https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11787

Kagari alias Kim v Republic (Criminal Appeal E008 of 2026) [2026] KEHC 11787 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11787 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E008 of 2026 DR Kavedza, J July 29, 2026 Between Dickson Indiazi Kagari alias Kim Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 17th December 2026 by Hon. C.M Njagi (PM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E113 of 2024 Republic vs Dickson Indiazi Kagari alias Kim) Judgment 1.The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between the month of April 2024 and August 2024 at [Particulars Withheld] area in Kibra Sub-County within Nairobi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of S.M.M a child aged 16 years. After a full trial, he was convicted and sentenced to serve fifteen (15) years’ imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted, stating that the ingredients of the offence were not proven beyond reasonable doubt. He contended that the conduct of the complainant was found wanting as she took four months to report the matter, that the age of the complainant is uncertain and, that it would be in the best interest of the child born out of the alleged offence to receive parental care from both parents. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution called five (5) witnesses in support of their case. PW2, S.M.M gave a sworn evidence after a voir dire testimony. She told the court that her sister, PW4, Lilian Sivanji, often sent her to the appellant’s house in order to boil water. During these instances, he forcefully had intercourse with her and warned her not to reveal this to anyone lest he murders her. Later on, her other sister, Joyce, discovered that she was pregnant. She narrated that the appellant, who she referred to as Kimemia, was responsible. 5.PW3, Joyce Makoha, corroborated the complainant’s evidence, stating that she took her to two hospitals, AMREF and Coptic, where she received medical care. She recalled that the appellant admitted to having slept with the complainant twice when interrogated. She thereafter adduced the complainant’s birth certificate, indicating that she was born on 13th April 2008. 6.PW1, Munene Ronald, a doctor from Coptic Hospital, testified that the complainant was twenty weeks and five days pregnant when she was examined on 18th September 2024. PW5, Douglas Kipchumba, the government analyst, stated that the DNA test that was conducted using buccal swabs from the appellant, the complainant and the child indicate that there is a ninety-nine percent chance that the appellant is the biological father of the complainant’s child. He then produced his report. 7.PW6, PC Esther Kagera the investigating officer received the complainant’s report, recorded the witness statements and later on obtained DNA samples from the complainant, the appellant and the child. 8.At the close of the prosecution case, the trial court was satisfied that the prosecution had established a prima facie case and put the appellant on his defence. 9.The appellant maintained that on 13th April 2024, the complainant arbitrarily entered his house while naked, refused to leave his house and warned him from raising an alarm. She told him that she was an adult and forcefully had intercourse with him. Later on, around 26th September 2024, he was interrogated having been identified as the complainant’s assailant. He was then arrested and remanded at Kibera Police Station where he was questioned and, his fingerprints as well as a sample of his DNA were obtained. 10.After a full trial, the appellant was convicted and sentenced accordingly. 11.I have re-evaluated the evidence on record and considered the written submissions and the applicable law. To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 12.Further, sections 8(1) and (4) of the Sexual Offences Act, No. 3 of 2006 provide:8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(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. 13.On the element of penetration, the complainant testified that the appellant had sexual intercourse with her on several occasions when she was sent by her sister to his house to boil water. This resulted in her pregnancy and subsequent delivery of a child. The DNA analysis conducted by PW5, the Government Analyst, confirmed that the appellant is the biological father of the child, with a 99% match as indicated in the report admitted in evidence. The element of penetration was accordingly proved beyond reasonable doubt. 14.On identification, the appellant was known to both the complainant and her sister, being the sister’s neighbour. Identification was therefore by recognition, further corroborated by the DNA evidence establishing that the appellant is the biological father of the complainant’s child. 15.As regards the complainant’s age, a ground raised on appeal, her birth certificate establishes that she was born on 13th April 2008 and was therefore sixteen years old at the time of the offence. She was accordingly a child within the meaning of the law. 16.On the remaining grounds, the appellant challenges the conviction on the basis that the complainant delayed four months before reporting the offence. The law imposes no time limit for the making of a report in criminal cases of this nature, such limitation applying only to minor summary offences, which this is not. The charges were therefore properly instituted. Further, while the law recognises that it is generally in a child’s best interests to be raised by both parents, the appellant’s presence would be detrimental to the child’s growth and well-being, given the mental and physical harm inflicted upon the complainant. 17.In the circumstances, the prosecution proved its case beyond reasonable doubt. The conviction is affirmed. 18.The appellant was sentenced to fifteen years’ imprisonment. The trial court considered the pre-sentence report and properly exercised its discretion. There is no basis upon which to interfere with the sentence. 19.The appeal is devoid of merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026.................................D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMutuma for the RespondentKarimi Court Assistant.