https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9149

KKK v Republic (Criminal Appeal E022 of 2024) [2026] KEHC 9149 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9149 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E022 of 2024 JK Biomdo, J June 25, 2026 Between KKK Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. S.D SITATI (SRM) in Kilifi SPM (SO) Case No. E075 of 2022) Judgment Introduction 1.The appellant herein, KKK was convicted on 7 December 2022 by the Senior Principal Magistrate’s Court, Kilifi for the following offences:i.Count 1 - defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that the appellant on the 13 August 2022 at [Particulars Withheld] Sublocation Bamba location Ganze Subcounty in Kilifi County caused his genital organ namely penis to penetrate the genital organ namely the vagina of ZJC a child aged 12 years.ii.Count 2- threatening to kill contrary to Section 223 of the Penal Code. The particulars of the offence are that the appellant on 13 August 2022 at [Particulars Withheld] Sublocation Bamba location Ganze Subcounty in Kilifi County without lawful excuse threatened to kill ZJC by uttering the words, “ukienda kusema popote nitakapokuona natakuuwa.” 2.He was sentenced to 15 years imprisonment for Count 1 while no sentence was passed for Count 2. Case before the trial court 3.The appellant denied the charges prompting the trial where the prosecution called six (6) witnesses in support of its case. PW1, the complainant testified that she was 12 years old and a class 4 pupil at [Particulars Withheld] primary school. Her evidence was that on 13 August 2022 at 1pm the appellant who was her grandfather, sent her to fetch water and then prepare food ‘sima’ for him inside his (appellant’s) house which she did. While cooking, she saw the appellant was naked. He grabbed her and pushed her to a mattress on the floor in the inner room. He removed her pant, defiled her and dressed her the panty. He then told her, “usiende umwambie nyanyako la sivyo ukipita hapa kwangu nitakuua.” She went home to her grandmother whom she identified as Kache Kenga, PW2 but did not report the incident. 4.On 23 August 2022, when she returned home from school, PW2 inquired what she had done with the appellant after disclosing to her that the appellant had said that he wanted to marry her (PW1) and had already had sex with her. She narrated the ordeal to PW2 who reported the matter to PW3 the village elder, chief and the police at Bamba police station. On 24 August 2022, she was examined at Bamba Sub-County hospital and produced treatment notes (P Exhibit 4) as evidence. During cross examination, she testified that she used to prepare tea and food at the appellants house after which they would eat together. She further testified that she did not scream during the incident because the appellant covered her mouth with a piece of cloth. 5.PW2 the complainant’s grandmother testified that on 23 August 2022, the appellant who is her brother, told her that he had had sex with the complainant whom he wants to marry after she completes school. He further told her that he had warned the complainant against reporting the incident to her (PW2) and asked PW2 to warn her not to engage in sex with any other person until she completes school. When the complainant returned from school she inquired about the incident and upon confirmation, she reported the matter to PW3. The next day on 24 August 2022, PW2 reported the case to the assistant chief and the police who referred the complainant to Bamba Sub-County hospital for examination. 6.PW3’s testified that on 23 August 2022 at about 4pm, PW2’s called him to her louse and informed him about the incident. The next day on 24 August 2022, he, PW2 and the complainant reported the matter to Bamba police and later accompanied her to the hospital for medical examination. 7.PW5 a clinical officer based in Bamba Sub-County testified that she examined the complainant at the hospital 25 August 2022. On examination she established that the complainant’s hymen was broken and produced the Post Rape Care form (exhibit 2) as evidence thereof. She further stated that the complainant identified the appellant as the perpetrator and narrated the incident to her. 8.PW 4 the investigating officer rehashed the evidence of PW1, PW2 and PW3 while confirming that the incident was reported to him at Bamba Police station on 24 August 2022 where it was booked vide OB. 10. He escorted PW1 for medical age assessment which confirmed she was 12 years old. He produced the medical age assessment report as P Exhibit 1. On 27 August 2022, he arrested the appellant who was later charged. 9.At the close of the prosecution’s case, the trial court found that a prima facie case had been established and placed the appellant on his defence. The appellant elected to give unsworn evidence without calling any witnesses. He denied committing the offence, stating that the complainant framed her. He testified that the case arose from a land dispute he had with PW2 and PW3 who were grazing goats on his land. At the close of the trial, the appellant was convicted and sentenced as afore-stated. Appeal and Submissions by parties 10.Aggrieved, the he filed the present appeal where he raised the following grounds:i.The trial court erred in both law and fact by failing to consider that the prosecution did not prove its case beyond reasonable doubt as required by law.ii.The trial court erred in both law and fact by failing to consider the sharp contradictions in the prosecution’s case.iii.The trial court erred in both law and fact by not considering the appellant’s defence. 11.At the hearing of the appeal, the appellant elected to rely on his written submissions in which he argued all the grounds of appeal globally. He submitted that pursuant to section 107 of the Evidence Act, the prosecution bears the burden to prove the ingredients of the offence namely identification of the perpetrator, penetration and age of the victim beyond reasonable doubt. He submitted that there was no evidence of defilement, that there was an existing grudge that led to the filing of the case, that the entire prosecution evidence was unreliable and could not form the basis of a conviction and that the age of the victim was no proved. He cited Faud Dumila Mohamed vs Republic (Criminal Appeal No. 210 of 2003) support his assertions. 12.On penetration, he submitted that there was no evidence to show that there was penetration as required by law. He challenged the P3 form on grounds that it was not adduced by the maker and argued that it did not corroborate the evidence of PW1 on penetration. He relied on the cases of Mohamed vs Republic (2008) eKLR 91175, Jackob Adhiambo Umuondo vs Republic and Mary Chelenget vs Republic Cr. App No. E002 Of 2021 where the courts held that when the prosecution does not prove all ingredients of the offence, it follows that they have not proved the charge against the appellant beyond reasonable doubt. Regarding his defence, he submitted that it was truthful and should not have been disregarded by the trial court. He urged the court to allow the appeal and set aside the conviction and sentence. 13.The Respondent opposed the appeal and filed written submissions which they relied on. They also filed and served upon the Appellant a Notice of Enhancement of Sentence dated 22 November 2025 where they sought for enhancement of the sentence from 15 years imprisonment to 20 years imprisonment. 14.The Respondent acknowledged that indeed the prosecution bears the burden of proving any charge beyond reusable doubt and cited the case of Okethi Okale Vs R (1965) E.A 555 in support thereof. 15.On Count 1, the Respondent submitted that the prosecution had proved all the three (3) ingredients of the offence of defilement beyond any reasonable doubt. It was contended that age of the victim was proved by the age assessment report (Exhibit 1) and PW 2’s evidence which showed that the victim was 12 years old. On penetration, it was submitted that PW1 clearly described how, where and when the appellant defiled her. That her evidence was corroborated by medical evidence produced by PW5 and PW6 through P exhibits 2 and 3 which showed that her hymen was broken. It was further submitted that contrary to assertions by the appellant, it was not necessary that a victim of sexual offence suffers lacerations, cuts, bruises or any other injury on the genital organs during penetration and cited the case of Polycap Simon Mchore VS Republic (2018) eKLR to support the argument. On the question of identification, it was submitted that victim recognized the appellant since they are from the same clan and that the offence was committed in broad daylight. 16.On Count 2, the Respondent submitted that the ingredients of the offence of threatening to kill are that there must have been a direct or indirect threat to kill by words or conduct and that the threat was made in circumstances where it is intended or likely to cause the recipient to apprehend that it will be carried out. It cited the case of James Omondi Omollo Vs Republic (2018) eKLR to support the argument. 17.It was submitted that PW1 narrated how she appellant after defiling her told her, “usiende umwambie nyanyako la sivyo ukipita hapa kwangu nitakuuwa.” It was contended that the words were uttered after commission of serious offence to a child which impacted her since she did not report the incident until 10 days later when she was confronted by PW2. It was further argued that the victim’s evidence was not challenged by the appellant. 18.On the issue of sentence, the Respondent noted that no punishment was awarded for Count 2 despite the finding of guilt. It was thus argued that Section 364 (1) of the Criminal Procedure Code empowers this court to correct the omission and render an appropriate sentence. The case of William Arianda Andere vs Republic (2016) KEHC 8458 (KLR) was cited in support thereof. 19.On the submission that there were contradictions in the prosecution case, the Respondent argued that PW1 provide direct and compelling evidence of the sexual acts committed against her by the appellant which was corroborated by PW2 and PW5. Regarding the appellant’s defence, it was submitted that his evidence which comprised of unsworn testimony was analyzed by the trial court and found devoid of merit. 20.As regards the sentence for Count 1, the Respondent submitted that the sentence imposed by the trial court of 15 years imprisonment for an offence of defilement contrary to section 8 (1) and 8 (3) of the Sexual Offences Act is illegal as it falls below the minimum sentence which is 20 years imprisonment. The court was urged to exercise its power under Section 354 (3) (a) (ii) of the Criminal Procedure Code to increase the sentence to 20 years. Analysis and Determination 21.This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32, and Oiruri Mose vs Republic (2013) eKLR. 22.The Court of Appeal, in Kiilu & Another vs Republic [2005]1 KLR 174, stated thus;“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 to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 23.Drawing from the above, the issues for determination in respect of Count 1 are as follows: -i.Whether there was evidence to prove defilement beyond reasonable doubt.ii.Whether the offence of threatening to kill was proved beyond reasonable doubt.iii.Whether the Sentence was proper and lawful. Whether there was evidence to prove defilement beyond reasonable doubt. 24.On Count 1, appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The said Act provides:“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.(2)………………………………..(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 25.. In Charles Wamukoya Karani V Republic, Criminal Appeal No. 72 of 2013 the court stated; “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” Similarly, in George Opondo Olunga vs Republic (2016) eKLR, the court of appeal held that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and proper identification of the perpetrator. 26.Arising from the above, the specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant.Proof of penetration 27.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina organs of the victim, Z.J.C. 28.PW1 testified that on 13 August 2022 at 1pm she went to the appellant’s house after he had called for her. He then sent her to fetch water and then prepare food ‘sima’ for him inside his (appellant’s) house which she did. While cooking, she saw the appellant, who was her grandfather (brother to her grandmother PW2) was naked. He grabbed her and pushed her to a mattress on the floor in the inner room. He removed her pant, and as per her words “akanifanyia tabia mbaya. Alilala na mimi”. Thereafter he dressed her the panty and warned her not to disclose to her grandmother. She then went home, and kept it to herself until 23 August 2022 when confronted by her grandmother, PW2 that she narrated what had happened. PW2 testified that she knew about the incident on 23 August 2022, when the appellant who was her brother, told her that he had sex with the victim and wanted to marry her. 29.PW5 testified that she examined the victim on 25 August 2022 at Bamba Subcounty hospital and established that her hymen was broken. She produced Post Rape Care form (P Exhibit 2) as proof of her findings. This fact was corroborated by PW6 produced the P3 form (P Exhibit 3) signed on 29 August 2022 that shows that the victim was examined on 24 August 202 where it was found that her hymen was broken. 30.The court, upon analysis of the evidence is satisfied that the trial court complied with Section 19 (1) of the Oaths and Statutory Declarations Act as well as Section 124 of the Evidence Act in taking down and placing reliance on PW1’s evidence. Further, that whereas absence of a hymen alone is not evidence of penetration within the context of defilement, there is cogent evidence that connects the evidence of PW1, PW2 and the medical evidence that lends the finding that there was penetration. 31.PW1’s testimony was corroborated by PW2 as well as medical evidence all of which lend credence to the assertion that there was penetration as defined in law. The court considered the appellant’s submission that the medical obedience was not properly adduced and found that section medical evidence falls within section 77 of the Evidence Act and were properly adduced. The court finds penetration was proved beyond reasonable doubt. Proof of age of the victim 32.The age of the victim is a critical ingredient of the Offence and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR). 33.Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic Criminal Appeal No. 21 of 2015 [2017]. In this case, PW1 and PW2 testified that she (PW1) was 12 years. This was confirmed by the age assessment report conducted by the medical officer Kilifi County teaching and referral hospital dated 29 August 2022 and produced as exhibit 1. There appellant did not contest any of this. The court finds that this element of the offence was proved beyond any reasonable doubt. Positive identification of the perpetrator 34.Evidence on record is that PW1, identified the appellant as responsible for the offence. She was well known to her as she referred to him as her grandfather and that she used to visit his house regularly to assist him in house chores as well as cook for him. PW2 and PW3 confirmed that the appellant was PW2’s brother and well known to them. Since the incident occurred on 23 August 2022 at 1pm in the appellant’s house, PW1 was clearly able to recognize the appellant as responsible. Additionally, PW2 testified that the appellant informed her on 23 August 202 that he had already had sex with the victim. The court finds that the appellant was properly identified. 35.The appellant contended that there were material contradictions in the prosecution’s case that rendered the conviction unsafe. The court has analyzed the record and could not find material contradictions that would tilt the scale of justice in favour of the appellant. The entire prosecution’s evidence was consistent, cogent and coherent in all material aspects. The court further finds that the defence by the appellant did not cast any doubt on the prosecution case, was largely a denial and insufficient to form the basis for an acquittal. The court finds that all ingredients of the offence were proved beyond reasonable doubt and upholds the conviction on Count 1. Whether the offence of threatening to kill was proved beyond reasonable doubt 36.On Count 2, section 223 (1) of the Penal Code provides as follows as;“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.” 37.In order to prove the offence, the prosecution must prove three ingredients; Utterance or conveyance of the threat, content is a threat to kill and the absence of a lawful excuse. In Okutto vs Republic (Criminal Appeal E016 Of 2024) [2024] KEHC 10044 (KLR) the court held;“The prosecution was required to establish the following ingredients of the charge: that the appellant without lawful excuse uttered words which amounted to a threat to kill the complainant. The uttering of these words must be made in the context that the complainant perceives that she is under threat of losing her life. The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence.” 38.PW1 testified that on 13 August 2022 after the appellant had finished having sex with her, he told her, “usiende umwambie nyanyako la sivyo ukipita hapa kwangu nitakuua” which when translated mean, “do not go and report to your grandmother, otherwise when you pass by here at my home, I will kill you”. PW1 further stated that she went home but did not report the incident to anyone until 10 days later when she was confronted by PW2, her grandmother. PW2 corroborated PW1’s evidence by testifying that on 23 August 2022 the appellant told her that he had had sex with PW1 but had warned her (PW1) not to tell her (PW2). 39.The words uttered by the appellant by their very nature, amounted to a threat to kill. The threat was made immediately after commission of a serious offence and from the conduct of the victim, she clearly perceived she was under threat of losing her life and that is why she remained silent until 10 days later when she was confronted by PW2. Both PW1 and PW2 provided direct compelling evidence which was not challenged or shaken by the appellant in his defence. 40.Whereas the words are not the same as stated in the chargesheet, the court agrees with the trial court that they carry the same tenor of a threat to kill. In any event, the difference is not fatal to the prosecution’s case and is curable under Section 382 of the Criminal Procedure Code. The court finds that Count 2 was proved beyond reasonable doubt. Whether the Sentence was proper and lawful 41.Turning to the sentence, the Respondent sought enhancement of the sentence in Count 1from 15 years to 20 years. Section 8 (3) of the Sexual Offences Act sets the minimum mandatory period of imprisonment to be 20 years. Evidence shows the complainant was 12 years at the time of commission of the offence. 42.The Supreme Court of Kenya in Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) held that the Minimum Sentences set out in Section 8 of the Sexual Offences Act are lawful and binding on courts. This was in line with the court’s decision in Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR where the Supreme Court clarified that the decision did not invalidate mandatory minimum sentences under the Sexual Offences Act. 43.The trial court did not have discretion to award any sentence below the minimum set out under Section 8 (3) of the Act. Consequently, the sentence of 15 years was illegal. Section 354 (3) (ii) (a) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. The appellant was duly served with the notice of enhancement dated 22 November 2025 and was duly aware of the contents thereof. 44.With regard to Count 2, despite the finding of guilty, no sentence was passed. Section 14 of the Criminal Procedure Code provides that when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose. By virtue of Section 14 of the said Act, the trial court erred in failing to pass a sentence for Count 2. As pointed out earlier, section 354 of the Criminal Procedure Code empowers the court to vary or substitute any sentence on appeal. Disposition 45.In light of the above, the court makes the following orders: -i.The appeal against conviction and sentence in respect of Counts 1 and 2 lacks merit and is accordingly dismissed.ii.The sentence of 15 years imprisonment in Count 1 is set aside and substituted with a Sentence of 20 years imprisonment.iii.The appellant is sentenced to one year imprisonment in respect of Count 2.iv.All sentences shall run concurrently from the date of arrest. 46.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE 2026JOSEPH KIPKOECH BIOMDOJUDGE