https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10140

Huka v Republic (Criminal Appeal E036 of 2025) [2026] KEHC 10140 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10140 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E036 of 2025 KL Kandet, J July 10, 2026 Between Wario Dida Huka Appellant and Republic Respondent (Being an appeal against the original conviction and sentence of the learned Hon G. Okwengu SRM at the Principal Magistrate’s court at Kilungu in Criminal SO case No. E051 of 2023) Judgment 1.The Appellant herein, Wario Dida Huka was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offenses Act. The particulars of the offence were that, on diverse dates between 2nd and 4th day of December 2023 at an unknown time in [Particulars Withheld] in Mukaa sub-county within Makueni, intentionally caused his penis to penetrate the vagina of AK, a child aged 12 years. He was further charged with 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, in that he intentionally touched the vagina of AK, a child aged 12 years with his penis. 2.At the conclusion of the trial, the Appellant was convicted and sentenced to fifteen (15) years imprisonment. 3.Dissatisfied with the trial court’s decision, he appealed against both the conviction and sentence. In the petition of appeal dated 7th July 2025, he framed nine grounds which I have summarized and rephrased as follows: Grounds 1,2,3,4 and 5. 4.The Appellant states that the evidence adduced by the prosecution was insufficient to convict for the offence of defilement, that there were glaring contradictions in the evidence which raised doubt, further that the evidence did not link him in the offence. He also states that he was not identified at the scene of crime and that the complainant’s evidence as to identification was not corroborated. Grounds 6,7,8 and 9. 5.The Appellant in the above grounds alleged that he was not accorded his constitutional rights to a fair hearing, that the court did not consider his defense and his mitigation, that he was not accorded an interpreter and finally that the decision was unreasoned and bad in law. 6.The Appellant and the Respondent filed their respective submissions on the Appeal. The Appellant submitted that the prosecution failed to prove all the statutory ingredients of defilement beyond reasonable doubt; and that the impugned judgement failed to analyze proof of age, penetration and identity. The Appellant through Counsel on record, DM Munyaka cited the case of; Fappyton Mutuku Ngui –v- Republic (2012) eKLR where the Court of Appeal held that:“The ingredients of the offence of defilement must be proved beyond reasonable doubt, and judgement must show how each was established.” 7.On the complainant’s age, the Appellant faulted the trial Magistrate for convicting him without proof of her age. He cited the case of; Hadson Ali Mwachango-V- Republic (2016) eKLR, where the court held that;“Age of the complainant is a critical element in defilement evidence and must be proved by credible evidence such as a birth certificate or medical report”It was also held in Francis Omuroni –V- Uganda cr. App.2 of 2000 that proof of age is a sin qua non in defilement cases. It follows therefore that where age is not conclusively proved, the conviction cannot stand. 8.The Appellant also submitted that the learned trial magistrate erred in law and fact by finding that penetration was proved when the medical evidence did not support such conclusion. To this extend the case of; Mark Oiruri Mose -V-Republic (2013) eKLR was cited. In this case, the Court of Appeal held that;“Penetration must be proved by medical or other credible evidence, and where medical evidence is inconclusive, the court must exercise caution.”According to the Appellant, the evidence of PW3 did not conclusively prove penetration. 9.The Appellant submitted that the medical evidence adduced did not link him to the offence of defilement. He referred to the case of; George Opondo olunga -V- Republic, where the Court of Appeal held that;“Medical evidence in defilement cases must assist in linking the accused to the offence where identity is disputed.” 10.He further stated that the trial court placed undue reliance on the demeanor of the complainant who is a minor and therefore relied on observation rather than evidence. He submitted that the trial court failed to consider his defense and that of DW 2. According to the Appellant, the trial court dismissed his defense without analysis. He also stated that the trial court failed to consider material contradictions and failed to appreciate doubts arising from the prosecution case. The Appellant concluded that the trial court delivered an unreasoned judgement contrary to section 169 of the Criminal Procedure Code. He submitted that the prosecution failed to prove the offence of defilement under section 8 of Sexual Offences Act beyond reasonable doubt. He urged this court to allow the appeal, quash the conviction and set aside the sentence imposed by the learned trial Magistrate. 11.The Director of Public Prosecutions, Kilungu, in opposing the appeal filed submissions on 10th.4.2026 for the Respondent. According to the Respondent, Section (8) of the sexual offenses Act creates the offense of defilement thus “A person who commits an act which causes penetration with a child is guilty of an offense termed defilement. The Respondent submitted that the three critical ingredients forming the offense of defilement were proved before the trial court. These are:a.The age of the complainantb.Penetration as defined by section 2(1) of the Sexual Offenses Act andc.Positive identification of the assailant. 12.On the age of the minor, the Respondent submitted that the charge sheet put the age at 12 years. The evidence of PW2 (the mother) was that the minor was born o 12th.2 2011. She produced a birth certificate to that effect as an exhibit. 13.On proof of penetration, the Respondent submitted that there was ample evidence to prove that it did occur. The minor testified that the Appellant did bad things to her. It was her testimony that, the Appellant took her to his place and removed his penis and inserted it on her vagina and that he did that several times. PW3, a clinical officer testified that he filled a P3 form upon physical examination of the minor. He noted that there was a perforated hymen and a foul smelly discharge and concluded the minor had been defiled. 14.On the positive identification of the Appellant, the Respondent submitted that the circumstances of identification were favorable and free from the possibility of error.PW1 testified that she clearly saw and interacted with the Appellant on several occasions between 2nd and 7th December 2023. This gave her sufficient time and opportunity to observe and recognize him. 15.On whether the Appellant was denied his constitutional right to a fair hearing and whether the court failed to consider his defense, the Respondent submitted that the Appellant actively participated in the proceedings and cross-examined witnesses. At the point of taking plea, the accused was present and was fully informed of the charge. The proceedings were interpreted to him in Kiswahili, the language he indicated he understood best. He gave his defense in the same language. The record does not support the allegation that he was not accorded an interpreter. The Appellant had an advocate on record who did not raise any objections during the proceedings with regard to any language barrier. 16.The record also show that the Appellant’s advocate recalled witnesses for cross-examination, thereby giving the defense a full opportunity to challenge the prosecution case. The trial court therefore demonstrated commitment to safeguarding the Appellant’s right to a fair hearing as guaranteed under Article 50 of the Constitution. Additionally, it was submitted that the Appellant testified on oath and called one witness who was examined, cross-examined and re-examined before the defense case was closed. The trial court, according to the Respondent, considered the defense by the Appellant. 17.The trial court imposed a sentence upon convicting the Appellant. The Respondent submitted that the 15-year sentence for the offense of defilement imposed by the trial court was legally safe and sound as it took into consideration the time the Appellant stayed in remand. 18.The Respondent finally submitted that the instant appeal is baseless, lacks merit and is an afterthought and should be dismissed entirely. 19.In the case of David Njuguna Wairimu v Republic [2010] eKLR, the Court stated as follows:“The duty of the first appellate court was to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There were instances where the first appellate court would, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. There was nothing objectionable in doing so, provided it was clear that the Court had considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”Also see Okeno –V- Republic (1972) eKLR) 20.I have carefully considered this appeal, taking into account the petition of appeal, the record of appeal and the submissions on record filed on behalf of the Appellant and the Respondent respectively. Section 8 of the Sexual Offenses Act, governs the offense of defilement. Section 8 states that:“A person who commits an act which causes penetration with a child is guilty of an offense termed defilement.” 21.Under the Sexual Offenses Act, “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.A child has the meaning assigned thereto in the children Act,2001 (No.8 2001) which states:“Child means any human being under the age of eighteen years” 22.In the instant Appeal, the complainant before the trial court is stated to be a child aged 12 years. She testified as PW1. On 29th February 2024, a Voire Dire was conducted on her by the learned magistrate. Satisfied that she was intelligent enough to give evidence on oath, she proceeded to testify on the events of 2.12.2023. She affirmed knowing the accused / Appellant. The two met at the house of the complainant’s friend called Emily. She stated that the accused/Appellant gave them 50 shillings each. The accused /Appellant was known to give money. She further testified that the accused/Appellant did ‘bad things’ to her. The Appellant had taken her to his place and removed his penis and inserted it on her vagina. He did it severally. He gave her one hundred shillings and told her not to tell anyone. The complainant later informed one Mama Morgan and on the following day she told her mother what happened and the person who ‘raped’ her. She was cross-examined by the accused. She reiterated that she knew the accused, who normally gave children money. The complainant further stated that the accused/Appellant had ‘raped’ her on several other days. She confirmed that the matter was reported and she was taken to hospital. 23.PW2, ANM, the mother to the complainant testified that on 7.12.2023, she had left work from her coffee shop. While in the house, she noticed a mark on her daughter’s (complainant) dress. The complainant told her she was sweating.PW2 saw a tin of Yoghurt but the daughter explained she had picked it. She also said that she was given the yoghurt by one Abigail.PW2 called one Mama Morgan (Catherine) to interrogate the complainant. The complainant told them that she was enticed with yoghurt and that the accused normally gave her sweets and money. The complainant further told PW2 that the accused/Appellant had sexual intercourse with her. On the material day (7.12.2023) while in the company of Mama Morgan, an elder and the complainant, they went to the Appellant’s place. On seeing them the Appellant became wild and started yelling. Members of the public then arrested the Appellant and took him to the Police Station. 24.PW2 further testified that the complainant was born on 2.2.2011. She later produced the minor’s birth certificate in evidence. 25.On cross-examination, PW2 stated that she saw signs that the child had been defiled. She further stated that her daughter (complainant) identified the Appellant at the plot; and that he started yelling at the child. An initiative was taken to arrest the Appellant.PW2 also confirmed that she did not know of the occurrence of the incident, though the accused kept doing it until when he was caught. She denied setting up the accused person. 26.On the request of learned counsel for the Appellant, PW2 was recalled for cross-examination. She stated that on 2nd and 3rd December 2023, she left her children with her neighbor (Mary) who spends at home. She further told court that she saw wet stains on her daughter’s dress. She could not tell whether her daughter was sexually active. She denied ever asking for money from the accused person’s family. 27.PW3 told court she was a business lady and the chairlady of the market. She recalled on 7.11.2023 when PW2 went to her place while crying, stating her daughter had been defiled. They later went to PW2’s place. On enquiry, the child told her that she used to have sexual intercourse with an elderly person whom she referred to as ‘mbaba’. The child said she could identify him. The child further told her she had sexual intercourse with him and that on the first time he gave her yoghurt and bananas and on the second time he gave her 100 shillings. PW3 further examined the child and noted the vagina passage was already open. 28.On cross-examination, PW3 stated that PW2 was her neighbor. She denied any collusion on the matter. She had never seen the accused person before. She reiterated what the complainant had told her. 29.PW4 told court that on 8.12.2023, he was called by PW2 who informed him that her daughter had been defiled. He spoke to the complainant, who stated she knew the person who had defiled. 30.On cross-examination, PW4 stated that he interrogated the complainant. The complainant uttered the words “alifanyiwa tabia mbaya”.PW4 was not an eye witness. He only accompanied the accused to the police station in [Particulars Withheld]. 31.PW5 was PC Fridah Murugi attached to [Particulars Withheld] police post, performing general police duties. She testified that on 8.12.2023 the complainant, accompanied by the mother (PW2), village elder (PW4) and the accused person arrived at the police post where a report of defilement was made. She entered the report on the Occurrence Book (OB). The accused was then arrested.PW5 took the minor to the hospital. 32.A P3 form and a Post Rape Care (PRC) Form were filled at the hospital.PW5 recorded statements. The minor informed her that she was defiled and that the accused had given her yoghurt.PW5 visited the plot where the accused lived in.PW5 thereafter charged the accused. The complainant was 12 years old then. Her birth certificate confirmed her age to that effect. 33.On cross-examination, PW5 stated that she did not arrest the accused. They found her at the police post. According to the minor’s statement no one else saw the incident.PW5 further stated that there was no identification parade as the minor knew the accused person. The complainant had identified the accused to her mother, Chief and village elder. 34.DW1 (accused), on his defense said that he used to work as a casual laborer at Motor-ways construction at Konza, from 7a.m to 4.30p.m. He denied knowing the complainant. He only saw her on the day he was arrested. DW1further stated that he is a Muslim and cannot do such a thing. His religion does not allow. He denied the charges leveled against him. He denied bringing any woman to his house. He also alleged that the mother to the complainant (PW2) asked for one million (1,000,000/-) Kenya shillings and Five hundred thousand (500,000/-) Kenya shillings from his family and that he would be jailed for life if the money was not paid. He also stated that PW2 was arrested for child neglect. 35.On cross-examination, DW1 said he did not know PW1 and PW2 or why they would set him up. He stated that they demanded money after he was arrested. As a casual laborer he used to work when he is needed. He went to work daily though he did not have evidence to that effect. 36.On re-examination, DW1 said that he was at work from 2nd to 4th December, 2023, when the alleged act complained of happened. 37.DW2 Caroline Mwangeli, testified that she knows the accused person. They are neighbors in the same plot. According to DW2, the accused normally left at 6a.m and came back in the evening. She further testified that the accused never brought a girl or woman to his house. She was present when the accused was arrested. The complainant pointed at the accused who was beaten and marched to the police post. 38.On cross-examination DW2 stated that she was always in the house. She reiterated that the accused used to leave in the morning and come back in the evening. She however did not see him on 2. 12.2023. On re-examination she stated that the accused’s door was locked between 2.12 2023 and 4.12.2023. Analysis And Determination 39.As stated herein above, the offense of defilement has three crucial elements which the prosecution must establish:a.Ageb.Penetrationc.Positive identification of the assailant 40.The issue of age of the complainant (PW1) was taken up during the trial. PW2, the mother to the child testified that the complainant was born on 2,2,2011. She produced in evidence the complainant’s birth certificate, which is the primary and official document with regard to the age of the minor. It is therefore clear that the complainant was 12 years old as at 7.12.2023, being the date of the alleged incident. 41.From the evidence on record and also from the submissions filed on behalf of the Appellant, the defence has not challenged the contents of the complainant’s birth certificate. There is no allegation or contrary evidence that the birth certificate tendered in evidence is fake, forged or altered. In the circumstances, I find that the said birth certificate is genuine and as such the minor (complainant) was 12 years old at the time of the incident. The issue of age of the complainant is therefore settled. 42.On the ingredient of penetration and as stated in the case of Mark Oirun Mose –v- Republic (2013) eKLR, this must be proved by medical or credible evidence. Where medical evidence is not sufficient, the court must exercise caution. In the instant case, the complainant was taken to hospital and examined by a doctor. A P3 form and the Post Rape Care Form (PRC) respectively were tendered in evidence. On physical examination the complainant had a perforated hymen and a foul smelly discharge.PW3 (clinical officer) who filled the P3 form noted the above and concluded there was evidence of penile penetration and as such the minor was defiled. In her evidence, the complainant testified that she had sexual intercourse with the accused on several occasions. This supported the observation that the hymen was not freshly broken. PW3 also noted that the minor had a bacterial infection which was likely caused through sexual intercourse. It is therefore this court’s finding based on the medical evidence adduced and the testimony of PW1 that indeed the ingredient of penetration was sufficiently proved. 43.On the identification of the Appellant as the perpetrator, the only evidence on record is that adduced by the complainant. She had disclosed to her mother as well as to PW4 that she knew the person who defiled her. When the complainant was taken to the Appellant’s house in company of her mother, PW4 and an elder, she positively pointed to the accused person as the one who defiled her.DW2 also confirmed in her evidence that indeed the complainant pointed to the accused before he was arrested and taken to the police station. In addition, the evidence of PW1 was that she had sexual intercourse with the Appellant on at least three occasions. She said that the accused gave her yoghurt and cash. This is therefore indicative that the complainant had interacted with the accused person and therefore she could positively identify him. In the foregoing, this court makes a finding that there was no possibility of mistaken identity of the accused person. 44.The Appellant in his defence stated that he did not know the complainant and her mother before this incident. He met both of them for the first time on the date when he was arrested. This being the case, the court finds no credible reason to believe that the accused was set up in this case. There was no prior grudge or dealings between the Appellant and PW2 for purposes of drawing a conclusion that there existed motive to set him up. The evidence on record does not demonstrate that bad blood existed between the two prior to the incident. 45.The Appellant, appeared to suggest that he was not in his place of residence between the 2nd and 4th December, 2023.His evidence and that of DW2 was that he reported to his place of work at 7am and worked up to 4. 30pm.He would only return home in the evening.DW1 did not support this assertion, say by calling a witness from his place of work to corroborate his evidence that he was at work on the material day. He would also have produced his work attendance records (if any were kept) to demonstrate he was not at the scene of the incident. 46.The Appellant also stated that the mother to the complainant (PW2) asked for money from his family. It is noted that this allegation was not proved at the trial. He did not call as witnesses his family members or any of them to support his case on the said allegation. I however find that the said allegation had no bearing on the charges the Appellant was facing since they were made after he was arrested and charged with the offence of defilement. 47.On the Appellants right to a fair trial, I find that the trial was properly conducted by the trial court. The language used, including during cross examination of the prosecution witnesses was Kiswahili which the accused understood. In any event the Appellant had an advocate on record who fully participated in the hearing of the case. Indeed the said Advocate recalled the Prosecution witness for cross-examination. 48.In the end, I find that the evidence adduced against the Appellant was credible and therefore reliable to support a safe conviction. 49.On the sentence, section 8(3) of the Sexual Offences Act provides:“A person who commits an offence of defilement with a child, between the age of 12 and 15 years is liable upon conviction to imprisonment for a term of not less than 20 years” 50.In the case of Republic V Manyeso (2025) KESC 16 (eKLR), the Supreme court pronounced that the sentences imposed by the provisions of the Sexual Offences Act, whether minimum or mandatory, are constitutional and lawful and trial courts would have no discretion to impose sentences other than what is prescribed in those provisions. This was also the submission by the Respondent while relying on Ijakaa V Republic. 51.In the instant case, the minor (complainant) was 12 years at the time of the incident. This means that the Court ought to have imposed a prison term of not less than 20 years. Instead, the trial court sentenced him to 15 years taking into account the time he spent in custody. 52.As observed by the High Court in HCCRA No. E234 of 2023, a number of cases had been processed through the reasoning in Muruatetu 1, that was interpreted to suggest that sentencing is discretionary on the part of the trial court. Between the year 2022 to 2023, emerging jurisprudence interpreted life imprisonment to definite terms of imprisonment. 53.In 2025, the Supreme Court in Joshua Gichuki Mwangi V Republic, Petition No E108 of 2023, held that the mandatory minimum sentences prescribed under the Sexual Offences Act are lawful and courts have no jurisdiction to impose lesser sentences. 54.In the instant case, the child was found to be aged 12 years. The trial court sentenced the accused to 15 years. Noting the date when the Appellant committed the offence and the jurisprudence obtaining at the time, I will hesitate to interfere with the sentence imposed by the trial court. 55.The upshot is that I find no reason to disturb the trial court’s finding on both conviction and sentence Disposition 56.The Appeal on both conviction and sentence is without merit. It is hereby dismissed. JUDGMENT DATED, SIGNED AND DELIVERED ON 10TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn Presence Of:Munyaka For The AppellantMs Musango For The RespondentCourt Asssistant: Jael Nosim