https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11512

Keli v Republic (Criminal Appeal E073 of 2025) [2026] KEHC 11512 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11512 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E073 of 2025 KL Kandet, J July 24, 2026 Between John Mutiso Keli Appellant and Republic Respondent (Being an appeal against the judgement of Hon. S Jalang’o (SPM) delivered on 30th September, 2025 in criminal S.0 case No. E003 of 2024 at Tawa Law Courts) Judgment 1.The Appellant, John Mutiso Keli, was charged in Tawa Senior Principal Magistrate’s Court Criminal Case (Sexual Offences) No. E003 of 2024 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 26th February, 2024, at around 1500 hours, at [Particulars Withheld] Market village, Kyuu Location in Mbooni West Sub-County within Makueni County, he intentionally and unlawfully caused his penis to penetrate the Vagina of DMM, a girl aged 5 years. 2.The Appellant was also charged with the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were on the same date, time and place, he intentionally touched the vagina of the same child aged 5 years with his penis. 3.The Appellant pleaded not guilty to the charges, and the matter proceeded to full trial, during which the prosecution called five witnesses. PW1, Victor Mutuva, a Senior Clinical Officer stationed at Mbooni Sub-County Hospital, examined the complainant on 26th February 2024. He testified that the child was brought to the hospital in a distressed state following an alleged sexual assault. Upon conducting a gynecological examination, he observed acute physical trauma to her genitalia, characterized by marked redness and inflammation of the labia minora. Significantly, the examination revealed a freshly torn hymen. A high vaginal swab taken from the complainant was subjected to laboratory analysis, which revealed moderate pus cells and red blood cells, indicative of bleeding. Based on his examination and findings, PW1 formed the opinion that the complainant had been defiled. 4.PW1 administered emergency treatment to the complainant and produced the P3 Form, Outpatient Treatment Notes and Post-Rape Care Form as Prosecution Exhibits 1, 2 and 3, respectively. 5.PW2, SMM, the complainant's grandmother, testified that on 26th February 2024, the complainant failed to return home from school at her usual time, prompting the family to commence a search for her. At about 4:30 p.m., she sent her daughter, MZ, to look for the child. After an unsuccessful search, MZ encountered the complainant at about 6:00 p.m. on the main road near their home, walking slowly and crying. When asked what had happened, the complainant disclosed that the Appellant had lured her into his house with mandazi and sweets. According to the complainant, the Appellant closed the door and instructed her to remove her innerwear. When she refused, he beat her, removed her clothes, placed her on his bed, removed his trousers and innerwear, and defiled her. Thereafter, the Appellant ordered her to leave the house and warned her not to disclose the incident to anyone, threatening to prevent her from using the road if she did so. 6.PW2 testified that she immediately reported the matter to the police and took the complainant for emergency medical attention. The complainant was examined in her presence, and PW2 observed vaginal discharge on the child's innerwear. She was also informed that the medical examination had revealed internal injuries to the child's genitalia, for which she was given medication that she took for about one month. Following the medical examination, the police recorded the relevant statements and subsequently proceeded to the Appellant's house, which the complainant identified as the scene of the alleged offence. PW2 produced the complainant's birth certificate, which showed that she was born on 26th August 2018. 7.During cross-examination, PW2 maintained that the complainant had been defiled on 26th February 2024. She reiterated that the complainant led her and the police officers to the Appellant's house, where she pointed out the Appellant's bed and stated that it was there that the Appellant had defiled her. 8.PW3, DMM, the minor complainant, testified after the trial court conducted a preliminary voire dire examination. The court was satisfied that, although the complainant was a child of tender years, she possessed sufficient intelligence to justify the reception of her evidence and understood the duty to tell the truth. She was consequently allowed to give an unsworn statement through the assistance of a court-appointed intermediary. 9.In her testimony, PW3 stated that, on the material afternoon after school, the Appellant, whom she knew as her neighbour, took her by the hand and led her into his house. He gave her mandazi and sweets before removing her clothes and inserting his penis into her vagina. She testified that she felt pain and cried, but the Appellant continued. Thereafter, he instructed her to leave and go home. She went home and disclosed the incident to her mother before being taken to hospital for medical examination. Subsequently, she led her mother and police officers to the Appellant's house, where the Appellant was arrested. 10.PW4, MZ, the daughter of PW2, testified that on 26th February 2024, she went in search of the complainant after she failed to return home from school at the expected time. Having searched along the route to the school without success, she encountered the complainant at about 6:00 p.m. at a junction on the main road as the child was heading home. The complainant told her that the Appellant had taken her to his house, given her mandazi and sweets, placed her on his bed and defiled her. PW4 accompanied the complainant home, where the matter was reported to PW2, who subsequently took the complainant to hospital. PW4 also confirmed that she knew the Appellant as their neighbour. 11.PW5, PC Jackline Gachoki, the investigating officer, testified that PW2 accompanied the complainant to the police station to report the matter. They thereafter proceeded to Mbooni Sub-County Hospital, where the complainant was examined and the attending doctor confirmed that she had been defiled. PW5 recorded the statements of the complainant and other witnesses and subsequently proceeded to the Appellant's house. She testified that the complainant positively identified the Appellant as the person who had defiled her and led the police officers to his house, where he was arrested. 12.During cross-examination, PW5 stated that the Appellant's house was clean and that they found him seated outside. She reiterated that it was the complainant who led them to the Appellant's house. PW5 further testified that the Appellant informed them that he had previously been admitted in hospital. She nevertheless maintained that he was arrested at his house. She confirmed that the medical examination had established that the complainant had been defiled, although no exhibits were recovered from the Appellant's house. 13.At the close of the prosecution's case, the trial court found that the Appellant had a case to answer and placed him on his defence. The Appellant elected to give an unsworn statement. 14.In his defence, DW1, John Mutiso Keli, testified that he was a resident of Kikima Kyuu village. He stated that, at the material time, he had been admitted at Kenyatta National Hospital after undergoing a surgical procedure. He testified that he had been admitted on 14th September 2023 and remained in hospital for approximately two months, and produced medical documents in support of his account. He further stated that, despite his ill health, he was arrested at his house. He maintained that he had been framed and denied any involvement in the offence. 15.Upon conclusion of the trial, the trial court, in its judgment delivered on 30th September 2025, found the Appellant guilty of the offence. He was subsequently sentenced to life imprisonment on 14th October 2025. Aggrieved by both his conviction and sentence, the Appellant lodged the present appeal by a Petition of Appeal dated 15th October 2025, premised on the following grounds:1.That the trial magistrate erred in law and in fact by failing to find that the key ingredients of the offence were not established against the Appellant herein.2.That the trial magistrate erred in law and in facts in failing to consider material contradictions and inconsistencies in the evidence which not only brought out the prosecution witnesses as incredible and worthless of the belief but also impugned the whole of the prosecution case.3.That the trial Magistrate erred in law and in fact by failing to find that the critical witnesses needed to substantiate the prosecution’s case were not availed and this contravened Article 50(2)(c) and (j) of the Constitution.4.That the trial magistrate erred in law and fact when he failed to freshly, exhaustively comprehensively and deliberately analyses, weigh and consider the cogent defence case which not only exhibited his innocence but also exonerated him from any wrong doing. 16.The Appellant therefore prayed that the Appeal be allowed, the conviction quashed, the sentence set aside and he be set at liberty. Appellant’s Submissions 17.The Appellant contends through his written submissions that his conviction was unsafe and that the prosecution failed to prove its case beyond a reasonable doubt across three main areas. 18.First, it was submitted that the prosecution failed to establish the critical elements of the offence namely; penetration, the victim's age, and perpetrator identification as outlined in Fappyton Mutuku Ngui v. Republic Cr. Appeal No. 296 of 2010. The appellant points out that he was not subject to any medical analysis to link him to the offence alleged and also that there was no credible evidence explaining how he was identified as the perpetrator. Relying on S v. Nzvenga (56 of 2021) and Dhalay v. Republic (1997) KLR, the defense submits that medical expert opinion is not binding and must be thorough; where medical evidence introduces uncertainty regarding penetration, as highlighted in Omari Ismael Mazjha v. Republic (2017) eKLR, the benefit of the doubt must be given to the accused. 19.Secondly, the Appellant challenges the trial court's handling and evaluation of the minor complainant's evidence. The submissions highlight a major contradiction between the child’s court testimony, where she stated the appellant inserted his penis, and the testimony of her mother, who stated the child initially reported the use of fingers or legs. The Appellant asserts that this sudden shift to explicit anatomical terms suggests the minor was coached, a material inconsistency that renders the prosecution case doubtful under the principle in Nyasani Sospeter v. Republic [2012] eKLR that held that material inconsistencies touching on penetration and the manner in which the offence was allegedly committed are not minor contradictions and may render the prosecution case doubtful. 20.Additionally, relying on Johnson Muiruri v. Republic [1983] KLR 445 and Kibangeny Arap Kolil v. Republic [1959] EA 92, the Appellant argues that evidence of a child of tender years must be carefully scrutinized, and allowing the child to testify through an intermediary without recording a clear, lawful justification prejudiced his defense. 21.Finally, the Appellant fault the procedural execution of the voire dire examination and the trial court's disregard of the defense. He argued that according to the trial record, the child failed to answer basic questions during the examination, yet the court permitted unsworn testimony without properly assessing her understanding of the obligation to tell the truth. Citing Joseph Opando v. Republic (Cr. App. No. 91 of 1999) and JM v. Republic [2017] KEHC 4859 (KLR), the appellant maintains that adherence to the two-stage inquiry is mandatory and that an improper voire dire is a fatal irregularity that vitiates the trial and renders unsworn child testimony uncorroborated and legally inadmissible. 22.Compounding this error, he argued that the trial magistrate completely overlooked the appellant's unsworn defense that he was sickly and wrongly identified. Anchoring his argument on Woolmington v. DPP [1935] AC 462 and Sections 107 and 109 of the Evidence Act, the appellant stresses that he only needed to raise a plausible defense to create reasonable doubt. Therefore, ignoring his defense violated his right to a fair trial under Article 50 of the Constitution of Kenya, and he prays that the High Court allow the appeal, quash the conviction, set aside the life sentence, and set him free. Analysis and Determination 23.I have carefully considered the appeal before this court, the Record of Appeal and the evidence attached therein as well as the submissions filed. This being a first Appeal, this court’s duty remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, which stated as follows:-“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 24.Further, in the case of Okeno v Republic [1972] EA 32 at page 36 the East Africa Court of Appeal had this regarding the duty of the Court on a first appeal:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters v. Sunday Post, [1958] E. A. 424.” 25.In this case, the Appellant faced a charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act 2003 which provides that;-“8(1)a person who commits an act which causes penetration with a child is guilty of an offence termed defilement 8(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.” 26.The specific elements of the offence defilement arising from the section above which the prosecution must prove beyond reasonable doubt are:1.Age of the complainant.2.Penetration.3.Positive identification of the assailant. 27.In respect to proof of the “age” of the victim, the Court of Appeal in the case of Onsongo v Republic (Criminal Appeal 18 of 2016) [2024] KECA 415 (KLR), stated as follows:“…. the question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 28.In the present case, PW2, the victim's grandmother, produced the complainant’s birth certificate, which showed that she was born on 26th August 2018. Therefore, at the time of the offence on 26th February 2024, the complainant was approximately five years and six months old. The age factor was thus ascertained; indeed the victim was 5 years and hence a child below 11 years as contemplated under section 8(2) of the Sexual Offences Act. 29.On the issue of penetration, Section 2(1) of the Sexual offenses Act defines penetration as:-“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 30.The Court of Appeal, in the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) held that:-“.. In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 31.The elements of penetration was principally given by the complainant, PW3, who testified that the Appellant removed her clothes and inserted his penis into her vagina, causing her pain. Her account was materially corroborated by PW1, the clinical officer, who examined her shortly after the incident and observed that her genital area was inflamed and reddish. Also that her hymen was freshly torn. A higher vaginal swab revealed the presence of pus cells and red blood cells, which further supported the finding of recent genital injury. These finding were captured in the P3 form and PRC forms, produced as exhibits, which all affirmed that indeed the victim was defiled. PW2 and PW4 also testified to the complainant's immediate disclosure of the incident. Taken together, the complainant's direct account and the medical evidence provided evidence from which penetration was inferred and established. 32.Lastly, on identification, the Court of Appeal, in the case of Wamunga v Republic [1989] KECA 47 (KLR) cautioned that;-“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”. 33.Section 124 of the Evidence Act requires corroboration of the evidence of a child of tender years where such evidence constitutes the sole or single evidence against an accused person. The proviso to the section, however, creates an exception in proceedings involving sexual offences. In such cases, a conviction may be founded on the uncorroborated evidence of the alleged victim where the trial court is satisfied that the victim is telling the truth, provided that the court records the reasons for forming that belief. The section and its proviso provide as follows:-“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 proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other 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.” 34.It is thus evident under section 124 of the Evidence Act, the court is permitted to convict an accused person of a sexual offense based only on the victim's testimony if the court is satisfied the victim is telling the truth. Meaning, the prosecution isn't required to call every possible witness who might possess relevant information about the case. 35.In the present case, the trial court, upon conducting the requisite voire dire examination, was satisfied that the complainant possessed sufficient intelligence to understand the duty to tell the truth. Her evidence on identification was direct and consistent. She testified that she knew the Appellant as her neighbour and that she encountered him during the day while on her way home from school. The Appellant greeted her, took her by the hand and led her to his house, where the offence occurred. Shortly after the incident, the complainant disclosed the Appellant's involvement to PW2 and PW4 and subsequently led the police to his house, where she identified him as the perpetrator. PW5, the investigating officer, corroborated this account, confirming that it was the complainant who led the police officers to the Appellant's house. 36.The fact that the Appellant was known to the complainant, coupled with her immediate disclosure of the incident and her subsequent leading of the police o his house, provided cogent evidence linking him to the offence. I am therefore satisfied that the trial magistrate correctly found that the Appellant was positively identified as the perpetrator. 37.The last issue for determination is whether the sentence of life imprisonment imposed upon the Appellant was lawful and justified in the circumstances. Section 8(2) of the Sexual Offences Act, as set out above, prescribes a sentence of life imprisonment for a person convicted of defiling a child aged eleven years or less. 38.The sentence prescribed under Section 8(2) is mandatory and cannot be varied by the Court or interpreted as prescribing a finite term of imprisonment. This position was reaffirmed by the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) where the Court held that life imprisonment under Section 8(2) of the Sexual Offences Act is constitutional. The Supreme Court further found that the Court of Appeal had erred in law by substituting the sentence of life imprisonment with a term of forty years, thereby usurping the legislative mandate to prescribe penalties for criminal offences. 39.It is a well-established principle that the Court cannot legislate from the Bench. Where Parliament has prescribed a specific penalty for an offence, the duty of the Court is to apply the law as enacted. In the case of life imprisonment, the law does not prescribe a specific finite term. Consequently, this Court cannot reinterpret the sentence of life imprisonment so as to assign it a fixed duration. 40.The Appellant was convicted of defiling a child who was five years old at the time of the offence. The complainant's age was therefore well below the statutory threshold of eleven years. In the circumstances, Section 8(2) of the Sexual Offences Act prescribed life imprisonment as the applicable sentence. The sentence imposed upon the Appellant was, accordingly, lawful and within the statutory framework. 41.In the end, this Court finds that the appeal lacks merit and is hereby dismissed in its entirety. The Appellant shall continue to serve the sentence imposed by the trial court. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn the presence of:The appellant in person from kamiti max prisonMS Musango for the State.Court Assistant: Jael Nosim