https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1061

Joel v Republic (Criminal Appeal 111 of 2019) [2026] KECA 1061 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1061 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 111 of 2019 S ole Kantai, JW Lessit & A Ali-Aroni, JJA May 29, 2026 Between Kelvin Mwenda Joel Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Meru (Mrima, J.) delivered on 7th March 2019 in HCCRA No. 9 of 2017) Judgment 1.Kelvin Mwenda Joel, the appellant herein, is before this Court by way of a second appeal, his first appeal having been dismissed by the High Court at Meru (Mrima, J) on 7th March 2019. The appellant had initially been charged before the Principal Magistrate’s Court at Nkubu, with the offence of defilement, contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (the Act). The particulars of the offence were that, on 31st July 2017, in Imenti South Sub-County within Meru County, he caused his penis to penetrate the vagina of EK, a child aged 11 years. 2.He also faced an alternative charge of indecent act with a child contrary to section 11(1) of the Act. The particulars were that on 31st July 2017 at the same place mentioned in Count 1, he intentionally touched the vagina of EK, a child aged 11 years, with his penis. 3.The appellant pleaded not guilty to both counts, and the matter proceeded to trial, where the prosecution called 4 witnesses. The appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the trial magistrate convicted the appellant of the offence of defilement and sentenced him to life imprisonment. The appellant was dissatisfied with the verdict and appealed to the High Court, which dismissed the appeal and affirmed both the conviction and sentence. 4.The appellant, aggrieved by the High Court's decision, preferred this appeal in a homegrown ‘grounds of appeal’ that may be summarized as follows: that the Judge erred in law and fact; by failing to consider that there was no sufficient evidence to support the charge; by rejecting the appellant’s defence without giving cogent reasons; by upholding the sentence against the inconsistent evidence by the prosecution. 5.This is a second appeal, and our jurisdiction is limited to matters of law only by dint of section 361 (1)(a) of the Criminal Procedure Code and which was reiterated in Njoroge v Republic [1982] [1982] KECA 19 (KLR), where this Court stated that on a second appeal, the Court is only concerned with points of law and are bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence. 6.In order to appreciate the matter before us, we shall briefly summarise the facts of the case. PW1, EK, the complainant, aged 11 years, testified that she knew the appellant, who worked as a shamba boy, caring for her uncle's cows. On 31st July 2017, while she was playing with her sisters along the road, the appellant called her, claiming that he wanted to send her to a nearby shop. When she went, the appellant grabbed her and took her into the house, and closed the door. He dragged her into the bedroom, undressed her, held her by the neck and covered her mouth with his hand when she tried to scream. The appellant removed her trousers and underpants, removed his own trousers, then forced himself between her legs, inserting his penis into her vagina and defiled her. He threatened to kill her if she told the incident to anyone. 7.After the incident, she left, leaving the appellant in his house. Due to the incident she was unable to walk normally and began walking with her legs widely open, prompting her mother to question her. She did not immediately disclose what happened due to fear but eventually disclosed the incident to her mother, who took her to Kanyakine Hospital, where she was examined and treated. Subsequently, they went to Ntharene Police Station, where she narrated the events to the police. 8.PW2, CKM, the complainant's mother, informed the court that PW1 was born on 24th August 2006 and was 11 years old when the incident occurred. She knew the appellant as he used to work for a neighbor and then as a shamba boy for her brother-in-law. On 1st August 2017, at around 8 pm, she noticed PW1 had a unique walking style and inquired, but the child did not open up until the next day, when PW1 told her that on 31st July 2017, the appellant called her on the pretext of sending her to the shop, then dragged her into the house and defiled her. She also reported that he threatened to kill her if she told anyone. Following this, PW2 checked PW1’s private parts, called her husband, and later took PW1 to Kanyakine Hospital. They reported the case at the AP Post in Ntharene, and the appellant was arrested within the same week. 9.PW3, Seberina Kaimatheri, who was a clinical officer at Kanyakine District Hospital, stated that she examined the 11- year-old complainant who reported a history of defilement on 31st July 2017 around 1 pm by a person known to her, an employee at a neighbour's homestead. She found the victim (PW1) to be stable and able to express herself.She further testified that she carried out a medical examination two days after the incident and filled out the P3 form. While PW1's private parts showed no bruises, there was redness and tenderness, and the hymen was absent. HIV tests showed pus cells and bacterial cells. She was of the opinion that a painful, reddened vagina coupled with an absent hymen was suggestive of penetrative sexual intercourse. 10.PW4, Cpl. Simon Torotich testified that on 2nd August 2017, PW1 and her mother reported to the Police Post that the appellant had defiled PW1 on 31st July 2017. An Occurrence Book (OB) entry was recorded. He learnt that the appellant had called PW1 on the pretext of sending her and then defiled her in his house. PW2 noticed a change in PW1’s walking style and learned of the incident. PW2 took PW1 to the hospital and reported the incident to the police. PW4 issued a P3 form, which was filled out, and he also obtained the complainant’s birth certificate, showing her date of birth as 24th August 2006. 11.PW4 stated further that the appellant was identified to him by PW1’s parents, as he did not know him prior to the incident. During cross-examination by the appellant, PW4 confirmed that PW1 had been treated by the time she reported and that the doctor's report confirmed defilement, noting the doctor was called as a witness. The appellant was arrested about five days after the incident was reported, which itself was about two days after the incident. PW4 interrogated the appellant upon arrest and found PW1 to be fluent. PW4 admitted he did not visit the scene and that the case hinged heavily on the appellant's and the victim's evidence. He explained that a medical examination of the appellant was unnecessary because the arrest occurred many days later. 12.When placed on his defence, the appellant gave a sworn testimony and denied the offence. He claimed that the doctor's report indicated that the child had no injuries on her private parts, and the doctor testified that he did not know when the child lost her hymen. He further stated that he could not have taken the child to his home, as he has a wife and children, and suggested that proper investigations were not conducted. He alleged that the child's mother was behind the accusations and that the child had been coached by her mother. 13.He further testified that he had existing issues with PW2, prior to the case, and he had known her since 25th November 2011, having worked for her brother-in-law until 2017. He recounted an incident on 19th June 2017, where he met someone who claimed to have a date with PW2, followed by a fight between PW2 and her husband that same evening. He then claimed PW2 accused him of reporting her to her husband about being with someone else, creating a grudge between them. He concluded by stating that he was falsely charged, that the case was not properly investigated, and that he prayed to be released and set at liberty. 14.The trial court, having considered the evidence by both the prosecution and the defence, found the appellant guilty of the offence of defilement. He was convicted and sentenced to life imprisonment. Aggrieved by the judgment, the appellant appealed against both conviction and sentence to the High Court. 15.Upon hearing the appeal in its determination, the High Court formed the view that the appellant was properly convicted of the charge of defilement. On sentence, as PW1 was slightly below the age of 11 years, the Court found that the appellant was handed the only sentence prescribed under section 8(2) of the Sexual Offences Act, which sentence was legal. Thus, the decision of the trial court was affirmed, and the appeal dismissed, precipitating this second appeal. 16.At the hearing of the second appeal, the appellant appeared in person. He filed undated submissions. The core of the appellant's submissions is that the prosecution's case was not proved beyond a reasonable doubt. In support of this narrative, he submitted that the prosecution’s evidence was fraught with inconsistencies, contradictions, and conflicting testimonies. He further urged that the investigating officer failed in his duties by not visiting the scene and failing to note that the appellant lives with his wife and children, which negates PW1's testimony that he called her to send her to the shop and then took her into the house, arguing that screaming would have alerted people, including his wife and children who were present. He also questions the truthfulness of PW1's changed walking style after the alleged incident, noting that her sisters, who were the first to meet her, did not question or notice the change. 17.Regarding the complainant's mother (PW2), the appellant points out the implausibility of her waiting until the next day to report the incident, even after noticing her child's unique walking style at 8:00 pm on 1st August 2017. Furthermore, he argued that PW2's subsequent report and the clinical officer's evidence of treatment two days after the incident are suspect. The appellant suggests that the entire case is a frame-up driven by PW2's grudge against him. He alleged that he and PW2 had a past love affair, and she was seeking revenge because she believed he had reported her to her husband about her being with another man, leading to her being beaten. 18.The appellant further asserted that the two courts below erred by disregarding his defence without giving any cogent reasons, especially his claim that he would not have committed the act in his own home while his family was present. The appellant pointed out that the failure to conduct proper investigations, including obtaining forensic samples or DNA tests, was not done despite his request, which he argues would have removed any shadows of doubt and relied on section 137A of the Criminal Procedure Code. 19.The appellant further contended that the absence of a hymen is not conclusive proof of penetration, as it can be broken in other ways, for instance, bike riding or running, and there were no bloodstains found on the complainant or her undergarments. 20.In conclusion, the appellant urged the Court to consider his submissions, quash the conviction, set aside the sentence, and set him at liberty. 21.In opposition, learned prosecuting counsel filed submissions dated 21st February 2025 and focused on two main issues: whether the prosecution proved the offence of defilement beyond any reasonable doubt, and whether the testimonies of the prosecution witnesses were contradictory, inconsistent, and conflicting. Counsel submitted that the three main ingredients of defilement, age of the victim (must be a minor), penetration, and proper identification of the perpetrator, were proven. 22.On the issue of age, PW1 testified she was 11 years old. This was affirmed by PW2 and her birth certificate that was produced in evidence, showing that PW1 was born on 24th August 2006. Counsel argued that this aligns with judicial pronouncements that age can be proved by documents such as a birth certificate or by oral evidence from the child or parent. In support, counsel cited Edwin Nyambogo Onsongo v Republic [2016] KEHC 4738 (KLR). 23.Counsel submitted that penetration can be partial or complete insertion of genital organ and that PW1 testified that the appellant seized her, took her to his house, and inserted his penis into her vagina. Further, PW2 took PW1 to the hospital after noticing a change in her walking and the victim's disclosure of the defilement. The clinical officer (PW3) observed redness and tenderness in the PW1’s private parts, which was consistent with penetrative sexual intercourse, and produced the P3 form and Post Rape Care report. Counsel submitted that the medical evidence corroborated the minor's testimony, proving penetration. 24.Regarding identification, counsel submitted that PW1 and the appellant were well known to each other, as he was employed as a shamba boy by her uncle, and that, therefore, identification was positive. He urged that PW1’s testimony was consistent, detailed, and coherent, and the appellant's uncorroborated defence, suggesting coaching and alleged issues with PW2, was deemed weak and an afterthought. 25.Counsel negated that there were contradictions in the witnesses' evidence, and submitted that if any existed, they were minor and did not affect the main substance of the prosecution's case. To support this contention, he relied on Boaz Nyanoti Smawel v Republic [2022] KEHC 1108 (KLR). 26.In conclusion, counsel submitted that the prosecution proved the offence of defilement to the required threshold and urged the Court to find that the appeal lacks merit and to dismiss it in its entirety. 27.Having carefully considered the record and the rival submissions, the issues that arise for determination are:a.Whether the ingredients of the offence of defilement were proved beyond a reasonable doubt;b.Whether the conviction was safe. 28.On whether the ingredients of the offence of defilement were proved beyond a reasonable doubt, the law on the ingredients of the offence of defilement is well settled. Section 8 of the Act requires proof of three key elements: the complainant's age, penetration, and the perpetrator's identity. 29.On age, the complainant’s birth certificate, produced in evidence, established that she was 11 years old at the time the offence was committed. In Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR), this Court relied on the case of Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No.2 of 2000, where it was held inter alia that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” 30.The learned Judge held that:“In sexual offences like the instant one, the age of the complainant remain (sic) very cardinal and must be strictly proved as the sentence on conviction vary with age. In this appeal, the age of PW1 was not contested. PW4 produced PW1's Certificate of Birth No. xxxxxxx together with the Child Immunization Card confirming that PW1 was born on 24/08/2006. As the offences were allegedly committed in July 2017 then PW1 was about 11 years old. She was hence a child in law.I find that the age of PW1 was properly settled.” 31.We find no compelling reasons to depart from the concurrent findings of fact by the two courts below, as these were supported by the evidence on the record. 32.On penetration, PW1 gave a clear and elaborate account of how the appellant lured her to his house, undressed her and himself and inserted his penis into her vagina. This was corroborated by PW2 who noticed PW1 walking differently and examined her, and PW3 who observed redness, tenderness, and absence of the hymen. This Court in Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR), held that the main elements of the offence of defilement are: the victim must be a minor, and there must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. In the present case, penetration was discernible and the medical evidence in this case further fortified that testimony. 33.On identification, the complainant knew the appellant prior to the incident. This was therefore a case of recognition. This Court in Anjononi & Others v Republic [1980] KLR 59, held that recognition is more reliable than identification of a stranger. In this regard, the learned Judge held that:“I hence return the finding and so hold that the identification of the Appellant in the circumstances of this case was not in error. The Appellant was rightly identified by recognition as the assailant and as such there was no need of conducting an identification parade.”We share the sentiments of the judge that there was no possibility of mistaken identity. 34.On whether the complainant’s evidence was credible and sufficient, the complainant testified in a clear, consistent and detailed manner. She gave a coherent account of what transpired. The trial court, which had the advantage of observing her demeanour, found her to be truthful, and the first appellate court upheld that finding. In Simon Morara Onchonke v Republic [2011] KECA 209 (KLR), this Court held that an appellate court should not interfere with findings of fact based on the credibility of witnesses unless no reasonable tribunal could have reached such findings. 35.Further, section 124 of the Evidence Act, a court may convict on the sole evidence of a victim in sexual offences if it believes the victim and records reasons for that belief. In Jackson Mwanzia Musembi v Republic [2017] KECA 748 (KLR), this Court affirmed that a conviction in sexual offences can be based on the sole evidence of the complainant if the court believes the complainant and records reasons. This Court held that:“Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 36.The learned Judge was aware of this precarious scenario and held that:“The Appellant vehemently denied any involvement in the alleged offence. From the record, the evidence touching on the Appellant was mainly by PWI. She knew the assailant as he worked for her uncle and generally in the neighborhood. The incident also occurred during the day. The chances of mistaken identity are hence minimal if at all any.That being so, the evidence of PWI must still be carefully and cautiously weighed. A Court must always be alive to the dangers of relying on evidence of a single identifying witness.” (Emphasis added) 37.From the record, the complainant was eloquent, composed, and unwavering in her testimony. Her account remained consistent even under cross-examination and was corroborated by medical and circumstantial evidence. We find no reason to disturb the concurrent findings of the two courts below. Her evidence was truthful, credible, and sufficient to found a conviction. The trial court had this to say:“I also do not find any merit in the accused's contention that the complainant was coached to implicate him. The complainant, as noted herein above, was very specific and categorical in her testimony. She was very consistent and quite uneasy with the accused. She re-lived her ordeal and sobbed through her testimony, but she was prompt in her responses both in chief and in cross examination. She was also eloquent and clear in her testimony. I find that the complainant gave an independent, truthful account of what transpired without any undue influence.” 38.On whether there were material contradictions in the prosecution’s case, the appellant contended that the prosecution evidence was contradictory and inconsistent. However, a careful evaluation of the record reveals that any discrepancies were minor and did not affect the substance of the case. In Jackson Mwanzia Musembi v Republic [2017] KECA 748 (KLR), this Court relied on the holding by the Uganda Court of Appeal in Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, [2003] UGCA, 6, where the Court held that it is not every contradiction that warrants rejection of evidence. As that court put it:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 39.Similarly, in Richard Munene v Republic [2018] KECA 186 (KLR), this Court held that only material contradictions that create doubt as to the guilt of the accused will vitiate a conviction. 40.The appellant’s defence was that he had been framed due to a grudge with PW2. Both the trial court and the High Court considered this defence and rejected it. In Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), this Court stated that a trial court must consider the defence but is entitled to reject it if it does not raise reasonable doubt. The Court held that:“From the facts on record it appears that the prosecution made a strong and watertight case against the appellant. The evidence of the prosecution witnesses corroborated each other and form a clear and logical sequence of events establishing the appellant’s guilt.Taking all the facts into consideration, it is our opinion that the alibi defence did not shake the prosecution’s case. The finding of the High Court that the appellant was properly identified and convicted of the offence of defilement was based on overwhelming evidence and cannot be faulted.” 41.As regards the appellant’s defence, the trial court held:“I find the contention by the accused that the case is a frame up by the complainant's mother far-fetched and diversionary. The same is a mere denial and it does not hold any water in the face of the overwhelming prosecution evidence on record. It does not whatsoever dislodge the prosecution evidence. Further still, the accused did not raise the issue when the complainant's mother was called as a witness. This is an afterthought by the accused.” 42.The learned Judge on his part had this to say about the appellant’s defence:“On an equal footing it is paramount that the defence be considered. The Appellant denied the offences and raised an issue of a grudge between himself and PW2. He contended that he was aware that PW2 was engaged in an extra-marital affair and that PW2 framed him for fear disclosure to PW2's husband. From the record PW2 testified twice. In both instances the Appellant did not raise the issue of the grudge. When such a serious matter is raised at the tail- end of the proceedings without according an opportunity to the prosecution witnesses to challenge such, then that in itself raises several constitutional issues touching inter alia on Article 50 of the Constitution although the legal burden of proof always remains with the prosecution.This Court entirely concurs with the analysis and the conclusion by the trial court that the defence was mainly an afterthought. An analogy between the defence and the prosecution evidence reveals that the defence does not raise any doubts on the prosecution case. Further, by juxtaposing the prosecution's evidence against that of the Appellant and in strict guidance of the principles developed by case and being alive to the provisions of Section 124 of the Evidence Act… I find that PW1 knew the Appellant and that she was not mistaken in stating that she had an encounter with him.” 43.It is obvious from the extracts quoted above from the judgment of the two courts below that the appellant’s alibi was considered and found not to have displace the prosecution’s case. Further, we find that the appellant’s allegation of a grudge was not supported by any evidence and was rightly rejected. The allegation remains a mere assertion and does not cast any doubt on the strong and consistent prosecution evidence. Indeed, we find that the appellant’s defence was a sham and a mere afterthought. Consequently, there is no basis to interfere with the concurrent findings of fact by the two courts below. 44.In the end, we uphold both the conviction and sentence. The appeal fails on each and every ground and is dismissed. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.S. ole KANTAI.........................................JUDGE OF APPEALJ. LESIIT.........................................JUDGE OF APPEALALI-ARONI.........................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.