https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9350

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E037 OF 2025** **JOHN JUMA KARAKACHA alias JONAS………………………….……………APPELLANT** **VERSUS** **REPUBLIC………………………………………………………………………..RESPONDENT** **JUDGMENT** 1. The Appellant, John Juma Karakacha alias Jonas, was charged before the Senior Principal Magistrate’s Court at Mumias in Criminal Case No. E5 of 2024 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. In the alternative, he faced a charge of committing an indecent act with a child. 2. Upon full trial, the Appellant was convicted on the main count and sentenced to fifteen (15) years imprisonment, being the statutory minimum sentence under section 8(4) of the Act. 3. Aggrieved by both conviction and sentence, the Appellant lodged the present appeal. 4. This Court is mindful that as a first appellate court, it is under a duty to re-evaluate, re-analyse and reconsider the entire evidence on record and arrive at its own independent conclusions. 5. In **Okeno v Republic [1972] EA 32,** the Court of Appeal stated: ‘An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination. It is the duty of the first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld or not. 1. The prosecution called five witnesses.PW1, the complainant, testified that she was born on 30th December 2007 and produced a birth certificate as Exhibit 1. She stated that the Appellant had been her boyfriend since 2020. She testified that on 13th January 2024 she voluntarily went to the Appellant’s house, where she stayed until 18th January 2024. During that period, she stated that they engaged in sexual intercourse repeatedly. 2. PW2 testified that the complainant was reported missing and investigations led to the Appellant’s house where she was found.PW3, a clinical officer, testified that examination of the complainant revealed evidence consistent with sexual activity. 3. PW4, the Assistant Chief, confirmed that he traced the complainant to the Appellant’s house and that she was rescued there.PW5, the investigating officer, confirmed the arrest and statements obtained from witnesses. 4. The Appellant denied the offence and stated that he was falsely implicated and arrested at the market. **Issues for Determination** 1. The issues arising for determination are: 2. Whether the prosecution proved the age of the complainant beyond reasonable doubt; 3. Whether penetration was proved; 4. Whether the Appellant was properly identified; 5. Whether the conviction was safe in law. **Analysis and determination** 1. **Whether the prosecution proved the age of the complainant beyond reasonable doubt** 2. The complainant testified that she was born on 30th December 2007 and produced a birth certificate as Exhibit 1. The offence occurred between 13th and 18th January 2024.The trial court found that she was 16 years old at the material time. 3. This Court finds no basis to interfere with that finding. The birth certificate is the most reliable documentary proof of age and was not challenged during trial. 4. The Court therefore finds that the prosecution proved beyond reasonable doubt that the complainant was a child within the meaning of section 2 of the Sexual Offences Act. 5. **Whether penetration was proved;** 6. Penetration is a key ingredient of the offence of defilement **In George Opondo Olunga v Republic [2016] eKLR,** the Court of Appeal held: ‘penetration is the partial or complete insertion of the general organs of a person into the genital organs of another person. The testimony of the complainant, if credible, is sufficient to prove penetration.’ 1. In the present case, PW1 gave a clear account of repeated sexual intercourse with the Appellant over a period of several days. PW3, the clinical officer, confirmed findings consistent with sexual activity. 2. The Court finds that the complainant’s testimony was credible, consistent, and corroborated by medical evidence. 3. Accordingly, penetration was proved beyond reasonable doubt. 4. **Whether the Appellant was properly identified** 5. The Appellant and the complainant knew each other well as boyfriend and girlfriend since 2020. The complainant voluntarily went to the Appellant’s house and stayed there for several days. 6. PW2, PW4, and PW5 confirmed that the complainant was found in the Appellant’s house and that he was later arrested. 7. In **Anjononi & Others v Republic [1980] KLR 59,** the Court held: ‘Recognition of an assailant is more reliable than identification of a stranger because it is based on personal knowledge. The possibility of mistaken identity is reduced where the witness is familiar with the accused person…However, court must still examine the circumstances of recognition carefully to ensure that the evidence is free from error. Where the witness had adequate opportunity to recognize the accused, such evidence is safe and reliable.’ 1. In this case, the complainant had prolonged interaction with the Appellant over several days. The identification was therefore by recognition and is safe. 2. In **Sawe v Republic [2003] KLR 364**, the Court held: ‘suspicion however strong cannot be the basis of a conviction. The prosecution bears the burden of proving the case beyond reasonable doubt.’ 1. In the present case, the prosecution evidence was direct, consistent, and not shaken in cross-examination. 2. The Appellant’s defence was a bare denial. It did not challenge the core prosecution evidence. 3. The trial court properly considered the defence but found it unconvincing in light of the strong prosecution case. 4. **Whether the conviction was safe in law.** 5. Having re-evaluated the entire record, this Court finds: 6. The complainant was a minor aged 16 years; 7. Penetration was proved by credible testimony and medical evidence; 8. The Appellant was properly identified through recognition; 9. The prosecution case was consistent and unshaken. 10. The conviction was therefore safe and the sentence of fifteen (15) years imprisonment is the statutory minimum under section 8(4) of the Sexual Offences Act. The trial court had no discretion to go below the minimum. 11. The sentence is therefore lawful and is upheld and the appeal lacks merit in its entirety. 12. The conviction and sentence by the trial court are hereby affirmed 13. Accordingly, the court orders; 14. The appeal is dismissed. 15. The conviction is upheld. 16. The sentence of fifteen (15) years imprisonment is confirmed. 17. Days spent in remand custody during the trial to be factored as ordered by the trial court. 18. Right of 14 days explained. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 22nd DAY OF JUNE, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zildah/Velma Appellant Present. Ms Emily Kiu for the ODPP present.