https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12405

JGK v Republic (Criminal Appeal E029 of 2025) [2026] KEHC 12405 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12405 (KLR) Republic of Kenya In the High Court at Thika Criminal Appeal E029 of 2025 NM Orina, J July 30, 2026 Between JGK Appellant and Republic Respondent (Being an appeal against the original conviction and sentence in Sexual Offences case number E043 of 2021 of the Chief Magistrate’s Court at Gatundu by H. D.N Musyoka (SPM) delivered on 6 December 2022) Judgment 1.The Appellant, John Gathekia Karanja was found guilty of committing the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act No. 2 of 2006. The particulars are that on the 21st day of October 2021 in [Particulars withheld] Village in [Particulars withheld] sub county within Kiambu county, the Appellant intentionally caused his penis to penetrate the vagina of L.W.N a child aged four years. He was convicted and sentenced to 50 years imprisonment. 2.Aggrieved by the conviction the Appellant has preferred this Appeal on the following amended grounds of appeal:a.That the Learned Trial Magistrate erred in law by convicting upon evidence based on defective charge, which greatly prejudiced the Appellant;b.That the Learned Trial Magistrate erred in law and fact by convicting the Appellant on evidence that falls short of the threshold required to convict on a criminal charge;c.That the learned trial magistrate erred in law by violating Section 124 of the Evidence Act. 3.This court being a first appellate court its duty entails a re-evaluation of the entire evidence adduced before the trial court and draw its own independent conclusion out of it. This duty is tinkered with the consideration that the court did not have the privilege of seeing or hearing the witnesses as they testified. [See, Okeno v Republic [1973] EA 32. 4.The prosecution relied on four witnesses to support its case while the accused adopted to keep quiet and did not state anything in defence. 5.PW1, L.W.N, giving an unsworn testimony stated that the accused whom she referred to as Uncle JGK , called her baby and then licked her at the back and made her lie down. She further stated that Njeri and Karanja were there behind his house. She testified that the Appellant removed her trouser and told her to close her eyes. He then put a nail in between her legs and she felt pain but could not cry. She told her mother and grandfather what had happened to her which made her mother take her to hospital. 6.Upon cross examination, PW1 stated that she did not know where they were and that her mother told her they were going to hospital. She further stated that her mother told her to say what the Accused had done to her. 7.PW2, MNK, PW1’s mother testified that the Appellant was her cousin and stays at home from the same family. That on the 21 October 2021 she had gone to harvest tea and at 8:00 pm when she had prepared food, she noted that PW1 had difficulties sitting down. PW1 informed her that Uncle Gathekia removed her trouser in the morning, laid her down of the ground behind the house and put nails on her thighs. She proceeded to take PW1 to the hospital at 10 pm. She stated that the doctor attended to the child and gave her drugs and referred her to the police station in Gatundu. She produced the Birth Certificate of PW1, the treatment notes, P3 and PCR forms. The Accused did not cross examine the witness. 8.PW3, Dr Elizabeth Njema, attached to Gatundu Level 5, testified on the results of the examination she conducted on the child. She stated that the clothes had no stains. She further testified that the child had not been influenced by any drugs, that the hymen was not intact and that vaginal penetration was noted. The external genitalia was interfered with. She produced the P3, PCR and Lab Requisition as exhibits in court. 9.Upon cross examination, she reiterated that according to the evidence the child had been defiled. 10.PW4, PC 106816, Fedina Kabuyesi attached to Gatundu Police Station testified that on 22 October 2021 she found a case had been assigned to her of defilement. She called the child and her witnesses. The child told her that she did not go to school on Thursday as the bodaboda that carries was not available. She told her that the Appellant told her to follow him to his place where he removed her clothes and he removed his “Nail” for urinating and then “shoot” (sic) her. The child demonstrated what the accused did with her thing for urinating. She proceeded to record the statement and that of the mother. Treatment notes, lab requisition form, P3 form and PCR form were given to her. The Appellant was brought to the station who had heard that he police were looking for him. The complainant identified the Appellant. 11.Upon cross examination, PW4 stated that there was no spermatozoa detected to warrant a DNA test. 12.Upon close of the prosecution case the trial court found that a prima facie case had been established and the Appellant was put on his defence. The Appellant did not offer any defence or call witnesses. He opted to keep quiet. Analysis and Determination 13.Having gone through the submissions and the trial proceedings, this court finds the following matters for determination:a.Whether the charge sheet was defective;b.Whether the elements for the charge of defilement were sufficiently proved beyond any reasonable doubt by the prosecution;c.Whether the conviction meted was safe;d.Sentence. Whether the charge sheet was defective 14.On the first issue, the Appellant submits that the charge sheet is defective for its failure to state that the alleged act was unlawful and that the evidence adduced was at variance with the evidence tendered during trial. 15.The particulars of the charge read as follows, in verbatim:John Gathekia Karanja: On the 21st Day of October 2021 in Gitwe Village, in Gatundu south sub county within Kiambu County, intentionally caused his penis to penetrate the vagina of L.W.N a child aged four years. 16.Section 134 of the Criminal Procedure Code provides for the structural layout of a charge as:Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 17.Section 8(1) of the Sexual Offences Act provides thusA person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 18.Further, Section 43 of the Sexual Offences Act provides as follows:Intentional and unlawful acts(1)An act is intentional and unlawful if it is committed—(a)in any coercive circumstance;(b)under false pretences or by fraudulent means; or(c)in respect of a person who is incapable of appreciating the nature of an act which causes the offence. 19.Persons incapable of appreciating the nature of an act include circumstances when the person is asleep, unconscious, in an altered state of consciousness, under the influence of medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected, mentally impaired persons or children. 20.The Appellant was charged with the offence of defilement which entails an act of a sexual nature against a child. Whereas the offence of rape entails a lack of consent which would make the act unlawful, the same is not applicable to the offence of defilement as a child is incapable of consenting to the act. For rape, the court in the case of Achoki v Republic (2000) EA that the Appellant has relied on, stated as follows:We suppose it is the lack of consent which makes the act of carnal knowledge unlawful, but the section uses both expressions, that is, "unlawful" and "without consent" and the prosecution would be well advised to use both. Whether the charge be one of rape under Section 140 or attempted rape under Section 141 of the Penal Code , the particulars must nevertheless state that the attempted unlawful carnal knowledge was without consent of the woman or girl. 21.Therefore, whereas consent is a necessary element of the charge of rape, the same is irrelevant for the charge of defilement which the Appellant faced. The charge was hence not defective as framed. Section 5 of the Sexual Offences Act connotes the offence of defilement as being unlawful, ab initio. 22.In any case, the test for determining whether a defect is fatal was espoused in the case of Benard Ombuna v Republic [2019] eKLR in the following words:In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 23.The Court of Appeal further expressed itself in the Case of Peter Ngure Mwangi v Republic [2014] as follows:On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not. 24.It is this court’s finding that the omission did not in any way render any prejudice to the Appellant. The argument raised by the Appellant that the information given to him on the charge alluded to the charge of sexual assault is far fetched and does not hold any water. Even though the Appellant did not offer any defence, he fully participated in the trial and cross-examined witnesses without any difficulties. Whether the elements of the charge of defilement were proven beyond any reasonable doubt. 25.The offence of defilement is created under Section 8(1) of the Sexual Offences Act while punishment depends on the age of the child as prescribed under the subsequent subsections of Section 8. It is now settled that to sustain a conviction for defilement, the prosecution must prove three essential ingredients namely: the age of the complainant, penetration and the identity of the perpetrator. A trial court must be satisfied that these three ingredients have been proved before convicting an accused. Proof of Age of the Victim 26.In Alfayo Gombe Okello v Republic Cr App 203 of 2009 (Kisumu) this court held as follows: -In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1). 15.Proof of age is a fundamental ingredient because it determines not only whether the complainant was a child within the meaning of the Sexual Offences Act but also the applicable sentence upon conviction. The Court of Appeal in Mwalongo Chichoro Mwanjembe v Republic [2016] eKLR observed that: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 parents or guardian or medical evidence, among other credible forms of proof. 27.This court finds that a birth certificate was adduced during trial which demonstrated that the complainant was aged four (4) years at the material time. Proof of Penetration 28.Section 2 of the Sexual Offences Act defines penetration as, “the partial or complete insertion of the genital organs of a person into the genital organs of another person." 29.PW1 testified that the Appellant put a “nail” in between her legs. PW4 also testified that PW1 told her that the Accused put in a nail in between her legs. PW1 also demonstrated to PW4 what happened while stating that the Appellant removed his nail for urinating and then shot her. She also demonstrated to PW4 what the Accused did with her thing for urinating. The court takes cognizance that the complainant who was aged 4 at the material time could not have been in a position to state the biological name of the genital organs as penis and vagina. 30.In Muganga Chilejo Saha v Republic [2017] eKLR, the Court recognised that children of tender years often use simple expressions such as "dudu", "tabia mbaya" or "he used his thing for peeing" when describing acts of sexual penetration and that such expressions are legally sufficient where the surrounding evidence demonstrates penetration. Further, this Court in Abdallah alias Eddy v Republic [2026] KEHC 9547 (KLR) has affirmed that the inability of such minors to articulate the exact act of penetration is caused by the traumatic nature of their experience thus it, “inhibits their ability to describe exactly what happens. The difficulties are not only linguistic but also psychological and emotional making them shy and confused.” 31.Further the medical evidence produced by PW3 sufficiently corroborated the evidence that there was indeed penetration as the hymen was found to not be intact, the external genitalia was interfered with and there was whitish discharge. The medical report sufficiently stated that indeed vaginal penetration had occurred. 32.While it is important to note that many things could lead to the breaking of hymen, this court relies on the testimony of PW2 that stated that she noticed that her child had difficulties sitting down as further corroboration of the evidence of penetration. 33.This court, therefore, finds that the ingredient of penetration was proved beyond any doubt. Identification of the assailant 34.This court notes that PW1 testified that she was defiled by uncle Gathekia. PW1 was known to the Appellant who was at the time staying near their home. PW2 also testified that the Appellant is her cousin. Although the Appellant has alleged that he was framed due to a probable feud between the families, I find this assertion to be an afterthought and nothing more than clutching at straws. The Appellant did not testify or present any evidence when he was put on his defence on this alleged feud. 35.This court further finds no evidence of coaching of PW1. When cross examined by the Appellant, PW1 only stated that she was told to say what the Appellant had done to her. This statement does not in any way leave chance for the Appellant to infer that PW1 was coached. This statement confirms the truthfulness of her assertions from her own experience with the Appellant at the time of commission of the offence. PW2 stated in her testimony that they had been living well with the Appellant and that there was no existing feud between them. Considering the cogent and coherent evidence of PW1 as further corroborated by the evidence of other witnesses and given that the incidence was reported to police soon after it happened, this court finds that the evidence adduced before the trial court sufficiently established the Appellant’s culpability. Whether the sentence meted out was lawful 36.This court is required to establish whether the sentence was well grounded in law. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides, “A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 37.This provision is in recognition of the seriousness of the offence of defilement and that seriousness is further reflected in the graduated punishments for the different ages of the victims with the defilement meted on younger victims attracting more stringent punishment. In my considered view, a trial court does not have discretion to impose a sentence lower than the minimum provided under the law. That would be upsetting clearly provided statutory penalties and usurping the role of the legislature. Any mitigation offered by a convicted person under this law or aggravating factors can only be taken into account in determining whether the person should be handed the minimum sentence or a higher sentence. 38.The Appellant in this case was sentenced to serve 50 years’ imprisonment. This sentence does not accord with Section 8(2) of the Sexual Offences Act and it calls for interference by this court. Section 354(3) of the Criminal Procedure Code empowers this court to enhance a sentence as a first appellate court, in a case where the State has filed a cross appeal or a notice has been issued to the Appellant that his sentence may be enhanced on appeal. In this case the Appellant was issued with a notice of enhancement and its effects explained to him. 39.Considering the age of the victim and the close relationship with the Appellant, I am satisfied that this case calls for a stiffer penalty that will serve as a deterrent. The Appellant preyed on a 4-year-old child who felt safe in his presence as her relative. He does not deserve any mercy. His appeal is dismissed and his sentence is hereby enhanced to life imprisonment. 40.It is so ordered. JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 30TH JULY 2026NABIL M. ORINAJUDGEIn the Presence of:The Appellant Appearing virtuallyMs. Torosi for the StateLinda – Court Assistant