https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10501

KMJ v Republic (Criminal Appeal E045 of 2024) [2026] KEHC 10501 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10501 (KLR) Republic of Kenya In the High Court at Garsen Criminal Appeal E045 of 2024 JN Njagi, J June 26, 2026 Between KMJ Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon.E.K.Too, Senior Principal Magistrate in Hola Senior Principal Magistrate’s Court Sexual Offence Case No.E010 of 2023 delivered on 16/9/2024) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on diverse dates and times between June 2022 and 17th July 2023 (name withheld) village in Tana River Sub County within Tana River County he intentionally and unlawfully caused his penis to penetrate the vagina and anus of GBR (herein referred to as the complainant), a child aged 11 years. 2.The Appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his amended grounds of appeal are that:1.That the learned trial magistrate erred in law and facts by failing to find that the age of the complainant was not proved.2.That the learned trial magistrate erred in law and facts by failing to find that the ingredients of the offence of defilement of penetration and identification of the Appellant were not proved to the standard required by the law.3.That the learned trial magistrate erred in law and facts by failing to find that the charges were fabricated due to a grudge between the victim`s mother and the Appellant thus making the conviction unsafe.4.That the learned trial magistrate erred in law and facts by failing to find that there was violation of the appellant`s rights to fair trial in that he was denied an opportunity to mitigate in the case contrary to the provisions of section 216 and 329 of the Criminal Procedure Code.5.That the learned trial magistrate erred in law and facts by failing to consider the Appellant`s alibi defence. 3.The prosecution called 4 witnesses in the case while the appellant when placed to his defence defended himself and called 6 witnesses. Prosecution case 4.The case for the prosecution was that the complainant was at the material time aged 11 years and was school going. She was living with her grandfather, the Appellant and a grandmother who did not testify in the case. 5.It was the evidence of the complainant that one day she went to the room of the appellant. He held her by force and put her on the bed. He told her to remove her clothes but she refused. He held her. He then heard her uncle coming and he released her. 6.That on another day the Appellant held her in his room and put her on his bed. He removed her clothes and inserted his penis into her vagina. That on 17/7/2023 he repeated it again. She reported to her grandmother and the Appellant asked for forgiveness. That he returned to doing it again and she reported the matter at the school children office. It was her evidence that the Appellant had threatened her. 7.It was the evidence of Jane PW2 that she was informed of the issue by her mother. That she went and asked the Appellant and he asked for forgiveness. That he warned the appellant and the complainant. She was later informed of the issue again. 8.A clinical officer at Hola county Hospital PW3 testified that the complainant was taken to the hospital on 18/7/2023 with a complaint of defilement. She examined her and found her with a broken hymen and bruises on the vaginal wall. She also had whitish discharge. She filled her P3 form and Post Rape Care form. 9.The case was investigated by Cpl Zainab PW4 of Hola police station. It was her evidence that the appellant defiled the complainant in 2023 and she reported to her grandmother. That on 17/7/2023 the appellant defiled her again in his room and once again she reported to her grandmother. The minor was taken to hospital and she was examined. The appellant was arrested and charged with the offence. 10.During the hearing of the case, PW2 produced the complainant`s birth certificate as exhibit, PExh.1. The clinical officer PW3 produced the P3 form and the treatment notes as exhibits, P.Exh. 2 and 3 respectively. Defence case 11.When placed to his defence the Appellant stated in a sworn statement that on 9/7/2023 he was with his younger wife when his wife went and threatened him that she will kill him or have him either jailed or she will remove his private parts. That on the 10th she beat him up and she said she was leaving. She left. He was later arrested and charged. The police informed him of the defilement. He denied it. He said that the matter was fabricated by his wife. 12.Among the witnesses called by the Appellant was DW 4 whose evidence was that the wife to the Appellant Jane Koshi used to complain that she suspected that the Appellant had another wife. They found out about it. 13.DW5 told the court that the Appellant had matrimonial problems with his wife. Another witness DW6 said that she is a wife to the Appellant. That on 9/7/2023 the other wife to the appellant went to her home and accused her of being a thief. That on the 17th the Appellant went and slept at her home. She thereafter heard that he had been arrested. It was her evidence that the Appellant`s wife had threatened to either kill him or report him. She said that she did not know the complainant in the case. 14.The evidence of DW2 and DW3 was not relevant to the case. 15.The appeal was disposed of by way of written submissions. Appellant`s submissions 16.The Appellant submitted that the age of the complainant was not proved as no documents were produced in proof of the age. 17.It was submitted that penetration was not proved. That the clinical officer testified that the injuries on the complainant were fresh but the treatment notes were not produced to the court. He submitted that the charges were fabricated due to differences between him and his wife. That the evidence was based on suspicion. That suspicion alone cannot form the basis of a conviction. 18.The Appellant submitted that the trial court violated his right to fair trial in not giving him an opportunity to mitigate contrary to the provisions of section 216 and 329 of the Criminal Procedure Code. Reliance was placed in the case of Joseph Kaberiana Kahinga & others v Attorney General Constitution Petition No.680 of 2016 (Kahinga & 11 others v Attorney General [2016] KEHC 2053 (KLR)) where it was held:Therefore, we hold that it will amount to the violation of accused person`s right to fair trial as provided under Article 50 (2) of the Constitution if the court does not receive and consider mitigating factors and other statutory and Policy pre-sentencing requirements. In that regard, in the context of the illustrations we have cited in this judgement, it is not mandatory for the courts to pass a death sentence against persons charged with capital offences. 19.The appellant submitted there was a mistrial in the case. He urged the court to set aside the conviction and the sentence. 20.The Respondent on the other hand submitted that the ingredients of the offence of defilement were proved beyond reasonable doubt. That the age of the complainant was proved by the birth certificate produced in the case. That the same was not controverted. Further that the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was a minor of tender years. 21.On penetration it was submitted that the minor narrated that the Appellant inserted his penis into her vagina which evidence was corroborated by that of the clinician PW5 who examined her and formed the opinion that her vagina had been penetrated. That the Appellant was well known to the minor and there could have been no mistake as to his identification. That identification was by recognition. Analysis and determination 22.This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 23.The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR. 24.The trial magistrate in convicting the Appellant of the offence found that the complainant was aged 11 years. That the complainant was consistent in her evidence that the appellant penetrated her which evidence was corroborated by the clinical officer`s evidence that the hymen was freshly broken. That the appellant`s defence was a mere denial and his witnesses only testified on his matrimonial problems and they did not discount the defilement. 25.I have re-evaluated the evidence adduced against the Appellant and considered it against the Appellant`s defence. The age of the Appellant was not in dispute. The birth certificate of the complainant was produced in the case that showed that she was born on 14/1/2013. The offence was said to have been committed between June 2022 and July 2023. It was therefore proved that the complainant was at the material time below the age of 11 years. 26.The appellant submitted that penetration was not proved and that the medical evidence did not support the defilement. 27.Section 2 of the Sexual Offences Act defines penetration as:“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 28.The complainant testified that the Appellant inserted his penis into her vagina on several occasions the last one being on 17/7/2023. According to the clinical officer the complainant was taken to hospital on 18/7/20223. Though the clinical officer said that the hymen was freshly broken, she did not capture that in the P3 form and in the Post Rape Care Form. The medial evidence therefore did not discount the evidence of the complainant that the Appellant had penetrated her before 17/7/2023. The clinical officer however noted that the complainant had redness and bilateral bruises on the vaginal walls. This finding coupled with the evidence of the complainant proved the issue of penetration. Penetration was therefore proved. 29.The Appellant alleged that the case was fabricated by his wife due to their matrimonial differences. The appellant was represented by an advocate when the complainant testified in court. The advocate never cross-examined the complainant on whether the case was fabricated by her grandmother due to their matrimonial differences. Counsel also did not bring up the issue when he cross-examined the investigating officer, PW4. The fact that the advocate did not raise the issue with the complainant and the investigating officer during cross-examination can only mean that the defence was an afterthought. 30.The appellant argued that the trial court did not consider his defence. The trial court dismissed the Appellant`s defence on the ground that the witnesses he called dwelt on his matrimonial dispute and did not rule out the fact of the Appellant committing the offence. The court dismissed the defence as a mere denial. 31.The Appellant was a grandfather to the complainant. They were living in the same homestead. The Appellant had the opportunity to commit the offence. The witnesses he called were not in his company all the time so as to discount the evidence that he committed the offence. The defence, as described by the trial court, was a mere denial. 32.The trial court found the complainant to be a credible witness and believed her evidence that she was penetrated by the Appellant. Section 124 of the Evidence Act permits the court in Sexual Offence cases involving children to convict on the sole evidence of the victim child if the court is satisfied that the child is telling the truth and gives reasons for such a finding. The trial court gave reasons for believing the evidence of the complainant and found that her evidence was corroborated by medical evidence. 33.I have keenly assessed the evidence of the complainant and I am in agreement with the trial magistrate that she was a truthful witness. Her evidence was corroborated by medical evidence whereby she was found with bruises on her vaginal walls which was evidence of penetration. The fact that such a young girl had injuries in her genitalia discounted any allegation of fabrication of the evidence. There is no likelihood of the complainant having fabricated such serious allegations against the Appellant. The trial court rightly dismissed the Appellant`s defence. I find the offence of defilement to have been proved against the Appellant beyond all reasonable doubt. The conviction is thereby upheld. 34.Appellant states that the trial court did not give him an opportunity to mitigate. I have not found any mitigation in the court proceedings. The offence the Appellant was convicted of carries a mandatory sentence of life imprisonment. The Appellant was given the mandatory sentence. Though it was prudent for the trial court to give the Appellant an opportunity to mitigate, the lack of it did not vitiate the sentence imposed by the trial court. 36.The upshot is therefore that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 26TH DAY OF JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma