https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8361

JMS Alias A v Republic (Criminal Appeal E098 of 2022) [2026] KEHC 8361 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 8361 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E098 of 2022 ACA Ong’injo, J May 21, 2026 Between JMS Alias A Appellant and Republic Respondent (Being an appeal from the judgment of Hon. A. N. Karimi RM delivered on 17th March 2022 in Kehancha SPMC S.O.C No. E029 of 2022) Judgment 1.The Appellant was charged with the offence of defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. 2.The particulars are that the Appellant on the 21st Day of December, 2020 at around 22.00hrs at [Particulars Withheld], Bwirege Central Location, Kuria East Sub-County within Migori County intentionally caused his penis to penetrate the vagina of WN a child aged 14 years. 3.In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 4.The particulars of the alternative count are that the Appellant on the 21st Day of December, 2020 at around 22.00hrs at [Particulars Withheld], Bwirege Central Location, Kuria East Sub-County within Migori County intentionally and unlawfully touched the vagina of WN a child aged 14 years with his penis. 5.Upon consideration of the evidence of the prosecution and the unsworn statement of the Appellant, she found that the Appellant was guilty of the principal charge and he was found guilty and accordingly convicted. He was consequently sentenced to serve 20 years imprisonment. 6.Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide undated Petition of Appeal filed on 11th October, 2022 on the following grounds:-1.That he pleaded not guilty to the charge herein2.That the Trial Magistrate erred in both law and facts by not complying with Article 50(2)(g) & (h) of the Constitution 20103.That the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law. 7.Reasons wherefore the Appellant prayed that:-a.Conviction be quashed and sentence set asideb.Retrial orc.Any other order deemed fit to grant.d.That leave be granted for him to file supplementary / amended grounds of appeal after receiving the lower court proceedings. 8.PW1 Maroa Francis Sari testified that he was a Clinical Officer at Ntimaru Sub-County Hospital Registration No. 20xxxxxx59. He said that he had been at Ntimaru Sub-County Hospital for 2 and his duties included treating patients and also fill medical – legal forms. 9.He testified that on 27.12.2020, he treated a patient called WN aged 17 years from [Particulars Withheld]. That she went to the facility at 2.00p.m and complained of having been defiled by the father on 21.12.2020 at about 10.00p.m. at their homestead. The girl reported several penetrative incidents without protection that night after the mother left the homestead after quarrelling with the husband. On examination, the girl was calm, not intoxicated. The vaginal examination, her hymen was broken, no discharge or blood on the vagina. No bruises were on the labia majora or minora. Lab investigations, VDRL was negative, she was negative for pregnancy, urinalysis was equally negative. High vaginal swab showed pus cells and epithelial cells present, showing infection or friction. The patient was given anti-biotics for the infection and emergency pills to prevent pregnancy as well as some pain killers. 10.PW1 issued the treatment notes which he produced as Ex P1. PW1 also produce PRC form as Ex P2 which he filled on 27.12.2020. PW1further said that the patient was born on 1.8.2006. 11.On examination the hymen was absent, no bruises/injury on the vagina. Everything else was normal. The survivor had changed clothes, taken a bath. On genitalia examination, the genitalia was normal but the hymen was broken. Other areas were normal. The survivor was given emergency pills. No treatment for S.T.I. and was referred to the Police Station. HIV was done. Lab investigations were done. There were pus cells on high vaginal swab. I signed the PRC form dated 27.12.2020. I produce the PRC form as PEX 2. A P3 form was filled from WN. issued at Ntimaru Police Station. Reference No. 1xxx4/2020. The survivor alleged to have been defiled by the father on 21.12.2020 at about 10.00p.m. at [Particulars Withheld] in their house after the mother had left after a conflict. The girl said she was penetrated severally that night. On examination the victim was in fair condition. Vaginal examination showed absence of hymen (broken). No bruises on the labia majora and minora. No blood or discharge was found. On lab investigations and high vaginal swab, there was pus cells and epithelial cells. 12.PW1 said that there was delayed medical checkup of approximately 6 days, thus interfering with enough evidence but there was evidence of penetration based on broken hymen and epithelial cells which was evidence of friction. 13.PW1 also produced clinical notes from Makararangwe Dispensary dated 24.12.2020 for JMS aged 45 years as Ex P 4. He said the Dispensary was under their jurisdiction. 14.In cross examination, PW1 told the Appellant that one can defile their daughter. He said the girl testified she was defiled by the Appellant. He said that from all the medical documents, the victim was between 14 years and 17 years on her first contact. On further examination, they established she was 14 years though they did not assess her age. 15.Voire dire examination was conducted upon the Complainant PW2 who was found to be capable of giving testimony on oath. She testified that she was 13 years old and a student at [Particulars Withheld] School in class 5. She said that she knew the Accused who was her biological father. She said she came from [Particulars Withheld]. She said her mother was SW and that she had other siblings. PW2 identified Clinic/Child Health Card as PMFI 5 showing she was born on 1.8.2007. 16.PW2 said that on 21.12.2020, at around 10.00p.m. she was at home sleeping with her younger 2 siblings (both boys one aged 6 and the other aged 4 years). That they were sleeping in the sitting room and the father was sleeping in the bedroom. That as she slept, baba went to where she was, unveiled her blanket and she started crying. That he told her to keep quiet or he would kill her. That he took a knife and panga and told her to sleep with him or he would kill her. He inserted his “penis” inside her “kuma”. That she began screaming but he threatened to kill her. PW2 said that the Appellant had chased her mom away since a kitten had gotten lost. That her mum had left on 14.12.2020 for her mother’s home. PW2 said that her elder sisters were sleeping in the next room. 17.She said the Appellant asked her to sleep in the sitting room that day. That the Appellant had a knife and panga and used a phone to light the place from his room on one hand while the other hand was holding a knife and panga. She said that she had worn a gown and the Appellant lifted her gown. That when she cried the Appellant asked her whether he was her mother and threatened to kill her if she did not sleep with him so she agreed. PW2 said the boys did not hear her scream. 13.PW2 also said she had a kitenge gown that day as well as biker and panty which the Appellant pulled off and said he would kill her if she continued screaming “akaingiza xxxx ndani ya xxxx yangu”. The Complainant said the Appellant had a blue boxer. That he removed his xxxx and inserted it in her vagina. She said this was around 11.00p.m. She said the Appellant defiled her many times and she did not stop him. That when he finished defiling her, he ordered her to sleep. 14.That when she woke up the next morning, she went looking for her mum. That her mother took her to Ntimaru Police Station. She said it is only her mother she told of the ordeal and not her elder sister of what my father had done. PW2 said that she felt a lot of pain on her pelvic area and pain on her thighs. That she also had pain on her chest which pains to date. She said that she was defiled on the floor. That the Appellant slept on top of her. She said she had never had a conflict with her father before. That since 2017, the Appellant gave her elder sister a condom and she saw it. That when her sister showed mom the condom and mom confronted father about it he denied. That on the day he defiled her, he used no protection. 15.PW2 said that her mother comes from Tanzania and it is far but she walked for one hour to go to her mother’s place. When she reported the matter at the Police Station, the Appellant was arrested. She said that doctors were on strike so she was taken to the Hospital much later around 2 days after she was examined. She said she was not given any medication that day. They only tested her urine and that of her father as well. PW2 identified the Appellant in the dock as her father. She said that the Appellant always fight with the mother in their presence and he had always threatened to kill the mother but it was the first time their mother left them and fled to her home. PW2 said that the Appellant is always ordering them around, always quarrelling them and threatening to beat them up. She said she was not lying to the Court (all this time the witness remained calm and looked at the Accused right in the eye as she spoke). 16.In cross examination PW2 said that the Appellant chased their mother away after the cat’s kitten fled. She said she did know who took away the kitten. She said she was telling the truth as to what the Appellant did to her that day. She said the Appellant had sex with her sisters G and E as well. She said the Appellant had defiled them all. She said that she had not been coached to lie in her testimony by her mother. 17.In re-examination PW2 said that the Appellant has had sex with her elder sister and her sister reported to her mother. She said the Appellant raped her after raping her elder sisters. She said it is only her father who was in that house that day and all the doors were locked from inside when he raped her. 18.PW3 – SW testified that she was a farmer and that the Complainant was her daughter. She said the Complainant was her 6th born. She said that E and E were elder sisters to the Complainant and they were aged 18 and 16 years respectively whereas the Complainant was now 15 years having been born in the year 2007. She identified Birth Clinical Card showing the Complainant was born on 1.8.2007, PW3 said that the Appellant was her husband and they had been married for 21 years. 19.She also said that on 21.12.2020 her husband chased her from the house after accusing her of losing a kitten. She said a child had brought the kitten home but it strayed. That the Appellant demanded that she looks for the Kitten or he would beat her up. That the Appellant took a panga and a knife and she fled to her home which is about 30 miles away. That she stayed away from 14.12.2020 till 22.12.2020. That the Complainant arrived home around 6.00a.m. that day claiming that her father “alinibaka jana usiku” and she cried in pain for long. That she escorted her to Ntimaru Police Station that day 22.12.2020 but the doctors were on strike. That they returned home till 24.12.2020 when she was examined. She said the Appellant had been arrested and the Complainant was escorted to hospital by a Police Officer. 20.PW3 said that the Complainant told her that the father asked her to sleep in the sitting room with the younger boys as they were unwell and as they slept around 10.00p.m. the Appellant came from his room carrying a knife and asked her to allow him “alale na yeye”. That the Complainant tried to scream but the Appellant threatened to stab her. That the father defiled her and after he had finished, ordered her to sleep. PW3 said that her eldest daughter E.G. reported to her that the father had ordered her to have sex with him and she had fled from home. PW3 said that the Appellant looked for E. G. and when being questioned by Police Officers why she fled home, she told the Officers that her father had threatened to defile her thus she fled. 21.PW3 also said that in the year 2017 on a date she could not recall in December, E. G. went to church and passed by her father’s working place at the stage where he worked with matatus as a driver. That the Appellant went around with E. G. from 5.30p.m. till 8.00p.m. within town and that as they returned the Appellant gave her a condom to read instructions. That E. G. went home crying and showed PW3 that paper. That when she confronted the Appellant with the issue, he threatened to beat her up about it. That she reported the Accused to his brother and the matter was escalated to the family members. That the Appellant told the elders that he owned everyone in the family and fed them. The matter was later settled at the Chief’s office. 22.PW3 said she did not know why the Accused chose the youngest girl over the elder ones. The elder ones slept in their room separate from the main house where the Accused and the younger children slept. PW3 said that the Complainant kept complaining of pain in her thighs but as at the time she was testifying, she was well. 23.In cross examination PW3 said the Appellant was pretending he could not hear and yet he could her very well. She said they had a fight with the Appellant that day over a kitten and he threatened her with a panga and she fled for her life. She said the children looked for the cat and found it. She said the Appellant did not go to look for her because his intention was to rape her child. The child told her the Appellant defiled her that night. 24.In re-examination PW3 said the Appellant denied even the condom issue in 2017.and even this one he will continue denying because that is what he does, deny doing evil. 25.PW4 NO. 1xxx67 PC Sanga Edna was the Investigating Officer in the matter. She testified that on 22.12.2020, she was working at Ntimaru Police Station when a young girl called W. N. in the company of her mother S. W. went to the Station and reported that she had been defiled by her father on the night of 21.12.2020 while in their home in Ntimaru. She reported to have been sleeping with her siblings in the sitting room after the mother went to her parents’ home following differences with the Appellant. That the father asked her to sleep with her younger siblings in the sitting room while he slept in the bedroom. 26.The Complainant reported to PW4 that at around 10.00p.m., the father went and asked her to go and sleep with him in the bedroom but she refused. But that the father went to the sitting room and demanded to sleep with her or else he would kill her. In fear, the girl removed her clothes and the father penetrated her. That when done, the father went to bed and the girl slept as well. 27.That the next morning the girl went looking for her mother in her parents’ home and informed her of the father’s actions where they reported the matter to the Police. PW4 recorded the statements of PW2 &3 but on that day, doctors were on strike so she couldn’t take her to the hospital. That on 24.12.2020, she took her to [Particulars Withheld] Dispensary where the girl and her father were examined. The girl was found to have a broken hymen. 28.PW4 further testified that on 27.12.2020, P3 form was issued and duly filled and the Accused was arraigned in court on 28.12.2020 and charged with this offence. She said the girl was 13 years and she produced a birth certificate as PEX No. 5. During investigations, PW4 established that the mother and the father had differences but there was no frame up as the girl was consistent in her report. PW4 said that the Appellant was well known to her as he used to repair tyres at Ntimaru market. She said she had no quarrel or grudge with him at all. 29.In cross examination PW4 said that the Appellant’s daughter told her that he defiled her that night. It is true he had differences with the mother of the girl. She said she relied on the statement of the Complainant and the medical report confirmed her hymen was broken thus evidence of defilement. 30.When placed on defence the Appellant gave unsworn statement and said that he lived in Ntimaru and he was a matatu driver. He said he understood the charges against him well. That on 21.12.2020 at around 2200hrs he had attended a wedding ceremony where he was the one responsible for transportation of chairs and tents. That he slept at the venue at Ntimaru Town area. He said he did not sleep at home that day. The Appellant said that the Complainant was his 3rd born daughter and the youngest among the girls. He said that he did not defile/sexually assault his daughter as the witnesses alleged. He said that he had a dispute with his wife over a cat that she mishandled and she left to sleep at his brother’s house. He said that his wife framed him for this offence and she bribed Police Officers and the doctors to implicate him in the offence herein. 31.That in 2019, his wife took 10 bags of my maize and sold and left leaving, the children in his care. The Appellant said that he did not commit the offences herein and that if he wanted a woman, he could get any woman he wanted and not his own daughter. He said his wife had the interest to persecute him and that his daughter was coached to implicate him in this case.The appeal herein was canvassed by way of written submissions. The Appellant did not file submissions. 32.The Respondent’s submissions are dated 4th April, 2025. They submitted that the trial before Hon. A.N. KARIMI, RM was well-founded and the Appellant properly convicted and sentenced to twenty (20) years imprisonment for the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act, Cap 63A Laws of Kenya. 33.That the conviction was based on overwhelming evidence presented before the trial court, demonstrating beyond reasonable doubt that the accused, being the biological father of the victim, committed the heinous act against his own daughter. 34.On whether the prosecution proved its case beyond reasonable doubt and whether the sentence was manifestly harsh and excessive the Respondent submitted that Section 8(1) of the Sexual Offences Act, provides that a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. and Section 8(3) prescribes that where a child is between ages of twelve (12) and fifteen (15) years, the perpetrator shall, upon conviction, be liable to imprisonment for a term of not less than twenty (20) years. 35.It was further submitted that the trial court correctly found that the elements of defilement were proven beyond reasonable doubt and the sentence imposed aligns with the mandatory minimum sentence prescribed under the law. 36.The Respondent relied on the holding in the case of Wamalwa v Republic [2025] KEI-IC 2604 (KLR) where the Court pointed out that:“The court of appeal in Shitula V Republic (2025) KECA 12 (KLR) stated: 35...In the instant appeal, the sentence imposed upon the appellant is the mandatory sentence provided under the law. In Republic vs. Gichuki Mwangi: Initiative for Strategic Litigation in African (ISLA) and 3 Others (amicus curie) 2024, 34 KLR, the Supreme Court asserted that:"Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction the singular sentence is already prescribed by law." 36.Needless to state that in passing the sentence of life imprisonment on the appellant, the trial Magistrate as well as the 1st appellate court had no room to exercise any discretion in determining an appropriate sentence to be imposed on the appellant, owing to the mandatory nature of the penalty provided under the law. The Supreme Court has spoken clearly through the Gichuki case (supra) and we are bound by that decision-age, rehabilitation and remorse notwithstanding, the minimum life sentence meted out was legal and must be upheld, as we hereby do. The appeal thus fails in its entirety and is dismissed." 37.It was also submitted that the trial court correctly considered the gravity of the offence and the aggravating circumstances, including;a.The Appellant was the victim's father, violating a position of trust.b.The psychological and emotional harm inflicted upon the minor.c.The need to deter such offences and protect vulnerable children from sexual abuse. 38.On whether the trial court complied with Article 50 (2) (g) (h) of the Constitution of Kenya, 2010.the Respondent submitted that the court placed the Appellant on defense and in his defense, he raised an alibi that was concluded as an afterthought as the same did not come up during cross-examination of prosecution witnesses. Also, the accused raised allegations of conflict with the wife who bribed police officers to implicate him but did not provide sufficient evidence to challenge the prosecution’ case that he was the perpetrator. 39.The court of appeal holding in (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) was cited to support the Respondent’s position where it was held:-“That the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated." 40.The Respondent urged the court to dismiss the appeal and uphold the conviction on the sentence imposed by the trial court as it was justified, lawful and proportional to the offence committed. Analysis and determination 41.As the first appellate court, this court is duty bound to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. This was the holding in Okeno v Republic [1972] EA 32. 42.Having considered the record of appeal, the grounds of appeal and the submissions by the Respondent, the following issues arise for determination:1.Whether the offence of defilement was proved beyond reasonable doubt.2.Whether the Appellant’s right to fair trial under Article 50(2)(g) and (h) of the Constitution was violated.3.Whether the sentence imposed was lawful and appropriate. 43.On whether the offence of defilement was proved beyond reasonable doubt, the essential ingredients of the offence of defilement are now settled. The prosecution must prove:a.The age of the complainant.b.Proof of penetration andc.Positive identification of the perpetrator. 44.The age of the complainant was proved by her own testimony that she was born on 1st August 2007. PW3, her mother, confirmed the same and produced the Child/ Health Card. The incident occurred on 21st December 2020. The complainant was therefore aged 13 years at the time of the offence. The trial court properly found that the complainant was a child within the meaning of Section 2 of the Sexual Offences Act. 45.Whether the element of penetration was proved, 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.’ The complainant gave a detailed account of how the Appellant removed her clothes and inserted his penis into her vagina several times. Her evidence was direct and consistent. 46.The medical evidence by PW1 corroborated the testimony of the Complainant. The Clinical Officer found that the complainant’s hymen was absent and the high vaginal swab revealed pus cells and epithelial cells suggestive of friction. Although there were no bruises or discharge, PW1 explained that there had been delay in medical examination which affected recovery of additional physical evidence. 47.It is now settled that the evidence of the complainant alone, if believed by the court, can found a conviction in sexual offences by virtue of the proviso to Section 124 of the Evidence Act. The learned trial magistrate had the benefit of seeing and hearing the complainant testify and expressly found her truthful. The record shows that the complainant remained calm and consistent throughout her testimony and even during cross-examination. This court finds no reason to depart from the trial court’s assessment of her credibility. Accordingly, penetration was proved beyond reasonable doubt. 48.As to whether the Appellant was properly identified as the perpetrator, the incident occurred inside their house at night and the complainant testified that the Appellant used his phone light while threatening her with a knife and panga. More importantly, the Appellant was not a stranger but her biological father. 49.The complainant’s evidence was further corroborated by the prompt report she made to PW3, her mother, the following morning and later to the police. PW3 said that the Complainant arrived at 6.00am while crying in pain for long. She had walked a distance of 30 miles to where her mother was to report what the Appellant her biological father had done to her at night. 50.The Appellant raised an alibi defence alleging that he slept at a wedding venue on the material night. The trial court rejected the defence as an afterthought. This court notes that the alibi was raised for the first time during defence and was never put to the prosecution witnesses during cross-examination. Further, the Appellant did not call any witness from the alleged wedding ceremony to support his claim. Although the prosecution still bears the burden of disproving the defence of alibi even where raised late in the day, in the present case, the evidence of the Complainant placed the Appellant at the scene and identified him as the perpetrator beyond any reasonable doubt. This court is therefore satisfied that the Appellant was positively identified as the person who defiled the Complainant. 51.The Appellant also alleged that he had been framed by his wife due to domestic disagreements. However, no evidence was tendered to demonstrate any motive on the part of the Complainant, a young girl, to falsely accuse her own father of such a grave offence. The allegation of fabrication was properly rejected by the trial court. 52.The Appellant also contended that the trial court failed to comply with Article 50(2)(g) and (h) of the Constitution. Article 50(2)(g) guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) provides for legal representation at State expense if substantial injustice would otherwise result. The record demonstrates that the Appellant fully participated in the proceedings. He cross-examined all prosecution witnesses at length and gave his defence. There is nothing on record to suggest that the Appellant was incapable of conducting his defence or that substantial injustice resulted from lack of legal representation. 53.In conclusion this court finds that the appeal lacks merit and the same is dismissed. The Appellant is informed of the right to appeal within 14 days. DATED, SIGNED AND DELIVERED AT MIGORI THIS 21st DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGEIn the Presence of:Victor – Court Assistant