https://new.kenyalaw.org/akn/ke/judgment/keca/2026/968

IMK & another v Republic (Criminal Appeal E078 of 2022) [2026] KECA 968 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 968 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E078 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between IMK 1st Appellant JOZ 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu, (Ochieng. J) dated 14th April, 2020 in HCCRA No. 56 of 2018) Judgment 1.This is a second appeal against the conviction and sentence of IMK and JOZ, “the first and second appellants respectively”, by the Chief Magistrate’s Court at Kisumu. Before that court, the appellants had been jointly charged with the offence of defilement contrary to Section 8(1) as read with Section (4) of the Sexual Offences Act, “the Act”. In addition, the first appellant, faced a second count of deliberate transmission of HIV contrary to Section 26(1) of the Act. In the alternative, they were jointly charged with committing an indecent act with a child contrary to Section 11(1) of the Act. 2.The particulars of the joint count of defilement were that on diverse dates between June and July 2015, in Kisumu East District within Kisumu County, the two appellants intentionally variously and respectively caused their genital organs to penetrate the genital organs, namely the vagina of NA (real name redacted), a child aged sixteen years. In the second count against the first appellant, it was alleged that he, having actual knowledge of his HIV-positive status, willfully engaged in unprotected sexual intercourse with NA and infected her. The alternative joint count alleged that the appellants intentionally committed an indecent act with NA, a minor aged sixteen years by touching her breasts and vagina with their penises. They both returned a plea of not guilty and their trial soon thereafter ensued. 3.The snapshot of the prosecution case was that NA who suffered from mild-moderate mental retardation, was over a period of time defiled by each of the appellants either in the bushes or in their respective houses as she walked home from the place of business of a lady who had engaged her. That each of them would insert their penises into her vagina. As a result of these acts, she became pregnant and was also infected with HIV. Somehow on an occasion, her mother and a community health worker noticed NA walking with some difficulty and with her legs wide apart. They then presented NA to Jaramogi Oginga Odinga Referral Hospital “JOOTRH” for medical examination. 4.The examination disclosed that her hymen was not intact. Although there were no tears or lacerations, white discharge and a urinary tract infection were noted. She also was found to be seven weeks pregnant and had also been infected with HIV. Medical examination of the first appellant established that he was HIV-Positive. The case was then reported to Kisumu police station. The appellants were well known to NA, her parents and most of the witnesses who testified in support of the prosecution case. Indeed, the first appellant was even a relative. It was not therefore difficult for the police to trace and arrest them and charge them with the offences. 5.Placed on their respective defences, they opted for sworn statements of defence but without calling any witnesses. Their defences were limited to the events of the day of their arrests. They otherwise denied committing the offences. 6.In its judgment the trial court focused squarely on whether the prosecution had proved the offence of defilement against the appellants beyond reasonable doubt. The trial court considered the evidence of penetration, relying on the NA’s testimony that each appellant, at different times, inserted his penis into her vagina. This evidence was corroborated by her mother, the community health worker and the medical evidence. That indeed the medical evidence found her hymen not intact, with white discharge, a urinary tract infection and she was seven weeks pregnant. To the trial court these findings provided sufficient proof of penetration. On the identity of the perpetrator(s), the trial court found that NA recognized both appellants, who were well known to her even before the incidents, with the first appellant being even a relative. Her parents also confirmed that both appellants were known to them. The trial court held that the appellants’ recognition eliminated the need for a police identification parade and that the NA’s detailed testimony under cross-examination confirmed she had ample opportunity to see each appellant during the Sexual encounters. 7.The trial court also considered the age of NA which was proved by a baptismal certificate showing she was born on 5th August 1998, making her seventeen years old at the time of the offence, and therefore a minor within the meaning of the Act. 8.As for their defences, the trial court noted that the appellants merely narrated events of the day of their arrest without addressing the charges. The court found their defences inadequate and rejected them. Finally, on sentence, the trial court invoked Section 8(4) of the Act, which prescribes a minimum sentence of fifteen years’ imprisonment for defilement of a minor aged between sixteen and eighteen years. Considering however, the aggravating circumstances, that NA was a vulnerable minor with mild-moderate mental retardation and that the appellants, being known to her, took advantage of her condition, the trial court exercised its discretion and imposed a sentence of twenty-five years imprisonment on each appellant. 9.Dissatisfied with the conviction and sentence aforesaid, the appellants filed a joint appeal in the High Court of Kenya at Kisumu. In their grounds of appeal, they argued that the charge sheet was defective; the charge was not proved; that their constitutional rights under Article 49(1)(f) of the Constitution of Kenya had been violated following the delay in presenting them to court and that Section 144 of the Criminal Procedure Code had been breached by failure to summon Erick alias Bishop, whom they described as an essential witness. 10.The first appellate Court, in dismissing the first appeal in its entirety, held that the divergence between the charge and the evidence led in support thereof did not render a charge sheet defective. On the alleged constitutional violation, the first appellate court found that the delay in arraigning the appellants in court should not automatically lead to their acquittal, but rather entitles them to compensation against those responsible for the delay. On the witness who was not summoned by the prosecution to testify, the first appellate court held that, that witness’s role was limited to procuring NA to go to the second appellant’s house, and since he did not witness the offence, he was not an essential witness. His absence did not therefore prejudice the prosecution’s case. 11.The appellants, still dissatisfied by the judgments of the two courts below, are now before us on a second and perhaps last appeal on the grounds, that the two courts below erred in law by failing to: make a finding that penetration was not proved beyond reasonable doubt; properly weigh the prosecution witnesses’ evidence; not making a finding that DNA testing was decisive in the case; and finally, that the said courts erred in denying them absolute constitutional right to the least severe prescribed sentence as required by Article 2(3), 25(c), 1(3), and 50(2)(p) of the Constitution of Kenya. 12.The appeal was heard in the plenary on our virtual platform by way of written submissions only. When called out, the appellants appeared in person from Kisumu maximum prison while the respondent was represented by Ms. Kigali, learned prosecution counsel. 13.The appellants however submitted on only two issues: first, that the two courts erred in law in not making a finding that penetration was not proved beyond a reasonable doubt. On this they argued that pregnancy and a broken hymen per se were not conclusive proof of penetration, citing several authorities such as P.K.W v Republic [2012] eKLR, Queen v Manuel Vincent Quintanilla [1999] ABQB 769, and Gordon Omondi Manyange - Cr. Appeal No. 109 of 2014. They contended that the medical evidence did not corroborate NA’s testimony and that the two courts below failed to comply with Section 124 of the Evidence Act by not recording reasons for believing NA’s uncorroborated evidence. They further pointed out the inconsistencies and contradictions in her account, including her admission of sexual liaisons with other persons prior, and maintained therefore that DNA testing should have been decisive in resolving evidential gaps and in particular, with regard to penetration. 14.Secondly, they submitted that the two courts erred in law in denying them their absolute constitutional right to the least severe prescribed sentence under Section 8(4) of the Act and Articles 2(3), 25(c), and 50(2)(p) of the Constitution of Kenya. They argued that the minimum sentence of fifteen years was absolute and non-derogable, and that the enhancement based on aggravating factors was unconstitutional. They therefore prayed that in the event their conviction was upheld, the court should consider imposing the least severe sentence of fifteen years, to run from the date of their arrest on 11th August 2015. 15.Ms. Kagali in opposing the appeal, submitted that the prosecution had discharged its burden of proof beyond reasonable doubt. She argued that NA’s evidence, was consistent and credible, and was corroborated by medical evidence, which confirmed that her hymen was not intact and that she had a urinary tract infection with abnormal discharge. Counsel emphasized that NA’s parents also testified that both appellants were well known to them, with the first appellant being a relative, thereby eliminating any possibility of mistaken identity. 16.On the issue of penetration, counsel submitted that NA’s narration, supported by medical findings, sufficiently established penetration. She further contended that the appellants’ defences were weak and failed to cast any doubts on the strong prosecution’s case. Regarding sentence, counsel argued that Section 8(4) of the Act prescribes a minimum sentence of fifteen years’ imprisonment, but the trial court was entitled to impose a longer term in view of aggravating circumstances. NA was a vulnerable minor with mental retardation, and the appellants, being known to her, exploited her condition. Counsel therefore urged this court to uphold both the conviction and the sentence of twenty-five years’ imprisonment imposed by the trial court and affirmed by the first appellate court. 17.We have considered the record of appeal, the grounds advanced by the appellants, the rival submissions, the authorities cited and the law. In a second appeal like this, by dint of Section 362(1)(a) of the Criminal Procedure Code, this Court concerns itself only with issues of law, the issues of fact having been settled in the two courts below. This Court explained this approach in, Dzombo Mataza v Republic [2014] eKLR as follows:“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.” 18.In our view, two issues arise for determination: whether penetration was proved beyond reasonable doubt against the appellants, and whether the sentence imposed was lawful in the light of the constitutional arguments raised. 19.On the first issue, the appellants argued that pregnancy and a broken hymen were not conclusive proof of penetration, and that DNA testing could have been decisive in proving penetration but was not conducted. They relied on P.K.W v Republic (supra) and Pius Arap Maina v Republic [2013] eKLR, where the Court held that the prosecution must prove a criminal charge beyond reasonable doubt, and any evidential gaps must be resolved in favour of the accused. 20.Obviously the submission by the appellants that the prosecution failed to subject them to DNA testing so as to prove that there was a nexus between them and the offence committed is legally untenable. Section 26 of the Act provides inter alia:“where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.” 21.In the case of AML V Republic [2021] eKLR, this Court stated:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or circumstantial evidence.” 22.While in Geoffrey Kionji vs Republic - Cr. Appeal No 270 of 2010, this Court found no reason why the same principle should not be applied in the cases of defilement, and stated thus:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 23.So that DNA testing is not mandatory requirement so as to prove penetration or indeed to find a conviction for defilement. Indeed, the absence of DNA testing to support the fact of penetration or defilement is not decisive as the offence can still be proved by the evidence of the victim or even circumstantial evidence. In any event the provision is not mandatory but permissive and or directory. Therefore, the absence of DNA testing does not negate the proof of penetration, as held in Republic v Oyier [1985] KLR 353, where the Court as already stated held that penetration may be proved by direct or circumstantial evidence, and DNA is not a mandatory requirement. Accordingly, we find no error of law in the concurrent findings that penetration was proved beyond reasonable doubt given the victim’s, mother’s and community health worker’s as well as the medical evidence. 24.On the second issue, the appellants contended that under Article 25(c) and Article 50(2)(p) of the Constitution, they were entitled to the least severe prescribed sentence, which in their view was the minimum of fifteen years under Section 8(4) of the Act. They argued that enhancement based on aggravating factors was unconstitutional. 25.Section 8(4) of the Sexual Offences Act provides interlia:“A person who commits an offence of defilement with a child aged between sixteen and eighteen years shall upon conviction be sentenced to imprisonment for a term of not less than fifteen years.” 26.The wording “not less than” clearly gives the trial court discretion to impose a sentence over and above the minimum sentence prescribed, depending on the circumstances of each case. In the present appeal, both the trial and first appellate courts considered that NA was a vulnerable minor with mild-moderate mental retardation, and that the appellants, being known to her, exploited her condition and defiled her. Besides, they got her pregnant and even infected her with HIV virus. These were indeed very aggravating circumstances warranting a sentence above the minimum prescribed. 27.We therefore find no illegality or misdirection in the sentence of twenty-five years’ imprisonment imposed on each appellant. We are fortified in this conclusion by the decision of this Court, differently constituted in the case of Kilwake v Republic (Criminal Appeal 129 of 2014) [2019] KECA 5 (KLR), where the court was of the view that:“Being so persuaded, we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it…” 28.We also note that that the appellants’ argument hinging on these constitutional prerequisites was not raised in the two courts below. Going by the provisions of Section 361(1) of the Criminal Procedure Code, this ground must of necessity fail. 29.In the end, we are satisfied that the prosecution proved the offence of defilement against both appellants beyond reasonable doubt, and that the sentence imposed was lawful and justified. The appeal is bereft of merit and is accordingly dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.ASIKE-MAKHANDIA.........................JUDGE OF APPEALH.A. OMONDI.........................JUDGE OF APPEALL. KIMARU.........................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR