https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8512

Isadap v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 8512 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8512 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E035 of 2025 FR Olel, J June 17, 2026 Between Eric Isadap Appellant and Republic Respondent (Being an appeal arising from the conviction and sentence delivered on 29.08.2025, delivered by Hon S.K Arome (PM) in Marsabit MCSO No E004 of 2024) Judgment A. Introduction 1.The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on 24th day of March 2024 at around 1730hrs at [Particulars withheld] area in Marsabit central sub county within Marsabit County, intentionally and unlawfully caused his penis to penetrate the vagina of AT a child aged 15 years. 2.The Appellant took plea and denied the charge faced. The prosecution called five witnesses, and on being placed on his defence, the Appellant gave sworn evidence and called three witnesses to testify on his behalf. B. Prosecution Case 3.PW1 AT stated that she was 15 years old and was a pupil at [Particulars withheld] primary school. She further confirmed that she knew the appellant as he was a friend of her elder brother John. She recalled that on 24.03.2024 at about 5.30pm, she left had left their home heading to her grandmother’s home and as she passed through [Particulars withheld] Primary school compound, she found that appellant standing near grade 7 classroom. After exchanging pleasantries, she turned to walk away, but the appellant proceeded to forcefully grab her, covered her mouth, and pushed her inside grade 7 classroom, where he proceeded to forcefully defile her despite her protestation. 4.When he was done, she told him that she was going to report him to her father, to which the appellant retorted that he had many places where he could move away to. Initially she did not tell anybody about the incident but later on 31.03.2024, after completing her exams she did confide in her mother and told her what had transpired. Her mother proceeded to inform the accused family and area chief, after which the matter was taken up by the police and she was taken to the hospital for examination. Under cross examination she reaffirmed that she knew the appellant since he was her brother’s friend, and reiterated that he had forced himself on her despite her strong resistance. 5.PW2 Charity Gobanai, stated that she was the Assistant Chief of [Particulars withheld] sub location and while in church on 05.04.2024, got information that PW1, who was MT daughter had been defiled by the appellant. She instructed the local NPR to look for him, and they discovered that he had run away to Karare. She called the Area chief of Karare, who traced the appellant and organised for his arrest, after which they went and picked him up and transferred him to Marsabit police station. 6.PW3 CT confirmed that PW1 was her daughter, but usually resided with her grandmother at [Particulars withheld] , while she is away doing menial jobs to sustain them, but would visit them over the weekends. On the weekend of 31.03.2024, she had visited her children, when PW1 confided in her that the appellant had defiled her on 24.03.2024, but she had not informed anybody about the said incident. She in turn informed her husband and he informed area chief, who put in place the motion to arrest the appellant. Under cross examination she confirmed that PW1 initially did not confide in her grandmother and waited for her to come and she was certain that it was the appellant who had defiled her, since he was a person well known to her. 7.PW4 Diba Dika Hago stated that she was a clinical officer at Marsabit County Referral hospital, and had examined PW1 on 03.04.2025, when she was brought to their facility by her mother and the police officer investigating the case. She gave a history of having been defiled on 24.03.2024 and on examination she noted that she was physically ok, and her hymen was torn, though not freshly torn. Other laboratory tests gave negative returns. She filled in the P3 form and PRC form and produced them into evidence. 8.PW5 PC Khadisa Aila attached to Marsabit police station confirmed that on 02.04.2024, she received instructions from Chief Inspector Mabonga to investigate a defilement case and proceeded to summoned PW1 to record her statement, and later had her taken for medical examination at the county hospital. PW1 narrated to her what transpired on 24.03.2024 and had directly implicated the appellant as the person who had defiled her. On 03.04.2024, the appellant was arrested and upon completion of the investigation she preferred the charges he faced in court. She produced PW1 birth certificate as evidence before court to confirm that she was 15 years old at the time of the incident. C. Defence case 9.The appellant was placed on his defence and gave sworn evidence. He stated that he resided at [Particulars withheld] and was a saloonist. He denied defiling the PW1 on the material day or on any other day and affirmed that at the alleged time of the offence, he was at his shop & salon situated at Karare shopping centre. Later he was informed that the [Particulars withheld] area chief was looking for him and when he responded to his summons, he was arrested and taken to Marsabit police station. He denied defiling PW1 and insisted that the indictment placed on him was false. 10.DW2 KMH confirmed that he also ran salon business near xxxxx hospital and had worked with the appellant for a period of about 1 year. He further stated that he had talked to PW1 who confided in him that she had made up the case, in order to pressurized the appellant to befriend her, but did not intend to have the appellant jailed. Under cross examination he admitted that he did not know the complainant, had worked with the appellant for one year, but did not also know his home. 11.DW3 Rapheal Ubani Sales and DW4 Nicodemus Mosor both affirmed that on the material afternoon and evening, they were with the appellant at Karare, where they conducted their business and were just storytelling and chewing miraa. 12.The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and proceeded to convict him under Section 215 of the criminal procedure code. After mitigation, the trial court sentenced the Appellant to serve fifteen years imprisonment. D. The Appeal 13.Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following grounds of appeal that;a.That the learned trial magistrate erred in law and in fact by failing to consider the appellant’s alibi.b.That the learned trial magistrate erred in fact and in law by ruling that the prosecution has proved their case beyond reasonable when the prosecution clearly failed to prove the element of the offence involved.c.That the learned trial magistrate erred in law and in fact when he failed to analyse the testament of the minor if it was the truth or not.d.That the learned trial Magistrate erred in law and in fact by ruling that the prosecution had proved their case beyond reasonable doubt when the cloths that minor allegedly said she was wearing were nor presented as evidence to the court or to the police.e.That the learned trial magistrate erred in law and fact by not analysing the doctor’s report that said the hymen of the minor was not freshly torn.f.That the learned trial magistrate erred in law and in fact by taking the evidence /testament of the minor without considering medical corroboration.g.That the learned trial Magistrate erred in law and in fact by failing to take into account the appellant’s defence.h.That the learned trial Magistrate erred in law and in fact when passing sentence on the appellant without taking into account previous precedents in Kenya.i.That the judgment of the learned trial Magistrate is generally bad in law. 14.The Appellant prayed that his Appeal be allowed, the conviction and sentence be set aside, and he be set free. E. Analysis & Detrmination 15.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanour. This court relies on the finding of the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where they stated thus:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 16.In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows: -“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining whether all or any of the accused has committed any offence or not.” 17.I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the issues for determination are;a.Whether the offence of defilement was proven.b.Whether the sentence should be quashed and/or set aside. i. Whether the offence of defilement was proven. 18.The Appellant was charged with the offence of defilement contrary to section 8 (1) as read together with section 8 (3) of the Sexual Offences Act, No 3 of 2006. The said sections provide that;8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(3)“A person who commits an offence of defilement with a child aged twelve years and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” 19.Three elements to be proven in such a case are;a.Age of the complainant;b.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andc.Positive identification of the assailant 20.On this question of age, I rely on the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR where it was held that:“conclusive” proof of age in cases under the Sexual Offences Act does not necessarily mean a certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases” 21.The victim testified and stated that she was 15 years old. This was corroborated by production of her birth certificate serial Number 2801462 by PW5, the investigation officer. The said certificate confirmed that the appellant was born on 25.01.2009. Age was therefore sufficiently proved beyond reasonable doubt. 22.On the issue of proof of penetration, Section 2(1) of the sexual offences Act defines penetration as follows;“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 23.On whether there was penetration of the victim’s genital organ, it is now well settled that penetration can be proved by direct or circumstantial evidence. The Supreme court of Uganda put it succinctly in Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 which was quoted with approval in Sammy Charo Kirao v Republic [2020] KLR where the court stated;“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’ 24.Unlike other crimes where invariably eye witness evidence is available, it is seldom that eye witness accounts would be available in a sexual offence as the act will always be perpetrated in secrecy away from the public eye. That explains why the evidence to be relied upon more often than not will be the evidence of the victim corroborated by medical evidence (where available) and circumstantial evidence. 23.Section 124 of the Evidence Act, also provides that,“in criminal cases involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 24.PW1 confirmed that the appellant was well known to her and was a friend of her elder brother John. On 24.03.2024, as she was going to her grandmother’s residence, the appellant did confront her while she was passing through [Particulars withheld] primary school, grabbed her by force and pushed her into grade 7 classroom, where he proceeded to force himself on her and defiled her. Her evidence was very specific as she recalled that,“he was wearing white shorts, which he pushed down, and I was wearing a black sweat pant.He pulled and cut the waist seat pant rope, remover it, pulled down my sweat pant upto my knee level and hit the back of my head to make me bed. He then inserted his penis into my vagina. I screamed but nobody came, heard. He finished, wore his shorts, I wore my biker and sweat pants and told him I would report to my dad. He told me even if I said he had many places to move to.” 25.PW1 did not report this incident to her grandmother, but later on 31.03.2024, reported to her mother, when she came home from her place of work. PW4 also confirmed that she examined PW1 at Marsabit county referral hospital on 03.04.2024 and did not note any fresh injury to her private part but her hymen was torn at the 6 O’ clock point. I do find that the evidence of PW1 was cogent and direct to establish the fact of penetration. She knew the appellant, who was a friend of her brother and vividly described what he did to her in broad evening light. It has not been shown that she had ill motive against him and/or had malice towards him to set him up. Her evidence when considered in totality of the facts herein did safely establish penetration and the trial court was not wrong to so hold. 26.The third element to prove is that of identification. PW1 confirmed that she knew the appellant, who was her brother’s friend and the incident occurred at about 5.30pm, when there was ample sunlight to identify him as the culprit. This was a clear case of recognition by persons residing within one village and were known to each other. 27.In defence that appellant submitted that the ingredients of the offence were not proved, but as already demonstrated above, the contrary holds true. Further he stated that the trial magistrate erred in failing to consider his defence, but that too is not true as the same was considered and found to consist of mere denials. DW2 also alleged that PW1 had confessed to him that she had set up the appellant, but under cross examination, he confirmed that he did not know the said complainant. DW3 and DW4 evidence that they were with the appellant on the material evening too must be taken with a pinch of salt, since no material was placed before court to support the said assertion. 28.Considering the totality of the evidence adduced, I do find that the prosecution did ably discharge the burden of proof and established that it was the appellant who defile the complainant. The offence of defilement was therefore proved and his appeal against conviction therefore lacks merit and is hereby dismissed. ii. Whether the sentence passed was harsh and/or excessive 29.Section 8(3) of the sexual offences Act, No 3 of 2006 provides that a person who commits an offence of defilement with a child aged twelve years and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. The trial court did find that PW1 was born on 25.01.2009 and thus was 16 years as the time of the incident. He therefore sentenced the appellant to serve a sentence of fifteen (15) years under Section 8(4) of the sexual offences Act, No 3 of 2006. 30.In Republic Vs Joshua Gichuki Mwangi; Intiative for strategic litigation in Africa (ISLA) & 3 others (Amicus Curiae),{2024} KESC 34 (KLR) the Supreme court reiterated its decision in Muruatetu II that the sentences in the Sexual offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal. 31.In Ndungu Vrs Republic (Criminal Appeal No 57 of 2019),(2025) KECA 1094 (KLR), the court of appeal held that;“The above provision falls into the category of statutory provisions which create mandatory maximum/minimum sentences. Undoubtedly, the legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum sentence is laid down, the sentencing court has no option but to impose a sentence, “not less than” that the sentence provides for. Therefore, the words, “not less than” must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 8(3) of the sexual offences Act, these words must be understood to mean the offence under Section 8(3) is punishable with a minimum of 20 years. 32.The sentence passed is what the law provides for and it has not been shown that the said sentence was excessive and/or harsh nor was there any misdirection by the trial court in handing down the same. Disposition 33.The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed. 34.Right of Appeal 14 days. 35.It is so ordered JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 17TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 17th Day of June, 2026In the presence of:-………………………………………..Appellant………………………………….For O.D.P.P………………………………….Court Assistant