https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10918

Kadhengi v Republic (Criminal Appeal E020 of 2026) [2026] KEHC 10918 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 10918 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E020 of 2026 FN Kyambia, J July 20, 2026 Between Bahati Kadhengi Appellant and Republic Respondent (Being an Appeal from the decision by Hon. G.M Mokua Resident Magistrate in Kaloleni S.O E026 of 2025 dated 16th December, 2025) Judgment 1.The appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act. The particulars of the charge were that on diverse dates between 10th November, 2024 and 30th June, 2025 at (particulars withheld) within Kilifi County willfully penetrated her fingers into the female genital organ namely vagina of S.D a child aged 8 years. 2.The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on diverse dates between 10th November, 2024 and 30th June, 2025 at (particulars withheld) within Kilifi County intentionally committed an act which caused her fingers to touch the female genital organ namely vagina of S.D a child aged 8 years. 3.The appellant pleaded not guilty to the charges when she was arraigned in court. After hearing the evidence of four witnesses and the appellant’s defence, the trial court acquitted the appellant on the main charge of sexual assault. The appellant was however found guilty and convicted on the alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. She was subsequently sentenced to serve 10 years imprisonment. 4.The appellant being aggrieved by the conviction and sentence of the trial magistrate lodged an appeal to the High Court. The appellant raised four grounds which are contained in her petition of appeal. Those grounds are:1.The learned trial magistrate erred in law and fact in failing to consider the evidence of PW4 a clinical officer who upon examining the complainant reported that there was no form of penetration and that the hymen was intact contrary to the testimony of PW2 which was crucial to discount the offence of indecent act;2.The learned trial magistrate erred in principle and law by failing to subject the complainant to voire dire noting that the complainant could be couched in her testimony;3.The learned magistrate erred in law by failing to consider the testimony of the appellant which was in tandem with the evidence of PW3; and4.The learned trial magistrate erred in fact in failing to consider that the appellant was in fact appointed as the complainant’s guardian hence had a duty to take care of the complainant. 5.In short the appellant’s contention is that the prosecution failed to discharge the legal and evidential burden and as such the conviction and sentence by the trial court should be set aside and the appellant be acquitted. 6.The appeal was heard by way of written submissions. The record shows that it is only the appellant written submissions which are on record. The respondent submissions are not on record. This is despite the parties being given time to file submissions by this court when the matter came up for judgment on 9th July, 2026 when the court noticed there were no submissions on record. 7.The appellant in her submissions identified three issues for determination as follows:i.Whether the prosecution proved the offence of committing indecent act with a child beyond reasonable doubt;ii.Whether the learned trial magistrate erred in relying on speculative and hearsay evidence instead of cogent evidence; andiii.Whether the sentence imposed should be set aside and/or substituted. 8.From the foregoing it appears that the appellant abandoned some of the grounds raised in the petition of appeal like failure by the trial court to conduct voire dire examination which in any case was conducted. 9.The gist of the appellant’s submissions is that the alternative charge which she was convicted on was not proved as required. In particular the appellant submitted that the prosecution failed to prove that there was contact between the appellant and the complainant’s genital organ. 10.The appellant asserted that the evidence of PW1 was purely hearsay, circumstantial and speculative. The appellant further submitted that the complainant throughout her evidence she never alleged that the appellant touched her vagina but explicitly told the court that the appellant used to insert her fingers in her vagina. It is the appellant position that this was disapproved by the evidence of PW4 who examined the appellant and found that there was no penetration into the complainant’s genital organ. 11.The appellant further submitted that the trial court faulted in relying on the evidence of the complainant without corroboration noting that the minor never said her evidence that the appellant touched her but inserted fingers in her vagina. The appellant termed the entire case to be founded on suspicion which cannot form basis for conviction. Reliance was placed on the case of Paul Otieno Okello vs Republic (2019) e KLR. 12.The appellant further submitted that the trial magistrate fell into error by finding that there was no evidence to prove penetration but automatically concluded that the evidence adduced established the offence of indecent act. It is the appellant submission that the evidence was speculative and hearsay. It is the position of the appellant that it was prudent for the prosecution to call the complainant’s siblings who were staying with her to corroborate the evidence of the complainant. Reliance was placed on the case of Sawe vs Republic (2003) e KLR. Further reliance was placed on the cases of John Mutua Munyoki vs Republic (2017) e KLR where the case of Michael Mugo Musyoka vs Republic (2015) e KLR was cited with approval on the weight to be attached on hearsay evidence. 13.The appellant also faulted the trial court for imposing sentence which did not meet constitutional dictates in light of Article 27 of the Constitution. The appellant further relied on the case of Francis Karioko Muruatetu & Others vs Republic (2017) e KLR. 14.As I have indicated the respondent did not avail submissions and therefore there is nothing for the court to consider on the part of the respondent. 15.This being the first appeal to the High Court and as expected I have examined the record of the trial court, re-evaluated the facts and drawn my own independent conclusions. I have done so not overlooking the fact that I did not have the advantage of hearing or seeing the witnesses testify in court. This principle has been restated in numerous authorities. For instance, in the case of Kiilu & Another vs Republic (2005) e KLR the Court of Appeal restated this mandate where it rendered itself thus:“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; Only then can it decide whether the magistrate’s finding 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.” 16.In the instant case the appellant was convicted on the charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act which provides as follows:“11(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 term of not less than ten years.” 17.An indecent act is defined under Section 2 of the Sexual Offences Act to mean:“Any unlawful intentional act which causes:a.any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;b.exposure or display of any pornographic material to any person against his or her will.” 18.The ingredients of the offence of indecent act were set out in the case of Paul Otieno Okello vs Republic (supra) where the court stated the must be proof that the victim is a child in law; proof that there was contact between any body part of the accused person with the genital organ, breast or buttock of the child victim (but that act must not be an act that causes penetration) or proof of exposure or display of any pornographic material to child; proof that the act(s) was/were intentional; and, there should be no legal justification in the act(s) complained of. 19.In the instant case the trial court largely relied on the evidence of PW2 who testified that the appellant used to insert her fingers to her vagina. She would cry. She informed PW1 who reported the matter to the police. The complainant was examined by PW4 who found that there were no injuries on the complainant’s genital organs. 20.The trial court found that the evidence did not support the charge of sexual assault primarily because according to PW4 there was no evidence of penetration. The trial court however proceeded and found that the alternative charge of indecent act was proved, primarily relying on the evidence of the complainant which he believed pursuant to Section 124 of the Evidence Act. 21.It is undisputedly clear that the only direct evidence linking the appellant with the offence of indecent act is that of the complainant alone. The evidence of PW1 was merely hearsay and it cannot be said to have corroborated the evidence of the complainant. She only told the court what the complainant narrated to her. Similarly, the evidence of PW3 was also hearsay. 22.What the complainant told the court in her evidence was that the appellant used insert her fingers into her genital organ namely vagina. It is her evidence that the appellant did so on several occasions. At no time did the complainant say the appellant touched her vagina. In the case of Paul Otieno Okello vs Republic (supra) the court stated:“As to whether there was any contact between any body part of the appellant with the genital organ, breast or buttocks of the complainant which however did not cause penetration, I must say that I have re-read the proceedings severally and did not see anywhere where the complainant alleged that the appellant touched her genital organ, breasts or buttocks. The complainant talked of the appellant having had sex with her twice, an allegation which the trial court rejected for lack of proof and no appeal was lodged against the finding. The complainant was not led to describe how the sexual act unfolded and which part of her body was touched by which part of body of the appellant. With such state of evidence, I do not see how the offence of committing indecent act with a child was proved. A trial court should not assume that once it finds no evidence of commission of the principal charge of defilement then the lesser charge of committing indecent act with a child must have been committed. Every offence has the same threshold of being proved beyond reasonable doubt.” 23.As I have stated the complainant told the court that the appellant inserted fingers to her genital organ. This fact was disapproved by the evidence of PW4 who said upon examination he found no injuries suggestive of penetration. It is also notable that the only evidence was that of the complainant alone. All the other witnesses especially PW1 and PW3 gave hearsay evidence. The trial court relied on the evidence of the complainant only to make a finding that the offence of indecent act was proved. 24.It is trite that in sexual offences the court can convict an accused person on the evidence of the victim alone pursuant to Section 124 of the Evidence Act if for reasons to be recorded the court believed that the complainant was truthful. In the case of John Mutua Munyoki vs Republic (2017) e KLR cited with approval in the case of Arthur Mshila Manga vs Republic (2016) e KLR the court held:“The medical evidence having failed to confirm that JM was defiled, the only evidence of defilement was that of JM. It is trite that under the proviso to Section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of sexual offence alone… However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.” 25.In the instant case the trial court believed the evidence of the complainant. The trial court gave reasons for believing the complainant because she was firm in both the examination-in-chief and cross-examination, that she indicated clearly that she was not couched and that what she narrated to PW1 is what she told PW3 during interrogation. 26.It is notable that the first person the complainant informed of the ordeal was PW1. It was very clear that PW1 was just a neighbor. There was nothing to suggest that PW1 had had differences with the appellant so as to frame her. I am satisfied that the trial court laid the basis and recorded the reasons for believing the complainant whom the trial court had the opportunity to observe her demeanor while giving the evidence in court. I see no reason to fault the trial court on relying the evidence of the complainant in the circumstances. 27.However, the crucial issue whether the evidence led by the prosecution proved the alternative charge. This issue is critical because every offence must be proved to the required threshold in the sense that all the necessary ingredients are established. Of importance in this case is whether there was proof that there was contact between any body part of the appellant with the genital organ of the complainant. In deciding this issue, the evidence of the complainant is critical. 28.The complainant talked about the appellant inserting her fingers to her genital organ. It may be assumed by so doing the appellant touched the genital organ of the complainant. However, the medical evidence disapproved penetration. It is only the complainant who witnessed the incident. Much as the trial court was bound to believe the evidence of the complainant, who was a child of tender years, the trial court should have warned itself on whether the circumstances were incompatible with the innocence of the appellant and incapable of any other explanation other that the guilty of the appellant. (see Sawe vs Republic (2003) e KLR. 29.In the instant case, the evidence shows that the appellant was entrusted with the complainant and her siblings to take care of them. The complainant used to sleep with her sibling namely Yusra. The age of Yusra was never disclosed to the trial court to determine whether she was capable of giving evidence in court. Her evidence and that of the other siblings was crucial to corroborate the story by the complainant. Further PW1 alluded to have heard the complainant crying while in the house with the appellant but she never bothered to find out what was the problem despite the persistence cry. 30.The prosecution case in my assessment was founded on suspicion and as held in the case of Mary Wanjiku Gichira vs Republic Criminal Appeal No. 177 of 1998 suspicion however strong, cannot provided a basis for inferring guilt which must be proved by evidence. In the instant case I find doubt in the prosecution and the same must be to the benefit of the appellant. The conviction of the appellant was not safe in the circumstances. 31.Having arrived at the foregoing, I need not consider the issue of sentence, but in any case the same was lawful as provided for by the law as the appellant was handed over the minimum sentence provided. 32.The upshot however is that the appeal is hereby allowed and the conviction and sentence of the trial court is hereby set aside and the appellant is acquitted. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY, 2026.FRANCIS N. KYAMBIAJUDGeIn the presence of:Appellant appearing virtuallyMs. Mutua for the respondent appearing virtuallyMs. Otwo Court Assistant.