https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8061

Kiptum v Republic (Criminal Appeal E016 of 2025) [2026] KEHC 8061 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8061 (KLR) Republic of Kenya In the High Court at Iten Criminal Appeal E016 of 2025 JRA Wananda, J June 5, 2026 Between Ronald Kemboi Kiptum Appellant and Republic Respondent (Appeal against the Judgment and sentence delivered by Hon. E. Kigen – PM on 5/03/2025 in Iten Senior Principal Magistrate’s Court Criminal (Sexual Offences) Case No. E012 of 2024) Judgment 1.The Appellant was charged in the criminal case referred to above with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars were that during the month of May 2023 at [xxxxxxxx] at [Particulars Withheld], Kiptabus sub-location, Irong location of Keiyo North sub-County within Elgeyo Marakwet County, he intentionally caused his penis to penetrate the vagina of GJ, a child aged 16 years. He was also charged with the alternative offence of committing an indecent act with the same child, contrary to Section 11(1) of the same Act. 2.The Appellant pleaded not guilty and the case proceeded to full trial in which the Prosecution called 4 witnesses. At the close of the Prosecution’s case, the Court found the Appellant with a case to answer and placed him on his defence. The Appellant then gave an unsworn statement and called no other witness. By the said Judgment delivered on 5/03/2025 as aforesaid, he was convicted on the main charge and sentenced to serve 15 years’ imprisonment. 3.Dissatisfied with the decision, the Appellant, through Messrs Tarigo Kiptoo & Co. Advocates, filed this Appeal on 15/05/2025. The Memorandum of Appeal contains the following 6 grounds:i.The Learned trial Magistrate erred in law and fact by failing to consider the evidence of the Appellant on merit.ii.The Learned trial Magistrate erred in law and fact by failing to consider the nature of the offence the circumstances under which the Appellant was operating under at the time the offence occurred.iii.The Learned trial Magistrate erred in law and fact by failing to consider the fact the Prosecution had not proved their case beyond any reasonable doubt.iv.The Learned trial Magistrate erred in law and fact by failing to consider the fact that the Prosecution evidences (sic) were contradicting themselves.v.The Learned trial Magistrate erred in law and fact by failing to find that the complainant had been defiled by somebody else and not the Appellant.vi.The Learned trial Magistrate erred in law and fact by convicting the Appellant and by sentencing him to serve 15 years which is too harsh for the Appellant considering the facts of the case and that he is the first offender. Prosecution evidence before the trial Court 4.PW1 was AK, who introduced herself as the complainant’s mother. She testified that sometime in October 2023, she asked the complainant whether she was pregnant as she had noticed signs of pregnancy, and that the complainant disclosed to her that the Appellant had defiled her when she was looking after cows in the farm sometime in May 2023. She testified that she took the complainant to hospital where tests conducted established that she was indeed 6 months pregnant, and that the doctor, noting the complainant’s age, referred the matter to the Chief after which it was taken up by the police. She stated that the complainant was born on 18/06/2006, and she referred to the P3 Form and the copy of the Certificate of Birth before Court. She also stated that the complainant delivered on 26/03/2024, and that the Appellant was known to her as he was a neighbour. 5.At this juncture, Prosecution Counsel informed the Court that she was in possession of a letter instructing her to withdraw the case from Court on the basis that the Appellant and the complainant had reached an agreement that the Appellant would take care of the child born out of their romantic affair as their families are neighbours. The Court, in a reasoned Ruling, swiftly declined the attempt basically on the grounds that it was prohibited by law to enter into such an out of Court settlement in cases of defilement. The trial thus proceeded further. 6.PW2 was Philemon Kittony, who introduced himself as a Clinician at the Iten County Referral Hospital. He testified that the complainant, a 16 years girl old, went for examination at the hospital on 9/02/2023 and was established, through tests conducted on 5/12/2023 to be 24 weeks and 1 gay pregnant. He then produced the P3 Form issued to the complainant, and also the results of the ultrasound test. 7.During the intervening period, it became apparent that the complainant and her parents were not interested in assisting the Court to conclude the trial as they had repeatedly failed to attend Court despite service of Summons issued by the Court, and had also gone into hiding. As such, the Court proceeded to issue warrants of arrest, which were executed and the complainant and her mother brought to Court, and the mother (PW1) detained in custody for some time. It was only after these interventions that the complainant eventually testified. 8.The complainant, GJ., thus testified as PW3. She testified that she was 17 years old, she was born on 18/09/2006, and was a Form 2 student. She then stated that sometime in May 2023, while she was with her 10 years old sister, looking after cows, the Appellant, who was also looking after cows, lured her into having sex by telling her that he loved her and that she would not get pregnant as he would use protection. She stated that the Appellant then took her to the forest and asked her to remove her inner clothes, he also removed his trouser and boxer and they had sex but he did not use any protection as promised. She stated that she later told her mother about the incident, and she was taken to hospital where she was confirmed to be pregnant. She then identified the Appellant in Court, denied that she was in a relationship with him, and stated that he was only a neighbour, and that the child was born on 20/03/2024. In cross-examination, she stated that before they had sex, the Appellant gave the complainant’s sister his phone and asked her to go home, that the Appellant is the only person who had defiled her, that the child even looks like him, and that she realized in August that she was pregnant. 9.PW4 was Police Constable Margaret Minja who testified that she was in the office on 6/12/2023 when the Officer Commanding the Police Station assigned to her the case of defilement herein when the complainant was brought to the station by her parents. She stated that the mother told her that she had noticed changes in the complainant who did not however disclose it until December 2023 when she was established to be pregnant, and revealed that the Appellant took her to the bush when she looking after cows. She testified that an ultrasound test conducted upon her (PW4’s) instructions, established that the complainant was 24 weeks pregnant, upon which she took statements and arrested the Appellant on 10/02/2024 and had him charged in Court. She then produced the complainant’s Certificate of Birth. In cross-examination, she stated that she visited the scene and saw the Appellant but who fled when he was called over by his mother, and remained at large until he was arrested. She also stated that she took the complainant to hospital on 6/12/2023 when the Appellant was still at large. Defence evidence before the trial Court 10.As aforesaid, when put on his defence, the Appellant opted to give unsworn testimony, which he then did as DW1. He did not call any other witness. In his brief defence, he simply denied committing the offence, or being in a relationship with the complainant. Hearing of the Appeal 11.The Appeal was then canvassed by way of written Submissions. The Appellant filed the Submissions dated 5/11/2025, while the State, through Prosecution Counsel Racheal Mwangi, filed the Submissions dated 15/09/2025. Appellant’s Submissions 12.Mr. Tarigo, Counsel for the Appellant, in his lengthy Submissions, contended that the Prosecution failed to establish a case beyond reasonable doubt as it majorly relied on verbal evidence unsupported by documentary proof. After recounting the ingredients required to be proven in a case of defilement, he submitted that two out of the three ingredients were not proven. In respect to “identification”, he contended that since the complainant testified that she was with her 10-year-old sister when the Appellant allegedly told her that he loved her, and that the Appellant gave the sister his phone and told her to go home, the sister ought to have been called as a witness as she is the only one who could corroborate the complainant's testimony by positively identifying the assailant. According to Counsel therefore, the element of “positive identification” was not satisfied. He also observed that PW1, the complainant’s mother testified that the complainant only confessed to being defiled after the mother confronted her about her pregnancy. On the issue of “penetration”, he urged that there was insufficient evidence to prove that it was the Appellant who defiled the complainant, and pointed out that when the complainant was examined in hospital, she was found to be already 24 weeks pregnant, and that, in any case, the fact that the complainant was pregnant does not mean that it is the Appellant who impregnated her. He urged further that the ultra-sound test result established that the complainant was already 6 months pregnant, but which duration does not align with the dates given by the complainant regarding the date she was defiled as it means that the complainant conceived sometime in June 2023, which is further from the date of May 2023 alleged by the complainant as the date of the defilement. 13.He then cited Section 124 of the Evidence Act, and urged that the Prosecution did not produce sufficient evidence to corroborate the complainant's testimony since Section 124 only permits the Court to convict using the victim's sole testimony where it is satisfied that the victim is speaking the truth. He asserted that the Court ought to have considered that the complainant refused to come to Court to testify and only testified after she was presented to Court on the basis of a warrant of arrest issued. According to him, this raises doubts over the truthfulness of her testimony. Counsel further submitted that the Prosecution relied on the pregnancy to prove “penetration” yet no medical evidence proving paternity was produced, that the Court convicted the Appellant, not because it believed the complainant’s testimony, but on the basis of pregnancy and birth of a child yet there was no DNA test support. He also revisited the issue of the date of defilement alleged by the complainant vis-a-vis the duration of pregnancy as established by the ultrasound test as indication of the complainant’s untruthfulness. He reiterated that the complainant never reported the defilement immediately. He also urged that there is another name that came out during the complainant’s testimony, and that it is thus evident that she may have been engaging in sexual intercourse with this other individual, and there is therefore likelihood that the Appellant was fixed with the charge of defilement. 14.Counsel also submitted that the Appellant was not accorded a fair hearing as he was unrepresented throughout the trial Court there is no indication that he was informed of his rights. He referred to the failed attempt to withdraw the matter, made on the basis of the mutual understanding reached between the two concerned families. He urged that the out of Court settlement Memorandum of Understanding presented to the trial Court was reached in good faith by the parties and the moment the Court rejected the document, it ought to have disregarded it wholly for purposes of procedural fairness. He faulted the trial Court for rejecting the Memorandum, but subsequently still proceeding to rely on it in its Judgment, and submitted that reliance on the document violated the Appellant’s right to protection from being made to give self-incriminating evidence since the negotiations leading to the Agreement were initiated, and overseen by the Prosecution, which can therefore be deemed to have engaged in soliciting for evidence from the Appellant and/or to have lured him into making “confessions”. He cited Article 50(2) and (4) of the Constitution, and also Section 25A of the Evidence Act. In respect to the sentence of 15 years imprisonment, he urged that the same was excessive and illegal since the trial Magistrate failed to consider the Appellant’s mitigation, and that the Appellant is an outstanding member of the community who was even enrolled at Kipsoen Technical before he was arrested. He cited several authorities in support of his several limbs of submissions above. Respondent’s Submissions 15.Prosecution Counsel Rachel Mwangi, in her brief Submissions, restated the principles applicable in cases of defilement, and regarding “penetration”, urged that the complainant’s testimony of being defiled was corroborated by PW2, the doctor who examined her. On the issue of “age”, she pointed out the complainant’s testimony that she was born on 18/09/2006 and the offence was committed in May 2023, thus confirming the complainant’s age of 16 years at the time of the offence. She also highlighted the testimony of PW1, the complainant’s mother, which, according to her, corroborated the complainant’s testimony, as did the Certificate of Birth produced. In respect to “identification”, Counsel submitted that the complainant positively identified the Appellant as the person who defiled her as he was not a stranger to her, being a neighbour. On alleged contradictions in the testimony of the Prosecution witnesses, she denied that there was any material discrepancies that would create doubt as to whether the Appellant committed the offence. Regarding sentence, she denied that it was harsh or excessive, since, she submitted, Section 8(4) of the Sexual Offences Act stipulates the penalty for defilement of a child between the ages of 16 and 18 years to be imprisonment for a term not less than 15 years, and the trial Magistrate therefore imposed the minimum sentence stipulated. She cited the case of Joshua Gichuki Mwangi NC (2024) KESC34 (KLR), and submitted that the Supreme Court has now held that mandatory minimum sentences under the Sexual Offences Act are constitutional. She therefore denied that the trial Court overlooked any material factor or took into account wrong material, or acted on the wrong principle. Determination 16.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) 17.The issues that call for determination in this Appeal are evidently the following:i.Whether the defilement charge against the Appellant was proved beyond reasonable doubt.ii.Whether the sentence of 15 years imprisonment was justified. 18.Section 8(1) of the Sexual Offences Act under which the Appellant was charged, provides as follows:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 19.It is therefore clear that for the offence of defilement to be established, 3 ingredients must be proved, namely,(i)the age of the victim,(ii)penetration, and(iii)positive identification of the offender. 20.In this case, proof of the complainant’s age is not challenged. In any event, she testified that she was 16 years old, and her Certificate of Birth produced in evidence indicates that she was born on 18/09/2006. The alleged offence having reportedly occurred in May 2023, it means that at the time of the alleged incident, the complainant was 16 years and about 8 months old. This therefore dispenses with the ingredient of “age” as it proves that the complainant was below the age of 18 years, and thus a minor. 21.In respect to “penetration”, Section 2(1) of the Sexual Offences Act defines the phrase as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 22.In regard thereto, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 23.It is therefore the position that the act of sexual intercourse or “penetration” may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims through testimony, and corroborated by medical or other evidence. 24.In this case, the complainant testified that the Appellant was her neighbour and that in May 2023, as they were both looking after cows, the Appellant lured her by telling her that he loved her, that then took her to the bush and had sex with her. According to the complainant’s mother (PW1), the complainant’s signs of pregnancy began to show around October 2023, which prompted the mother to take the complainant to hospital on for a pregnancy test, which turned out positive as the ultrasound test conducted on 5/12/2023 established that the complainant was 24 weeks and 1 day pregnant. According to the Appellant’s Counsel, Mr. Tarigo, a comparison of the date of the alleged act of defilement as given by the complainant and the duration of the pregnancy as established by the ultrasound test, indicated that the complainant conceived much earlier than the date of May alleged by her, and thus exposes the complainant as a liar. I agree that, assuming that the 24 weeks duration established by the ultrasound test results was accurate, it would mean that conception, thus the act of defilement, indeed occurred sometime later in mid-June 2023. However, considering the vagaries of life having an effect on memory, normal human fallibility in accurate recollection of dates, and also considering that the complainant only gave the date of May 2023 as an estimate, I do not find that date of May 2023 and that of mid-June 2023 to be too far apart as to outrightly lead to a conclusion that the complainant lied about the date of the alleged defilement. I give her the benefit of doubt that she may have honestly not recollected the correct dates. 25.Be that as it may, the primary testimony against the Appellant was that given by the complainant. There being no independent eye-witness called to testify, the case basically turned entirely on the testimony of the complainant as a single eye-witness. That the law requires corroboration of testimony by minors where such minor is the sole or single witnesses is clear from Section 124 of the Evidence Act. However, there is the proviso to that very section to the effect that, in cases of sexual offences, where the single eye-witness is the victim, there need not be corroboration if the trial Court believes that the minor-victim told the truth and record its reasons for believing so. The Section and the proviso are premised as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other evidence in support thereof implicating him.”Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the Appellant person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 26.From the above, it is clear that the proviso to Section 124 of the Evidence Act permitted the trial Magistrate, as she did, to convict on the sole evidence of the complainant as she was the victim of the sexual offence, as the trial Magistrate was satisfied that the complainant was being truthful. Inclusion of the proviso was a wise decision as the drafters recognized that sexual assaults frequently happen behind closed doors with only the perpetrator and victim present, making independent eye-witness testimony very rare. Existence of the proviso does not however at all exempt or absolve the Prosecution from its duty to prove its case beyond reasonable doubt, nor does it excuse the Prosecution from its obligation to present a well-investigated case. 27.Mr. Tarigo pointed out that the complainant’s 10 years old sister with whom the complainant alleged to have been with at the time that she went to look after cows where the Appellant was also doing the same before the Appellant sent her away, was never called as a witness to corroborate the alleged account of events that preceded the act of sexual intercourse. I appreciate that the Prosecution is not obligated to call all possible witnesses since the quality of evidence does not depend on the number of witnesses called. The Prosecution may have had justifiable reasons for not calling the 10-year-old sister including, perhaps, her tender age, or the family’s reluctance to expose her to, or drag her through the experience of a case of this nature, or for any other reason. However, in this case, no reasons were given. The testimony of one crucial witness was therefore missed out. 28.It is also agreed that the complainant gave birth to a child, and the Prosecution case was that the pregnancy was a result of the act of defilement the subject of this case. The Prosecution does not however seem to have pushed for conduct a DNA test to establish the child’s paternity. Section 36(1) of the Sexual Offences Act empowers the Court, on its own motion or upon request, to order for a DNA test be conducted to ascertain the paternity of a child given birth to by an alleged child-victim of a sexual act. In this case, there is no indication that any such request was made either by the Prosecution or by the Appellant. The results of the paternity test, whether it would have confirmed the Appellant as the baby’s father or ruled him out as a possible father, although not by itself a conclusive determination on the finding of defilement or absence thereof, would no doubt have had some bearing on the case, or shaped the direction it would have taken. I cannot speculate why the Prosecution chose not to apply for conducting of the test but I find it disturbingly suspect. Although no request was made for the paternity test to be conducted, under the circumstances of this case, there being no independent eye-witness, I believe ideally, the trial Magistrate ought to nonetheless, have suo motu invoked her powers under Section 36(1) to order for the paternity test. This failure to call for a paternity test was, in my view, another missed opportunity for the Prosecution case. 29.In respect to the weight or relevance of DNA test and/or results in cases of defilement, the Court of Appeal, in the case of Williamson Sowa Mbwanga v R [2016] eKLR, held as follows:“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred v Uganda, CR App No 139 of 2001).” 30.It is therefore true that a DNA test confirming paternity of an accused person is not strictly required to convict a person for a charge of rape or defilement. While such results can act as strong evidence of defilement, Courts treat them as just “one piece of a larger puzzle” and it is not therefore a mandatory requirement for conviction. This is because the standard for conviction is proof of “penetration”, not “impregnation”. It is however also true that a positive DNA paternity match may act as conclusive evidence of “penetration”, and identification of the perpetrator. The converse is that if a DNA test excludes an accused person as the father, it may create “reasonable doubt” regarding the victim's credibility, especially if the victim claimed that the accused was her only sexual partner. DNA therefore becomes particularly crucial in cases where, as herein, an alleged act of defilement is reported after a long lapse of time since in such a case, medical examination of the victim’s genitalia is unlikely to reveal any relevant evidence of “penetration” such as bruises or presence of semen. Where pregnancy however ensues, DNA may come in handy as scientific evidence to corroborate witness testimonies. This reality seems to have escaped the Prosecution in this case. 31.I note that the trial Magistrate, in her Judgment, declared the evidence of the medical officer (PW2) as being conclusive proof of “penetration”. She held that:“The doctor testified and formed the opinion that the complainant had been recently defiled and the same led to pregnancy as shown in the ultra sound report and the P3 form.” 32.Looking at the P3 Report however, the medical officer appears to have reached the verdict of “penetration” simply on the mere basis of the pregnancy, thus a finding based on logic and the biological knowledge that a pregnancy is basically a result of a sexual intercourse. It is not in dispute that the evidence on record is that the complainant alleged to have been defiled in May 2023 but she only disclosed that fact to her mother in December 2023, almost 7 months later, and even so, only after her mother took her to hospital for a pregnancy test which turned out positive. Clearly by that time, no medical test could have ascertained by physical examination the usual indicators of defilement, such as presence of fresh bruises, epithelial cells, or spermatozoa, or any other kind of discharge in the complainant’s genitalia, Granted, the medical test established the presence of pregnancy, but “pregnancy” is not, on its own, one of the ingredients of a charge of defilement as the pregnancy still has to be linked to the accused person by scientific evidence, and also must still be proved to have resulted from that specific act of defilement the subject of the charge sheet before the Court, not any other separate incident of sexual encounter by any other person. 33.Even though the Prosecution, for reasons best known to itself, does not seem to have bothered to apply for the paternity test to be conducted, the trial Court was clothed with the powers to order for a test which could have perhaps assisted in making a determination on whether the pregnancy was a result of the defilement allegation made in the case, which powers the trial Court did not utilize, but still went ahead to erroneously conclude, without evidence, that the pregnancy arose from the defilement and thus, proof of “penetration”. The trial Court’s finding that the pregnancy was proof of the act of the defilement the subject of this case, insofar as it was not supported by any scientific or medical evidence, was a clear misdirection on the part of the trial Court. 34.The Appellant may very well have defiled the complainant, and may very well also be the father of the complainant’s baby. However, a Court of law cannot engage in speculation or make determinations on the basis of suspicions alone. It was the Prosecution’s obligation to present before the Court cogent and watertight evidence that would rule out any other possible explanations for what transpired and thus conclusively pin down the Appellant with the charge. In this case, the Prosecution woefully failed to discharge that burden. If the Appellant indeed committed the offence, then the Prosecution’s mishandling of the case has opened a window for him to escape justice. 35.In view of the state of the evidence as set out above, I am not satisfied that it was safe for the trial Court to have convicted the Appellant. The several lapses highlighted above were not only significant but, in my view, quite material such that they created doubts as they opened the possibility of other events having occurred, such as possible sexual encounters by the complainant with other people, which doubts the Appellant was entitled to benefit from in law. Penetration was therefore, in my view, not proven beyond reasonable doubt. As this major element of the offence of defilement has not been proved, I find no need to interrogate and/or determine the other grounds argued by the Appellant. 36.Even as I hold as above, it may be recalled that the Prosecution had, during the trial, attempted to withdraw the charge on the reason that, being neighbours, the families of the Appellant and the complainant had reached an out of Court agreement that the Appellant would accept the baby and take care of her. As this attempt was rejected by the trial Court, I want to believe that the lapses apparent in the Prosecution case were simply inadvertent and not deliberate or intended to hit back at the refusal to accept the out of Court settlement. I say so because it would be a very sad day for this country and a direct affront to the spirit of the Children’s Act, 2022, if the Prosecution, the same organ constitutionally bestowed upon with the duty to protect children from sex pests would, in a bid to frustrate the justice system, turn out to be the same one to collude with criminals and paedophiles who sexually take advantage of children, to assist such criminals escape the law. I honestly hope this was not the case herein. Final Orders: 37.In view of the findings made hereinabove, this Appeal succeeds and is allowed. I hereby order as follows:i.The conviction of the Appellant by the trial Court in Iten Senior Principal Magistrate’s Court (Sexual Offences) Case No. E012 of 2024 for the charge of defilement is hereby quashed and the sentence of 20 years imprisonment imposed therein set aside in its entirety.ii.Accordingly, the Appellant shall be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026............................WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:The Appellant present virtually from Eldoret Main PrisonMs. Mwangi for the StateCourt Assistant: Rodgers Tshome