https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9767

Kasongo v Republic (Criminal Appeal E012 of 2025) [2026] KEHC 9767 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9767 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E012 of 2025 RK Koech, J June 25, 2026 Between Meshack Omoke Kasongo Appellant and Republic Respondent (Being an appeal from the judgment, conviction and sentence of the Honourable Mugendi Nyaga, Principal Magistrate, delivered on 19th March, 2025 in Etago PMSO E 005 of 2025) Judgment 1.The appellant was charged with the offence of defilement contrary to S. 8(1) as read with S. 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence stated that on 23rd day of January, 2025 at around 1300 hours in Gucha South Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of ABO, a female aged 11 years. The appellant denied the charges, after a full trial, the appellant was convicted and sentenced to serve a sentence of imprisonment for a period of forty (40) years. 2.Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s petition of appeal lodged with the court on 11th April, 2025. The appellant is seeking orders to have his conviction quashed, the sentence of imprisonment set aside and the appellant set at liberty. 3.The grounds in support of the appeal are as summarized hereunder; 1.That the trial magistrate erred in law and fact by convicting and sentencing the appellant for the offence of defilement which had not been proved to the requisite standard, 2.That the learned trial magistrate erred in law and fact by failing to comply with the requirements of Article 50(2) (g) and (h) of the Constitution of Kenya, 2010 by failing to ensure that the appellant was accorded legal representation due to the seriousness of the charges that he was facing, and 3.That the learned trial magistrate erred in law and fact by convicting the appellant based on unreliable evidence and passing an excessive sentence against the appellant. 4.The appeal was admitted for hearing with directions that the parties file their respective submissions. In his written submissions dated 16th April, 2026, the appellant submits that he was convicted on the basis of evidence adduced by family members. The appellant submits that the complainant was allegedly defiled at 1;04 PM during lunchtime when other children were expected to be within the vicinity who would have witnessed the incident. The appellant further submits that an aunt of the complainant allegedly found the appellant in the act of defilement and screamed. 5.The appellant wonders why no witness who heard and responded to the screams was called to testify. The appellant submits that it was unlikely that he was found naked as suggested and that he fled the scene while carrying his clothes. The appellant pointed to the fact that the complainant was treated on 23rd January, 2025 yet the post rape care forms produced are dated 24th January, 2025. He urged the court to find that the testimony of the complainant was contradictory regarding whether or not she was with other children at the time of the alleged defilement. The appellant faulted the investigating officer for failing to visit the scene and for failing to interview all potential witnesses mentioned during the trial. The appellant faulted the trial court for its failure to consider his defence of alibi and for failing to appreciate that the alleged scene was a public place where independent witnesses would have corroborated the evidence of the complainant and her family members. 6.Even though the respondent indicated that it filed submission on 3th March, 2026, the case tracking system shows that no such submissions were uploaded. 7.As a first appellate court, it is the duty of this court to re-evaluate the entire evidence afresh and draw its own conclusion, see the decision in Okeno v Republic (1972) EA32. To sustain a conviction, the prosecution is duty bound to proof its case beyond any reasonable doubt and that burden never shifts to the defence. This is a timeless principle in criminal trials; see Woolmington v DPP (1935) AC 462. An accused person, like the appellant in the present case, is presumed innocent, until the prosecution discharges its evidentiary burden of proof aforesaid; see Article 50(2) (a) of the Constitution of Kenya, 2010 8.A look at the evidence on record shows that the complainant was defiled on 23rd January, 2025 in broad daylight during her school lunchbreak. The complainant knew her assailant who was her neighbor. She identified the appellant as her defiler and told the court that her aunt who found the appellant in the act rescued her. It is the evidence of the complainant that she was alone at the time of the incident. 9.FKK told the court that she found the appellant in flagrant delicto defiling the complainant. Victor Muga, a medic who examined the complainant a few hours after her defilement, confirmed the act of defilement. He told the court that the complainant’s clothes were soiled and had blades of grass possible picked from the scene. No. 1xxx56, PC Mary Nyangiru who was the investigating officer produced the complainant’s certificate of birth, which showed that the complainant was born on 12th August, 2013. This confirms that the complainant was 11 years old when she was defiled. 10.When placed on his defence, the accused denied committing the act of defilement. He told the court that he was at his place of work, without mentioning where that was. He pointed out that the scene of crime was a public place; I find this to be a non-disputed fact. Indeed the complainant was rescued because someone, a fellow pupil, saw the appellant tracking her into the bush. The trial court rightly dismissed the defence advanced by the appellant, it was an alibi discounted by two eyewitnesses including the victim of his heinous crime. 11.The lower court record shows that the appellant sat pretty throughout the trial and never at any point indicated that he needed legal representation due to the seriousness of the charges that he was facing. He cannot raise the issue of lack of representation on appeal. I do find that the appellant was properly convicted and I do not find any merit on the grounds challenging his conviction. 12.I now turn to the issue of sentence; the appellant says the sentence is excessive. S. 8(2) of the Sexual Offences Act No. 3 of 2006 provides for a mandatory sentence of imprisonment for life for any person who commits an act of defilement with a child who is 11 years old or less. The trial court sentenced the appellant to serve imprisonment for a period of forty (40) years. In fact, the court exercised leniency with the appellant who ought to have been given a life sentence as prescribed. In the absence of a cross appeal by the state on sentence, I do not wish to enhance the sentence imposed on the appellant. For this, he should consider himself a lucky person. 13.For the above reasons none of the grounds of appeal succeeds, the appeal is hereby dismissed in its entirety. The conviction and sentence is upheld.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of:- Appellant virtually from Naivasha GK Prison- Mr. Koima appearing virtually for the Respondent- Mr. Enock Court AssistantRight of appeal within 14 days