https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10759

Kibet v Republic (Criminal Appeal E041 of 2022) [2026] KEHC 10759 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10759 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E041 of 2022 PN Gichohi, J July 16, 2026 Between Fredrick Korir Kibet Appellant and Republic Respondent (Being an appeal against the conviction and sentence of Hon. E. Soita (SRM) in Molo SO No. 145 of 2018 delivered on 21st September 2022) Judgment 1.The Appellant was on 27th December, 2018, charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act. The particulars are that on the 24th day of December, 2018 an [Particulars Withheld] in Molo Sub-County within Nakuru County, intentionally caused his penis to penetrate the vagina of IC a child aged 9 years. 2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars are that on the 24th day of December, 2018 an [Particulars Withheld] in Molo Sub-County within Nakuru County, intentionally touched the vagina of IC a child aged 9 years with his penis. 3.He pleaded not guilty to both the main charge and the alternative charge. The Prosecution availed four (4) witnesses in support of their case. 4.PW1, I C (the victim) narrated that she knew the Appellant who is a friend to her father. He came to their home at night and with her father . Her father slept on the bed, her on the sofa and the Appellant on the floor. 5.The Appellant took her from the sofa, placed her on the floor, removed his trouser and her clothes. He removed his penis for susu and placed inside her susu. She felt pain. She was taken to Elburgon hospital. 6.She identified her clothes and innerwear as well as the Appellant. She confirmed in cross examination that the Appellant went to their home. 7.The Victim’s father (PW2) testified that he had several people in his house on 24th December 2018 as they were preparing for Christmas celebration. Among the people present were the Appellant and Hillary Bii . PW2 shared his bed with Hillary while the Appellant slept on the floor and the Victim slept on the sofa set. This was a bedroomed house. 8.It is then that the victim started crying. He put on the lights and saw the Appellant putting on his trousers. The Victim was still crying and her inner wear had been removed. She told them that she had been defiled by Fredrick (Appellant). He had known the Appellant for six months. They alerted the villagers and the Appellant was arrested even as he tried to escape. They arrested him and took him to Elburgon Police Station while the Victim was taken to Elburgon Hospital where the doctor confirmed that she had been defiled. 9.Dr. Gladys Oseko (PW3) confirmed that together with her colleague she examined PW1 on 25th December, 2018. She also confirmed signing the signed the P3 form P.Exh1 and PRC Form P.Exh2. She testified that there were injuries on the genitalia and the hymen was broken. There was also whitish discharge. 10.The testimony by the Investigating Officer PC Veronica Chepngeno (PW4) was that on 25th December, 2018 a defilement case was reported. Members of the public together with the father of the victim managed to arrest the assailant. She obtained the victim’s’ pant and dress. She produced them as P.Exh3 and P.Exh4 respectively. She also produced the Birth Certificate ( P.Exh5 ) indicating the victim was born on 5th September, 2010. 11.In his unsworn statement in defense, the Appellant (DW1) testified that the father of the victim assaulted his wife who had come to sleep at his home as she is a neighbour. The next morning PW2 went to his home as he was milking and wanted to assault the Appellant’s mother. He returned in the evening and assaulted him. People came in and intervened. He was taken to hospital together with the victim for testing. He was later charged. That PW2 had a land issue and fought his brother and his wife. He added that while in prison, he was found to be HIV positive 12.DW2, Penina Langat testified that on 23rd December, 2018 their neighbour assaulted his wife who sought refuge at their place. She stated that 5.00 am her child was crying and they decided to go with her so that she could take her child. That she called out the child to take her from the window. The husband came and asked for the wife. That she allowed her to leave and went to counsel them about marriage but the wife left the husband. 13.She told the court that the Appellant was arrested on 24th December, 2018 for allegedly defiling child. The mob wanted to kill him. 14.The Appellant’s landlord David Kiprotich Koech (DW3), testified that that he came home in the evening and heard people screaming and saying the Appellant had touched a child. He tried to enquire but the Appellant was assaulted. The victim was taken to a neighbour’s place to confirm the incident occurred . The mother said nothing had occurred. The victim’s father was telling her to say the incident had occurred but she declined. The Victim’s father threatened to have the Appellant arrested for he was a Tugen. 15.After that evidence, the Court found the Appellant guilty of the offence of defilement and sentenced him to life imprisonment. 16.Aggrieved by the decision, the Appellant preferred the instant appeal and argued it on the following summarised grounds:-i.That the Learned Trial Magistrate erred in law and in fact when he failed to appreciate that the medical evidence did not create a nexus between the Appellant and the offenceii.That the Learned Trial Magistrate erred in law and in fact when he relied on evidence adduced by the prosecution witnesses which never implicated the Appellant.iii.That the Learned Trial Magistrate erred in law and in fact when he relied more on the evidence adduced by the doctor which was not supported by any evidence in the trial record.iv.That the Learned Trial Magistrate erred in law and in fact by making a pronouncement that was far from the evidence adducedv.That the Learned Trial Magistrate erred in law and in fact when he rejected the Appellant’s defence without reason. 17.He therefore prayed that the appeal be allowed, the the conviction quashed, sentence set aside and he be set at liberty. Appellant’s Submissions 18.The Appellant submitted that no one saw him defile the child. Further, he submitted that if he slept on the floor and the victim on the sofa as alleged, then he questioned why no one heard commotion as the victim was removed from the sofa to the floor. He relied on Mohamed Bin Ali [29142] CA 72 and Ramkishan Padya vs Rep [1975] EA IR 339 to submit that the witnesses testimony was not credible and therefore , the court should not rely on it. 19.The Appellant submitted that he was tested in prison and found to be HIV positive arguing the doctor ought to have discovered that if he tested him. That the if he was HIV positive the victim ought to have contracted the virus. 20.The Appellant further therefore submitted that the incident never occurred and that a vital witness (Hillary) was never called to testify as a person who was in the room with the other witness. 21.He submitted that the trial court disregarded his defence without reasons then handed him a life sentence which he argues is unconstitutional. Lastly, he urged this Court to consider another senescence putting into account his illness so that he can also go back to his family. Respondent’s submissions 22.The Respondents in opposing the appeal submits that by didn’t of Section 124 of the Evidence Act, the only evidence of defilement is that of the complainant and that corroboration is not mandatory 23.The Respondents in opposing the appeal submits that by didn’t of Section 124 of the Evidence Act, the only evidence of defilement is that of the complainant and that corroboration is not mandatory. The Respondent further submitted that the Appellants defence was an afterthought as he never raised the land issue with PW2 during the trial. 24.It was also argued that the three essential ingredients of defilement were proven. That the Appellant never challenged the age of the victim or his identity. He did not also deny that he was at PW2’s home. That he did not challenge the medical evidence. 25.As regards the Appellant’s defence, it was submitted that it never dislodged the prosecution’s case. As for the sentence, it was argued that the Appellant was not remorseful. The sentence and conviction should not be disturbed. Analysis and determination 26.Having recaptured the evidence before the trial court and herd the parties on their submission, in light of the appeal herein, this Court is alive to its duty as the first appellate Court, that is, to re-evaluate and assess the evidence adduced by the trial court and come up with its own conclusions but bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify - See Okeno v Republic [1972) EA32. 27.As the Court embarks on that analysis, this is an appeal on both conviction and sentence. On this charge, the Prosecution had to prove three ingredients that is: - the age of the complainant, that there was penetration and that the Appellant was identified as the perpetrator. 28.As regards the age of the victim, told the trial court that she was 9 years old. The charge sheet indicated that she was aged 9 years and so does the Medical Report. The Birth Certificate (P.Exh5) shows that she was was born on 5th October, 2010. Her age was therefore proved. 29.As regards penetration, Section 2 of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organ of a person in the genital organ of another person.” The victim (PW1) testified that the Appellant put his “susu” inside of her “susu” and she felt pain. The doctor (PW3) examined the victim and found that there were lacerations on the vaginal wall and a whitish discharge. 30.Even though she made reference to the PRC Form which indicated that there were lacerations on the genitalia but the hymen was intact, she concluded that there was penetration. In IAE v Republic [2023] KECA 127 (KLR) and SKM v Republic [2023] KECA 758 (KLR) ,the Court of Appeal observed penetration may be proved by medical evidence of injury to the genitalia even where the hymen remains intact. The trial court therefore property arrived at the conclusion that penetration was proved. 31.As regards identity of the perpetrator, the Appellant and PW1 were not strangers to each other. The victim ( PW1) knew the Appellant as a neighbour and her father’s friend who had come to sleep in their home. That evidence adduced by the victim who had been subjected to voir dire examination due to her age . She understood and stated: “Ian going to tell the truth.” The evidence of identification was therefore one of recognition. 32.On cross examination by the Appellant, the Victim responded: “ ...You came to sleep at our home. You took me to the floor. You were sleeping on the floor I was sleeping when you came at home. I saw you coming to our home”. In re- examination, she stated-: “ Dad came with the Fredrick at night. Fredrick slept on the near me. I was sleeping on the sofa. He did take me to the floor”. 33.Her evidence was therefore not dislodged in cross examination by the Appellant or even by his defence. From the totality of evidence on record, this Court is satisfied that the prosecution proved the element of identification beyond reasonable doubt. 34.Regarding the failure to call one Hillary as a witness whom the Appellant felt was a crucial witness, Section 143 of the Evidence Act provides that no particular number of witnesses shall be required for the proof of any fact. Further, Section 124 of the Evidence Act provides that the court can a convict an accused person on the sole evidence of the victim in sexual offences if the Court is satisfied that the victim is truthful. 35.As noted earlier, the learned trial Magistrate had conducted a Voire Dire examination on PW1 and having had the opportunity to see PW1 in person, there is nothing before this Court to show that the witness was not truthful. 36.The Appellant has faulted the trial Court for failing to consider his defence. The record shows that though the Appellant’s defence was properly captured in the proceedings and the judgment, the judgment of the trial court does not clearly capture how the defence was weighed. 37.Be that as it may, this Court has in scrutinised the Appellant’s defence in its entirety and finds that it did not dislodge the evidence presented by the prosecution. None of the defence witnesses placed the Appellant away from the scene after the testimony of PW1 and PW2 had firmly located him there. 38.The alleged land dispute, as correctly observed by the trial court, was raised only at the tail end of the proceedings and bore the hallmarks of an afterthought. Likewise, the suggestion of a marital disagreement between PW2 and his wife was peripheral and did not in any way create reasonable doubt to the case at hand. This ground of appeal must fail. 39.From the foregoing, this Court is satisfied that the charge of defilement was proved against the Appellant beyond reasonable doubt. 40.The Appellant has argued the sentence of life imprisonment is unconstitutional. Section 8(2) of the Sexual Offences Act expressly provides that a person who defiles a child aged eleven years or less shall upon conviction be sentenced to life imprisonment. 41.Further, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others Amicus Curiae) [2024] KESC 34 (KLR) addressed the constitutionality of mandatory and minimum sentences. Further the Supreme Court in R v Joshua Gichuki Mwangi [2024] KESC 3 (KLR), affirmed the legality of such sentencing. In the circumstances, the sentence imposed by the trial court is as provided by law. 42.In conclusion therefore, the Appellant’s appeal lacks merit and therefore dismissed its entirely. The sentence and conviction are thus upheld. DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF JULY, 2026.PATRICIA GICHOHIJUDGEDELIVERED AT NAKURU THIS 16TH DAY OF JULY 2026.………………………DR. JOSEPH SERGONJUDGE