JBK v Republic (Criminal Appeal E139 of 2022) [2026] KECA 1202 (KLR) (26 June 2026) (Judgment)

JBK v Republic (Criminal Appeal E139 of 2022) [2026] KECA 1202 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1202 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E139 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between JBK Appellant and Republic Respondent (Appeal from the Judgment of the High Court at Eldoret (Mrima, J.) delivered on 20th December 2018 in HCCRA No 80 of 2015) Judgment 1.The appellant, John Bor Kisorio, was charged with the offence of defilement contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act. Particulars of the charge were that on 25th July 2016 at [Particulars Withheld] area in Eldoret East Sub County within Uasin Gichu County, the appellant intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of CC, a child aged 9 years. 2.The appellant faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, by causing his genital organ (penis) to come into contact with the genital organ (vagina) of the said child. 3.By a judgment dated 5th September 2017, the appellant was convicted of the main charge of defilement and sentenced to life imprisonment. His appeal against conviction and sentence was dismissed by the High Court at Eldoret on 20th December 2018. 4.Being aggrieved by the decision of the High Court, the appellant has come to this Court on a second appeal. 5.In his initial grounds of appeal, the appellant stated that the elements of the offence of defilement were not proved, asserting that the medical evidence tendered was inconclusive. In the supplementary grounds filed alongside his submissions, the appellant states that he ought to have been charged with the offence of attempted incest and not defilement; that the voire dire examination conducted by the trial court did not meet the required standard; that the evidence adduced by the prosecution was largely inconsistent and contradictory; that crucial witnesses were not called; and that his defence was disregarded by the two courts below. The appellant further complains that the sentence meted against him is excessive. 6.This is a second appeal and our remit is, as set out in section 361(1)(a) of the Criminal Procedure Code, confined to examination of matters of law. In the submissions filed on behalf of the respondent, reference was made to this Court’s decision in Karingo v Republic [1982] KLR 213 where it was held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 7.Before considering the ingredients of the offence of defilement, we need to dispense with the ground of a preliminary nature raised by the appellant that he was charged with the wrong offence. In this regard, the appellant submits that he ought to have been charged with the offence of attempted incest and not defilement. 8.The offence of incest by a male is created by section 20 of the Sexual Offences Act which provides as follows:1.Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than 10 years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or indecent act was obtained with the consent of the female person.2.If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years. 9.In its decision in MW v Republic [2020] KECA 944 (KLR) this Court stated the following:“Section 20(1) of the Sexual Offences Act outlaws human sexual activity between family members or close relatives. This typically includes sexual activity between people of consanguinity and those related by affinity. The section categorizes incest into those committed by male and female persons. In the case of the former, it is incest if a male person does an act which causes penetration with a female person who, to his knowledge, is his daughter, granddaughter, sister, mother, niece, aunt or grandmother.” 10.The appellant contends that he ought to have been charged with the offence of attempted incest, which carries a minimum sentence of ten years. The appellant’s assertion in this regard, is based on the fact that the minor was his stepchild. It is however our considered view that a valid conviction for defilement, cannot be invalidated by the fact that the accused person could have been charged with incest or attempted incest. The appellant’s plea that he was charged with the wrong offence is therefore without basis and is rejected. 11.Having affirmed that the appellant was properly charged with the offence of defilement, we will now determine whether the elements of the charge were proved. 12.There are three ingredients attaching to the offence of defilement namely; the age of the victim, penetration and identification of the offender. 13.Regarding proof of the age of a minor in sexual offences, this Court in its decision in Mwalengo Chichoro Mwajembe v Republic [2016] eKLR stated thus:“…the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parent or guardian or medical evidence or other credible forms of proof.” 14.The complainant in this case told the trial court that she was nine (9) years old, and the age assessment report placed her age at between 8-10 years. The age assessment was conducted by way of radiography, which is an acceptable medico-scientific method. Although the report did not give a specific age, the age of 8-10 years in the age assessment report falls within the age limit of below 11 years provided in section 8(2) of the Sexual Offences Act. 15.Regarding the element of penetration, the law is clear that even the slightest penetration of a female sex organ by a male sex organ is adequate. In Erick Onyango Ondeng v R [2014] eKLR a decision relied upon by the first appellate court, this Court stated the following:“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.” 16.According to the P3 form produced before the trial court, the minor had injuries on the left wrist and left leg; her hymen was ruptured at 3 O’clock and 9 O’clock; there was redness on the labia minora; a whitish vaginal discharge and a few pus cells.Although no spermatozoa were seen, this is not a requirement for purposes of proving penetration (see Mark Oriri Mose v R [2013] eKLR). In this case, there was medical evidence proving penetration. In our view, there was adequate evidence of penetration presented by the prosecution. 17.We now turn to the issue of identification of the offender. The facts of the case as narrated before the trial court were that the minor, a standard 3 pupil, was the appellant’s step-child. On the material day, the minor’s mother left home to go and buy vegetables, leaving the minor and her younger sister at home. The appellant came home drunk, took the minor to his bed and defiled her. Upon coming back home, the minor’s mother found the appellant defiling the minor. Upon being busted, the appellant fled the house naked. He was later apprehended and arraigned in court. 18.In his unsworn statement before the trial court, the appellant claimed to have been framed by one ‘Mama Chebii’ who we note did not feature anywhere in the trial proceedings. On its part, the prosecution called five (5) witnesses, including the minor and the doctor who produced the P3 form. 19.Although the appellant took issue with the manner in which the trial court conducted the voire dire examination, the record shows that the minor was taken through adequate examination to demonstrate her understanding of an oath and the importance of telling the truth. 20.The minor positively identified her assailant whom she referred to as ‘baba’. As held by this Court in Samuel Warui Karimi v R [2016] eKLR the purpose of conducting a voire dire examination in a criminal trial is to protect the guaranteed right to a fair trial. We are satisfied this was achieved. 21.Both the trial court and the first appellate court applied the required caution on reliance on the evidence of a minor to sustain a conviction. Section 124 of the Evidence Act envisages a conviction in sexual offences on the uncorroborated evidence of the victim. The complainant was consistent in her evidence about how she was defiled by the appellant, who she knew as ‘baba.’ Just like the two courts below, we are satisfied that the identification was proper. 22.Regarding the ground that the prosecution failed to call some witnesses, we revert to section 143 of the Evidence Act, which allows the prosecution to determine the witnesses to call in any particular case. 23.On choice of prosecution witnesses, this Court in its decision in Mwangi v Republic [1984] KLR 595 stated that:“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.” 24.We note that the mother of the complainant was not called as a witness. However, this did not weaken the prosecution case as sufficient evidence was adduced to prove all the ingredients of the offence. 25.The appellant alleged that there were contradictions in the evidence adduced by the prosecution. He however did not point out these discrepancies. 26.On the ground of severity of the sentence, the only thing to say is that the appellant received the minimum sentence prescribed by law, and as held by the Supreme Court in Republic v Manyeso [2025] KESC 16 (KLR) and Republic v Ayako [2025] KESC 20 (KLR) where a minimum sentence is imposed by statute, courts have no room to tinker with such a sentence. 27.In conclusion, the appellant’s appeal fails on both conviction and the sentence. It is dismissed in its entirety. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb……………………………………JUDGE OF APPEALW. KORIR……………………………………JUDGE OF APPEALL.M. NDOLO…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR