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Njiru v Republic (Criminal Appeal 47 of 2019) [2026] KECA 1318 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1318 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 47 of 2019 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Justin Gitonga Njiru Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Kerugoya (L.W. Gitari, J.) dated 12th February 2019 in HCCRA No. 17A of 2016) Judgment 1.Justin Gitonga Njiru, the appellant herein, is before this Court by way of a second appeal, his first appeal having been dismissed by the High Court (Gitari, J.) on 12th February 2019. The appellant was initially charged with two counts before the Principal Magistrate’s Court at Baricho. In Count I, he was charged with the offence of defilement, contrary to section 8(1)(3) of the Sexual Offences Act (‘SOA’). The particulars of the offence were that, on 20th October 2014 at [Particulars Withheld] Village in Kirinyaga West District within Kirinyaga County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of LWT, a child aged 13 years. 2.In Count II, he was charged with the offence of defilement contrary to section 8(1)(2) of SOA. The particulars were that, on 20th October 2014 at [Particulars Withheld] Village in Kirinyaga West District within Kirinyaga County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of JWM, a child aged 9 years. 3.He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of SOA. The particulars were that, on 20th October 2014 at [Particulars Withheld] Village in Kirinyaga West District within Kirinyaga County, the appellant unlawfully and intentionally touched the vagina of JWM, a child aged 9 years, with his penis. 4.He pleaded not guilty to all the counts, and the matter proceeded to trial, where the prosecution called 7 witnesses. At the close of the prosecution's case, the appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the trial magistrate convicted him of the offence of defilement in both counts and sentenced him to 20 years in Count I and to life imprisonment in Count II. He was dissatisfied with the verdict and appealed to the High Court, which dismissed the appeal and affirmed both the conviction and the sentence. 5.The appellant, aggrieved by the High Court's decision, preferred this appeal. In order to put the matter into perspective we will summarize the evidence presented before the trial court. 6.PW1, LW, testified that on 20th October 2014, at around 5:00 pm, the appellant, who was their neighbour, called her and PW4, her cousin, to his house; a single room, promising to buy them bread. The appellant was alone. PW4 jumped on top of the appellant and started playing with him. The appellant then placed PW4 on his bed while PW1 was watching, removed his trousers and the underpants of PW4 and had sex with her for approximately 15 minutes. The appellant then pulled the witness, who was by then seated on the bed, took off her clothes and had sex with her for 15 minutes. 7.She testified further that after the escapade, they spent the night at the appellant’s home. In the morning, the appellant sent her to the shop for milk and bread. They had breakfast and the appellant left for work. It was a school holiday for them. They followed him to the coffee plantation where the appellant and PW1’s brother worked. 8.Thereafter, the two went to the hospital, as she had chest pain, and after treatment, they went home. On the way, they met police officers, who took them back to the hospital and inquired from the doctor if the two had disclosed that they had been defiled. The doctor examined them, after which they were taken to Baricho Police Station. They were later taken to Kerugoya Hospital for further examination and treated. 9.PW2 ET, PW1’s mother and an aunt to PW4, testified that on 20th October 2014, she was at a plantation picking tea, in the company of the appellant, and was not aware that he had slept with PW1. At around 4.00 pm, police officers went to the farm and called both her and the appellant. PW1 and PW4 had accompanied the police officers. PW2 was informed that the two had been defiled by the appellant and had gone to the hospital for examination. PW1 told PW2, then told them that the appellant had called them to his house and had sex with both of them, and that they had gone to the hospital complaining of a headache and stomachache. 10.PW2 testified further that the appellant denied the incident and was arrested and taken to Baricho Police Station. She later took PW1 and PW4 for examination at Kerugoya Hospital. Thereafter, she recorded her statement at the police station, and the two girls were issued with P3 forms. She also informed the court that the doctor was her neighbour, and on examining PW1, she noted that the child had been defiled and called police officers to the hospital as the police post was next to the hospital. PW2 also informed the court that the appellant was her neighbour as they lived in the same compound in single rooms. 11.PW3 John Muriuki Musa, an Assistant Chief, testified that on 21st October 2014, at 5:40 pm, while at Kiangai camp, he received a call from IP Kareithi who asked him to go to the Catholic Church in the same area. On arrival, he learnt from IP Kareithi that the appellant had defiled two girls, and that IP Kareithi had received the information from the father in charge of the Catholic Church. He also met the appellant. He then called police officers from Baricho Police Station. He went to the police station the following day and recorded his statement. He confirmed that the two children who were defiled were PW1 and PW4. 12.PW4 JW testified that on 20th October 2014 at 8 pm, while she was outside their home in the company of her cousin PW1, the appellant, a neighbour, called them and asked them to enter his house. When inside, he pulled her by the hand to the bed, took off her clothes and his and had sex with her. At the time, PW1 was seated on a jerry can watching them. After the appellant was done with her, he turned to PW1 and had sex with her too. 13.She testified further that the following day, they were interrogated by police officers from Kiangai who wanted to know if they had had sex with the appellant. They narrated the incident and were taken to Kiangai Hospital, where the doctor examined them and referred them to Kerugoya District Hospital. They later went to the police station and recorded their statements. She was issued with a P3 form. 14.PW5, IP Job Kareithi, testified that on 21st October 2014 at around 3:00 pm, while at Kiangai AP post, he received information from members of the public that the appellant had defiled two girls who were presented to him. He took the two girls to Kiangai Dispensary and the medical officer at the facility directed him to first have the matter reported at Baricho Police Station. The father in charge of Catholic Church in Kiangai who had also received the information led him to the appellant who was in the farm together with the brother of the children. PW5 arrested the appellant and the brother of the young girls. The two young girls confirmed to PW5 that the appellant had defiled them. He arrested the appellant and took him to Baricho Police Station. 15.PW6, John Ngatia Githaiga, the Clinical Officer at Baricho Health Centre, testified on behalf of Dr John Mwangi and told the court that PW1 was examined on 21st October 2014 after being sexually assaulted by a person known to her. On vaginal examination, the hymen was torn but was not fresh. She had a foul-smelling, whitish vaginal discharge. Her labia were inflamed. On lab examination, spermatozoa were seen; she was found to have a sexually transmitted infection, gonorrhoea. She was given analgesics and antibiotics. The diagnosis made was defilement. 16.On the part of PW4, he testified that she was also examined by Dr John Mwangi. She was found to have a fresh laceration on the labia majora and minora. She had a freshly broken hymen. No vaginal fluid was seen. A high vaginal swab was taken, and after tests, she also had gonorrhoea. She was given antibiotics and counselled. The doctor concluded that she, too, was defiled. 17.PW7, Sgt Catherine Migwi of Baricho Police Station testified that on 21st October 2014 at about 9:00 pm, while she was at the police station, the appellant was brought by AP officers from Kiangai AP post together with two complainants, PW1 and PW4. It was reported that he defiled the two complainants on 20thOctober 2014 at about 8:00 pm. That he found the two outside a makeshift kitchen; their guardian was asleep and he called the two girls and took them to his house and defiled them. The appellant was placed in the cells. 18.PW7 escorted the two children to Kerugoya District Hospital, where they were treated, after which she issued them with P3 forms, which were filled at the same hospital. She investigated the case and charged the appellant. She also escorted the two children to the hospital, where they underwent age assessment, X-rays were taken, and the assessment indicated that they were both below 17 years. 19.At the close of the prosecution's case, the appellant was placed on his defence. He gave sworn testimony denying the offence. It was his testimony that on 21st October 2014, the date of his arrest, five children, including PW2 & PW4, had gone where he was working, and asked him to give them work. It rained earlier in the morning, and the children had missed school. The appellant refused to hire them. They left him working in the shamba. He was arrested on the same day on allegations of defilement. 20.In its judgement the trial court found that the prosecution had proved its case beyond reasonable doubt, convicted and sentenced the appellant to twenty (20) years in Count I and life imprisonment in Count II. Dissatisfied with the trial court’s decision the appellant preferred a first appeal against both conviction and sentence in the High Court. In a judgment delivered on 12th February 2019, the learned Judge upheld both the conviction and sentence, thus precipitating this second appeal. The learned Judge held that the prosecution had the burden to prove all the ingredients of the offence of defilement in both counts beyond a reasonable doubt, which it had discharged. 21.Aggrieved by the verdict of the High Court the appellant appealed to this Court on grounds which we summarize as follows: that the learned Judge failed in law by relying on doubtful evidence; by failing to consider that penetration was not proven beyond reasonable doubt; by failing to consider that the appellant was not medically examined to prove the alleged commission of the offence; by failing to consider the existing grudge that culminated with the fabrication of the case against the appellant; by shifting the burden of proof to the defence; by dismissing the appellant’s defense and by not considering that the identity of the perpetrator was not proved to the required standard. 22.The appellant has filed undated submissions and argues that the two courts below failed to consider crucial facts and necessary elements, submitting that the case was framed up. He contends further that the Sexual Offences Act is sometimes used for extortion purposes or imaginary grudges, citing the case of Wambui vs. Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR). He also relies on Sawe vs. Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) for the proposition that suspicion however strong cannot be a basis for inferring guilt. 23.He argues further that the prosecution failed to prove the elements of the offence of defilement, specifically, age of the victim, penile penetration and identity of the alleged penetrator. In support of this contention, he relies on the case of John Muthama vs. Republic [2016] KEHC 3190 (KLR). 24.He contends that the evidence of PW6, was contradictory, and therefore, unreliable. He submits that as regards PW1, PW6 stated that the hymen was torn but not freshly broken, and spermatozoa was seen. However, the appellant argues that the P3 form for the same complainant did not show any discharge or spermatozoa and noted that the hymen was not freshly broken. As for PW4, PW6 did not establish the type of weapon that caused the penetration. He argued that penetration could be caused by various objects, not just a male organ, and that this cause was not established. He argues further that a loss or broken hymen is not proof of defilement or penile penetration and that DNA analysis was also not conducted to clear doubts. 25.On age, the appellant argues that the age of the complainants was not proved with cogent evidence as no birth certificates were produced. He submits that the clinical officer's (PW6) age assessment report only indicated both children were below 17 years but provided no specific age. In support of this argument he relies on the case of Joel Wang’ara Onesmus vs. Republic [2015] KEHC 4784 (KLR), where it was held that age must be proved. 26.The appellant asserts that the two courts below failed to consider his sworn defence, which was unchallenged and plausible. He further contends that the two courts below failed to accord him a fair trial by shifting the burden of proof to him rather than requiring the prosecution to prove its case beyond reasonable doubt. He argues that the High Court erred in law by failing to properly analyse and re-evaluate the evidence as required of a first appellate court. 27.On sentence, the appellant submits that the sentence imposed was harsh and excessive. He contends that the mandatory sentences under section 8(2) and 8(3) of the SOA are inconsistent with the Constitution because they deny the trial court discretion to impose an appropriate sentence after considering mitigating factors. In support of this contention, he cites Philip Mueke Maingi & 2 others vs Republic [2022] KEHC 2263 (KLR). 28.On its part, the respondent filed submissions dated 29th May 2025 and addressed the appellant's seven grounds of appeal under three main issues. On proof of the offence and consistency of the evidence, Learned State Counsel submits that the elements of the offence were duly proven. In support he relies on Goa vs. Republic (Criminal Appeal E010 of 2021) [2022] KEHC 3020 (KLR), which outlined the elements of the offence of defilement. He submitted that the victims were found to be 9 and 13 years old, respectively, as confirmed by their oral testimony, their mother's testimony, and age assessment reports. On penetration, he submits that the same was confirmed by medical records, which indicated the victims had their hymen broken and the presence of spermatozoa. Both victims were also found to be infected with gonorrhoea. 29.Counsel submits further that identification was not in doubt as the appellant was known to the victims and prosecution witnesses as a neighbour who lived in the same area. He was also identified by the Assistant Chief. The incident occurred on 20th October 2014, when the appellant called the two victims to his house, sexually assaulted them while each watched the other, and threatened them not to disclose the incident. Further the prosecution argues the evidence was consistent and linked the appellant as the perpetrator. 30.On allegations of the appellant not being medically examined to conclusively link him to the offence, counsel submits that such examination of an accused person is not a mandatory legal requirement, as section 36 of SOA only mandates it if the court thinks it is appropriate. Learned counsel submits further, that the court can rely solely on the victim's account, provided the court is satisfied that the victim is telling the truth. Counsel submits that the absence of medical evidence is not decisive, as the fact of a sexual offence can be proved by the oral evidence of the victim or circumstantial evidence. In support of this contention he relies on the case of Kassim Ali vs. Republic [2006] KECA 156 (KLR), where this Court held that the absence of medical evidence to support the fact of rape is not decisive, as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 31.On allegations that the court shifted the burden of proof, dismissed the appellant’s defence, and that there was a grudge between the families, counsel submits that the appellant gave sworn testimony in his defence as is his right. The claim of a grudge was never raised during cross-examination and was an afterthought. He submits further that the burden of proof for the alleged grudge rested with the appellant, as he was the one who made the allegation. 32.Counsel urged that in their judgments both the trial court and the High Court examined the evidence from both the prosecution and the appellant, concluding that the defence did not displace the prosecution's case. 33.On sentence, counsel urges that a sentence of twenty (20) years' imprisonment for Count I and life imprisonment for Count II are the statutory mandatory minimum sentences under the Act. In support, he relied on the Supreme Court’s decision in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). 34.This being a second appeal, our mandate is restricted to addressing only matters of law as provided in section 361(1)(a) of the Criminal Procedure Code. This Court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are not based on evidence or they are based on a misapprehension of the evidence, or that the courts below acted on wrong principles in making the findings. In Karingo & 2 Others vs. Republic [1982] KECA 23 (KLR) this Court stated as follows:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 35.Having considered the record of appeal, submissions by the rival parties, various case law cited and the law, we have formed the view that there are four issues for our consideration, namely, whether the prosecution proved the case against the appellant beyond a reasonable doubt, whether the evidence of the prosecution witnesses was fraught with contradictions and inconsistencies; whether the appellant’s defence was properly considered and whether the sentence meted out was lawful. 36.It is trite law that the elements of the offence of defilement include proving the identity of the perpetrator of the offence; that the act of penetration occurred; and proof of the age of the complainant. 37.The two courts below were in concurrence that the prosecution had indeed established beyond any reasonable doubt that the offence had occurred. The trial magistrate held as follows:““I have no doubt from the evidence on record that the accused was the perpetrator. He was well known to both complainants and he found the opportune time and scene to defile them. All the ingredients of the offence of defilement as provided for under section 8(1) of the Children Act have been proved by the prosecution beyond any reasonable doubt.” 38.The learned Judge in the first appeal held that:“I have considered the evidence adduced before the trial court. I find that the two complainants knew the appellant very well and they identified him as the person who defiled them.Age assessment reports show that PW-1- was aged 13 years while PW-4- was aged ten years. The identity of the perpetrator was not in dispute as he was well known to the two complainants. I find that the evidence tendered was sufficient and proved that it is the appellant who defiled the two minors.” 39.In the case of Wamunga vs. Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) this Court held:“It is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction. Recognition may be more reliable than identification of a stranger…” 40.PW1, PW2 and PW3 were neighbours of the appellant, which he does not deny. He approached the girls at 5 pm, though the offence was committed at 8 pm. There is evidence that there was proper lighting by a lamp at the appellant’s house. The girls spent the night in his house; the following day, they had breakfast with him, during which time they had ample interaction with the appellant, whom they knew well. We, too, are satisfied that the appellant was properly identified. 41.The appellant argues that penetration was not established as required by law. On this the trial magistrate held as follows:“As to whether there was penetration, PW1 stated that the accused had sex with her for 15 minutes while PW4 stated as much. They went to hospital and told the doctor that they had chest pain. On their way home, they met with police officers who took them back to hospital. PW7 and PW2 accompanied the two minors to Kerugoya hospital where they received treatment. PW6 stated that the Leah Wakio Thiguku's hymen was torn but not fresh. She had a whitish vaginal discharge and on laboratory examination, spermatozoa were seen. With regard to Julia Wangu Muriuki, she had a foul smelling whitish discharge, she had a freshly torn hymen and her labia were inflamed. She also had a sexually transmitted infection namely gonorrhea. Based on this evidence, I am satisfied that there was penetration on each complainant.” 42.The first appellate court, after analysing and considering the evidence adduced before the trial court, made similar findings as follows:“The complainants, PW1 & PW4 gave well corroborated evidence that the appellant is the one who took them to his house and defiled them. Penetration was proved by the testimony of PW6. The evidence was cogent and overwhelming. It cannot be said to be sham evidence.” 43.The evidence of the minors, which the trial court found credible and which was properly subjected to an analysis by the High Court, was consistent, cogent, and sufficiently corroborated by the medical evidence on record. In the circumstances, and guided by the principle that an appellate court will not lightly interfere with concurrent findings of fact unless they are based on no evidence or are plainly erroneous, as stated in Richard Kaitany Chemagong vs. Republic [1984] KECA 64 (KLR), we are satisfied that the prosecution proved beyond a reasonable doubt that there was penetration. 44.As regards the age of the minors, the appellant submitted that the clinical officer's age assessment report only indicated both children were below 17 years but provided no specific age. In this regard, the trial magistrate found as follows:“With the guidance of the cited authorities and based on the age given by the complainants when they testified and their ages indicated in the P3 forms, it is my considered opinion that the ages of the complainants were proved. The 1st complainant; LWT was 13 years old while JWM was 9 years old at the time of the incident.” 45.The learned Judge, on her part, found the minors to be below eighteen (18) years old at the time of the offence. She held as follows; -“As per the evidence of PW1 and PW4 they confirmed their ages as 13 years and 9 years respectively at the time of the incident. Their P3 form and treatment notes confirmed the said ages. Therefore, even though the age assessment did not give their precise ages, there was evidence to prove their ages.The ages of the victims were proved as they gave their ages. The doctors who treated them observed their ages as 9 & 13 respectively and the age assessment stated that they were below Seventeen years exhibits 5 & 6. There was enough material placed before the trial Magistrate to arrive at a conclusion on the age of the minors. Though no birth certificates and notifications were produced which may be the best way to prove age, there was sufficient evidence which proved the age of the victims.” 46.In Oungo vs. Republic (Criminal Appeal E124 of 2022) [2025] KECA 2280 (KLR), concerning age, this Court stated:“…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, amongst 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 has to be credible and reliable." 47.Similarly, in MW vs. Republic [2020] KECA 944 (KLR), this Court referred to the case of Francis Omuroni vs. Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, where the Court held:“In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...” 48.Upon analysis of the evidence we find that both the courts below addressed this issue of age and made a finding that we would have no basis upon which to disturb as the evidence is cogent, credible and trustworthy. 49.On whether the prosecution’s evidence was riddled with inconsistencies and contradictions, the appellant contends that the evidence of PW6, the clinical officer, was contradictory and unreliable on the injuries on the girls. In our view, the minor discrepancies observed are not material. A court has to consider the nature of the discrepancies in light of the totality of the evidence. The court should find that the discrepancies are material only if they are of such a nature as to create doubt as to the guilt of the accused; in the instant case, the inconsistencies are minor and do not go to the core of the evidence. As regards inconsistencies in the evidence given by other witnesses, we find that they were not of a magnitude that would affect the culpability of the appellant. In Watu vs. Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR), this Court held that:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self- contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” (Emphasis added) 50.From the record, the trial court considered the appellant’s defence. The trial magistrate stated:“On his part, the accused stated that the two complainants went to Kiangai where he was working and asked him to hire them but he refused and they went away. He was arrested on the same day.He further stated that the mother of the children had complained to him that the children were badly behaved and only she would know about their lives. He appears to attempt to paint the minors to be of undesirable moral behaviour but even if that were the case, they are minors who had no capacity to engage in sexual intercourse with the accused. His evidence cannot stand in the face of the overwhelming evidence on the part of the prosecution regarding what took place. PW1 and PW4 corroborated each other's evidence on what transpired on the material date.” 51.The High Court re-evaluated the defence and found it unpersuasive as the allegation of a grudge was not raised during cross-examination. It is trite law that a defence raised late and not put to witnesses may be treated as an afterthought. We also do not find the alleged shifting of the burden of proof. 52.The appellant was sentenced to twenty (20) years’ imprisonment on Count I and life imprisonment on Count II. These sentences are lawful as prescribed in section 8(2) and 8(3) of SOA. There is no basis therefore, for interference as stated in Silas Mwiti Gikunda vs. Republic [2007] KECA 307 (KLR), where this Court quoted Wanjema vs. Republic [1971] EA 493, interference is only justified if the sentence is illegal or based on wrong principles. We also take cognizant of the holding of the Supreme Court in Francis Kariokor Muruatetu & Another vs. Republic; Katiba Institute & 5 Others (Amicus Curiae) (2021) KESC 31 (KLR) (6th July 2021) (Directions), that the ratio in the case is not applicable to sexual offences. 53.In the end, we find the appeal is without merit. It is hereby dismissed in its entirety. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI.....................................JUDGE OF APPEALJ. LESIIT.....................................JUDGE OF APPEALALI-ARONI.....................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.