https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7035

Kamau v Republic (Criminal Appeal E016 of 2025) [2026] KEHC 7035 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7035 (KLR) Republic of Kenya In the High Court at Narok Criminal Appeal E016 of 2025 CM Kariuki, J May 21, 2026 Between John Kiiru Kamau Appellant and Republic Respondent (Being an appeal from the conviction and sentence of Hon. P. L. Shinyada (PM) in Narok MCSO NO. E062 OF 2021 delivered on 20/05/2025) Judgment A. Introduction And Background 1.This appeal arises from the judgment and sentence of the Principal Magistrate’s Court at Narok in Republic v John Kiiru Kamau delivered by Hon. P. L. Shinyada (PM) on 20th May 2025. The appellant, John Kiiru Kamau, had been 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 charge were that on 22nd April 2021 in Narok East Sub-County within Narok County, he intentionally caused penetration of the vagina of LLM, a child aged 16 years. In the alternative, he faced a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The prosecution called six witnesses in support of its case. PW1, the complainant, testified that on the material day the appellant lured her into his cereal store under the pretext of assisting him arrange maize. She testified that the appellant pushed her onto a mattress inside a back room, covered her mouth, removed her undergarments, and penetrated her vagina with his penis without protection. She further testified that she experienced pain and bleeding thereafter and later discovered she was pregnant after missing her menstrual period. 3.PW2, the complainant’s mother, testified that the complainant disclosed the incident after informing her that she was pregnant. PW3 and PW6, who were police officers involved in the investigations, confirmed that the complainant was taken to the hospital, where pregnancy was confirmed, and thereafter the appellant was arrested. PW4, a Clinical Officer, produced the complainant’s treatment notes, P3 Form, Post Rape Care Form, and antenatal records, confirming that the complainant was pregnant and that her hymen was broken, though the injuries were longstanding. PW5, the complainant’s father, corroborated the evidence relating to the disclosure of the offence and the subsequent reporting to the police. 4.In his defence, the appellant denied the offence and alleged that the case was motivated by business rivalry between him and the complainant’s mother after he established his own cereal business. He contended that he had requested for a DNA test to establish paternity of the pregnancy, but the same was never undertaken. The defence also maintained that the alleged incident could not have occurred unnoticed because the area was busy and there were always people around the stores. 5.Upon evaluating the evidence, the trial court found that the prosecution had proved the offence of defilement beyond reasonable doubt. The appellant was convicted under section 215 of the Criminal Procedure Code and sentenced to fifteen (15) years imprisonment pursuant to section 8(4) of the Sexual Offences Act. Aggrieved by both conviction and sentence, the appellant lodged the present appeal. B. Petition Of Appeal 6.The Petition of Appeal dated 23rd May 2025 challenges both the conviction and sentence imposed by the trial court in MCSO/E062/2021, namely The Republic v John Kiiru Kamau, where judgment was delivered by Hon. P. L. Shinyada (SPM) on 20th May 2025. The appeal raises the following grounds: 1.The learned trial magistrate erred in law and in fact in finding that the prosecution had proven the charges levelled against the appellant to the tune of beyond reasonable doubt, when no such burden of proof was discharged at all. 2.The learned trial magistrate erred in law and in fact in wholesomely relying on the uncorroborated evidence of PW1, the alleged victim, which piece of evidence was not safe enough to secure a conviction. 3.The learned trial magistrate erred in law and in fact in failing to note and hold that the failure by the prosecution to conduct a DNA test on the foetus upon the induced miscarriage was fatal to the prosecution's evidence and case, and that that failure occasioned a complete mistrial of the accused's case. 4.The learned trial magistrate handed an excessive sentence upon the accused person. 5.The sentence passed by the learned trial magistrate is unconstitutional, particularly because it was a mandatory sentence that deprived the trial court of an opportunity to exercise discretion in sentencing after a mitigation hearing. 6.There was no meaningful and/or impactful mitigation hearing conducted by the trial court, and the accused person was thus condemned unheard on that part of hearing. 7.Consequently, the appellant seeks orders from the appellate court allowing the appeal, quashing the conviction and sentence, substituting the same with an acquittal, or in the alternative reducing the sentence and granting any other appropriate relief in the interests of justice. C. Submissions i. Appellant’s Submissions 8.The appellant, John Kiiru Kamau, through M/s N.E. Mogusu & Associates Advocates, submitted that the proceedings before the subordinate court amounted to a complete mistrial occasioned by serious evidentiary gaps and procedural failures on the part of the prosecution. Counsel argued that the conviction was unsafe because the prosecution failed to prove the charge beyond reasonable doubt and instead relied entirely on the uncorroborated testimony of the complainant. 9.The appellant submitted that the complainant did not report the alleged defilement immediately to her parents or the authorities. According to the submissions, the complaint only arose several months later after the complainant was discovered to be pregnant, and it was alleged that the appellant’s name was mentioned only after pressure and intimidation from her father. Counsel contended that this delay in reporting substantially weakened the credibility and reliability of the complainant’s evidence. 10.It was further submitted that throughout the proceedings, the prosecution repeatedly sought adjournments on the basis that they were awaiting the birth of the child in order to conduct a DNA test. Counsel argued that this conduct demonstrated that even the prosecution doubted the sufficiency of the complainant’s oral testimony and considered DNA evidence essential to prove paternity and connect the appellant to the alleged offence. The appellant maintained that all parties, including the court, legitimately expected the DNA test to be undertaken. 11.Counsel submitted that after nearly two years, the prosecution informed the court that the pregnancy had been terminated in its last trimester and no DNA samples had been preserved from the foetus prior to burial. The appellant argued that the complainant and the investigating officer admitted they were aware that the DNA results were awaited as a critical evidentiary component, yet failed to preserve the samples. According to counsel, the prosecution’s failure to preserve such crucial evidence fatally weakened the case and denied the appellant a fair and transparent hearing. 12.The appellant argued that the entire prosecution case was founded upon allegations of penetration, evidenced by pregnancy, and that without proof of pregnancy or linkage through DNA evidence, the conviction could not safely stand. Counsel contended that the possibility remained that the complainant merely named the appellant for convenience and that the destruction of the foetal evidence eliminated the only objective scientific means of confirming or disproving the allegation. It was submitted that where the prosecution deliberately fails to preserve vital evidence, the court should draw an adverse inference against the prosecution and extend the benefit of doubt to the accused person. 13.In support of the argument on the significance of DNA evidence, counsel referred to Republic v Okoth Obado, where DNA samples obtained from a foetus were used to establish biological paternity and connect the accused person circumstantially to the offence. The appellant argued that similar preservation and testing ought to have been undertaken in the present case. 14.The appellant further submitted that the trial court was overly influenced by emotion and improperly relied on uncorroborated oral testimony to convict the appellant despite the glaring evidentiary gaps. Counsel argued that the prosecution thereby created substantial doubt as to whether the appellant was indeed responsible for the alleged defilement and pregnancy, and that such doubt ought to have been resolved in favour of the accused person. 15.On sentence, the appellant contended that the sentence imposed was harsh and excessive in the circumstances of the case. Counsel submitted that the trial court failed to adequately consider the evidentiary doubts surrounding the case and ought to have exercised leniency, particularly in view of the possibility that the appellant may have been wrongly convicted. 16.The appellant therefore urged the High Court to allow the appeal, quash both the conviction and sentence, and acquit the appellant. ii. Respondent’s Submissions 17.The Respondent, the Office of the Director of Public Prosecutions, opposed the appeal and submitted that the conviction and sentence imposed by the trial court were proper, lawful, and supported by sufficient evidence. The prosecution stated that the appellant had been charged with the offence of defilement contrary to section 8(1) as read together with section 8(4) of the Sexual Offences Act, No. 3 of 2006, as well as an alternative charge of committing an indecent act with a child contrary to section 11(1) of the same Act. The particulars of the main charge were that on 22nd April 2021 at Junction Shopping Centre in Narok East Sub-County within Narok County, the appellant intentionally caused penetration of the vagina of L.L.M, a child aged 16 years. 18.The Respondent submitted that all the grounds of appeal related to the sufficiency and evaluation of evidence adduced before the trial court. Counsel relied on section 8(1) of the Sexual Offences Act, which defines the offence of defilement, and section 8(4), which prescribes a sentence of not less than fifteen years imprisonment where the child is aged between sixteen and eighteen years. 19.In support of the legal ingredients required to prove the offence of defilement, the prosecution relied on F.M.N v Republic, where Hon. Justice F. Gikonyo held that the prosecution must establish three essential elements, namely: whether the complainant was a child, whether penetration occurred, and whether the penetration was caused by the accused person. 20.On the issue of age, the Respondent submitted that the complainant was proved to be a child within the meaning of section 2 of the Children Act, No. 29 of 2022, which defines a child as a person who has not attained the age of eighteen years. Counsel pointed out that PW1 testified on 5th December 2023 that she was aged 18 years at the time of giving evidence, thereby confirming that she was 16 years old at the time of the offence in 2021. PW2, the complainant’s mother, equally testified that the complainant was aged 16 years when she was defiled. Further, PW3 produced the complainant’s birth certificate, indicating her date of birth as 12th February 2005. The Respondent therefore submitted that the complainant’s age was conclusively proved and remained undisputed during the trial. 21.Regarding penetration, the prosecution referred to the definition contained in section 2 of the Sexual Offences Act, which defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. It was submitted that PW1 gave direct evidence describing how the appellant lured her into his store under the guise of helping him arrange maize, pushed her onto a mattress, and proceeded to defile her without protection. PW1 further testified that she experienced pain in her vagina and later observed blood coming from her private parts. She also stated that she conducted a pregnancy test after missing her menstrual period. 22.The Respondent further relied on the testimony of PW5, a Clinical Officer at Nairegia Enkare Level 4 Hospital, who testified that PW1 was examined on 8th June 2021 and that a pregnancy test confirmed she was two months pregnant. Counsel therefore submitted that the prosecution had established penetration beyond reasonable doubt through both oral and medical evidence. 23.On identification, the prosecution argued that there was no possibility of mistaken identity because the complainant knew the appellant prior to the incident. PW1 testified that the appellant was a friend of her mother and owned a store adjacent to her mother’s business premises. The complainant also informed PW2 and PW5 that it was the appellant who had defiled her. The Respondent therefore maintained that the appellant was positively identified and there was no margin for error as to his identity. 24.In conclusion, the Respondent submitted that the prosecution's case was proved beyond reasonable doubt and that the learned trial magistrate properly evaluated the evidence before arriving at the conviction. Counsel maintained that the sentence imposed was lawful and within the provisions of section 8(4) of the Sexual Offences Act. D. Issues For Determination 25.Having considered the Petition of Appeal, the record of appeal, the evidence adduced before the trial court, and the rival submissions by counsel, the following issues arise for determination:i.Whether the prosecution proved the offence of defilement beyond reasonable doubt;ii.Whether failure to conduct or preserve DNA evidence was fatal to the prosecution's case;iii.Whether the trial court improperly relied on the uncorroborated evidence of the complainant;iv.Whether the sentence imposed was harsh, excessive, or unconstitutional; andv.What orders ought to issue. E. Analysis And Determination 26.This being a first appellate court, this court is obligated to re-evaluate, reconsider, and analyze 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 duty was well articulated in Okeno v Republic [1972] EA 32, where the Court of Appeal held that a first appellate court must itself weigh conflicting evidence and draw its own conclusions. i. Whether the prosecution proved the offence of defilement beyond reasonable doubt 27.The offence of defilement is created under section 8(1) of the Sexual Offences Act, while section 8(4) prescribes the sentence where the complainant is between sixteen and eighteen years. The prosecution was therefore required to prove three essential ingredients, namely: the age of the complainant, penetration, and the identity of the perpetrator. This position was stated in Charles Wamukoya Karani v Republic Criminal Appeal No. 72 of 2013 and reiterated in F.M.N v Republic (Criminal Appeal No. 78 of 2008. 28.On age, the complainant testified that she was aged 16 years at the time of the offence. PW2 and PW6 corroborated that evidence, while PW6 produced the complainant’s birth certificate indicating that she was born on 12th February 2005. The offence occurred on 22nd April 2021. The complainant was therefore 16 years old at the material time. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic [2016] eKLR held that age may be proved through documentary evidence, such as a birth certificate, or through credible oral testimony. This court is satisfied that the complainant’s age was proved beyond reasonable doubt. 29.On penetration, PW1 gave a detailed account of how the appellant removed her undergarments and inserted his penis into her vagina. Her testimony was corroborated by medical evidence from PW4, who confirmed that the complainant was pregnant and had a broken hymen. The complainant’s pregnancy, confirmed approximately two months after the incident, strongly corroborated the occurrence of penetration. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into another person’s genital organs. 30.The appellant argued that the absence of DNA evidence rendered the prosecution's case defective. However, the law is settled that DNA evidence is not a mandatory requirement in proving the offence of defilement. In AML v Republic [2012] eKLR, the court held that the fact of rape or defilement is not proved solely by DNA evidence but by the totality of evidence placed before the court. Similarly, in Kassim Ali v Republic [2006] eKLR, the Court of Appeal held that the absence of medical evidence is not necessarily fatal where credible oral evidence exists. 31.Whereas the failure to preserve foetal samples for DNA analysis may have been an investigative lapse, the court is not persuaded that the omission was fatal to the prosecution's case. The pregnancy merely corroborated penetration. The offence of defilement was complete upon proof of penetration, irrespective of pregnancy or paternity. The complainant’s evidence remained direct evidence of the sexual act, and the trial court believed her testimony. Under the proviso to section 124 of the Evidence Act, a court may convict on the sole evidence of a complainant in sexual offences if it records reasons for believing the complainant to be truthful. 32.This court has carefully re-evaluated the complainant’s testimony and finds it coherent, consistent, and truthful. The complainant knew the appellant very well, as he operated a neighboring cereal store and was a friend to her mother. The possibility of mistaken identity was therefore excluded. The appellant’s defence that the charge was motivated by business rivalry was not substantiated by any credible evidence and was rightly rejected by the trial court as an afterthought. 33.The burden of proof in criminal cases rests upon the prosecution throughout and never shifts to the accused person. See Woolmington v Director of Public Prosecutions [1935] AC 462. Having independently reviewed the evidence, this court is satisfied that the prosecution discharged that burden and proved the offence beyond reasonable doubt. ii. Whether the sentence was harsh, excessive, or unconstitutional 34.The appellant further challenged the sentence of fifteen years imprisonment on the grounds that it was excessive and imposed without meaningful consideration of mitigation. 35.Section 8(4) of the Sexual Offences Act prescribes a sentence of not less than fifteen years imprisonment for defilement involving a child aged between sixteen and eighteen years. The trial court considered the probation officer’s report, the appellant’s mitigation, and the aggravating circumstances of the case before imposing the statutory minimum sentence. 36.The Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory death sentences unconstitutional for murder cases. However, the Supreme Court subsequently clarified in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR that the decision did not automatically invalidate mandatory or minimum sentences prescribed under other statutes such as the Sexual Offences Act. 37.In the present case, the trial court considered mitigation and the appellant’s status as a first offender. The sentence imposed was the minimum sentence provided by law and cannot, therefore, be said to have been excessive or unlawful. This court finds no basis upon which to interfere with the sentence. 38.Consequently, the appeal against conviction and sentence lacks merit and is hereby dismissed in its entirety. The conviction and sentence imposed by the trial court are hereby upheld. 39.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK THIS 21ST DAY OF MAY, 2026...................................CHARLES KARIUKIJUDGE