https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9405

Karoki v Republic (Criminal Appeal E028 of 2024) [2026] KEHC 9405 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9405 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E028 of 2024 SC Chirchir, J June 25, 2026 Between David Ngugi Karoki Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. Joanna Irura (S.P.M.) delivered on 16th day of April, 2024) Kigumo chief Magistrate’s court S. O. Case No. 104 of 2020) Judgment 1.The Appellant herein was 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 Act).The particulars of the charge were that on 17th day of December 2020 in Muranga South Sub- County within Muranga County, he intentionally caused his penis to penetrate the vagina of AWM a child aged 17 years. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. After a full trial, the Appellant was convicted of the main charge and sentenced to 15 years imprisonment. 2.The Appellant was aggrieved by the conviction and proffered this appeal. He has listed the following grounds:1.That, the learned trial magistrate erred in points of law and facts by failing to find that the elements of the charge were not proved beyond reasonable doubt.2.That, the learned trial magistrate erred in points of law and facts by failing to find that the complainant acted as an adult and the evidence adduced was through coercion, threat and intimidation.3.That, the learned trial magistrate erred in points of law and facts by failing to find that the prosecution’s evidence was tainted with material contradictions, inconsistencies and discrepancies.4.That, the learned trial magistrate erred in law and facts in failing to find that there existed a mayhem the victim’s family and the appellant and the probable reason for implication with this offence.5.That, the learned trial magistrate erred in law and facts in failing to find that my alibi defense was plausible as the prosecution was unable to disprove it.6.That, the learned trial magistrate erred in law and facts in failing to consider that my mitigation was not considered in accordance with Section 329 and 216 of the CPC. 3.The Appeal was heard by way of Written Submissions. Appellant’s Submissions 4.In the submissions, the Appellant opted to address three grounds of Appeal. The court will therefore treat the rest of the grounds as abandoned. The listed grounds are:a).That the learned magistrate erred in matters of law and fact through violations of his constitutional right to fair trial under Article 50 (2) ( c) of the constitution for failure of timely disclosureb).That the learned magistrate erred in matters of law and fact by failing to find that the conduct of the complainant was incompatible with that of a child thereby availing the appellant the statutory defence under section 8(5)& 6 of the sexual offences Actc).That the learned magistrate erred in matters of law and fact by failing to find that the complainant was an intelligent person capable of comprehending a sexual act and her alleged mental disability did not meet the legal threshold for the definition of a person with disabilities under section 2 of the sexual offences Act. 5.The Appellant argues that his constitutional right to a fair trial under Article 50(2)(c) was violated due to the prosecution's failure to provide timely disclosure of witness statements. He points out that although the trial court ordered disclosure on 7th September 2021, there is no record of him receiving these statements until 13th January 2023, by which time the primary witness (PW1) had already testified. He argues this late disclosure prejudiced his ability to mount an effective defense and cross-examine the complainant. In support of this position, the Appellant relies on the case of republic v amos karuga karatu(2008) eKLR, where the court held:“Time is nigh for the judiciary to rise to the occasion and reclaim its mantle by scrupulously applying the law that seeks to secure, enhance and protect the fundamental rights and freedoms of an accused person. A prosecution mounted in breach of the law is a violation of the rights of the accused and it is therefore a nullity. It matters not the nature of the violation. Finally, it matters not that evidence available against him is weighty and overwhelming”. 6.He further contends that the trial court failed to consider the statutory defence under Section 8(5) & (6) of the Act, arguing that he reasonably believed the complainant was an adult based on the complainant's objective conduct; voluntarily accompanying him home, removing her own clothes, and not raising an alarm , which acts deceived him into believing she was an adult 7.The Appellant submits that the medical evidence was sparse and did not conclusively prove a mental disability that would negate consent for an adult. 8.He concludes by urging the court to find that the complainant effectively deceived him into believing she was an adult, thereby negating his criminal liability. Respondent’s Submissions 9.The Respondent opposes the appeal. The counsel asserts that all ingredients of the offence, namely ; penetration, age, and lack of consent were proved beyond reasonable doubt. It is submitted that penetration was proved by medical evidence and the victim's testimony. The Respondent submits that the physical examination conducted by PW5, revealed a broken hymen and blood-stained swabs, coupled with the victim's testimony, established the act of defilement. The Respondent emphasize that under the law, the slightest penetration is sufficient to complete the crime. 10.On the issue of age, the Respondent points to the complainant’s birth certificate (Exhibit 1) and the testimony of her mother (PW3), conclusively proved she was 17 years old at the time of the incident. Consequently, the Respondent argues that as an underage minor, the complainant lacked the legal capacity to give valid consent to the sexual act. 11.On the identity of the perpetrator, the Respondent maintains that this was a clear case of recognition rather than identification of a stranger, as the accused was a neighbor, well known to both the victim and her family. To support the reliability of this recognition, the Respondent relies on the case of Anjononi & Others vs. Republic (1980) KLR 59, where the Court of Appeal held:“...recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another”. 12.Addressing the Appellant’s claim of a violated right to a fair trial due to non-disclosure, the Respondent submits that the trial record shows the court granted an adjournment specifically to allow the defense to peruse witness statements. They note that the Appellant later confirmed he was ready to proceed and participated fully in cross-examination, thus no infringement of his right to fair hearing occurred. A summary of the Evidence 13.PW1 was the complainant. She testified that she was born on 30th August 2003. She told the court that on December 2020, after a she met the Appellant, whom she identified as Ngugi, who was her neighbour. He asked her to go to his home. Once inside, he told her to remove her clothes and they had sexual intercourse. Following the act, the accused refused to let her leave, detaining her inside the house as it grew dark. 14.She stated that her absence prompted a search by her family, including her aunt and cousin, along with other neighbors. They eventually traced her to the accused’s residence. PW1 stated that the accused initially refused to open the door to the search party to prevent them from seeing her. When the door was eventually opened, the villagers found the accused hiding in his room. The neighbors removed him from the house, and he was subjected to a physical assault by the crowd. 15.PW1 was rescued and taken to Hospital for medical examination and treatment. During her testimony, she positively identified the accused in the dock. Under cross-examination, she denied having any prior romantic relationship with the accused and maintained that the events occurred as she had described, earlier in her testimony. 16.PW2 was the investigations officer, who took up after the initial officer was transferred. He testified that on 17th December 2020, a report was made about a young girl found in a house. He stated that members of the public surrounded the Appellant's house and found him hiding under the bed. He produced the birth certificate (Exhibit 1) and the medical assessment report showing the victim was a person with disability (Exhibit 2A). 17.PW3 was the complainant’s mother. She testified that her daughter has a slight mental disability but she was attending a school for normal children. On the material day, she looked for her daughter when she didn't return from church. She eventually found her at the Appellant's home. she saw her daughter squatting and holding her underpants. She further stated that they escorted the accused to the police station but were met by police officers on the way who took the Appellant, while she accompanied her daughter to Maragua Hospital. 18.Under cross-examination, PW3 denied having any prior personal relationship with the accused. She maintained that her daughter informed her the incident occurred at the home of the accused’s grandfather, where the accused was residing at the time. She further identified the accused in the dock as the person found with her daughter that evening. 19.PW4 was a member of “Nyumba Kumi” who responded to screams at the Appellant's house. He testified that the house was locked, and after the door was opened, they found the Appellant hiding under the bed. He told the court that the Appellant had initially refused to come out. However, he was eventually pulled out and was tied with a rope by the public before being handed over to the police. 20.PW5 was the clinical officer who examined the complainant on 18th December 2020. She gave a history of being defiled by a person known to her. On examination of her private parts, he determined that her hymen was broken, although there were no active tears or discharge present. He further detailed the results of several laboratory tests performed during the assessment. Urinalysis and a high vaginal swab (HVS) were conducted. The HVS was noted to be bloody stained, and microscopy revealed the presence of leucocytes, pus cells, and numerous red blood cells (RBCs). He clarified that no spermatozoa were detected during these examinations. Based on his clinical findings, he concluded that the complainant had been defiled. He produced PR form (Exhibit 3) and the PRC form (Exhibit 4). Under cross-examination, he stated that the Appellant was not brought to him for a medical examination. 21.The Appellant was put on his defence at the conclusion of the prosecution’s case. In his unsworn evidence, he stated that on 17/12/2020, he woke up to sell bananas. He was called by a friend, and upon going to meet him, he was surrounded by people who started beating him and accusing him of the offence. He denied the charges in their entirety. He did not call any witness. Analysis and Determination 22.This being a first appeal, this Court is obligated to review the evidence, do its own evaluation and arrive at its own findings, while bearing in mind that it neither saw nor heard the witnesses testify. ( see: Kiilu & Another v Republic [2005] 1 KLR 174.) 23.Upon consideration of the Petition of Appeal, the record of the trial court, the submissions by the parties and the following issues arise for determination:a.Whether the Appellant’s right to a fair trial under Article 5092) (j) of the Constitution was violated.b.Whether the offence was provedc.Whether the defence provided under Sections 8(5) and 8(6) of the Sexual Offences Act was available to the Appellant;d.Whether the mental status of the complainant was or ought to have been a factor on the conviction of the Appellant. Whether the Appellant’s right to a fair trial was violated 27.The Appellant relied on Article 50(2)(c ) of the Constitution . which guarantees every accused person the right to: “ have adequate time and facilities to prepare a defence”. The Appellant’s complaint is that he was given statements after the complainant, who was the first witness, had testified and she was never recalled for cross- examination her thereafter. 28.The record shows that after the complainant had testified, the Appellant was given statements. He then sought for an adjournment to read the statements (paragraph 1 at page 17 of the record of Appeal), which was granted. The fact of adjournment is an indication that he got the time he needed to prepare for his defence. He however insists that at the damage had already been done as the complainant had already testified. The pertinent question is whether failure to have the complainant’s statement was prejudicial. 29.The record shows that the complainant gave an extensive testimony on what transpired between the two, but the Appellant hardly made any serious cross- examination even on the testimony that had been provided orally. It may suggest that there were other reasons for that failure other than the absence of the complainant’s statement. statements. Further he never alerted the court, prior to commencement of the hearing, that he was yet to be supplied with the statements. Finally, the Appellant never sought the recalling of the complainant. He thus fully participated as the complainant gave her evidence without any complaint. The plea for infringement is therefore without basis and this ground consequently fails. Whether the offence of defilement was proved beyond reasonable doubt 27.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act. The latter sub-section should have read (4), not (2) 28.It is now well- established that in order to secure a conviction in a charge of defilement the prosecution must prove three ingredients namely: the age of the complainant; Penetration; and Positive identification of the perpetrator. (See Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 as cited in the case of K.B.M v Republic [2016] KEHC 7187 (KLR) where the court stated: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” Age of the complainant 29.PW1 testified that she was born on 30th August 2003. PW2 produced her Birth Certificate as Exhibit 1. The offence occurred on 17th December 2020. Consequently, the complainant was aged seventeen (17) years and approximately three months. Further the evidence regarding age was neither challenged nor controverted. This Court therefore finds that the complainant was a child falling under the category of between ages of 15 to 18 years, within the context of sub-section 4 of Section 8 of the Act. Whether penetration was proved 32.Section 2 of the Act defines penetration as: “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 33.PW1 testified that after accompanying the Appellant into his house, he caused her to remove her clothes and had sexual intercourse with her. 34.The testimony of PW1 was corroborated by the medical evidence of PW5, the Clinical Officer, who examined her the following day. The examination revealed that the hymen was broken. The High Vaginal Swab was blood -stained and microscopic examination revealed numerous red blood cells and pus cells.There was no spermatozoa. He concluded that the complainant had been defiled. 35.Although no spermatozoa were detected, the absence of spermatozoa is not fatal to the prosecution case. In Kassim Ali v Republic [2006] eKLR, the Court of Appeal held: “ The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 36.The surrounding circumstances also corroborated the complainant’s evidence as shown hereafter; -. The Appellant held the complainant overnight. The following morning the search party found her in the house of the Appellant. she testified that the Appellant refused to open the door until the complainant opened it herself. Inside the house he was found hiding under the bed or in another room. The conduct of the Appellant as aforesaid was far from innocent. If he accommodated the complainant out of good motive and kindness he had no reason to hide or fear to open the door. 37.Am satisfied that the totality of the complainant’s testimony, the medical evidence and the circumstances immediately following the commission of the offence did prove the act of penetration. Identity of the perpetrator 38.PW1 testified that the Appellant was her neighbour and that she knew him before the incident. She identified him as Ngugi. PW3 equally confirmed that the Appellant was well known to the family. The evidence further show that villagers and family members searching for PW1 found her inside the Appellant’s residence. PW4 testified that upon entering the house they found the Appellant hiding under a bed.The Appellant never controverted the fact that the complainant was found inside his home or that the home did not belong to him. 39.This was therefore a case of identification through recognition. Recognition rather than visual identification of a stranger more reliable and more assuring than identification of a stranger as was held in the case of Anjononi & Others v Republic ( supra) 40.In the light of the aforegoing overwhelming evidence , am satisfied that there was no possibility of mistaken identity. 41.It is the finding of the court therefore that all the ingredients of the offence of defilement were proved. Whether the defence under Sections 8(5) and 8(6) of the Sexual Offences Act was available to the Appellant 65.The Appellant argued that he reasonably believed the complainant was an adult. 66.Sections 8(5) and 8(6) of the Sexual Offences Act states:(5)It is a defence to a charge under this section if—(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. 67.The Court of Appeal in Maripett Loonkomok v Republic [2016] KECA 520 (KLR), reiterated the above provisions of the Act. It held:“The evidence that the appellant was misled by the father of the complainant that she was 19 years cannot avail him a defence under section 8 (5) of the Sexual Offences Act. It would only be a defence if;i.it was proved that the complainant herself deceived the appellant in believing that she was over the age of eighteen years at the time of the offence, andii.it was proved that the appellant reasonably believed that the complainant was indeed over the age of eighteen years.He must also, in terms of sub-section 6, demonstrate the steps he took to ascertain the age of the complainant” 67.No evidence was adduced by the Appellant to demonstrate any inquiry he made regarding the complainant’s age. The mere fact that the complainant voluntarily accompanied the Appellant or did not raise alarm cannot constitute proof that she represented herself as an adult. Further, consent is legally irrelevant in cases involving children. 68.Consequently, the defence under Sections 8(5) and 8(6) of the Act was unavailable to the Appellant. The Mental status of the complainant 67.The Appellant has argued that there was no evidence to prove the alleged mental disability of the complainant. 68.Whereas the complainant’s mother testified that the complainant suffered from a slight mental illness, her mental status was not a factor in this case. The Appellant was charged with defiling a child, and the evidence led was consistent to the charge. He was not charged for defiling a mentally – challenged person or child. This complaint is devoid of merit. 69.There was no appeal against the sentence, but it suffices to state that it was founded in law. 70.In conclusion, I find no merit in this Appeal. It is dismissed in its entirety, and the findings of the court below, upheld. DATED SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS THIS 25TH DAY OF JUNE 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo- Court Assistant.