https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12014

JMN v Republic (Criminal Appeal E031 of 2024) [2026] KEHC 12014 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12014 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E031 of 2024 MW Mutuku, J July 30, 2026 Between JMN Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. Geno. Okwengu (SRM) in Kilungu MCSO No. E018 of 2023) Judgment 1.This is an appeal from the Judgment of the trial court, Hon. Geno Okwengu (SRM) in Kilungu MCSO No. E018 of 2023. The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 2.The particulars of the offence were that the appellant, on diverse dates between January 2023 and 27th March 2023 at [Particulars Withhheld] Township, [Particulars Withhheld] Sub- County within Makueni County intentionally caused his penis to penetrate the vagina of E.M.S, a child aged 7 years. 3.The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that the appellant, on diverse dates between January 2023 and 27th March 2023 at [Particulars Withhheld] Township, [Particulars Withhheld] Sub- County within Makueni County intentionally caused his penis to penetrate the vagina of E.M.S, a child aged 7 years. 4.The appellant was convicted of the offence of defilement and was sentenced to 25 years' imprisonment. 5.The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:a.That the learned Magistrate erred in law and facts in holding that the prosecution had proved its case beyond reasonable doubt against the appellant whilst there was no such evidence to prove thereby deciding the case against the weight of the evidence.ii)That the learned Magistrate erred in law and facts in in ignoring a cardinal principal in criminal law and procedure that the burden of proof lies in the prosecution and that they must prove each and every ingredient of the charge beyond reasonable doubt.iii)That the learned Magistrate erred in law and facts in and failed to make a finding that there existed some doubts in the prosecution case and further failed to make a finding thereof that the benefit aforesaid was to be given to the appellant ad erred in law in failing to acquit the appellant as a result thereof.iv)That the trail magistrate erred in convicting the appellant without considering that the medical evidence was not conclusive.v)That the trail magistrate erred in convicting the appellant without considering that no other witness came to court to prove what PW1 claimed and as such the evidence remained that of a single witness.vi)That the learned magistrate erred in law and facts by failing to make due regard to the material contradictions, discrepancies and inconsistences in the prosecution case thereby reaching a wrong decision causing miscarriage of justice. 6.The appellant was arraigned in court on 31.03.2023, where he pleaded not guilty. 7.When the case commenced for hearing, the court carried out voire dire for the minor and found her to be intelligent enough to give sworn testimony and to understand the meaning of an oath. She testified as PW1. She recalled that on 27th January 2023, when her mother went to shower, her dad showered and took off her clothes. He kissed her on the lips and later placed his penis on her. According to the court record, she pointed at her groin. Her evidence was that she experienced pain, and that there was nothing that poured. Further it was her evidence that it did not go in. That he then dressed up, warning her not to tell her mother, and he left for the hotel. 8.She described the appellant as her step father, whom they lived with. She maintained that he had gone to the bed when she slept with her siblings and removed her clothes and slept her. 9.JMG is the mother to the victim / complainant. She told the court that on 29 March 2023, she noted that her daughter was in pain as she walked. She enquired from her what had happened butt she kept quiet. The mother decided to take her to the hospital, and the minor told the mother that she had been defiled. The matter was reported at Sultan Hamud police station, where a p3 form was issued. The appellant was later arrested and charged with the offence before court. She went on to tell the court that appellant was her husband, step father to the victim. That they had moved in with him three months prior to the occurrence of the offence. 10.In cross examination, the witness told the court that the victim had taken a bath on 28th March 2023. She produced a birth notification as evidence that the minor was born on 23rd January 2016. 11.Frank Musembi Musau is a clinical officer based at Sultan Hamud Hospital. When he examined the victim at the facility, he observed that labia majora and minora were tender with a swelling. She also had vaginal discharge. A vaginal swab was conducted and necessary medication given. He went on to state that her hymen was broken and had an old tear. He concluded that there was penetration of the penis, and the approximate age of injury was 3 days. He produced the P3 form dated 30th March 2023, Treatment notes dated 29th March 2023 and PRC Form as exhibits court. 12.The case was investigated by P.C Mwanahindi Hussein. She told the court that the case was reported to the police station on 30th March 2022. The allegations by the victim who was then accompanied by her mother was that she was defiled by the appellant on diverse dates between 27th March and 30th March. The investigating officer took her to hospital for examination, and she later charged the appellant, who was identified by the minor as her step father with the charges before court. That it was the mother who first discovered the offence when she saw the victim walking with a limp. The investigating officer went on to state that the victim had informed her that this was the third time that the accused had filled her. 13.In cross examination, the investigating officer told the court that the appellant had threatened that victim that he would kill her. 14.Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give unsworn testimony. 15.DW1 was the Appellant. He testified that he was married to two wives, one who worked at Malili and the other in Machakos. That on 20th March 2023, he received a call from his wife who reside in Machakos, and he went and stayed with her. That when he went back to Sultan Hamud, he received the children and gave them food. The children then told him that their mother had placed their clothes on the window. 16.The mother to the victim did not come home until 7.30 p.m, and when he demanded to know why she had not been picking his phone calls, she responded to him rudely, and as a result he slapped her. That he did not sleep in their house that evening. The following day, he went to a clinic at Mutungu, and later in the afternoon, he was called by his wife whom he found in company of police officers. He was arrested and taken to the police station and later charged with the offence before court. He went on to state that they resided at a plot yet no witness independent witness was called to give evidence. He denied the charges and urged the court to acquit him. Submissions 17.The appeal was canvassed by way of written submissions which I have carefully considered. The Appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies, and that the case was fabricated and fragmented in order to secure a conviction. The respondent on the other hand, submitted that the prosecution case had been proved to the required standards, and urged the court to dismiss the appeal. Analysis 18.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 19.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters v. Sunday Post, [1958] E. A. 424.” 20.The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 21.Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:“The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 22.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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“That degree 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 the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the 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.” 23.The Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 24.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:“Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.” 25.It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only one issues, that is:i).Whether the offence was proved to the required standards. 26.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:8.(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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 27.On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.(3)The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.(4)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)(5)The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 28.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 29.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 30.The prosecution produced an acknowledgement of Birth Notification, which shows that the victim was born on 23rd January 2016. As such at the time of the alleged offence, she was 7 years old. 31.The minor testified and identified the appellant as the perpetrator. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other” 32.The court is satisfied that the appellant was recognized by the minor as the stepfather, with whom they used to reside in the same house. 33.The last issue is penetration. 34 .Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 35 .In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” 36.It is thus not a defence that the injuries were not serious or the penetration was not complete. The medical evidence showed there was penetration. The minor herself testified on what happened to her. 37.I have looked at the particulars of the charges as indicated in the charge sheet. The alleged offence is alleged to have taken place on diverse dates between January 2023 and 27th March 2023. The minor testified that the appellant defiled her on the 27th January 2023. The evidence of the mother was that she realized that the daughter was in pain as she walked on the 27th March 2023. On her part, the investigating officer told the court that the mother to the victim and the victim informed her that the offence had taken place on diverse dated between 27th March 2023 and 30th March 2023. 38.On the other hand, the clinical officer who examined the victim on the on the 30th March 2023 at the time of filling the P3 form noted that the approximate age of injuries was 3 days. 39.I have considered the medical evidence presented before the court and find that it contradicts the oral evidence adduced in court by the complainant. The oral evidence of the minor was that she was defilement in the month of January 2023. There is no evidence to show that the defilement took place on different and diverse dates, yet the charge sheet indicates that the offence took place on diverse dates in the dates in the month of January 2023 and March 2023. The investigating officer stated that she was told that the offence took place between 27th March 2023 and 30th March 2023. 40.There are grave contradictions in regard to the date when the alleged offence took place, and the medical evidence. The dates given by the complainant and the mother are quite different. The charge sheet indicates that the offence took place on diverse dates, yet the minor’s evidence only reveals that the offence took place once. 41.I thus that the appeal has merit and is hereby allowed. The conviction and sentence imposed by the learned trial magistrate is hereby set aside, and the appellant is consequently acquitted. Determination. 42.In the circumstances, I make the following orders: -a.The Appeal is merited and is hereby allowed.b.The appellant is acquitted and is hereby released from custody unless otherwise lawfully held.c.The file is closed. DELIVERED, DATED AND SIGNED ON 30TH DAY OF JULY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKUJUDGEIn the presence of: -Miss Omol for the StateAppellant in personCourt Assistant – Kibet.