https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12083

Korieta v Republic (Criminal Appeal E014 of 2025) [2026] KEHC 12083 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12083 (KLR) Republic of Kenya In the High Court at Narok Criminal Appeal E014 of 2025 CM Kariuki, J July 31, 2026 Between Kennedy Korieta Appellant and Republic Respondent (Being an appeal from the conviction and sentence delivered on 11{{^th}} April 2016 by Hon. T.A. Sitati (Senior Resident Magistrate) in Narok MCSOA No. 14 of 2016) Judgment A. Introduction And Background 1.This is a first appeal arising from the judgment of the Senior Resident Magistrate delivered on 11th April 2016 in Narok MCSO Case No. 14 of 2016, wherein the appellant, Kennedy Korieta, was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006 and sentenced to life imprisonment. The particulars of the charge were that on 25th January 2016 at [Particulars Withheld] Village in Olololulunga Location, Narok South Sub-County within Narok County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.K., a girl aged four (4) years. An alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act was also preferred. 2.Aggrieved by both conviction and sentence, the appellant filed the present appeal after obtaining leave to appeal out of time in High Court Criminal Miscellaneous Application No. E028 of 2024. The appeal raises several grounds challenging the sufficiency of the prosecution evidence, the fairness of the trial, the rejection of the defence and the legality of the sentence imposed. The respondent opposes the appeal and urges the Court to uphold both the conviction and the sentence. B. Petition Of Appeal 3.The Petition of Appeal dated 5th May 2025 challenges both the conviction and sentence imposed by the trial court in Narok Magistrate's Court Criminal MCSO Case No. 14 of 2016, in which the appellant, Kennedy Korieta, was convicted of 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 appellant states that, having been granted leave to appeal out of time in High Court Criminal Miscellaneous Application No. E028 of 2024, he is dissatisfied with the judgment delivered on 11th April 2016 and seeks appellate intervention. 4.The appellant contends that the trial magistrate erred in law and fact by convicting him despite the prosecution's failure to conclusively prove the ingredient of identification. He further argues that the prosecution did not establish the ingredient of penetration to the requisite legal standard. The appellant also challenges the sentence imposed, maintaining that it was a mandatory and unduly harsh sentence that was disproportionate to the circumstances of the offence. He indicates that he reserves the right to raise additional grounds at the hearing of the appeal and requests to be present during its hearing and determination. Consequently, he prays that the conviction be quashed, the sentence set aside, that he be released from custody, and that the court grant any other appropriate orders in the interests of justice. C. Submissions i. Appellant’s Submissions 5.The appellant submits that the prosecution failed to establish a prima facie case capable of sustaining a conviction, arguing that the burden of proof under section 107 of the Evidence Act was not discharged and that the trial court erred in placing him on his defence. He contends that the prosecution's case rested almost entirely on the testimony of a four-year-old child whose evidence was unreliable, inadequately tested during voire dire, and presented through the complainant's father as an intermediary, thereby rendering it susceptible to influence and contamination. He further argues that there was no corroborative forensic, medical, or independent evidence linking him to the offence, making the conviction unsafe. In support of these arguments, he relies on Republic v Ahmad Abolfathi Mohammed & Another [2019] eKLR on the burden of proof in criminal cases, Samuel Warui Karimi v Republic [2016] eKLR, JOO v Republic [2018] eKLR, and DKK v Republic [2017] eKLR on the treatment of evidence of child witnesses, Ramanlal Trambaklal Bhatt v R (1957) EA 332 and Anthony Njue Njeru v Republic [2014] eKLR on the test for establishing a prima facie case, and Wamunga v Republic (1989) KLR 424 on the need for caution in relying on identification evidence. 6.The appellant further submits that the trial court committed a fundamental procedural error by permitting the complainant's father to serve as an intermediary without conducting the requisite inquiry or demonstrating that he was an independent and suitable intermediary. He argues that the father's direct interest in the outcome of the case compromised the integrity and independence of the child's testimony and violated his constitutional right to a fair trial under Article 50 of the Constitution. To support this ground, he cites AHM v Republic [2020] eKLR and JOO v Republic [2018] eKLR, which emphasise the need for neutrality in the appointment of intermediaries and careful scrutiny of evidence given by children of tender years. 7.On the issue of fair trial, the appellant contends that his constitutional rights under Article 50(2)(c) and (j) of the Constitution were violated because, although the trial court directed that he be supplied with witness statements before trial, there was no evidence that this order was complied with. He argues that, as an unrepresented accused person, he was prejudiced in preparing his defence. In support, he relies on Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, Mweni v Kagai & Another [2022] KENSC 17264 (KLR), and Republic v Mohamed Abdow Mohamed [2013] eKLR, which affirm that disclosure of prosecution evidence is an essential component of the constitutional right to a fair trial. 8.The appellant also argues that the prosecution failed to call several material witnesses, including the complainant's siblings, a neighbour, another person who accompanied the complainant's father to the police station, and the police officer who escorted the complainant to hospital. He submits that these witnesses were crucial to establishing the truth and that their absence warranted the drawing of an adverse inference against the prosecution. He relies on Kamau v Republic [2024] KECA 314 (KLR), Bukenya & Others v Uganda [1972] EA 549, and Kamau v Republic [2022] KEHC 11884 (KLR) for the principle that unexplained failure to call material witnesses may render a conviction unsafe. 9.Lastly, the appellant submits that the trial court failed to properly consider his alibi defence, the evidence of his defence witnesses, and his mitigation before convicting and sentencing him. He maintains that his defence raised reasonable doubt regarding the prosecution's case and that the court failed to evaluate it alongside the prosecution evidence. He further argues that his mitigation was disregarded despite consistently maintaining his innocence. In support of this ground, he cites Carlos v Republic [2024] KECA 1884 (KLR), which underscores the duty of a trial court to consider an accused person's unsworn defence, and Kiprono v Republic [2023] KEHC 20148 (KLR), which emphasises the importance of properly considering mitigation during sentencing. On the basis of the cumulative procedural and evidentiary shortcomings, the appellant urges the court to allow the appeal, quash the conviction, set aside the sentence of life imprisonment, and order his immediate release unless otherwise lawfully held. ii. Respondent’s Submissions 10.The respondent submits that the appeal is devoid of merit as the prosecution proved the offence of defilement beyond reasonable doubt and the trial court properly convicted and sentenced the appellant under sections 8(1) and 8(2) of the Sexual Offences Act, No. 3 of 2006. It is contended that all the grounds of appeal merely challenge the evidence adduced at trial, yet the evidence sufficiently established every essential ingredient of the offence. In support of this position, the respondent relies on F.M.N v Republic, Criminal Appeal No. 78 of 2008, where the High Court (F. Gikonyo J.) held that the prosecution must prove three essential elements of the offence of defilement, namely, that the complainant was a child, that penetration occurred, and that the penetration was perpetrated by the accused. 11.On the first element, the respondent submits that the complainant's age was proved by the production of her clinic book, which showed that she was four years old at the time of the offence. It is argued that this evidence satisfied the definition of a child under section 2 of the Children Act, No. 29 of 2022, and that the appellant did not contest the complainant's age during the trial. 12.As regards penetration, the respondent relies on the evidence of PW3, the complainant's mother, who testified that she found the complainant naked in the appellant's house with her legs apart and that the child immediately identified the appellant as the person who had defiled her. The respondent further relies on the testimony of PW4, the complainant, who stated that the appellant touched her genital area, as well as the medical evidence of PW5, who examined the child and observed multiple lacerations to the vaginal walls and a freshly torn hymen, findings that were documented in the P3 Form and treatment notes. It is therefore submitted that both the oral and medical evidence conclusively established penetration beyond reasonable doubt. 13.On the issue of identification, the respondent argues that there was no possibility of mistaken identity because the complainant knew the appellant as an employee of her uncle and consistently identified him as the perpetrator in the presence of her mother. The respondent therefore submits that the appellant was positively identified as the assailant and that the prosecution discharged its burden of proof. Consequently, it is urged that the trial magistrate neither erred in law nor fact in convicting and sentencing the appellant, and the court is invited to dismiss the appeal in its entirety and uphold both the conviction and the sentence. D. Issues For Determination 14.Having considered the Petition of Appeal, the record of the trial court, the submissions of the parties and the applicable law, the issues that arise for determination are:i.Whether the prosecution proved the offence of defilement against the appellant beyond reasonable doubt.ii.Whether the appellant's constitutional right to a fair trial was infringed.iii.Whether the appellant's defence was properly considered by the trial court.iv.Whether there is any basis for interfering with the sentence imposed. E. Analysis And Determination Duty of a First Appellate Court 15.This being a first appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 16.In Okeno v Republic [1972] EA 32, the East African Court of Appeal stated:“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 the appellate court's own decision on the evidence." 17.Similarly, in Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal reiterated that a first appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions. i. Whether the prosecution proved the offence of defilement beyond reasonable doubt 18.The essential ingredients of the offence of defilement are well settled. The prosecution must prove: the age of the complainant, penetration, and the identity of the perpetrator. See Fappyton Mutuku Ngui v Republic [2014] eKLR. a. Age of the complainant 19.The complainant's age was proved through the clinic card (P. Exhibit 3), which showed that she was four years old at the time of the offence. The testimonies of PW1, PW2 and PW3 equally confirmed that she was a child of four years. The appellant never disputed her age during the trial. Consequently, the Court is satisfied that the prosecution proved this ingredient beyond reasonable doubt. b. Penetration 20.The second ingredient that the prosecution was required to prove was penetration. Section 2 of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." 21.The evidence on record overwhelmingly established this ingredient. PW3, the complainant's mother, testified that after searching for the complainant, she found her inside the appellant's house. The door had been locked from the inside and was opened by the appellant upon her knocking. Upon entering the house, she found the complainant lying naked on the appellant's bed with her legs apart. The complainant immediately began crying and stated that "Kennedy had injured her," while pointing to her genital area. The appellant was present and heard the child make that accusation. 22.The complainant (PW4), after a voire dire examination, gave unsworn evidence. She testified that she knew the appellant as a worker employed by her uncle and stated that it was the appellant who touched her genital area. Although her evidence was unsworn, it was properly received under section 19 of the Oaths and Statutory Declarations Act after the trial court found that she possessed sufficient intelligence but did not understand the nature of an oath. 23.The complainant's testimony was strongly corroborated by the medical evidence. PW5, Dr. Anne Wachira of Ololulunga Sub-County Hospital, examined the complainant on 26th January 2016, one day after the incident. She observed multiple lacerations to the vaginal walls and a freshly torn hymen. These findings were recorded in the treatment notes and the P3 Form, both of which were produced in evidence without objection. The medical findings were wholly consistent with recent penetration. 24.The Court of Appeal has consistently held that penetration may be proved by medical evidence, the testimony of the victim, or a combination of both. In Mark Oiruri Mose v Republic [2013] eKLR, the Court held that the slightest penetration of the female genital organ is sufficient to constitute the offence of defilement. Likewise, in Kassim Ali v Republic [2006] eKLR, the Court observed that penetration need not be proved solely by medical evidence where there is credible and cogent oral testimony. 25.Upon independently evaluating the evidence, this Court is satisfied that the prosecution proved penetration beyond reasonable doubt. The complainant's immediate complaint to her mother, the circumstances in which she was found inside the appellant's locked house, and the medical evidence of fresh genital injuries leave no doubt that the complainant had been sexually penetrated. c. Identity of the perpetrator 26.The final ingredient requiring proof was whether it was the appellant who committed the offence. The appellant contends that the evidence of identification was unreliable and that other young men who were present in his house may have been responsible. 27.This Court has carefully re-evaluated the evidence relating to identification. The complainant knew the appellant before the incident as he worked for her uncle. Consequently, this was a case of recognition rather than identification of a stranger. The law recognizes that evidence of recognition is generally more reliable than identification of a person previously unknown to the witness. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is more satisfactory, more assuring and more reliable because it depends upon the personal knowledge of the assailant. 28.PW3's evidence strongly corroborated that of the complainant. Acting upon information from her younger brother that the complainant had entered the appellant's house, she proceeded there immediately. She found the door locked. When the appellant opened it, she entered and found her four-year-old daughter lying naked on the appellant's bed with her legs apart. Immediately upon seeing her mother, the child cried and identified "Kennedy" as the person who had injured her while pointing at her private parts. The appellant was present throughout this exchange and did not challenge the accusation at the time. 29.The complainant herself consistently testified before the trial court that it was the appellant who touched her genital area. Although the appellant suggested in his defence that other young men who had been in his house could have committed the offence, that assertion remained a mere allegation unsupported by any evidence. Neither of his defence witnesses placed those alleged young men with the complainant nor displaced the prosecution's direct evidence. 30.In Wamunga v Republic [1989] KLR 424, the Court of Appeal cautioned that evidence of visual identification must be carefully tested because mistakes in identification can occur. Having subjected the evidence to that careful scrutiny, this Court finds that there was no possibility of mistaken identity. The appellant was positively recognized by both the complainant and her mother, who found the complainant inside the appellant's locked house immediately after the offence. The surrounding circumstances firmly establish the appellant as the perpetrator. 31.Accordingly, this Court finds that the prosecution proved beyond reasonable doubt that it was the appellant who defiled the complainant. ii. Whether the appellant's constitutional right to a fair trial was infringed 32.The appellant contends that his right to a fair trial under Article 50 of the Constitution was violated on account of the alleged failure by the prosecution to supply him with witness statements, the reception of the complainant's evidence through an alleged intermediary, and the failure to call certain witnesses. This Court has carefully examined the record. 33.The record demonstrates that the trial court conducted a voire dire examination before receiving the complainant's unsworn testimony in accordance with section 19 of the Oaths and Statutory Declarations Act. Contrary to the appellant's submissions, there is no indication in the proceedings that the complainant's father testified as an intermediary within the meaning of section 31 of the Sexual Offences Act. The complainant testified personally after the trial court was satisfied that she possessed sufficient intelligence to testify but did not understand the nature of an oath. 34.As regards disclosure, although the appellant contends that witness statements were not supplied, the record does not demonstrate that he raised the issue before the trial court or sought an adjournment on that basis. Neither has he demonstrated the prejudice allegedly suffered. As the Court of Appeal observed in Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, disclosure is an integral component of a fair trial, but an appellate court must still determine whether any alleged omission occasioned actual prejudice. None has been demonstrated in the present appeal. 35.The appellant also faults the prosecution for failing to call additional witnesses. However, section 143 of the Evidence Act expressly provides that no particular number of witnesses is required to prove a fact. The prosecution is only required to call sufficient evidence to establish its case beyond reasonable doubt. In Bukenya & Others v Uganda [1972] EA 549, the Court held that an adverse inference only arises where the uncalled witnesses were essential and the evidence on record is insufficient. In the present case, the evidence of the complainant, her mother and the medical officer sufficiently established the charge. No adverse inference therefore arises. iii. Whether the appellant's defence was properly considered 36.The appellant further contends that the trial court failed to consider his defence that other young men present in his house committed the offence. This Court has reconsidered the defence alongside the prosecution evidence. 37.The judgment of the trial court expressly evaluated the appellant's defence before rejecting it as inconsistent with the prosecution evidence. Although an accused person bears no burden of proving an alibi or any other defence, the trial court was entitled to reject the defence where it was displaced by credible prosecution evidence. The appellant's assertion that other young men committed the offence remained unsupported by any evidence and was incapable of displacing the direct evidence placing the complainant in the appellant's locked house immediately before the offence was discovered. This Court therefore finds no merit in this ground of appeal. iv. Whether there is any basis for interfering with sentence 38.Sentencing is a matter within the discretion of the trial court. An appellate court will only interfere where the trial court acted on wrong principles, considered irrelevant matters, failed to consider relevant factors or imposed a sentence that is manifestly excessive. See Bernard Kimani Gacheru v Republic [2002] eKLR. 39.The complainant was four years old. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged eleven years or below. Although the jurisprudence following Dismas Wafula Kilwake v Republic [2018] eKLR recognizes that sentencing courts retain discretion, this Court is satisfied that the sentence imposed was commensurate with the gravity of the offence and the extreme vulnerability of the victim. No basis has been established for appellate interference. F. Disposition 40.Having carefully re-evaluated the entire record of the trial court, the Petition of Appeal, the rival submissions of the parties and the applicable law, as required of a first appellate court, this Court is satisfied that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt. The age of the complainant was established by documentary evidence, penetration was proved by cogent medical and oral evidence, and the appellant was positively identified through credible evidence of recognition and the surrounding circumstances. 41.The Court further finds that the appellant has not demonstrated that his constitutional right to a fair trial was violated. The complainant's evidence was properly received after a voire dire examination, there is no evidence that an intermediary was improperly appointed, no prejudice was occasioned by the alleged non-disclosure of witness statements, and the prosecution's failure to call additional witnesses did not weaken an otherwise cogent and consistent case. The appellant's defence was duly considered by the trial court and was rightly rejected as it did not raise any reasonable doubt. 42.As regards sentence, the trial court imposed the sentence prescribed under section 8(2) of the Sexual Offences Act, the complainant having been four (4) years old at the time of the offence. Considering the gravity of the offence, the tender age of the victim and the circumstances disclosed by the evidence, this Court finds no legal or factual basis upon which to interfere with either the conviction or the sentence imposed. 43.Consequently, the appeal is devoid of merit and is hereby dismissed in its entirety. 44.Accordingly, the Court makes the following orders:a.The appeal against conviction is dismissed.b.The conviction of the appellant for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is hereby upheld.c.The appeal against sentence is dismissed.d.The sentence of life imprisonment imposed by the trial court is hereby affirmed.e.The appellant shall continue serving the sentence imposed unless otherwise lawfully released. 45.Orders accordingly. DATED, SIGNED, AND DELIVERED AT NAROK THIS 31ST DAY OF JULY 2026.CHARLES KARIUKIJUDGE