4), who was among the first to be informed, testified that PW1 reported the appellant had attempted to penetrate his anus with his penis. PW4 promptly informed PW1’s mother (PW2). The appellant was found at the scene and, according to PW4, locked himself in the house before confessing to the attempt. The complainant gave a clear, consistent and detailed account of the events. The appellant’s own defence placed him at the material location and time, thereby confirming his presence at the scene. 17.On medical examination by PW3, John Njuguna, Clinical Officer at Nairobi Women’s Hospital, no physical or genital injury was detected and the findings were recorded as normal. The absence of injuries does not, however, negate the commission of the indecent act or defilement. The offence was complete upon the appellant’s penis, forming part of his body, coming into contact with the complainant’s anus. The medical history was consistent with the touching and penetration described. 18.Pursuant to the proviso to Section 124 of the Evidence Act, a conviction for sexual offences may properly be founded on the uncorroborated evidence of the victim where the court is satisfied as to his truthfulness and records the reasons for such belief. In the present case, although corroboration was not a legal prerequisite, the evidence of PW1 was substantially supported by independent and circumstantial evidence, including the prompt report to multiple witnesses, the appellant’s presence at the scene, and the surrounding circumstances. 19.The appellant (DW1) in his defence offered a bare denial. He claimed he had attended to fix an aerial at DW2’s house, bought snacks for a child, and was thereafter confronted and assaulted by members of the public. DW2 corroborated only the aerial repair and the purchase of snacks but had no knowledge of subsequent events. The defence was speculative, lacked corroboration on material points, and failed to dislodge the prosecution case. 20.The prosecution evidence was cogent, consistent and mutually reinforcing. The trial court was entitled, both in law and on the facts, to find that the prosecution had proved its case beyond reasonable doubt and to sustain the conviction. The appellant’s defence raised no reasonable doubt as to the veracity of the complainant’s testimony. In the premises, the conviction is proper and is hereby affirmed. 21.The appellant was sentenced to ten (10) years imprisonment. During sentencing, the court considered his mitigation, and that he was a first offender. The Act provides for a minimum sentence of ten (10) years. In my mind, I have no doubt that the sentence imposed was legal and not harsh or manifestly excessive. 22.The upshot of the above analysis is that the appeal is found to be lacking in merit and is dismissed.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026 _______________ D. KAVEDZAJUDGE