https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11450

Kanore v Republic (Criminal Appeal E092 of 2025) [2026] KEHC 11450 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 11450 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E092 of 2025 JK Biomdo, J July 15, 2026 Between Daniel Machache Kanore Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. J S Wesonga (SPM) in Malindi SPM (SO) Case No. E024 of 2022) Judgment 1.The appellant herein, Daniel Machache Kanore was convicted on 12 September 2025 by the SPM court in Kilifi for the offence of sexual assault contrary to section 5 (1) (a) (i) (b) as read with sub-section (2) of the Sexual Offences Act, No. 3 of 2006 and sentenced to 10 years imprisonment. 2.The particulars of the offence are that on 8 January 2022 at [Particulars withheld] area in Malindi sub-County within Kilifi County, he unlawfully caused his finder to penetrate the vagina of NMN a girl aged 10 years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, with particulars stating that on 8 January 2022 at [Particulars Withheld] area in Malindi sub-County within Kilifi County, he intentionally and unlawfully committed an indecent act by touching the vagina, sucking the breasts and kissing the mouth of NMN a girl aged 10 years using his finger and mouth. 3.He denied the allegations prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1, NMN the complainant herein aged 10 years old and a grade 4 pupil testified that on 8 January 2022 during lunch time, the appellant who was her social studies teacher at [Particulars Withheld] school called her to his house which was in a different compound but close to her home. She went where upon brief engagement he asked her if she knew how to kiss and offered to show her. He told her to go to the bedroom to pick a book and while she was looking for the book, he sat on the bed and touched her breasts. He then kissed her on the mouth, removed her tight and underwear, and inserted his index finger into her vagina where she felt pain. He then removed her shirt and sucked her breasts after which he asked her to go home but not tell anyone what had transpired. 4.The appellant sent her to buy “viazi karai” with for ksh. 10 and when she got back, he asked her if he could touch her breasts again which she declined, started crying and he let her go home. The next day on 9 January 2022, PW told her mother, PW2 EWK, what had transpired the previous day. On hearing this PW2 reported the matter to Malindi Police Station and thereafter took the complainant to Malindi Sub-County Hospital for examination. 5.PW4, a clinical officer at Malindi Sub County Hospital stated that on 9 January 2022, he examined the complainant who gave a history of having been kissed, touched in the breasts and had fingers inserted in her vagina by a person known to her. He established that she had pain on the vagina, her hymen was broken, and the labia minora was smooth and painful. He concluded that there was vaginal penetration and produced treatment notes (exhibit 2), P3 Form (exhibit 3), lab request and report (exhibits 4 & 5) and the complainant’s birth certificate (exhibit 1). 6.PW3 the investigating officer Cpl Mariam Hussein based at Malindi Police Station, Gender Based Unit testified that on 11 January 2022 he received the complainant who accompanied by her mother PW2, and had earlier on reported that she was sexually assaulted on 8 January 2022. He testified that they had already sought treatment at Malindi Sub-County hospital and presented medical evidence. She investigated the case and upon obtaining sufficient evidence, arrested the appellant who was arraigned on 21 March 2022. 7.At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence. 8.In defence, the appellant stated that he knew the complainant and PW2 since they were neighbours. He testified that the complainant visited his house severally where she would play with his children. He went on to state that on 8 January 2022, the complainant did indeed go to his house with a friend but denied committing the offence as claimed since there were many people in the house. He further testified that the complainant was framing her but wondered why. 9.At the close of the trial, the appellant was found guilty and sentenced to 10 years imprisonment. Aggrieved, the appellant filed the present Appeal where he raised the following grounds of appeal:i.The trial court erred in both law and fact by failing to consider the evidence of PW1 who stated that she was with her friends but who were not called to corroborate that evidence.ii.The trial court erred in both law and fact by failing to consider the defence raised by the appellant.iii.The trial court erred in both law and fact by failing to consider the fact that there was a serious misunderstanding between the appellant and PW2 who wanted the appellant out of work.iv.The trial court erred in both law and fact in making her judgement based on extraneous matters that were full of assumptions which ultimately prevented her from making a sound judgement. 10.At the hearing of the appeal, the appellant filed written submissions which they relied while the Respondent opposed the appeal and placed reliance on the evidence on record. In his submissions the appellant submitted that this being the first appeal, the court is duty bound to re-evaluate the evidence and arrive at its own conclusion. The case of Erick Otieno Arum vs Republic (2006) eKLR was cited in support. 11.On the first ground of the appeal, the prosecution was faulted for not calling the victim’s friends as witnesses to corroborate the evidence of PW1. It was submitted that these were crucial witnesses and failure to call them as witnesses casted doubt in the testimony on the complainant. 12.On the second ground of appeal, the trial court was faulted for failing to consider the appellant’s defence that he was framed, that on the material date, it’s PW2 who had sent the complainant to talk to the appellant and that they talked outside the house. 13.Lastly, the appellant submitted that the trial court was misguided for convicting the appellant based on the complainant’s evidence taking into account that she was a child and prone to manipulation or delusions. Analysis and determination 14.This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32. 15.The Court of Appeal, in Kiilu & Another v Republic [2005]1 KLR 174, stated thus;“An Appellant on a 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; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings 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.The appellant was charged with the offence of sexual assault contrary to section 5 (1) (a) (i) (b) as read with sub-section (2) of the Sexual Offences Act. The said Act provides:“5(1)Any person who unlawfully –(a)penetrates the genital organs of another person with –(i)any part of the body of another or that person; or(ii)………..(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.” 17.Drawing from the law as stated above, the prosecution is required to prove three ingredients of the offence of sexual assault, that there was unlawful penetration or manipulation, lack of consent or compulsion, and absence of legitimate medical purpose. In David Odanga Wanyama v R [2022] eKLR, the court stated;“The essential elements of the offence of sexual assault are proof of penetration into the genital organs of the victim by any part of the body of the person accused of the offence or any other person or objects manipulated by the accused person for that purpose.” Proof of unlawful penetration or manipulation 18.In order to prove this ingredient, the prosecution was required to establish that the appellant penetrated the complainant’s genital organs with a body part or an object manipulated by either the appellant or the complainant. It also extends to manipulating any part of the body to cause penetration of the victim’s genital organ by any part of the victim’s body. 19.Section 2 of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. “genital organs” is defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 20.In the context of Section 5 (1) (a) of the Sexual Offences Act, penetration would mean the partial or complete insertion of any part of a persons body (other than his/her genital organs) into the genital organs of another person. In this case, the prosecution will have to prove that the appellant partially or fully inserted his finger into the vagina of the victim. 21.PW1 testified that on 8 January 2022 during lunch hour, the appellant called her to his house and inserted his index finger into her vagina which caused pain. This was corroborated by PW4 who examined the her on 9 January 2022 and established that she had pain on the vagina, her hymen was broken, and the labia minora was smooth and painful, leading to the conclusion that there was vaginal penetration. The appellant admitted that the complainant went to his house on the material day which placed him in the crime scene. 22.The appellant in his submissions contended that the trial court erred in relying on the evidence of PW1 to convict him despite his tender age and potential for manipulation. In sexual offences cases, the court can legally convict an accused person on the sole evidence of the victim by dint of Section 124 of the Evidence Act. See EK alias E vs Republic (Criminal Appeal No. E031 of 2013) (2024) KEHC 1065 and BS vs Republic (Criminal Appeal 151 of 2023) (2024) KEHC 1453. 23.The evidence of the complainant did not require corroboration. However, in this case, PW1’s evidence was sufficiently corroborated by medical evidence which established beyond reasonable doubt that there was penetration. The court finds that there was evidence that the appellant unlawfully penetrated the vagina of the complainant using his finger thereby proving this ingredient beyond reasonable doubt. Proof of lack of consent or compulsion 24.The other ingredient that the prosecution must prove is that the victim did not consent to the penetration. PW1 testified that she was 10 years old at the time of commission of the offence. This was corroborated by PW2 who produced her birth certificate as exhibit 1 which showed that she was born on 14 June 2011, meaning she was a child within the definition of the law. 25.It is trite law that children below the age of 18 years cannot consent to any sexual activity and as such children have no legal capacity to give consent. See John Ondongo Sutha vs Republic (2019) eKLR. PW1, being a child, could not have consented to the activity and hence the court finds that this ingredient was proved. Proof of absence of legitimate medical purpose 26.In order to prove this ingredient, it must be established that the penetration was not carried out for proper, professional, hygienic or medical purposes, that is, conducted by licensed medical professional with patient permission. 27.PW1’s evidence clearly show that the penetration was not conducted for medical purposes. Additionally, the appellant was not a licensed medical professional and the act did not occur in the medical examination set up. The court finds that this ingredient was duly established. 28.The appellant faulted the prosecution for not calling the victim’s friends as witnesses to corroborate the evidence of PW1 arguing that these were crucial witnesses and failure to call them as witnesses casted doubt in the testimony on the complainant. In Mwangi vs. Republic (1984) KLR 595, the court of Appeal said:-“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.” 29.The prosecution retained the discretion to determine which witnesses to call and is not obligated to call every listed witness provided the evidence presented is sufficient to prove the charges against the accused beyond a reasonable doubt. The witnesses referred to by PW1 in his testimony was Pendo and Irene. PW1 clearly testified that she met them outside after coming from the appellant’s house on the way to buy viazi karai. They were not inside the house and besides, the appellant admitted that PW1 was in his house. Their testimony, in the court view, would be immaterial. 30.The appellant further faulted the trial court for not considering the his defence. The record clearly shows that the trial court duly considered the appellant’s defence but found it insufficient to discharge the overwhelming evidence by the prosecution. The trial court stated thus in its judgement, “The accused defence, a mere denial, is not sufficient to counter the overwhelming and corroborated evidence presented by the prosecution. The accused admitted to being present and interacted with the victim on the day in question, but, his explanation of the event is not plausible in light of the victim’s and medical evidence.” 31.The court is satisfied that all ingredients of the offence were proved beyond reasonable doubt. The sentence awarded by the trial court was within the threshold provided by law. I see not reason to interfere with it. 32.The court finds no merit in the appeal which is hereby dismissed in its entirety. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE