https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7617

Karanja v Republic (Criminal Appeal E048 of 2024) [2026] KEHC 7617 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7617 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E048 of 2024 SC Chirchir, J May 28, 2026 Between George Waithaka Karanja Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. S.K. Nyaga (SRM) in Kenol MCSO No. E008 of 2023 delivered on 19th June, 2024) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 4th March 2023 at Murang’a County, he intentionally caused his penis to penetrate the vagina of G.N.M, a child aged 5 years. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the same Act. 2.The Appellant denied the charges and was consequently taken through a full trial. In the end he was convicted of the main charge, and sentenced to life imprisonment. 3.The Appellant was aggrieved by the conviction and sentence and proffered this appeal. He has listed the following amended grounds:i.The learned trial magistrate erred in law and fact by admitting the complainant’s evidence without conducting a proper, lawful and meaningful voir dire examination.ii.The learned trial magistrate erred in law and fact by failing to analyse and resolve material contradictions and inconsistencies that permeated the prosecution case.iii.The learned trial magistrate erred in law and fact by holding that the age of the complainant was conclusively proved.iv.The learned trial magistrate erred in law and fact by relying heavily on the unsworn testimony of a child of tender years without exercising mandatory judicial caution required by law.v.The learned trial magistrate erred in law and fact by failing to consider, analyse and judiciously weigh the defence evidence tendered by the Appellant thereby occasioning a miscarriage of justice.vi.The learned trial magistrate erred in law and fact by imposing a life sentence that was excessive, harsh, disproportionate, and unconstitutional without considering mitigating factors the circumstances of the offences and the principles of proportionality and individualized sentencing. 4.The Appeal was heard by way of written submissions. Appellant’s Submissions 5.It is submitted that the trial court failed in its duty to conduct a meaningful voir dire for the 5-year-old complainant, rendering her evidence legally unsafe. The Appellant further argues that proof of age was insufficient as the prosecution relied on an uncertified birth certificate without calling the Registrar, contrary to the Evidence Act. 6.The Appellant contends that the medical evidence of a broken hymen was non-specific and failed to account for the testimony of DW2, who introduced an alternative cause of injury involving another child and a stick. Finally, it is submitted that the trial court failed to exercise sentencing discretion by automatically imposing life imprisonment. Respondent’s Submissions 7.The Respondent submits that the elements of defilement were proved beyond reasonable doubt. It is argued that identification was positive as the parties were neighbours, and the medical findings of a broken hymen and bruises were consistent with defilement. 8.Regarding age, the Respondent maintains that PW1’s testimony and the production of the birth certificate sufficiently established that the victim was 5 years old at the time of the incident. 9.The Respondent urges the court not to disturb the sentence as it was lawful under the Sexual Offences Act. Summary of the evidence 10.PW1, HWM testified that on 4th March 2023, she was informed by the complainant (G.N.M.) that she had been defiled by the Appellant, whom she referred to as “Baba Karanja”. She checked the child’s vagina and noticed some redness. She took the child to hospital and was informed the child was defiled. She produced a birth certificate (PEX-1) indicating that the child was born on 13th May 2017. 11.PW2, was the complainant. She was subjected to voir dire examination. She testified that while at the Appellant's house to collect mangoes, the Appellant took her to his bed, removed her underpants (“biker”) and inserted his penis into her private parts. 12.PW3, was the clinical officer. He stated that he examined the complainant on 6th March 2023. He noted her age as 5 years and 6 months based on the history provided. His examination revealed a freshly broken hymen, inflammation of the vaginal entrance, pain, and tenderness. He produced the P3 and PRC forms ( PEX-3 and PEX-4). 13.PW4, was the Investigating Officer. He told the court that she received a report of the incident on 5th March, 2023. She recorded statements and visited the scene but found no tangible evidence. She produced the complainant's stained underpants as PEX-5. 14.The Appellant was put on his defence at the conclusion of the prosecution’s case. 15.He testified as the 1st defence’s witness. He denied the accusations and testified that the complainant had only visited his farm briefly to collect mangoes, after which he assisted her in carrying them before she left for home. 16.DW2, was the Appellant's Daughter. She testified that on the day of the alleged incident, she saw the complainant and another child (“A”) in a bush. She alleged that A was using a 30cm stick to penetrate the complainant's vagina, thereby introducing an alternative possible cause for the injuries. Analysis and determination 17.This Court, as the 1st Appellate Court has the duty to review the evidence, carry out its own analysis, and arrive at its own conclusion . However, allowance must be made for the fact that unlike the appellate court, the trial court had the benefit of hearing and seeing the witnesses first- hand. (see: Okeno v Republic [2024] KEHC 2894(KLR). 18.I have considered the trial Court’s record; the grounds of Appeal and Submissions of the parties and I have identified the following issues for determination: -a.Whether there was sufficient vodr- dire examination.b.Whether there were material contradictions that permeated the prosecution’s case.c.Whether the age of the Complainant was proved.d.Whether the trial Court relied substantially on the evidence of the child and whether it sought to have warn itself of the danger of relying on such evidence.e.Whether the sentence was excessive. Whether voir dire examination was insufficient 19.Section 19 of the statutory declarations Act provides:“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.” 20.In compliance with the above section of the law, courts have traditionally carried out voir dire examination as a way of testing the intelligence of a child of tender years and his or her appreciation of the importance of telling the truth. The rationale behind the examination was explained by the court of Appeal in the case of Johnson Muiruri v Republic [1983] KLR 445 as follows:“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voir dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.” 21.The examination in the present case went as follows: “Am GN. I go to church. I do not know my age. I go to Sunday school” The trial Magistrate then recorded: “…she does not speak much but she will proceed unsworn”. The examination was rather brief. However, her testimony as it appears on page 10 of the proceedings was impressively concise. It leaves no doubt that she knew what happened and managed to express it intelligently to the court. Here are some extracts of her testimony: “I go to “ M ” school- PP2. Teacher “N” is my teacher. I know A is also in nursery in the same class. The sister of A is called B. I went to A’s home. I did not find B and A. I found her parents…. Mama A left the house. Baba A alichukua kitu yake ya susu alafu akaingisha kwa yangu ya susu* . we were in his bed in the house…..” . (* in free translation: “ A’s Father took his penis and inserted in my vagina) 22.Further even where voir dire examination is not carried out at all, it is not fatal to the prosecution’s case , where the child’s testimony is corroborated. In this regard I rely on the decision of the court of Appeal in the case of Maripett Loonkomok v Republic [2015] eKLR where the court held: “It follows from a long line of decisions that voire dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this court recently found that;“In appropriate cases where voire dire is not conducted, but there is sufficient independent evidence to support the charge … the court may still be able to uphold the conviction”. 23.In the present case the evidence of the child in regard to penetration was corroborate by medical evidence. The Clinical Officer (PW3) testified that he noted that the victim’s hymen had been freshly broken; that there were bruises at the labia majora.The evidence of the complainant’s mother corroborated the evidence on the identification of the perpetrator, and her age was based on the testimony of the child’s mother and the birth certificate. 24.I am therefore satisfied that the voir dire examination despite its brevity, was adequate to reveal the competence of the child to testify. Whether there were material contradictions in the prosecution evidence 25.I have considered the Appellant’s submissions in this regard. The Appellant has not pointed out the particular contradictions, save to state that there were divergent accounts on the place of the offence; on whether the complainant had company or not; the duration of interaction of the complainant with the Appellant; and whether there were other people in the house. 26.However, I did not find any contradiction for instance on the scene of crime, as it was only the complainant who testified about the scene. she never changed that account anywhere else in her testimony. The same applies to the question of how long they were alone. Further there was no other evidence from any of the prosecution witnesses that ended up contradicting that of the complainant. The minor contradictions if any, did not go into the core of the case. That is to say it did not dent the evidence establishing the elements of the crime, namely penetration, the Age of victim and identification of the perpetrator. Whether the age of the Complainant was proved. 27.It is trite Law that the age of the victim may be proved by birth certificate, any other document or testimony of age the parent or by carrying out age -assessment of the child. The Appellant’s complaint is that the birth certificate produced was a copy and it varied with the testimony of the clinical officer. 28.The birth certificate was produced and there is no evidence of any objection by the Appellant during trial. On assessment by Clinical Officer, he was not assigned the duty to access the age of the complainant. He mentioned the age in the cause of treatment of the complainant. Further the primary proof of age is the birth certificate and any other form of proof is secondary. This ground of Appeal is without merit. Whether the trial Court failed to warn itself of the danger of relying on the evidence of a child. 29.The Appellant contends that the trial Court failed to warn itself of the danger of relying on the evidence of the child. The Appellant must have had in mind the provisions of section 19 of the Oaths and statutory declarations Act. (supra) 30.The above submission however ignores the fact that the child’s testimony was corroborated as per the requirements of the proviso to section 124 of the Evidence Act. Section 124 of the Evidence Act states: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him” 31.The evidence of the complainant was fully corroborated in respect to all the elements of the crime as stated herein before. The Appellants defence 32.I have considered the Appellant’s defence . It came out as a mere denial. He however admitted that he was with the complainant on the material day and he did help her to carry mangoes. On the other hand, I find the testimony of DW2 rather incredible. It is implausible that she could watch children potentially hurt each other with sticks, as she alleged, and failed to raise any alarm. Her testimony was far- fetched. The sentence 33.The sentence for the offence as provided under section 8(2) and read with section 8(1) of the sexual offences Act is the minimum and is mandatory. I have observed that the Appellant has made a case for reduction on the basis of the rationale of the supreme court on Muruatetu case (Francis Karioko Muratetu & Ano v. Republic [2017] eKLR . However, the same court later clarified that their finding in Muruatetu case was only limited to section 204 of the penal code. ( Ref: Muruatetu & Ano v 5 others ( Amicus curiae)[2021] KESC 31(KLR) . 34.The sentence was therefore founded in Law and this Court has no reason to interfere with it. 35.In the end, he entire appeal fails. It is hereby dismissed and the findings of the court below upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT ISIOLO, THIS 28TH DAY OF MAY 2026S. CHIRCHIRJUDGEIn the presence of:-Roba Katelo-Court Assistant.Mr. Majale for the Respondent.