Wangui v Republic (Criminal Appeal E141 of 2025) [2026] KEHC 4686 (KLR) (9 April 2026) (Judgment)

Wangui v Republic (Criminal Appeal E141 of 2025) [2026] KEHC 4686 (KLR) (9 April 2026) (Judgment) Neutral citation: [2026] KEHC 4686 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E141 of 2025 DR Kavedza, J April 9, 2026 Between Kevin Kiragu Wangui Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. M.W Murage (PM) on 29th September 2025 at Kibera Chief Magistrates’ Court Sexual Offences Case No. 71 of 2017 Republic vs Kevin Kiragu Wangui) Judgment 1.The appellant Kevin Kiragu Wangui was charged with the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act, No. 3 of 2006. After a full trial, he was convicted on the alternative count of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve ten (10) years' imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence. 2.In the petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He argued that the court failed to consider his defence. He urged the court to quash his conviction and set aside the sentence imposed upon him. 3.This is the first appellate court, and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa established the duty of the first appellate court. It is to analyse and re-evaluate the evidence presented before the trial court, and come to its own conclusions on that evidence without overlooking the trial court's conclusions, but bearing in mind that it did not see the witnesses testify. 4.The prosecution’s case was as follows: PW2 MYM testified that on 31st July 2017 at about 10:00 a.m., she was on her way to the shop when she saw the appellant, who was her neighbour and well known to her. She met him at the gate. The appellant had previously asked her to be his friend. 5.The appellant called her, opened the door of his one-room house, and pulled her inside. He was seated next to the door. She asked to leave, but he demanded a hug, which she refused. The television and radio were on. He removed her clothes and, despite her resistance, hugged her and removed her underwear. He then pulled her onto him as he sat on the seat. She fell on top of him but did not shout, as she was afraid. The appellant did not threaten her. 6.While they were inside, a person knocked on the door and left. Shortly afterwards, she heard her mother saying she wanted to enter the house. The complainant had not put her pants back on. Her mother called her father, who came to the scene. Only the complainant and the appellant were in the house at the material time. 7.The chief subsequently took them to Kabete Police Station. The complainant stated that she was born on 11th March 2001. She received treatment at Nairobi Women’s Hospital. 8.PW1, Martha Kemunto Makori (the complainant’s mother), testified that on 31st July 2017, she left for work after instructing her daughter to wash utensils and dust the house. Upon her return, she found the tasks undone. A neighbour, Mary, informed her that she had seen the complainant on the road. PW1 searched but did not find her. She then saw the appellant and demanded entry into his house. She forced her way in and found slippers belonging to her daughter. The appellant was inside with the complainant. They were taken to the chief’s place and later to Kabete Police Station. PW1 stated that the complainant was 15 years old at the time. She identified the birth certificate, treatment notes, and P3 form. 9.In cross-examination, PW1 said she found the complainant sleeping on the bed and that the child had told her the appellant forced her into sex. 10.PW3, Dr Ngatia, produced the medical documents. He testified that the victim was examined at Nairobi Women’s Hospital on 31st July 2017. Vaginal examination revealed an intact hymen, though penetration could not be ruled out. The inner, outer genitalia, and anus were normal. He produced the treatment notes and PRC form as Exhibits 1 and 2, respectively. 11.PW4, Dr Kamau Mariga, produced the P3 form for PW2 dated 1st August 2017 as Exhibit 3. According to him, the hymen was pink with a hymenal tag, and the girl had been penetrated. He also produced the P3 form for the appellant as Exhibit 5. He noted that no injury was observed on the external genitalia. 12.PW5, Sergeant Leah Cherop, testified that the appellant lured the girl and defiled her. She stated that the appellant admitted having had sex with the girl using a condom. She confirmed seeing the P3 form. 13.When placed on his defence, the appellant testified that he was known to PW1 because they had been in a love affair for eight months in 2017 and lived in the same area. He started dating another girl, which displeased PW1, who threatened to discipline him. Four days later, he was arrested by police officers. He claimed he was beaten at the police station and demanded to pay Kshs 200,000 or face defilement charges. He was further assaulted and forced to accept the charges. In cross-examination, the appellant admitted that he did not report the alleged demand for Kshs 200,000. 14.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 15.Section 2 of the SOA defines an indecent act as: -An unlawful intentional act which causes—a.any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration;b.exposure or display of any pornographic material to any person against his or her will. 16.The prosecution's case against the appellant was based on two key elements under Section 11 of the Sexual Offences Act, No. 3 of 2006. First, the complainant's age. She testified she was 16 on 31st July 2017, supported by her mother, PW3, stating her birth as 11th March 2001, and the birth certificate produced by the investigating officer confirming her as a child under the age of eighteen years. 17.On the second ingredient, the prosecution’s case rested primarily on the testimony of the complainant and her mother, PW1. The charge alleged that the appellant committed an indecent act with a child. PW2 testified that the appellant, her neighbour, lured her into his one-room house, removed her clothes and underwear, hugged her, and pulled her onto him as he sat on a seat. She stated that she feared shouting, a person knocked on the door and left, and she heard her mother demanding entry. 18.Crucially, PW2 did not testify that the appellant touched her breasts or vagina, nor did she state that he attempted to remove her panties beyond what she described. She made no mention of any contact between any part of the appellant’s body and her genital organs, breasts, or buttocks. The incident was interrupted by the knock on the door, and she confirmed the appellant did not threaten her. She was examined the same day at Nairobi Women’s Hospital. 19.PW1 testified that upon her return, she found her daughter had not done the assigned chores. A neighbour informed her she had seen the complainant on the road. PW1 confronted the appellant, forced entry into his house, and found the complainant inside with him. She stated that the complainant later told her the appellant had forced her into having sex. 20.Medical evidence presented a clear inconsistency. PW3, Dr Ngatia, who examined PW2 on the same day at Nairobi Women’s Hospital, found the hymen intact, though penetration could not be ruled out. The outer genitalia and anus were normal, with no redness, tags, or other signs of recent trauma. In contrast, the P3 form produced later by PW4, Dr Kamau Mariga (dated 1st August 2017), recorded a pink hymen with a hymenal tag and concluded that penetration had occurred. No injury was noted on the external genitalia. 21.The trial court found that the appellant’s penis had touched PW2’s vagina, yet no such evidence exists in PW2’s testimony or in the contemporaneous medical examination. Furthermore, the complainant never gave any evidence to that effect. In my view, this was an erroneous assumption. Furthermore, the complainant told her mother and the police that she had been defiled but the medical evidence disproved this allegation. 22.Section 2 of the Sexual Offences Act defines an “indecent act” as an unlawful, intentional act which causes any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration. For the offence under section 11(1) to be complete, such contact must be proved. PW2 gave no evidence of any such contact. Her account, at best, if it is to be believed, describes an interrupted attempt. The mother’s claim that PW2 told her she had been “defiled” finds no support in the medical evidence or in PW2’s own testimony. There was, therefore, no proof of defilement or of an indecent act. 23.The material inconsistencies between report of the minor to her mother and the police, the immediate medical findings and the later P3 form, coupled with the absence of any testimony establishing the required physical contact, create reasonable doubt. These inconsistencies were not minor but went to the root of the charge. They must be resolved in favour of the appellant. 24.The trial court erred in convicting the appellant on the basis of an indecent act when the evidence disclosed, at most, an incomplete attempt, unsupported by the requisite proof of contact. The prosecution failed to prove its case beyond a reasonable doubt. 25.In the upshot, the appeal succeeds. The appellant’s conviction for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act is quashed, and the sentence is set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.Orders accordingly. Judgement dated and delivered virtually this 9th day of April 2026......................................D. KAVEDZAJUDGEIn the presence of:Appellant PresentMr. Mutuma for the StateKarimi Court Assistant.