https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12009

Kadaki v Republic (Criminal Appeal E016 of 2025) [2026] KEHC 12009 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12009 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E016 of 2025 PK Rotich, J July 31, 2026 Between Amos Kadaki Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. Keyne Gweno (SRM)on 22nd April, 2024 in Eldoret CMSO No. E193 of 2021) Judgment 1.The appellant is charged with 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 are that on the 24th day of July, 2021 at [Particulars withheld] village, [Particulars withheld] Sub-location in Lugari Sub- County within Kakamega County, the appellant intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of HN, a child aged 5 years. 2.In the alternative, the appellant was charged with committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on the 24th day of July, 2021 at [Particulars withheld] village, [Particulars withheld] sub-location in Lugari sub-county within Kakamega County, the appellant unlawfully and intentionally caused his penis to come into contactwith the genital organ, vagina of HN a child aged 5 years. 3.The trial court considered the evidence of 5 prosecution witnesses and 3 defence witnesses and found the appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual offence Act. Upon conviction the appellant was sentenced to serve life imprisonment. 4.Being dissatisfied with the judgement of the trial court, the appellant preferred this appeal. The appeal is based on 10 grounds which can be summarized as follows: -a.That the trial magistrate erred in law and fact by convicting the appellant based on speculative evidence.b.That the learned magistrate erred in law and fact failing to consider that the medical evidence tendered by the prosecution was not sufficient to prove penetration since the minor denied she was examined by a doctor.c.That the learned magistrate failed to note that the prosecution did prove its case beyond reasonable doubt for failing to adduce evidence on of the clothing worn by the complainant to prove blood stains alluded.d.That the trial magistrate erred in law and facts by relying on uncorroborated evidence of the prosecution particularly as the victim was not examined by a doctor who filled the P3 form.e.That the trial failed to evaluate the evidence on record in totality particularly the complainant’s admission’s that she was told by her mother what to say.f.That the trial magistrate erred in her judgment in relying purely on hearsay evidence in convicting the appellant.g.That the learned magistrate erred in fact and law by failing to appreciate the appellants alibi evidence. 5.PW1, IN the mother of the complainant lived at [Particulars withheld] in Lugari sub-county and she is a farmer. She stated the complainant was born on 10/8/2015. On 24/7/2021 at about 4:00 pm, PW1 stated, she left home with her mother-in-law to the farm to check if maize was ready for harvesting and left her children playing. A (appellant) who is the younger brother to PW1’s father-in-law, PW1 stated, was also at home. When she came back at 4:40 pm, PW1 stated, she saw that her daughter was walking with difficulty and she noticed she had some blood stains on her clothes. PW1, further, stated she undressed the complainant and was surprised to find her private parts were blooded. PW1 stated she also called her mother-in-law who also came and checked what she had seen. 6.On seeking to know from the complainant what happened to her, PW1stated, she explained that “guka” (grandfather) drugged her into the maize plantation and then pierced her with a kijiti (wooden plunk). 7.PW1 also stated that she screamed and some people came who advised her to take the child to hospital. At 7:00 pm the same day, PW1 stated, she took her to Lumakanda hospital. Two days later, on 26/7/2021, PW1 stated they brought the child to MTRH with a police officer as the matter had already been reported to the police. 8.On cross-examination, PW1 stated there was no bad blood between her and the appellant. She also stated that her home and that of the appellant are not far from each other. PW1, further, stated that the complainant declined to tell her what happened to her until she caned her. She also stated she beat up the accused at about 1:00 am but she is not aware he got fractured. 9.PW2, HN, the complainant gave unsworn testimony. She stated she was at home with, her younger brother aged 3 years at the time of the alleged incident and guka took her to the maize farm and removed her biker. Pointing at the direction of her private part, PW1 stated, he used his thing which is found here (again pointing in the direction of her private part) to enter hers and she felt pain. When he finished, PW2 stated, he went away and went home. She identified the appellant, guka in court. 10.On cross-examination, PW2 stated she was playing with Derrick her younger brother and they were alone. She also stated that the accused was at his home when her mother left but came and dragged her into the maize farm. On the material day, PW1 stated she wore a dress, panty and biker. She, further, stated the appellant removed her biker and he also undressed. 11.After the incident, PW2 stated she went back to play with D though she was still feeling pain. She also stated she was not canned by her mother nor her grandmother but they examined her. PW2, further, stated she had said what was told to say by her mother. She, however, reiterated, that the appellant did bad things to her. 12.PW3, Dr. Iren Simiyu, works at MTRH. PW3, stated that she worked with Dr. Taban for 2 years before she proceeded for further studies and that she is familiar with her handwriting and signature. PW3 produced the complainants P3 form (P. Exhibit 2) form filled by the Dr. Taban. The P3 form indicates that HN, a four-year-old child, was seen in their facility on 26/7/2021and hospital number was 1060792. On examination, PW3 stated, the child had fresh hymenal tears at 3, 6 and 9 o’clock lacerations at the vestibule and multiple fresh lacerations at the posterior Fourchette. Dr. Taban, PW3 stated, established that the girl was defiled. 13.PW5, the investigative officer No. 100844 CPC Marren Opiyo produced the complainant’s dedication certificate marked P. Exhibit 1. The certificate shows the complainant was born on 26/7/2021. 14.In his defence, DW1, the appellant stated he is a resident of Jeban and works as a carpenter. On 24/7/2021, DW1 stated, he went to a funeral from 10: 00 am to 4:00 pm and then left to go and demand his money from a lady for whom he had made a seat and she paid him. Thereafter, DW1 stated, he went to the shop to buy some items and went to his house at 7:00 pm. 15.At home, DW1 stated, he found his wife MA’ (deceased) and daughter HK and JK . He gave them the items he bought to Josephine. PW1 stated, among them 2 wicks, one which she put in lump in his house and the other where he was sleeping. Thereafter, DW1, went to eat at the house of his 2nd wife. At 2:00 am, PW1 stated, he heard a knock at his door and when he found the door, his brother (father to the complainant) the complainant’s mother and Joyce the complainant’s grandmother who pounced on him and assaulted him till he nearly fainted. 16.When daybreak came, DW1 stated, people came in motorcycles and he was arrested and escorted to Lumakanda police station. On 25/3/2025, DW1 stated, he was taken to Lumakanda hospital for treatment and on 26/3/2025 taken to MTRH for further treatment where his finger was amputated. 17.On cross-examination, DW1 stated that he went for a funeral in a neighbouring land but did not furnish proof. 18.DW2, HK stated she is a dress maker and a resident of Kisii. The appellant is her father. On 24/4/2021, DW2 stated she was at her father’s home and about 5:00 pm she heard screams outside. When she came out, DW2 stated, she saw a lady crying that her daughter had been defiled by the appellant. 19.On the material date, DW2 stated, her father left early in the morning saying he went for a funeral and came back 7:00 pm, drunk. DW2, further, stated, the place the child was allegedly defiled is next to their house. 20.DW3, JK , stated she resides in Outspan and does hairdressing. The appellant is also her father. On 24/7/2021, DW3 stated, she was at home in Lugari with her sister DW2 and at about 2:00 pm she heard a commotion and the voice of her father saying he would be killed. She went out and found a group of people beating him and she pleaded with them to stop. Thereafter, DW3 stated, she stayed awake and during day break she took her father to hospital but people with motorcycles came and arrested the appellant. 21.DW4, Dr. Edwin Rono is a Senior Medical Officer at MTRH. He produced the appellant’s P3 form (marked D.Exhibit 2.)The P3 form indicate he sustained a fracture of his left distal fourth finger and was amputated. 22.The issue for determination is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. (see.Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR) 23.The ingredients of defilement were set out in the case of of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:“The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant” 24.The investigation officer produced the complainant’s dedication 10/8/2015. She was therefore aged 4 years on 24/7/2021 the date of the alleged incident herein. It is also noted that the appellant did not contest the age of the complainant. 25.On penetration, the minor stated that after appellant was defiled, she went to play but her mother stated she had walking difficulties. The mother also states she caned the minor to tell her what happened but the minor stated she was not canned. The mother stated the minor was examined at MTRH by a doctor the minor stated she was not examined. The minor also stated she was told what to say in court by her mother (PW1). The inconsistences and contradictions in the evidence of PW1 and PW1 together with apparent coaching of PW2 by PW1 on what to say cast doubt on her to truthfulness of their evidence. This doubt benefits the appellant and this court finds it was not safe to convict the appellant and have him serve life sentence based on unreliable evidence. 26.The upshot of my findings above is this appeal has merit and the same is allowed. Consequently, the conviction and sentence by the trial court are set aside and the appellant is set at liberty forthwith unless otherwise lawfully held. 27.Right of appeal within 14 days. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MS TEAMS THIS 31ST DAY OF JULY 2026.HON. P. K. ROTICHJUDGEIn the presence of:Appellant in personMukabane for the AppellantKirenge for DPP present