https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8990

Kithinji alias Suleiman v Republic (Criminal Appeal E049 of 2025) [2026] KEHC 8990 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8990 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E049 of 2025 HM Nyaga, J June 18, 2026 Between Joshua Kithinji alias Suleiman Appellant and Republic Respondent (Being an appeal from the judgment of Hon. Y. K. Agwata – RM Tigania Law Courts delivered on 26/6/2025 in Sexual Offence Case No. E019 of 2022 at Tigania Law Courts) Judgment Background 1.The Appellant was arraigned before the Chief Magistrate’s Court at Tigania and charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. 2.The particulars alleged that on 13th August 2022 at [Particulars Withheld] village, Karama location, Tigania East Sub-County, Meru County, the appellant intentionally caused his penis to penetrate the vagina of FM, a child aged 3 years. 3.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 4.The appellant denied both charges. After a full trial, the trial court convicted him on the main count of defilement and sentenced him to life imprisonment. The Appeal 5.Aggrieved by the said conviction and sentence, the appellant filed an amended petition of appeal setting out the following grounds:a.That the learned trial magistrate erred in law and fact by relying on contradictory and inconsistent prosecution evidence.b.That the charge sheet was defective and failed to disclose an offence known in law.c.That the trial magistrate erred in law by improperly rejecting the appellant’s alibi defence without giving reasons.d.That the sentence of life imprisonment was manifestly excessive in the circumstances of the case.e.That the trial magistrate erred by failing to conduct a voir dire examination of the child complainant to ascertain her competence to testify, contrary to Section 125 of the Evidence Act. 6.Directions were given that the appeal be canvassed through written submissions. Both the appellant and the State filed submissions. Appellant’s Submissions 7.The appellant submitted that the prosecution’s evidence was riddled with contradictions on material aspects, particularly on the time, place, and circumstances of the alleged offence. He argued that the trial court failed to address these inconsistencies. 8.He further submitted that the failure to conduct a voir dire examination of the 3-year-old complainant rendered her evidence inadmissible, and that his alibi defence was summarily dismissed without evaluation. 9.On sentence, he argued that life imprisonment was harsh and disproportionate, especially given his alleged mental health issues. Respondent’s Submissions 10.The State opposed the appeal and submitted that the prosecution proved its case beyond reasonable doubt. It contended that the complainant’s evidence was corroborated by medical evidence showing bleeding from the vagina and a blood clot, and by blood stains found on the appellant’s clothes. 11.The State maintained that the sentence imposed was lawful and within the mandatory minimum provided under Section 8(2) of the Sexual Offences Act for defilement of a child aged 11 years and below. Analysis and Determination 12.This being a first appeal, this Court is duty-bound to re-evaluate and re-analyze the evidence adduced before the trial court afresh and arrive at its own conclusions, bearing in mind that it did not see or hear the witnesses. In Okeno v Republic (1972) EA 32, it was held that;“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. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.” 13.Similarly, in Kamau Njoroge v Republic (1987) eKLR the Court of Appeal stated as follows;”As this court has constantly explained, it is the duty of the first appellate court to remember that parties to the court are entitled, as well on the questions on fact as on questions of laws, to demand a decision of the court of first appeal, and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 13.I will not rehash the evidence adduced, but will where, necessary, refer to the same. 14.The primary issues for determination are:a.Whether the trial court erred in convicting the appellant based on the evidence on record.b.Whether the failure to conduct a voir dire examination of the child complainant vitiates the trial.c.Whether the sentence imposed was lawful. 15.As was correctly pointed out by the trial court, the key ingredients constituting an offence of defilement are:a.Age of the victim,b.Proof of act of penetration,c.Identification of the perpetrator causing the act of penetration. 16.In Dominic Kibet Mwareng vs Republic (2013) eKLR, the court reiterated this when the learned judge noted that:“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.” 17.There was no dispute that the child was 3 years old. The mother confirmed this to the court. 18.Penetration is defined at section 2 of the Act as follows:“...the partial or complete insertion of the genital organs of a person into the genital organs of another person;" 19.Thus, the legal definition of penetration is not the same as the literal meaning which may connote brutal or forceful entry. 20.The victim’s mother told the trial that she found the appellant with her daughter in the bush. After the appellant ran away she examined the child, and she found her bleeding. 21.The prosecution also adduced medical evidence confirming that the victim was bleeding from her vagina and had a blood clot. The victim had to undergo surgery to repair her injured urinary tract. 22.This medical and physical evidence corroborates the complainant’s mother account and provides independent proof of penetration and linkage to the appellant. 23.Therefore, there was sufficient proof of penetration. 24.On the identification, the evidence of the victim’s mother was that he caught the appellant with her daughter in the bush. She knew him well and thus there was no doubt that the appellant was identified. 25.The appellant, in his defence, stated that on 13th August 2022 he was sent home from school for lack of school fees, then his mother sent him to water miraa in the shamba. After watering and listening to music for two hours, he went to eat at Antony’s hotel. While heading home he was arrested by people who recorded a false case against him. He claimed this was due to a land dispute between his father and the complainant’s mother, who had offered him Kshs 3,000 to farm the shamba. 26.The appellant submitted that the victim was not called or subjected to voire dire examination hence crucial evidence was missing. 27.While the record does not expressly show a voir dire examination, the trial court had the opportunity to observe the child during testimony. More importantly, the conviction was not based solely on the child’s uncorroborated testimony but on corroborative medical and physical evidence. The evidence of the victim’s mother was that she found the appellant with the child in the bush. Even without the child testifying there is ample evidence placing the appellant at the scene. No one else could have inflicted the injuries on the victim. 28.In such circumstances, the omission does not render the trial a nullity. 29.The alleged contradictions in the prosecution evidence relate to minor details and do not go to the root of the case. The core issues of penetration and identification are supported by the medical report and physical identification. The appellant’s alibi that he was in school was considered by the trial court and rejected as it was not supported by any corroborative evidence and was inconsistent with the timing of the offence and the medical findings. 30.After analyzing the evidence, I find that the conviction was safe and I uphold it. 31.On sentence, section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged 11 years and below. The sentence imposed is therefore lawful, and no material has been placed before this Court to warrant interference with the trial court’s discretion. 32.In conclusion the Court finds that the prosecution discharged its burden of proof beyond reasonable doubt.Consequently, the appeal is dismissed. DATED, SIGNED & DELIVERED AT MERU THIS 18TH DAY OF JUNE 2026.H.M. NYAGAJUDGE