https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9608

Kyalo v Republic (Criminal Appeal E080 of 2023) [2026] KEHC 9608 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9608 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E080 of 2023 EN Maina, J June 30, 2026 Between Lawrence Muia Kyalo Appellant and Republic Respondent (Being an appeal against both conviction and sentence by Hon M. A. Otindo (PM) at Machakos Chief Magistrate’s Court in S.O Case No.E063 of 2021 delivered on 7th November 2023) Judgment 1.The appellant is serving a term of imprisonment for 30 years for the offence of defilement contrary to Section 8(4) of the Sexual Offences Act. His appeal is against the conviction and sentence. 2.The particulars of the charge that culminated in the conviction giving rise to this appeal were that on unknown dates in the month of May 2021 at [Particulars Withheld], Mitaboni Location in Kathiani the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of F.K, a child aged 16 years. 3.At the trial PW1, who is the victim in the case, testified that she had been sent to the accused person’s home by her grandmother to buy tobacco when the accused person called her to his house. She responded and when she moved close to the accused person, he pulled her to his bed, forcefully removed her panty then inserted his “kitu yake ya kukojoa” in her vagina. After he finished what he was doing, the accused person asked her to wear the panty and go home. She went home but did not tell her grandmother what had happened. She further stated that on yet another day while she was going to the shop the accused person called her to his house and repeated what he had done but still did not tell her grandmother. It was not until she started vomiting that her grandmother called her mother who came and took her to hospital. Upon examination at the hospital, she was found to be pregnant. 4.The complainant’s mother, testified that PW1 was born on 28th May, 2005. She produced the clinic card (PEX 1) as proof of age. She testified that at the material time she was staying in Thika while PW1 resided with her grandmother as she was still trying to get a vacancy for her in a school for persons with disability in Thika. She stated that when her mother called her and told her that Faith was unwell, was vomiting and was always sleepy, she travelled home and took her to hospital. After she did some interrogation, PW1 told her that 3 people Kyalo Muia, Kyalo Mutinda and Mutiso had defiled her. On getting this information she reported to the Assistant Chief who summoned the 3 men but only Kyalo and Mutiso honored the summons. The 3rd person ran away. She stated that the Assistant Chief told the said men that they would take care of the child once born, by paying 5,000/= monthly but they only paid 500 each. She stated that when PW1 was examined she was found to be 7 months pregnant. In cross examination, she stated that during a meeting at the Chief’s office the accused admitted to having sex with her daughter. 5.PW3, stated that he examined the victim on 4th November 2023, who had gone there with a history of defilement, that the visit was about five months later and that the victim was mentally challenged. He confirmed that the victim was pregnant and was attending prenatal clinics. After examining her she filled the P3 that he produced in evidence as PEX. 4. 6.PW4, testified that upon being assigned the duty to investigate this case, she recorded witness statements and escorted the complainant to hospital; that in her statement, the complainant stated that she was defiled by 3 men and that the accused person herein defiled her when she was going to buy tobacco. She stated that the victim was already pregnant at the time the complaint was made. Upon compiling the file, she arrested and charged the accused. She stated that she arrested two of the alleged perpetrators and the victim identified the Appellant. 7.In his defence the Appellant testified that he never held a meeting in connection with this case. He disputed that he admitted the offence and contended that he was framed. That the child framed him because he never used to go to their home. He also stated that PW2 had a grudge against him and fabricated evidence against him for that reason. He took issue with the fact that DNA was not conducted. He admitted that he had known the victim since she was a child as they were neighbours. 8.In this appeal he has urged this court to find that the charge was not proved beyond reasonable doubt. He reiterated that medical evidence by way of DNA should have been adduced to prove that he was the perpetrator of this crime. He contended that there was no evidence to connect him to the offence. He also argued that the omission to adduce DNA evidence violated his right to fair trial. He urged this court to allow the appeal. 9.For the part of the state on the other hand, Prosecution Counsel argued that the case was proved to the standard required and the appeal should be dismissed. Analysis and determination 10.As the first appellate court I have reconsidered and evaluated the evidence in the court below, the grounds of appeal, the submissions and the law in order to form an independent opinion as to whether the charge was proved beyond reasonable doubt. 11.The elements of the offence of defilement which the prosecutor is required to prove beyond reasonable doubt are: That the victim is a child and her age for purposes of sentencing. That there was penetration. That the accused was the perpetrator of the offence. 12.That the victim in this case was a child was proved beyond reasonable doubt through a clinic card which indicates she was born on 28th May 2005. The offence was committed in May 2021 meaning she was sixteen years old. She was therefore a child as defined in the Children Act (see definition in Section 2 of the children Act). Her exact age was also established and that becomes relevant when it comes to the sentence. 13.That there was penetration of her genital organ by the genital organ of another (male), was also proved through her own testimony and the fact of her being pregnant. Defilement was therefore proved beyond reasonable doubt. 14.The first two elements having been proved to the satisfaction of this court what remains is to determine whether the identification of the Appellant as the perpetrator of the offence was proved beyond reasonable doubt. 15.I have considered the evidence and the submissions by both sides carefully and I am satisfied that the element of identification of the Appellant as the perpetrator of the offence was also proved beyond reasonable doubt. The complainant, though she is mentally challenged, was consistent in her narration of where and how the Appellant had his way with her. She stated that he called her as she was going to buy tobacco at his home. He took her to a house, caused her to lie on a bed, removed her panty and inserted his genital organ into hers. After that he told her to wear her panty and go home. She was candid enough to tell the court that she did not inform her grandmother, with whom she lived, that the Appellant had defiled her. She stated that he did the same thing to her on yet another occasion and yet again she did not disclose it to her grandmother. It was not until it was discovered that she was pregnant that she revealed that the Appellant and two other men had been forcefully having sexual intercourse with her. Because of her consistency I believed her. Her mental challenge may have made her vulnerable and hence susceptible to such abuse but she definitely was aware of what had been done to her and by who and where. I found her truthful and reliable and credible as a witness in contrast to the Appellant who alleged to have been framed yet there was no reason for such a frame up. Not going to the home of the victim as a reason for the frame up was not raised in the course of the trial and my finding therefore is that it was an afterthought. 16.It is also my finding that even had DNA been performed and it had ruled out that he was responsible for the pregnancy that would not have absolved him. This is given that even independent of medical evidence, the victim’s evidence is sufficient to sustain a conviction. In the case of Ochieng -vs- Republic [2018] KECA 59 (KLR) 7th December (judgment) the court stated as follows in regard to the place of medical evidence in sexual offences:“The record shows that the appellant was subjected to a medical examination, but his complaint seems to be that, he was not subjected to a DNA test. From the above, it is evidence that a medical examination or even a DNA test to prove that the accused committed the offence is not a mandatory requirement of law. As such, this ground fails.” 17.Similarly, in this case it is immaterial that DNA evidence was not adduced. The charge against the Appellant was proved beyond reasonable doubt on the evidence adduced. The conviction is therefore safe. 18.In the upshot and as the sentence was lawful, I find no merit in the appeal and it is dismissed in its entirety. The conviction and sentence of the court below are upheld. It is ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 30TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Madam Otieno for the StateThe Appellant not responding despite being on the call.Court Assistant – Benson