Shivairo v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 10348 (KLR) (30 June 2026) (Judgment)

Shivairo v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 10348 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 10348 (KLR) Republic of Kenya In the High Court at Thika Criminal Appeal E006 of 2025 RK Ondieki, J June 30, 2026 Between Kelvin Shivairo Appellant and Republic Respondent (Being an Appeal against the Judgment by Hon H. NGANGA (S.R.M.) in Chief Magistrate Court at Gatundu, Case No. 12 of 2019, Delivered on 15th April, 2025) Judgment 1.Perhaps, it fits this case from the outset, to drop anchor so that when I come back to the surface, I do not lose my footing. The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 where it was held that the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. 2.In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated that 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. 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. 3.In the case of Odhiambo Vs Republic Criminal App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that on a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour. 4.EK (PW1) told court that she is 17 years old and that on the 19th May, 2019, he met the appellant doing laundry at about 4pm and he took her to his house and after the meals, she slept in his house. The appellant undressed her and defiled her. She bled after the ordeal. In the morning upon a search, she was traced to the house of the appellant. They were arrested by the police officers. The victim had a blood-stained dress to the police officers. Under cross examination, the victim said that the two go to the same church and she told him that she was 17 years and in school. She decided to sleep in his house because it was late. 5.IMM (PW2) told court that on 19th May, 2019, she sent the victim to the posho mill but she did not come back. She made several calls to the church members seeking to know her whereabouts to no avail. In the morning she commenced her search at Gakoe Centre and to her, the victim was found in the house of the Appellant and she informed the police and the appellant was arrested. The victim was examined at Igegania hospital. PRC form, P3 Form and birth certificate were marked for identification as MFI 1, 2 and 3, respectively. Under cross examination, the witness said that in the process of search, the witness found the house door opened and saw the maize bag and her daughter’s shoes from outside. She rushed for police. 6.George Kimani (PW3) told court that on 20th May, 2019, he examined the victim after defilement and made the following findings; the hymen was broken, there was vaginal bleedings, she was in pain and bruises were seen. The witness marked the P3 Form as MFI 1. Under cross examination, the hymen had been broken before and that she was in her menstrual period. The victim disclosed that the sexual act happened three times that night. 7.PC Daniel Mwangi (PW4) told court that he is based at Gakoe Police Post and that on 20th May, 2019, PW2 reported that in the previous day, the victim who is her daughter went missing and in the course of searching, she hit a certain room where the victim was and the police were led to that room. The appellant and the victim were found in bed. They were arrested and while the appellant was taken to the police post, the victim was taken to Igegania Hospital for examination. The witness produced PRC as Exhibit 2, P3Form as Exhibit 2, birth certificate as exhibit 3, treatment notes as Exhibit 4 and Lab request as Exhibit 5. Under cross examination, the witness said that the appellant was found in bed naked with the victim. 8.Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were that on the 19th day of May, 2019 at [Particulars Withheld] Village in Gatundu North Sub-County within Kiambu County did an act which caused penetration of your genital organ namely penis into the genital organ namely vagina of EK a child aged seventeen (17) years old. 9.In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on the 19th day of May, 2019 at Gakoe Village in Gatundu North Sub-County within Kiambu County intentionally and unlawfully touched in the buttock and vagina of EK a child aged Seventeen (17) years old with your hands. 10.The Appellant Kelvin Shivairo Musa in his unsworn testimony told court that on 5th February, 2019 he woke and went to his daily chores as a casual worker. Come in the evening the victim who is her church member went to his house for bible study. However, at about 6pm, he was arrested by the police officers and stayed at Gakoe Police Post custody for three months and 17 days. 11.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by convicting the appellant without proof of the age of the victim.b.That the learned trial Magistrate erred in law and fact by in convicting without proof of penetration.c.That the learned trial Magistrate erred in law and fact by convicting the appellant without proof of identification.d.That the learned trial Magistrate erred in law and fact by rejecting the appellant’s defence.e.That the learned trial Magistrate erred in law and fact by convicting the appellant without setting out points of determination.f.That the learned trial Magistrate erred in law and fact in meting out excessive sentence. 12.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 13.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. I find it extremely apposite to drop anchor, so that as I delve into the re-evaluation of the matter, I do not lose my footing. In Basil Okaroni Versus Republic [2016] eKLR the Court held that the appellant that in Sexual Offences, ascertainment of the victim’s age is crucial and the courts have underscored the necessity of this requirement. 14.In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed 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 also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. 15.In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1). 16.In Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal said that in sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured. Age of the Victim: 17.The law on proof of age is now settled. In Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that 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. Whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 18.It is in evidence that the police produced a birth certificate as exhibit 3 which show that the victim was born on 12th February, 2012. There was no rebuttal by the appellant on this aspect and in any event, this was a public document that disclosed the age of the victim. It is not disputed therefore that indeed, at the time of the commission of the offence, the victim was 17 years old and as such, a child in terms of section 2 of the Children’s Act, 2022. Penetration & Identification. 19.Penetration has been defined by Section 2 of the Sexual Offences Act No.3 of 2006 to mean, either partial or complete insertion of the genital organ of a person into the genital organ of another person. It was the evidence of the victim that on the fateful night, the appellant undressed the victim and inserted her. Besides, the appellant and the victim did sexual act thrice that day and she bled. But more importantly, the appellant said that the victim had gone for bible study. However, the appellant told her to wait till Sunday for that activity. Why did he not release her to go back to her home? Your guess is as good as mine. I refuse to believe that notwithstanding the that bible study was postponed to Sunday, the duo spent the whole night saying the Lord’s prayer. Additionally, the appellant was found naked with the victim in bed by the police officers as well as PW2. I have no doubt that penetration was proved. 20.In respect to identification, Lord Widgery, CJ of the English Court of Appeal in the famous judgment in Regina Vs Turnbull (1977) QB 224 laid down important guidelines for trial courts in respect of disputed identification evidence. The familiar passage in that judgment reads as follows; "First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. Recognition may be more reliable than identification of a stranger: but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relative and friends are sometimes made.” Lord Widgery CJ went on to explain the rationale of these safeguards thus; "All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger. When it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification." 21.In this case, it was on record that the appellant and the victim go to the same church and know each other well. The appellant does not dispute this fact but instead thereof, he says that indeed the victim had gone there for a bible study but the request was rescheduled to the following Sunday. Besides, the duo were caught red handed in bed. Was this a mistaken identity? I am convinced that this element was proved beyond doubt. Defence Case: 22.It is alleged that the trial court did not take into consideration. I have perused the Judgement of the trial court and at paragraph 24 and 25, it is recorded; “… I have considered the accused person defence. Unsworn evidence lacks in evidentially and probative value but this court is obliged to consider the defence. The accused in his defence claimed to have been arrested on 5th February, 2019 and was detained at Gakoe Police Post for over three months before he was arraigned in court on 23rd May, 2019…This, on, the face of it would appear to be gross violation of his constitutional rights. I have considered Ms Timoi, State Counsel’s submissions in this regard. The I initial and the amended charge sheet show that the accused was arrested on the 5th February, 2019 and arraigned in court on 7th February, 2019. The Investigation officer sought to explain that this was an error by the officer who prepared the charge sheet.” So, it is not true that the trial magistrate did not consider the defence case. 23.More significantly, the appellant gave unsworn statement. Section 151 of the Criminal Procedure Code and Sections 17 and 18 Oaths and Statutory Declarations Act requires of the court to swear a witness and clearly indicate on the record that a witness has taken oath before testifying. It is presumed that once a witness testifies, he is subjected to cross examination for purposes of testing credibility of the evidence. On the other hand, when a witness offers unsworn statement, there is a presumption that it is worthless. To some extent, it is. However, once corroboration from other evidence adduced in the matter, unsworn statement may stand. In respect therefore, in May Vs Republic (1981) KLR (Law Miller & Potter, JJA.) had the following to say; “An unsworn statement is not, strictly speaking, evidence and the rules of evidence cannot be applied to an unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential value is persuasive rather than evidential. For it to have any value it must be supported by the evidence recorded in the case.” 24.Put differently, unsworn evidence can still be relied on, but it would require corroboration before it can form a basis for conviction. In more recent decision, Court of Appeal in Mwangi Vs Republic (2006) 2 KLR 94 held that it is prejudicial for an accused person to be convicted on the basis of unsworn evidence. 25.Back to our case, the statement given by the appellant is not corroborated in any manner, either by the evidence on record or by any witness. In the absence of any corroboration, his unsworn is worthless. Excessive sentence: 26.In respect to sentence, it has been held times without number and particularly in the case of Benard Kimani Gacheru Vs. Republic (2002) eKLR it was held thus: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 27.The section with which the appellant was convicted provides for a sentence of 15 years imprisonment as the minimum sentence. I find that the trial magistrate had no option other than imposing the minimum sentences that is lawfully provided by the relevant law. 28.This court has perused the submissions by the Appellant and I note from the court record that nowhere did the appellant raise the issue of his age. He never alleged that he was 17 years old at the time the offence was committed and indeed at the time of plea taking. So, all his submissions and precedents relied on do not apply, in the circumstances. 29.In respect to unequivocal plea, I have perused the proceedings of 23rd May, 2019 and note that the appellant pleaded guilty. However, the court warned him of the consequences of pleading guilty and the plea was deferred for him to reflect. On 30th May, 2019, the appellant applied to change his plea and requested that it be read in Swahili language. Thereafter, he pleaded not guilty to the charges. I find no faulty on the part of the trial magistrate. 30.I have re-evaluated the entire evidence in the file, considered the grounds of appeal and submission by both sides. The court’s judgment shows that the evidence was correctly analysed and weighed. Issues for consideration in a defilement case were explicitly stated as the age of the victim, penetration and identification or recognition of the appellant as the culprit. The trial court went through each of them and vividly indicated how it was established beyond reasonable doubt. It was the correct finding of the trial magistrate that the complainant was 17 years old. The evidence and the issues raised in this appeal presents nothing of which would entitle this court to make a different finding. I do confirm conviction of the appellant for the offence of defilement. 31.Put differently, the court make a finding that;a.The Appeal lacks merit and is hereby, dismissed.b.This court upholds the conviction and sentence of the trial Court.Orders accordingly. DELIVERED VIRTUALLY THIS 30TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, MS TOLOSI FOR ODPP AND COURT ASSISTANT.Orders Accordingly.HON. R.K. ONDIEKI.JUDGE.Citations:K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015.Kiilu & Another Vs. Republic [2005]1 KLR 174,Odhiambo Vs Republic (2005) 1 KLR.Edwin Nyambogo Onsongo Vs Republic (2016) eKLR.Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000.Twehangane Alfred Vs Uganda, [2003] UGCA, 6.