https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12179

JMM v Republic (Criminal Appeal E086 of 2025) [2026] KEHC 12179 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12179 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E086 of 2025 C Akaigwa, J July 29, 2026 Between JMM Appellant and Republic Respondent (Being an Appeal from the whole of the Judgment, Conviction and Sentence of Hon C. K Cheptoo (SPM) in Kilungu Sexual Offences Case No. E008 of 2025, delivered on 3rd December 2025)) Judgment A. Background 1.The Appellant was charged with the offence of defilement, contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between October 2024 and January 2025, at [Particulars withheld] Village, [Particulars withheld] Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of FNM, a child aged 11 years. 2.In the alternative, the Appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. The particulars of the alternative charge were that on the same diverse dates between October 2024 and January 2025, at the same location, the Appellant intentionally and unlawfully touched the vagina of FNM, a child aged 11 years, with his penis. 3.The Appellant pleaded not guilty to the charge, whereupon the matter proceeded to full trial. In support of its case, the prosecution called six (6) witnesses. Upon close of the prosecution’s case, the Appellant was placed on his defence, where he elected to give sworn testimony and also called one witness. 4.The trial court, in a judgment delivered on 3rd December 2025, found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, convicted him accordingly, and sentenced him to life imprisonment. 5.Aggrieved by both the conviction and sentence, the Appellant lodged the present appeal and challenges the decision of the trial court on the following grounds:a.That the learned trial Magistrate erred in law and in fact by failing to find that the burden of proof was not discharged to the required standard.b.That the learned trial Magistrate erred in law and in fact by conducting a defective and incompetent voire dire examination.c.That the learned trial Magistrate erred in law and in fact by misapplying Section 124 of the Evidence Act, particularly by failing to record reasons for believing that the child witness was truthful.d.That the learned trial Magistrate erred in law and in fact by disregarding the Appellant’s plausible defence, thereby violating Section 169(1) of the Criminal Procedure Code. 6.The Appellant consequently beseeches this Court to find merit in the appeal, interfere with both conviction and sentence, quash the conviction, set aside the sentence imposed by the trial court, and make such orders as the justice of the case may require. B. The Evidence in Brief 7.PW1 testified that she lived in the same house with her grandmother, father, her brother E, and the Appellant, whom she described as her cousin. She proceeded to recount the events giving rise to the charge before the trial court. 8.PW1 testified that on the first occasion, she was in the kitchen with the Appellant when he asked her whether she had ever engaged in sexual intercourse, to which she responded in the negative. The Appellant then asked her to accompany him to the bathroom, but she declined. The Appellant thereafter left the kitchen and proceeded to the bathroom to take a shower. Later that night, after dinner, the Appellant instructed her not to go to sleep. After her grandmother and father had retired to bed, the Appellant produced his mobile phone and showed her a video depicting a man and a woman engaging in sexual intercourse. According to PW1, the Appellant thereafter inserted his fingers into her private parts. She protested and asked him to stop, whereupon he ceased and the two eventually went to sleep. 9.PW1 further testified that on the following night, while they were seated in the sitting room, the Appellant began touching her. He once again showed her a video of a sexual nature which he had accessed on YouTube. According to PW1, after her grandmother had retired to bed, the Appellant instructed her brother to go and sleep. He then removed her skirt and undergarments, directed her to bend over, and proceeded to have sexual intercourse with her. PW1 testified that she experienced considerable pain during the ordeal and noticed blood coming from her vagina. She stated that she did not report the incident because the Appellant threatened to beat her if she disclosed what had transpired. 10.PW1 further testified that on a subsequent occasion, while she was proceeding to the bathroom, the Appellant followed her, forced her onto the bathroom floor, and defiled her. According to her, the Appellant thereafter gave her Kshs. 10 and warned her not to disclose the incident to anyone. She stated that the Appellant subsequently continued to demand sexual intercourse from her and proceeded to defile her on an almost daily basis between October 2024 and January in 2025. 11.PW1 testified that she eventually confided in her Home Science teacher regarding the persistent sexual abuse from the Appellant. The teacher reported the matter to the headteacher, who turn informed the area chief. PW1 was thereafter escorted by the teacher and the chief to Salama Police Station, where the matter was formally reported. 12.In his defence, the Appellant gave sworn testimony and denied the allegations levelled against him. He testified that on 5th February 2025, while at home, PW5 approached him and requested that he accompany them to the chief's office. Upon arrival, he was informed that he had allegedly defiled the complainant. The Appellant denied any involvement in the offence and maintained that he did not know the complainant prior to the proceedings. He further stated that the first time he saw the complainant was in court and asserted that she had fabricated the allegations against him solely to get food from her teacher. 13.DW2, the Appellant's grandmother, testified that both the complainant and the Appellant were her grandchildren. She stated that the Appellant frequently visited her home during the daytime. It was her belief that the complainant had been influenced by her teacher to falsely accuse the Appellant. 14.The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for consideration by the Court. C. Issues for Determination 15.From the memorandum of appeal and the submissions, the court deduces the following issues for determination:-i.Whether the prosecution proved the offence of defilement beyond reasonable doubt.ii.Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein.iii.Whether the trial court misapplied Section 124 of the Evidence Act.iv.Whether the trial court disregarded the Appellant’s defence contrary to Section 169(1) of the Criminal Procedure Code.v.Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case. D. Legal Analysis 16.The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32, it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses. 17.The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. i. Whether the prosecution proved the offence of defilement beyond reasonable doubt. 18.The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor), proof of penetration, and positive identification of the perpetrator. These elements are codified under Section 8(1) of the Sexual Offences Act, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.) 19.Section 8(1) and (2) of the Sexual Offences Act provides that:(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)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. a. Age of the Complainant 20.The significance of proving age in sexual offence cases cannot be overstated, as the age of the victim not only determines whether the complainant falls within the statutory definition of a child but also directly informs the applicable sentencing framework under Section 8 of the Sexual Offences Act. 21.The Court of Appeal in Edwin Nyambogo Onsongo v Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... 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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it must be credible and reliable.” (emphasis added). 22.In the present case, the prosecution placed on record the complainant’s birth certificate indicating that she was born on 19th July 2013, which places her at approximately 11 years, 2 months old at the time of the alleged incident in October 2024. This Court is therefore satisfied that the age of the complainant was proved beyond reasonable doubt. b. Proof of Penetration 23.Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another person. 24.In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration:The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is 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. 25.Further, in Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration. 26.PW1, the complainant, gave a detailed account of how the Appellant on several occasions took advantage of her within the confines of her own home, particularly when her grandmother or father were either asleep or away. She testified that this was not a single incident but a continuing course of conduct spanning several months between October 2024 and January 2025, during which the Appellant would demand sexual intercourse on a near daily basis. 27.According to PW1, she lived in constant fear and was unable to report the abuse, as the Appellant had threatened to assault her should she disclose the matter. She further narrated the pain she endured in her genital area and lower abdomen because of the repeated assaults. 28.The complainant’s account of penetration was corroborated by medical evidence adduced before the trial court. PW4, a clinical officer, testified that upon examination of the complainant, he found that her hymen was absent. The PRC Form produced and filed on 5th February 2025 similarly recorded that the hymen was broken. PW5, based on these findings, formed the opinion that the complainant had been defiled. 29.This Court is satisfied that the complainant’s testimony on penetration was consistent, credible, and duly corroborated by medical evidence. The Court therefore finds that the ingredient of penetration was proved beyond reasonable doubt. c. Identification of the Perpetrator 30.The distinction between recognition and identification of a total stranger is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR), recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. 31.More recently, in Abuku & Another v Republic [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an accused means a witness requires less time to make an accurate identification. 32.The complainant’s evidence establishes that she was not dealing with a stranger. She testified that the Appellant was her cousin and a person well known to her, as they lived under the same roof. She further stated that the sexual abuse by the Appellant occurred over a period of several months, between October 2024 and January 2025. PW3, the area chief, also testified that both the complainant and the Appellant were well known to her and lived in the same house. Similarly, DW2 confirmed the familial relationship between the complainant and the Appellant and further stated that the Appellant frequently visited her home during the day, as she was his grandmother. 33.In light of the foregoing, this Court is satisfied that the Appellant was not only well known to the complainant but was positively identified through recognition grounded on prior familiarity and continuous contact. ii. Whether the trial court properly conducted and recorded a valid voir dire examination in respect of the child witness, and the legal effect, if any, of any defect therein. 34.The Appellant contends that the trial court failed to properly record the questions and answers allegedly posed to the complainant during the voir dire examination. However, this Court notes that this assertion is not borne out by the record, as the trial magistrate duly recorded the voir dire examination in a question-and-answer format. The Court will therefore proceed to consider the remaining complaints raised by the Appellant in respect of the voir dire process. 35.The Appellant further takes issue with the learned trial magistrate’s conclusion that the child witness was intelligent and understood the importance of telling the truth and the consequences of lying, notwithstanding her alleged indication during voir dire that she did not know what an oath was. It is also the Appellant’s submission that the voir dire process did not address the critical aspects required by law and was therefore, in his view, a mere formality devoid of substantive evaluation. 36.Subjecting a witness of tender age to voir dire examination is founded under Section 125(1) of the Evidence Act, which states:All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause). 37.Also, Section 19(1) of the Oaths and Statutory Declarations Act has something to do with receiving evidence of a child in the following:Where in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. 38.From a careful re-evaluation of the record, this Court is satisfied that the trial court properly directed itself on the law and duly conducted a voir dire examination of the complainant. The proceedings, as recorded, demonstrate that the trial magistrate posed relevant questions aimed at establishing the complainant’s age, level of intelligence, and understanding of the duty to tell the truth, before arriving at the conclusion that she was possessed of sufficient intelligence and understood the importance of truthfulness under oath. 39.The Appellant’s complaint that the process was defective is not supported by the record. As correctly stated by the Court of Appeal in Kilwake v Republic [2019] KECA 5 (KLR), there is no prescribed or rigid procedure for the conduct of a voir dire examination. The essential consideration is that the process, however conducted, must be sufficient to establish whether the child witness understands the nature of an oath and appreciates the duty to tell the truth. 40.Further, the mere fact that the complainant may have indicated unfamiliarity with the technical concept of an oath does not, in itself, invalidate the exercise, so long as the trial court was satisfied, on the basis of the answers given, that the witness understood the duty to tell the truth. The trial court expressly made such a finding on record before proceeding to receive the sworn testimony. 41.In the circumstances, this Court finds no merit in the Appellant’s challenge to the voir dire process. iii. Whether the trial court misapplied Section 124 of the Evidence Act. 42.The Appellant further faults the trial court for allegedly failing to comply with the proviso to Section 124 of the Evidence Act, contending that the learned trial magistrate did not record reasons for believing that the complainant was telling the truth. 43..Section 124 Evidence Act provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offense, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.Provided that where in a criminal case 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. 44.A proper reading of the whole of Section 124 of the Evidence Act, shows that corroboration is required of evidence by minors. However, corroboration is not mandatory in sexual offences as long as the witness was truthful and reasons are recorded. In Mohamed v Republic [2006] 2 KLR 138 the court stated:It is now settled that the courts shall no longer be hamstrung by requirements of corroboration when the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful. 45.Section 124 is an exception to the rule for corroboration of evidence of children which is based undoubtedly on the good sense and principle of the best interests of the child and the usual occurrence of sexual offences in circumstances where there may be no witness other than the victim. Nevertheless, such evidence must in the interest of the fair trial of accused persons be used sparingly and only where the circumstances fit the situation contemplated in the law that there is no other evidence available but a sexual offence crime should not go unpunished for lack of corroboration of the victim sole evidence. (See Munyua v Republic [2022] KEHC 12387 (KLR) 46.It is true that nowhere in the proceedings immediately following the testimony of PW3 did the learned trial magistrate expressly record that she believed the complainant to be truthful. Be that as it may, the proviso to Section 124 of the Evidence Act is triggered only in circumstances where the sole evidence implicating the accused person is that of the alleged victim. That, however, is not the situation presented in the instant case. The prosecution case did not rest exclusively on the evidence of the complainant. Rather, the complainant’s testimony was materially reinforced by independent evidence, including the medical findings contained in the P3 Form and PRC Form, as well as the testimony of other prosecution witnesses whose evidence lent support to the complainant’s account of the events in question. The case was therefore not one of a solitary accusation standing unsupported by any other evidence. 47.Consequently, this Court is unable to agree with the Appellant that the trial court failed to comply with Section 124 of the Evidence Act. iv. Whether the trial court disregarded the Appellant’s defence contrary to Section 169(1) of the Criminal Procedure Code. 48.It is a cardinal principle of criminal law that the burden of proof in all criminal proceedings rests throughout upon the prosecution and never shifts to the accused person. The standard required is proof beyond reasonable doubt, as articulated in Miller v Minister of Pensions [1947] 2 All E.R. 372, and nothing short of that threshold will suffice to sustain a conviction:The degree of proof beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice. 49.An accused person bears no legal obligation to prove innocence, explain the prosecution’s case, or fill any perceived gaps in the evidence adduced by the State. (See Republic v Vivo & 2 others [2026] KEHC 7588 (KLR). 50.In his defence, the Appellant denied any involvement in the offence for which he was charged. He further stated that he did not know the complainant and that he first saw her in court. This assertion is, however, contradicted by the evidence of PW3, the area chief, who testified that the Appellant and the complainant were well known to her and lived within the same household. DW2 also confirmed the familial relationship between the complainant and the Appellant and stated that they lived together, with the Appellant frequently visiting her home. 51.The Appellant further alleged that the complainant fabricated the allegations against him to get food PW2, her teacher. The Court hastens to add that in referring to the Appellant’s defence, it is not shifting the burden of proof, bearing in mind that the Appellant bore no obligation to prove his innocence. The reference is merely to demonstrate that the defence raised does not cast any reasonable doubt on the prosecution case 52..Upon a careful re-evaluation of the entire record, this Court is satisfied that the prosecution proved its case beyond reasonable doubt. v. Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case. 53.Having carefully re-evaluated the entire evidence on record and having found that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, this Court is satisfied that the conviction entered by the learned trial Magistrate was safe and firmly grounded on the evidence. Consequently, the appeal against conviction is devoid of merit and is hereby dismissed. 54.This Court now turns to consider the propriety and legality of the sentence imposed by the trial court. The question for determination is whether the sentence meted out was consistent with the applicable provisions of the law and whether there exists any basis upon which this Court should interfere with the same. 55.It is trite law that sentencing is the discretion of the trial court. In Shadrack Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence:Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (Seee also Sayeka v R. (1989 KLR 306) 56.Also, Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR restated thus:It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist. (Emphasis added) 57.The Appellant was sentenced to life imprisonment. He contends that he was convicted and sentenced under the wrong provision of the law, arguing that Section 8 of the Sexual Offences Act provides a graduated sentencing framework based on the age of the child, and that he ought not to have been sentenced under Section 8(2). 58.It is his further argument that, at the time of the alleged offence, the complainant was 11 years, 3 months old and therefore fell outside the category contemplated under that provision. He submits that such a distinction is material, as it may determine whether an accused person serves a life sentence or a lesser term of imprisonment. 59.With respect, the Appellant’s argument is misconceived. Section 8(2) of the Sexual Offences Act applies to defilement of a child aged eleven (11) years and below, while Section 8(3) applies to children aged between twelve (12) and fifteen (15) years. In the present case, the complainant was 11 years, 3 months old and therefore squarely falls within the category contemplated under Section 8(2). Even on the narrowest interpretation, a child aged 11 years 11months and 364 days remains within that statutory bracket. The trial court therefore applied the correct provision of the law, and the sentence imposed was lawful. This ground of appeal is without merit and is hereby dismissed. E. Disposition 60.In the upshot, this Court finds no merit in the Appellant’s appeal. The appeal is hereby dismissed in its entirety. The conviction entered by the trial court is upheld as safe, and the sentence imposed is affirmed as lawful. 61.Right of Appeal within 14 days from today.It is so ordered. DATED AND DELIVERED AT MALINDI THIS 29TH DAY OF JULY 2026C. AKAIGWAJUDGEIn the presence of;The Appellant in PersonMs. J Omol for RespondentDriscillah-Court Assistant