https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9048

Kimotho v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 9048 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 9048 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E043 of 2025 S Mbungi, J June 19, 2026 Between Julius Kamiindore Kimotho Appellant and Republic Respondent (Being an appeal on conviction and sentence in the Senior Resident MagistrateCourt at Kangema in sexual offence case no E028 of 2023 presided by Hon. C. Ndumia) Judgment 1.The appellant, Julius Kamiindore Kimotho, was charged before the Senior Resident Magistrate's Court at Kangema with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of the offence were that on the 10th day of September 2023 at around 12 noon at [Particulars Withheld] Village, Kiandegu Sub-Location, Mathioya Sub-County in Murang'a County, the appellant intentionally touched the vagina of CMN, a child aged 9 years, with his fingers. 3.The appellant denied the charges. After a full trial presided over by Senior Resident Magistrate C. Ndumia, the trial court convicted him and sentenced him to ten (10) years imprisonment pursuant to section 11(1) of the Sexual Offences Act. 4.Being dissatisfied with both conviction and sentence, the appellant filed the present appeal. Facts of the Case 5.The complainant, CMN, a minor aged 9 years, testified that she lives in [Particulars Withheld] with both her parents. She is a pupil at [Particulars Withheld] Primary School in Grade 5 and attends St. [Particulars Withheld] Sunday School where she was taught to tell the truth. 6.On 10th September 2023, she went to the appellant's house at Kamindere to charge her mother's phone because their home did not have electricity. They usually took their phones to the appellant's house to charge. She stayed with the appellant's children, watching television. Other children were also present. 7.The appellant came from giving cows feed and entered the house. He asked his children if they had given the rabbits feed. They said no. He asked them to go feed the rabbits. The complainant wanted to leave with the children. The appellant held her back and closed her mouth. He had a kagunia (sack). He took her to his shamba. He had a cloth which he used to gag her. He laid the kagunia down. He removed her trouser. He started putting his fingers in her body. He put them on her private parts. After finishing, he told her she had "opened up". She put on her clothes. He took her to his house and tried to give her food but she refused. Her sister came for her and they went back home. 8.The complainant was afraid to tell her mother. The following day she told her teacher, Joyce. Teacher Joyce asked her to show them what the appellant did to her. Teacher Joyce called the Assistant Chief. The complainant was told to tell them what happened. Her mother came and they went to Kiranga Police Station where she reported the matter. She was then taken to hospital at Kangema for examination. The doctor examined her and said "hakunidhuru sana" (she was not badly hurt). The doctor gave the police officer the results. The complainant did not see the results. She was told to go back home. 9.PW2, WG, the complainant's mother, testified that she reported the matter to the police and took the complainant to hospital for examination. 10.PW3, Jadiel Muturia Joseph, a Clinical Officer at Kangema Sub-County Hospital, testified that he filled the P3 form on 20th September 2023 for CMN, 9 years old. She stated that she was defiled by someone known to her. Upon examination, her external genitalia was normal. She had tenderness on the labia minora. No lacerations or bruises were noted. No discharge was noted. He produced the P3 form as exhibit 2, the treatment notes as exhibit 1, and the PRC form as exhibit 4. He formed the opinion that there was attempted defilement which led to injury at the vagina entrance. Under cross-examination by Mr. Owiti, he confirmed that mild tenderness can be caused by other factors such as sitting on an object or tight clothes, but he ruled out infections through investigations. He stated that he could not ascertain attempted defilement without the child's statement. 11.PW4, Sgt. Mwanahawa Idi (No.8xx7), stationed at DCI Ruai and previously at Kirogo Police Station where she headed the gender based desk, testified that she was the Investigating Officer in this case. On 14th September 2023 at 14:00 hours, she received the complainant accompanied by her mother at Kirogo Police Station. They had been referred from Kahuti Police Post and had reported attempted defilement. She took up the investigations, escorted the minor to Kangema Hospital for examination, and recorded statements of the victim and her mother. She took a copy of the victim's birth certificate and found the victim was born on 9th November 2013. The birth certificate was produced as exhibit 3. She interrogated the victim, proceeded to the scene, and the suspect was arrested at his home by officers from Kahuti Police Post. She confirmed that the accused person in court was the accused person arrested for this offence. She confirmed that she did not get any information from any teacher, and she did not see the need to record statements of the accused person's children. Defence Case 12.In his defence, the appellant gave sworn evidence on 26th November 2024. He stated that he is Julius Kamindoro Kimotho, 42 years old, and lives in Kianderi Kahuti. He denied the offence, stating "It is a lie." He testified that on 10th September 2023 he was in the farm getting his cows feed on their family land. He met with children at his home who had come to watch a TV show. They were about nine children. He found them in the house. He told his children why they were in the house instead of getting feed for the rabbits. He keeps rabbits to keep the children busy. When he asked why they had not fed the rabbits, they all left. One child, a boy, was left in the house because he was not feeling well. The complainant was with the said children to go look for food for the cows. 13.He further testified that he returned and asked his eldest daughter Ebenezer to put food for him so he could go for a meeting with other men who come together to assist each other. He left afterwards at 1:00 p.m. and arrived at the meeting. On Monday he received a report from the school. The headman said that he had defiled a child. The headman asked him if there were children in his house. He told him children had come to his house to play. The victim's father came and asked him and they talked. Two weeks later police officers came to his house to look for him. He was not at home at the time. He and his sister went to Kahuti Police Station. He met a police officer who told him to go back home and return the following day. The officer called a lady officer who was the OCS. The officer chased him outside. He had been accompanied by his sister and cousin. The lady officer chased him away to talk to his sister and cousin. Later he was put in a vehicle and taken to Kirogo Police Station. He was later released on Ksh.30,000/= cash bail. The officer asked him how he was being accused of defilement. Three days later on 3rd October 2023 he went to Kirogo Police Station and his statement was recorded. He was arrested and arraigned in court the following day. 14.The appellant further testified that the victim's father was to accompany him to go pick his daughter V from Vihiga to bring her to a college near home. He did not know what happened for he was now accused of defiling the victim. He was able to get money to enable him go pick his daughter from Vihiga through selling a cow. He spent a lot of time with the victim's father. The victim's father framed him with defilement so he could pay him. When he declined, he was arrested and placed in custody. The allegations are out of malice and hatred from the victim's father. All the children including the victim went out to collect feed for the rabbits. He prays for the victim's father to be charged for giving false information. He prays for the court to consider the evidence and acquit him. 15.Under cross-examination by the prosecutor, he admitted that he and the victim's father have been friends since childhood. He stated that he does not think the victim's father wanted to take him for he wanted his money. That's what he believes. He did not ask him. He did not ask him for money. There were nine children in his house. He knows the children who came to visit. He further stated that the victim had brought her mother's phone to charge. It was the first time she came to his house. She used to bring the phone and leave. It was the first time she stayed after she brought the phone. He knows the victim; she is the daughter of his friend. He has never had a dispute with the victim. He does not know why they framed him. The report came from the school. The headman called him on the phone. The headman asked him if there were children in his home. He told him there were children in his house. The headman only asked him if there were children in his house and he cut the call. The victim's father is the one who complained he defiled his daughter on 11th September 2023. He went to the teacher to find out where the complaint came from. The teacher told him what the child said. That the child was talking with other children about what he did to her. He does not know if the father told the child what to say in school. He does not know what the father wanted; he could not tell what he was thinking. 16.Under re-examination, he stated that he knows the victim's father very well. The victim's father, from what he heard, asked through his sister for Ksh.30,000/=. He knows the children who were in his house. She used to bring the phone to charge and then go to school. The headman only asked him if there were other children at his school. 17.The appellant called three defence witnesses. DW3, CW, his daughter, aged 14 years. The court conducted a voir dire examination and found that she had the capacity to take oath. She gave sworn evidence. She testified that she lives in Kianderi with her parents. Her father is Julius and her mother is Juliet. She was at home on the material day. The accused (her father) asked them to go look for food for the rabbits. A was in the house. She did not go to look for rabbit food. The accused came and asked for food. He ate, showered and left. She did not see the accused with Mso (the complainant). Mso was in the house with her watching TV. Mso's sister came for her. She has never been questioned by police officers or village elders. When Mso and her sister left, they went with the phone. The phone had been brought to charge. Mso is cheeky when they are playing. After that day she has never visited again. 18.Under cross-examination by the prosecutor, DW3 stated that they were four children at home including the victim. She, C and Mso left to go get the rabbits food. Her father was in the house. He did not leave the house again. He told her to give him food. She gave the other children including Mso food. Mso likes playing a lot. She likes making people play with her. She was picked by her sister at 2:00 pm. They were just placing leaves for the rabbits in a normal place. When her father ate, he said he had a meeting. 19.DW4, the appellant's eldest sister, testified that she lives near the accused. Their houses are not far from each other. She was called by the Sub-Chief and informed that the accused had defiled a child. The Sub-Chief told her the child informed other children and it reached the teacher. She told her brother. She was asked to take him to the police; she took him. He was told why he was summoned to the police station. Joseph Kihiko, David Macharia and Nyumba kumi elder Kithuku were the elders that visited her. They came at 4:00 pm. They said that they had come to resolve the dispute. Kihiko had said that they had come for money. Said in Kikuyu "moka kuhura imo" they have come to wash off the dew. They did not ask for money directly from her. They had come because of what Kamindoro had done. On 8th September 2023 is when they were at the cow shed. The incident occurred on 10th September 2023. She was in the farm when she saw Kariuki, Kamindoro and the victim's mother at the cow shed. At the time Kamindoro wanted to sell a cow so he could go pick his daughter from western. The victim's father and Julius are friends. 20.Under re-examination, DW4 stated that "Kuihura imo" means they wanted money. The wazee were sent by the victim's parents. 21.DW5, AK, a male Christian aged 15 years, a JSS student at [Particulars Withheld] Grade 9. The court found he had capacity to understand oath; he gave sworn evidence. He testified that he is a witness for his neighbour (the accused). On 10th September 2023 he was at home, not well. He went to his neighbour (the accused) so he could assist him take medicine. His neighbour is the accused person. He was with the accused person. The accused sent his daughters to cut feeds; A was left with the accused. The accused had told his daughters to go cut feed for the rabbits. He was not with any child when he went to cut cow feed. When he came from cutting cow feed he came and showered and ate. A was in the house the whole time sleeping on the seat. He was not interviewed by the police officer. When the girls came back they ate and left. CMN also came, ate and left. She went to her home. He knows her as Mso. It was the first time he saw her at his neighbour's home. 22.Under cross-examination by the prosecutor, A stated that he was sick and went to his neighbour so he could help him take the medicine. He usually goes to his house often. He has a good relationship with his neighbour. He knows Mso (victim). She is in his school. He has never seen Mso at his neighbour's home before. The accused person's daughters are elder than the victim so they are not very close. He was sleeping on the sit. He would see the accused person cutting cows feed for his cows from where he was sleeping. The girls went to get feed for rabbits in the coffee farm. The accused went to cut cow feed after the girls went to get rabbit feed. He ate at 1:00 pm. He then left and went for a meeting. The TV was off. He was just watching the accused person. 23.Under re-examination, A stated that the girls came back from cutting rabbit feed before the accused person. Appeal 24.The appellant appealed against both conviction and sentence and raised the following grounds of appeal:a)That the learned trial magistrate erred in law and in fact in convicting and sentencing the appellant on a case that was not proved beyond reasonable doubt;b)That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant on evidence that was scanty, frivolous and incapable of sustaining a conviction;c)That the learned trial magistrate erred in law and in fact in convicting and sentencing the appellant on unreliable evidence full of contradictions, inconsistencies and discrepancies;d)That the learned trial magistrate erred both in law and in fact by failing to consider or properly evaluate the appellant's plausible defence;e)That the learned trial magistrate erred in law and in fact by ignoring the applicable sentencing principles and guidelines;f)That the learned trial magistrate erred in law and in fact by denying the appellant the benefit of time spent in custody contrary to section 333(2) of the Criminal Procedure Code;g)That the appellant reserved the right to adduce additional grounds during the hearing of the appeal. Duty of the First Appellate Court 25.This being a first appeal, this court is under a duty to re-evaluate and reconsider the evidence tendered before the trial court and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. 26.In the case of Okeno v Republic [1972] EA 32 the court held that an appellant in a first appeal is entitled to have the entire evidence reappraised and reconsidered by the appellate court. This court must draw its own conclusions on facts and law, bearing in mind that it has not had the advantage of seeing and hearing the witnesses testify. 27.In addition, the case of Kiilu & Another v Republic [2005] 1 KLR 174 where the court stated that the first appellate court must analyze the evidence afresh and come to its own independent determination. The Law on Indecent Act with a Child 28.Section 11(1) of the Sexual Offences Act No. 3 of 2006 provides:“Any person who commits an indecent act with a child is guilty of an offence and is liable to imprisonment for a term of not less than ten years." 29.The essential ingredients of the offence are:a)The age of the complainant (that she was a child under 18 years);b)The commission of an indecent act;c)Identification of the perpetrator. 30.An "indecent act" has been defined as any act which offends against the standards of decency. The touching of a child's private parts with fingers constitutes an indecent act. The act need not involve penetration; any touching of a sexual nature with a child is sufficient. Analysis and Determination of the Grounds of AppealThis court will now address each of the appellant's seven grounds of appeal sequentially. (a): Whether the case was proved beyond reasonable doubt 31.The appellant contends that the trial magistrate erred in convicting him on a case that was not proved beyond reasonable doubt. 32.This court has re-evaluated the entire evidence. The prosecution proved all three essential ingredients beyond reasonable doubt. The complainant's birth certificate (exhibit 3) proved she was born on 9th November 2013, making her 9 years old at the time of the offence. The complainant gave a clear, detailed, and unshaken account of how the appellant touched her vagina with his fingers after sending away his own children. The clinical officer's finding of tenderness on the labia minora corroborated her account. The complainant recognized the appellant as a neighbour she knew well; this was a case of recognition, not identification of a stranger. 33.The trial magistrate properly directed herself on the burden and standard of proof. There is no error in her finding that the prosecution discharged its burden. This ground fails and is hereby dismissed. (b): Whether the evidence was scanty, frivolous and incapable of sustaining a conviction 34.The appellant argues that the evidence was scanty, frivolous, and incapable of sustaining a conviction. 35.This court finds otherwise. The prosecution called four witnesses, including the complainant, her mother, the clinical officer, and the investigating officer. The complainant's direct testimony alone, if believed by the court, is sufficient to sustain a conviction under section 124 of the Evidence Act (Cap 80). The trial magistrate recorded her reasons for believing the complainant, stating she was "truthful, consistent, and unshaken." The medical evidence, while not showing severe injury, was consistent with the complainant's account. The evidence was more than capable of sustaining a conviction. This ground fails and is hereby dismissed. (c): Whether the evidence was unreliable, contradictory, inconsistent and discrepant 36.The appellant contends that the evidence was full of contradictions, inconsistencies, and discrepancies, making it unreliable. 37.This court has carefully re-evaluated the evidence and finds no material contradictions or inconsistencies that go to the root of the prosecution case. Minor discrepancies, such as the exact number of children present or precise times, are inevitable in the testimony of a 9-year-old child and do not render the evidence unreliable. The Court of Appeal in Joseph Maina Mwangi v Republic [2000] eKLR held that discrepancies must be substantial and go to the core of the case to be fatal. The core narrative—that the appellant touched the complainant's private parts with his fingers after sending away his own children—was consistent across all prosecution witnesses. Any inconsistencies in the defence witnesses' testimony were properly noted by the trial magistrate and did not affect the prosecution's case. This ground fails and is hereby dismissed. (d): Whether the trial magistrate failed to consider or properly evaluate the appellant's defence 38.The appellant argues that the trial magistrate failed to consider or properly evaluate his plausible defence. 39.This court has reviewed the trial court's judgment. The learned magistrate explicitly addressed the appellant's defence. She considered his sworn testimony that he was in the farm and later at a meeting, his allegation that the victim's father framed him for money, and the testimony of his three defence witnesses (DW3, DW4, DW5). The trial magistrate properly weighed the defence against the prosecution case and found it lacking. The appellant's denial did not shake the complainant's credible and corroborated account. The appellant's claim of a frame-up was unsupported by evidence; he admitted under cross-examination that the victim's father never asked him for money. There is no obligation on a trial court to accept a defence simply because it is raised. The court must evaluate it, which the trial magistrate did. This ground fails and is hereby dismissed. (e): Whether the trial magistrate ignored the applicable sentencing principles and guidelines 40.The appellant contends that the trial magistrate ignored the applicable sentencing principles and guidelines. 41.Section 11(1) of the Sexual Offences Act provides a mandatory minimum sentence of ten (10) years imprisonment for the offence of committing an indecent act with a child. The trial magistrate imposed exactly the statutory minimum. There was no discretion to impose a lesser sentence. The trial magistrate considered the aggravating factors: the tender age of the victim (9 years), the breach of trust, the premeditation, and the lack of remorse. No sentencing principles or guidelines were ignored. The sentence is lawful and justified. This ground fails and is hereby dismissed. (f): Whether the appellant was denied the benefit of time spent in custody contrary to section 333(2) of the Criminal Procedure Code 42.The appellant argues that the trial magistrate erred by denying him the benefit of time spent in custody prior to sentencing, contrary to section 333(2) of the Criminal Procedure Code. 43.This court has perused the trial record. The appellant was arrested on 4th October 2023. He was arraigned on 5th October 2023 and released on cash bail. The record shows that the appellant was not in continuous remand custody from the date of arrest to the date of sentencing. He was granted bail and was at liberty for substantial periods during the trial. Section 333(2) of the Criminal Procedure Code applies only to periods when an accused person is actually held in custody. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR made it clear that the provision applies to pre-trial detention, not periods when the accused is on bail. 44.The trial court properly considered the appellant's custodial periods. There is no evidence that the appellant was denied the benefit of section 333(2). The trial magistrate did not err. This ground fails and is hereby dismissed. (g): Reservation of right to adduce additional grounds 45.The appellant reserved the right to adduce additional grounds during the hearing of the appeal. 46.This is not a substantive ground of appeal but a procedural reservation. The appellant did not adduce any additional grounds during the hearing of this appeal. This reservation does not affect the determination of the appeal. No relief is granted on this ground. Conclusion 47.Having carefully considered all seven grounds of appeal raised by the appellant, this court finds that none of the grounds have merit. All grounds are hereby dismissed. Final Disposition 48.The conviction of the appellant for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act is Upheld. 49.The sentence of ten (10) years imprisonment imposed by the trial court is affirmed. 50.The appellant's appeal against both conviction and sentence is dismissed in its entirety. 51.The complainant, CMN, is referred to the County Children's Officer for counselling and psychosocial support. 52.Right of Appeal 14 days explained. 52.Orders accordingly. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 19TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zildah/ Angong’aMr. Ndege for the ODPP present online.Appellant present.