https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8041

Kariuki v Republic (Criminal Appeal E048 of 2025) [2026] KEHC 8041 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8041 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E048 of 2025 JM Chigiti, J June 9, 2026 Between Joseph Macharia Kariuki Applicant and Republic Respondent Judgment 1.The appellant was charged with the offence of Defilement contrary to section 8(1) as read with (3) of the Sexual Offenses Act No. 3 of 2006 in the main count in Chief Magistrate’s Court at Muranga. 2.The particulars are on 3rd March 2024 at [Particulars Withheld] Migori location within Kabiru sub - county, Murang'a County, the accused person intentionally and unlawfully caused his penis to penetrate the vagina of LNM a child aged 14 years. 3.In the alternative, he was charged with Committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. 4.The particulars are Particulars of Offence that on 3rd March 2024, at around 1200hrs at [Particulars Withheld] Mugoiri location, within Kahuro Sub-County Muranga County you intentionally and unlawfully touched the vagina of LNN a child of 14 years with your penis against her will. 5.Trial commenced and the prosecution called a total of four (4) witnesses in support of the said charges. 3 exhibits which are the Birth Certificate, P3 Form and PRC forms were produced. 6.At the close of the prosecution case, the court found that a prima facie case had been established and thus placed the appellant on his defence. 7.The appellant gave unsworn evidence and did not call witnesses. 8.In the end, the court found that the main charge of defilement had been proved beyond reasonable doubt and sentenced the Appellant to 20 years imprisonment by the CM'S Court at Murang'a on 13th May, 2025. 9.The appellant was aggrieved by the conviction and sentence, has lodged this appeal through a Petition of Appeal wherein he raised the following grounds:i.That, the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumstances thereby convicting on flimsy, inconsistent and evidence that was not watertight enough to base a conviction.ii.That, the learned trial Magistrate erred in law and fact by basing a conviction on a prosecution case which was not proved beyond reasonable doubt since the penile penetration of the complainant (PW 1) genitalia was not conclusively confirmed.iii.That, the learned trial magistrate erred in law and fact by not considering the appellant's absolute right of fair trial.iv.That, the learned trial magistrate erred in law and fact by not considering the appellant's mitigation and disregarding appellant's plausible defence. 10.He prays that the entirety, conviction quashed, sentence set aside and he be set at liberty. 11.In advancing ground no 1, he submits that he was framed up by the mother of the complainant who he lived with as his lover. 12.He was married and his wife had gone away. But she later came back. Thereafter, their relationship deteriorated and she started coming home late. 13.He submits that he had given her his other land to utilize. She then asked to sell my cows, so as to start a business for her which he refused as a result of which she was angry with him. 14.Pw2 was my lover for all those years. When she heard that his former wife had come back, the problems then stated. She now brought a false accusation against him. 15.Because she is angry with him for not agreeing to her demand. She now forced her daughter to give false allegations of defilement. 16.He submits that the complainant stated that she did not know what the sex was. She ran away to place called Kangema to her auntie. Pw2 stated that her daughter did not tell her what happened. She did not tell her that she was defiled until she was forced to say. 17.The complainant was taken to hospital for test. 18.Pw3 the clinical officer appeared before the court on 19.12.2024 who stated that the victim was not injured. He examined her private part. There was no blood. On page 14 lines 10 lines he stated that;“I did not find evidence that she was defiled. There was no blood." 19.He submits that it is in the public domain that sexual offences Act is being used to even score or real or even imaginary grudges for personal vendetta and more notably for extortion purposes as recent held by the court of appeal in Eliud Waweru Vr Republic (2019) before JJA Nambuve, Musinga and Kiage (J)that these types of cases are being used for extortion claims and it one refuse to play the ball, the matter is executed. 20.He urges the court to allow the appeal since the case is surrounded in mystery, misinformation, incredible evidence, more suspicion and doubtful speculations. 21.He submits that the allegations are hearsay and this court should intervene and resolve this matter. 22.He submits that the suspicion cannot be a basis of conviction as held in Sawe Vs Republic (2003) eKLR364. 23.In advancing Ground NO 2 the appellant relies on the case of Francis Omuroni- v- Uganda court of appeal CR. appeal no 2 of 2002; where it was held that among many others this is age, penile penetration and the identity of the alleged perpetrator must be proved. 24.He submits that none of the above was proved in this case hence the same was decided on a vacuum by the court below. 25.It is trite and mandatory minimum requirement that age, penile penetration and identity must be proved. 26.He submitted that the same was critical in even determining the class or stratification of section 8(1) as read with section 8(3) of the S.O.A. NO 3 of 2006 under which he was charged. 27.He submitted that for a defilement case to be made out, the alleged penetration must be from or by penis hence penile penetration. 28.The penetration is as defined under section 2 of the sexual offences Act. 29.PW3 is clinical officer his evidence on page no 13-14 of the proceedings stated that;“The hymen was old broken, no blood, normal external and no injuries.""I did not find evidence that she was defiled. There was no blood." 30.He submits that Pw3 did not give any evidence of the penetration. And its cause. 31.Pw3 stated that according to his experience the Hymen was broken like a month or before. It is therefore clear that pw1 had a sexual intercourse with another person there before. Pw3 stated that according to his experience the Hymen was broken like a month or before. 32.It is therefore clear that pw1 had a sexual intercourse with another person there before according to the appellant. 33.She was in a fair general condition, labia and minora were okay, no laceration noted, and hymen was old broken. There was no discharge. No spermatozoa or any other organism he stated so. No pregnancy. 34.He further argues that there was no DNA analysis conducted. There was no medical evidence linking the appellant with the offense in question and the penetration was not proved. 35.He also submitted that the age of the complainant was not proved. There was no birth certificate produced to prove the same. He also submits that there is no age assessment report and there was no evidence of defilement on 14.3.2021. 36.On Ground No 3 he submits that in his defence he gave unsworn evidence with no wittiness to call. This is a defence of alibi and he does not know anything about what happened to PWl on 3.3.2024. He submits that he did not see pw 1 that day. He was arrested on 24.3.2024 and he was not aware of this incident. 37.Reliance is placed in the case of Okeno Vs Republic (1957) E.A 32, Where court of appeal set out the duty of the first appellate court as follows. It must weigh the evidence brought before it and find its own conclusion and find that there is no reason for upholding conviction and the sentence. Respondents Case; 38.The Respondent opposes the appeal and submits that the offence of defilement is rooted on three main ingredients being the:i.Age of the victim (must be a minor),ii.Penetration andiii.Proper identification of the perpetrator. 39.Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. 40.It places reliance in the case of George Opondo Olunga vs. Republic [2016] eKLR. It is the respondent's submission that these ingredients were sufficiently proved. 41.In her statement and voire dire, PW1 -Victim stated that she was born on 7th May 2009 and she was 15 years old. She then identified her birth certificate and confirmed her birth date as 10th May 2009. She also stated that she was in grade 7. 42.PW2 is PW 1's mother who produced the child’s birth certificate as an exhibit and testified that at the time of the crime the victim was 15 years old and that she was born on 10th May 2009. 43.On the issue of penetration or Indecent Act, the Respondent submits that PW1, stated that on 3rd March 2024, she was at home alone having come from church and she started putting her school clothes in order. 44.She testified that the appellant went to their two-bedroom house and put a panga on the door. He left, closed the door from outside and then came in through the window located on the left side of the house which was open. He did not state why he had got into the house upon being asked by the child. 45.He then went to the children's bedroom where the child was seated on the bed and held her by her shoulders and pushed her on the bed. She fell on the bed facing up. He lifted her yellow dress with green flowers up and removed here underwear. He then removed his clothes i.e. his trouser and underwear and was left with his shirt on. He slept on her and touched her private parts which she uses to urinate with his penis. 46.He entered into her private parts and she felt pain. She stated that they did bad manners which clarified to be sex. 47.The Doctor gave evidence which is consistent with the offence of defilement having examined and treated her on 12th March 2024 at Muriranjas Hospital. On examination of the private parts/genitalia, he noted no blood and normal genitalia. The hymen was broken but not fresh. There was discharge and tests revealed that there was a bacterial infection. The doctor noted that she was brought to the hospital one week after the incidence. He also stated that the broken hymen in different people heal differently. The court noted that there was time lapse between the date of incidence and date of examination which led to loss of evidence. A broken hymen and a bacterial infection shows the possibility of defilement. The doctor produced the P3 form and PRC forms as exhibits. 48.The oral testimony of the victim was not challenged during cross-examination which shows that the offence of defilement happened. 49.The said minor did not contradict herself and her evidence was not put in doubt. Identification of the Perpetrator; 50.The victim stated that the accused was his neighbor who was a father to Njoki. Before the incidence, she had gone to his home to look for her siblings. 51.PW3 - the victim's mother found her daughter in the room appearing frightened and also found the accused person hiding under the bed trying to put on his trousers and when PW3 screamed the accused person escaped through the widow. 52.The identification of the appellant was that of recognition. He was someone well known to the victim and thus the likelihood of error was next to minimal. 53.In the case of MW v Republic [2019] eKLR the High Court at Kajiado stated as follows regarding recognition,“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity." 54.It submits that there were no inconsistencies and contradictions in the testimony of prosecution witnesses as alleged and there was no evidence of lack of fair trial. 55.It submits that the corroboration of Victims evidence with medical evidence in sexual offences is not mandatory which position is contained in Section 124 of the Evidence Act. 56.It's has been established in several precedents that the court can convict an accused even without the medical evidence of penetration and also with the evidence of the victim alone having got satisfied that the witness is telling the truth or is believable. 57.The conditions that courts follow to waive corroboration which are stated in several precedents e.g. Kwaro Vs Republic (2024) eKLR, Wabwire Vs Republic (2024) eKLR 58.It submits that the appellant was placed on the scene of crime as narrated by the two eye witnesses who are PW1 and PW2. 59.It is the respondent’s case that the trial court considered the appellant’s mitigation and the prosecution's submissions that he is a first offender, a father and husband and that he was apologetic and he promised not to repeat the offence. 60.It submits that the appellant has failed to give sufficient grounds of appeal to warrant quashing of the conviction and setting side of the sentence by this honourable court. Analysis and Determination; The issue for determination is whether the appeal has merit. 61.In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:“ 1.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. 2.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; 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.” 62.Section 8 of the Sexual Offences Act provides as follows:-(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(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.” 63.In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that:-“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 64.In considering the issue of the age of the victim the court is satisfied that the complainant’s age was confirmed and proven by the victim’s birth certificate which was tendered as evidence for the prosecution. 65.The mother of the child confirmed that the victim was born on 10th May 2009. The child also testified that she was of the said age. 66.The court has no reason to doubt that the victim falls within the ambit of the Sexual Offences Act. 67.In answering the question of whether the appellant was positively identified, the court notes that the minor recognized him as her neighbour and as the person who committed the offense. 68.Going by the nature of the circumstances surrounding the offence and the transactions that unfolded during the offence as graphically narrated to the court by the minor who had been subjected to voire dire evidence it is clear that she knew where the offense took place and she also knew who the perpetrator was. 69.This court is further guided by the fact that the appellant admits that he was in a long relationship with the victims mother. This as read alongside her age created an ample opportunity and time for the victim to recognize him. 70.There is no doubt that she was able to identify the appellant through recognition. 71.This court finds no reason to fault the trial magistrate’s finding. The appellant was positively identified and the appellant’s arguments against his identification fails. 72.The court looks at the last ingredient of the offence which is whether there was penetration.The doctor testified that he examined and treated the victim on 12th March 2024 at Muriranjas Hospital. 73.It was his evidence that on examination of the private parts/genitalia, he noted no blood and normal genitalia. The hymen was broken but not fresh. There was discharge and tests revealed that there was a bacterial infection. The doctor noted that she was brought to the hospital one week after the incidence. He also stated that the broken hymen in different people heal differently. 74.From the doctor’s evidence leaves an element of doubt as to whether or not the penetration took place. The proviso to Section 124 Evidence Act provides:-‘’Notwithstanding the provisions the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution against any person for an offence, the accused shall not be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.’’ 75.The court finds the complainant’s evidence truthful and to the extent that it was the accused person who defiled her. From the voire dire examination, I am satisfied that the child testified and told the court exactly what happened to her. 76.The appellant also submitted and advanced the ground of alibi. Upon perusing the record, this court finds that the appellant did not advance any evidence to prove that he was not at the scene of the crime when the offence was committed. The victim placed him at the crime scene on the material day that he defiled her. 77.This court is satisfied that the trial court considered the prosecution’s evidence, the unsworn evidence of the appellant and the mitigation before arriving at the conviction and the sentence. Determination; 78.Upon reconsidering all the evidence, this court has arrived at the conclusion that the prosecution proved its case beyond reasonable doubt. The appellant failed to give sufficient grounds of appeal to warrant the quashing of the conviction and sentence and the appeal lacks merit.Order:The appeal is dismissed. DATED, SIGNED AND DELIVERED AT VIRTUALLY AT ELDORET THIS 9TH DAY OF JUNE 2026....J. CHIGITI (SC)JUDGEIn the presence of:The appellant acting in personMs. Ongaki for the State