https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1482

Lagat v Republic (Criminal Appeal E091 of 2026) [2026] KECA 1482 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1482 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E091 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Samson Kipyego Lagat Appellant and Republic Respondent (Being an appeal against the judgment of the High Court of Kenya at Eldoret (Omondi, J.) dated 12th April 2019 in HCCRA No. 18 of 2015 Criminal Appeal 18 of 2015 ) Judgment 1.This is a second appeal by the appellant, Samson Kipyego Lagat, against his conviction and sentence of life imprisonment for 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 charge were that on 6th May 2014 at Kamobo Location within Nandi County, the appellant unlawfully caused his penis to penetrate the vagina of B. C., a child aged 5 years. He faced an alternative charge of an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. We need not restate the particulars of the alternative charge because the appellant, having been convicted of the main count, the alternative count is not a subject of this appeal. 2.The appellant was tried and convicted by the Principal Magistrate’s Court at Kapsabet (G. Adhiambo, the then Acting SRM). His first appeal to the High Court at Eldoret (Omondi, J. (as she then was)) was dismissed on 12th April 2019. He now appeals to this Court, on a second appeal, having filed supplementary grounds of appeal on matters of law only. 3.In summary, the appellant contends that the trial court convicted him on a defective charge sheet as the evidence of age did not align with the particulars of the charge; that the courts below relied on uncorroborated and seemingly tutored evidence of the minor and her mother; that the medical evidence ruled out recent trauma, thus failing to prove penetration on the material date; that the voir dire examination was improperly conducted; that the learned Judge made a perverse finding that the minor stated she was 10 years old, which is contrary to the record; and, that the courts below shifted the burden of proof to him and also failed to properly evaluate his defence. 4.This being a second appeal, and pursuant to the provisions of section 361(1) of the Criminal Procedure Code, our jurisdiction is confined to matters of law only. We are guided by the principle that we must not interfere with concurrent findings of fact by the trial court and the first appellate court unless they are shown to be based on no evidence or are perverse. Our mandate has been restated countless times by the Court in several decisions. For instance, in Mwangi vs. Republic [2026] KECA 640 (KLR), it was held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings…” 5.In delivering on our mandate, we will commence by rehashing the evidence adduced at trial. The victim, B.C., who testified as PW1, gave unsworn testimony after being found a competent witness following voir dire examination. She stated that the appellant, whom she knew by name as “Samson”, took her to his house, removed her inner pant and his trousers, lay on top of her, and covered her mouth when she wanted to cry. She stated that the appellant used his "thing that he uses to urinate" to do "bad manners" to “my thing that I use to urinate”, after which she reported the matter to her mother. 6.R.C.S. (PW2) was the complainant’s mother. She recalled that on 6th May 2014 at about 3:00 pm, she saw her daughter running out of the appellant's cottage while the appellant followed her. She stated that upon inquiry, the child told her that the appellant had removed her clothes and panty and done "bad manners" to her. She testified that she was shocked and did not confront the appellant straightaway but instead rushed the child to the hospital, where the defilement was confirmed. From the hospital, she went and reported the incident to the police. She confirmed that the appellant was her herdsman and a distant relative, and that her daughter was five years old, having been born in July 2008. 7.Silas Ruto (PW3) was a clinical officer at Kapsabet District Hospital.He stated that he examined the complainant on 6th May 2014 and found the labia majora and labia minora were slightly hyperemic, and the hymen was broken but not freshly torn. He concluded that there was partial penetration in the recent past, and produced the P3 form and treatment sheet as exhibits. 8.Augustine Lugonzo (PW4), an Inspector of Police, recalled that he received a report of the incident on 6th May 2014, took the child to hospital with a P3 form, recorded statements from witnesses, and sent officers to arrest the appellant at the home of the child at about 7:00 pm. PW5 testified that since the mother had no document showing the age of the child, he organized for the child to be taken for age assessment and it was established that she was 5 years old. 9.Danson Gichangi (PW5), the second clinical officer, recalled examining the appellant on 7th May 2014 at Kapsabet District Hospital. He confirmed that the appellant was in fair general condition and of sound mind, with all laboratory tests (urinalysis, VDRL, HIV) being negative. PW5 produced the appellant’s P3 form and treatment sheet as exhibits. 10.Corporal Peter Simiyu (PW6) recalled that while on night patrol on 6th May 2014 at about 8:00pm, he received a call from Sergeant Lugonzo requesting him to assist in the arrest of a suspect. He was then led by a contact to the appellant, where he arrested him from behind a shop and escorted him to Kapsabet Police Station. 11.The third clinical officer, Silas Lagat (PW7) testified that he assessed the age of the complainant on 27th May 2014 and concluded that she was not less than 7 years or more than 14 years of age. He therefore approximated her age to be 10 years. The witness produced an age assessment report and X-ray film as exhibits to back up his testimony. 12.In his defence, the appellant, who testified as DW1, stated that he was a herdsman at Kamobo working at the home of Francis and that on the material day he cut grass during the day. Later in the evening, at about 7.00pm, police officers went and arrested him at the trading centre. He denied defiling the child. 13.We heard the appeal on 3rd June 2026, with the appellant, who was self-representing, appearing virtually from Naivasha Maximum Security Prison, and learned Principal Prosecution Counsel, Mr. Okaka representing the respondent. The parties opted to rely on their already filed submissions. 14.In his submissions, the appellant argued that the trial court and the first appellate court erred by convicting him on an unamended charge sheet that alleged defilement of a 5-year-old child, despite the trial court making a factual finding that the child was 10 years old. He contended that this violated his right to be informed of the charge, with sufficient details to enable him answer it, as guaranteed under Article 50(2)(b) of the Constitution. He maintained that such variance rendered the conviction unsafe. 15.Turning to another ground of appeal, the appellant submitted that the two courts below improperly relied on the uncorroborated and highly fluid testimony of PW1 and PW2, which, according to him, bore hallmarks of coaching. The appellant referred to GK vs. Republic [2021] KECA 232 (KLR) for the proposition that mother and child evidence, without independent corroboration, invites suspicion. 16.The appellant challenged the medical evidence, submitting that the evidence of PW3 and PW7 conclusively ruled out acute or recent trauma because the hymen was "not freshly torn," thereby failing to establish actus reus on the date of the alleged offence. The appellant maintained that contradictions between the time of the commission of the alleged offence and medical findings adversely affected the prosecution case. 17.The appellant submitted that the learned Judge made a perverse finding by stating that the minor was 10 years old when the trial record shows that she said she was 5 years old. It was his argument that the first appellate court could not invent facts not on the record. 18.Finally, the appellant argued that the courts below shifted the burden of proof to him and failed to properly evaluate his alibi defence. 19.In opposition to the appeal, Mr. Okaka argued that whether the girl was aged 5 or 10 years was not fatal to the prosecution case as both ages fell within the statutory bracket provided in section 8(2) of the Sexual Offences Act. 20.Mr. Okaka rejected the appellant’s assertion that the evidence of PW1 and PW2 was uncorroborated, submitting that the evidence of the child (PW1) was corroborated by PW2 who saw her running out of the appellant's residence and that of PW3 who confirmed partial penetration. Additionally, counsel urged that penetration was proved by PW1's testimony and PW3's medical findings of hyperemia and partial penetration in the recent past. 21.According to Mr. Okaka, there was consistency in the child's testimony, and the trial court recorded reasons for believing her as required by section 124 of the Evidence Act. 22.Learned prosecution counsel argued that the learned Judge’s misstatement that the child said she was 10 years old was not fatal as the Judge was referring to the medical assessment report, and that the voir dire examination was properly conducted to assess competency. 23.Finally, Mr. Okaka submitted that the appellant's defence was a mere denial and did not shake the prosecution's cogent evidence. We were therefore urged to dismiss the appeal. 24.We have considered the grounds of appeal, the submissions and the record and find that the overarching issue is whether the charge against the appellant was proved to the required standard. 25.The appellant contended that the charge against him was not proved because whereas the charge sheet indicated the complainant’s age as 5 years, the trial court made a factual finding that the complainant was 10 years old. A perusal of the record shows that while PW2 stated the child was 5 years old, the medical assessment conducted by PW7 placed the age of the girl at approximately 10 years. It is trite that the victim's age is a critical element in defilement cases, as it determines the sentence to be imposed on the accused once convicted. However, it is not necessarily fatal to the prosecution if the age stated in the charge sheet is at variance with the evidence, provided the evidence adduced confirms that the age of the victim falls within the age bracket of the punishment provision. Even if the evidence adduced shows that the victim does not fall within the cited punishment provision, a conviction will still ensue, with the sentence adjusted to fall within the correct age bracket, so long as the victim was a minor (under 18 years of age) at the time of the defilement. In the instant case, the appellant was charged under section 8(2), which provides the sentence for defilement of a child aged 11 years or less. The medical evidence placed the complainant at approximately 10 years, while the mother stated she was 5 years. Both ages fall within section 8(2). Therefore, the age bracket under which the appellant was charged was correct, and the variance between 5 years and 10 years did not render the charge defective or prejudicial to the appellant. He was fully aware of the nature of the offence. This particular argument collapses. 26.Related to the foregoing argument is the appellant’s contention that the learned Judge erroneously stated that the minor said she was 10 years old while the trial record shows she said she was 5 years old. We have examined the record. The trial court record shows that the minor stated during her voir dire examination that she was 5 years old. However, there is nowhere in the judgment where the learned Judge stated that the minor "said she was 10 years". After highlighting the evidence and submissions of the parties, the learned Judge made her determination on the age of the victim at paragraph 21 of her judgment as follows:“The age was duly assessed and placed her in the category ranging between 5-10 years.” 27.Nowhere in her judgment does the learned Judge state that the minor testified that her age was 10 years. Her conclusion that the child’s age was 5 to 10 years was supported by the record; the child and her mother having testified that she was 5 years old, and PW7 having estimated the child’s age at 10 years, thus placing her within section 8(2) of the Sexual Offences Act. Even if the learned Judge had made the statement complained of in the judgment, the same would not have amounted to a fatal misdirection because whether the child was 5 or 10 years did not take the appellant’s case outside the punishment provided in section 8(2). We therefore find the appellant’s submission on this point to be misplaced and reject it. 28.On the argument that the voir dire examination was improper, we find that the procedure was conducted to determine the child’s competency to testify. The trial magistrate noted that the child understood the importance of telling the truth, regardless of her stated age. The trial magistrate assessed her intelligence at the time of testimony and found her competent. The answers given to the questions posed to the child by the magistrate are on record. Therefore, this procedural requirement was satisfied. 29.With respect to the appellant’s submission that the failure to amend the charge rendered his conviction fatally defective, we find that the absence of an amendment under section 214 of the Criminal Procedure Code does not automatically vitiate the trial where the variance is not substantive. The substratum of the charge remained the same: defilement of a child under 11 years. The appellant was thus not ambushed in his defence. Consequently, this ground fails. 30.Turning to the allegation that PW1 and PW2 were coached and their evidence was not corroborated, we observe that the proviso to section 124 of the Evidence Act provides that in sexual offences a court may convict an accused person on the uncorroborated evidence of the victim if the court is satisfied, for reasons to be recorded, the victim is telling the truth. The trial magistrate, having observed the child’s demeanor, found her to be a credible witness. PW2 saw the minor running out of the appellant’s room immediately after the incident. PW3 upon examining the child found evidence of hyperemia, which was consistent with recent partial penetration. 31.The argument that the child’s testimony was "too fluid" to be true is an argument that attacks the credibility of the witness. Credibility is a question of fact. The trial court, which had the advantage of seeing and hearing the witnesses, found the minor credible. The learned Judge re-evaluated the record in regard to this finding and concurred with the trial magistrate. The applicable legal principle is that this Court will not interfere with concurrent findings of fact unless they are perverse. 32.The appellant also contended that there was a "conspiracy" and "frame-up" between the mother and child. A perusal of the record does not support this statement, and we can only find the same to be speculative. The fact that PW2 did not immediately confront the appellant is not unnatural behaviour. Similarly, we find no merit in this ground of appeal. 33.The appellant also challenged the adequacy of the medical evidence to prove penetration on the material date. The record shows that PW3 testified that the hymen was broken but "not freshly torn." The appellant argued that this proved that the injury was old, thus ruling out any defilement on 6th May 2014. However, PW3 further stated that the labia majora and labia minora were "slightly hyperemic”, which, according to him, is a sign of inflammation. His conclusion was that there was partial "penetration in the recent past." The P3 form indicated the age of the injury to be two days old at the time of examination, which aligns with the date of the alleged incident. Penetration is defined in section 2 of the Sexual Offences Act as the "partial or complete insertion of the genital organs." The medical officer's finding of "tried" or "partial" penetration satisfied this legal definition. The absence of a freshly torn hymen does not negate penetration, especially where other clinical signs existed. We find that the medical evidence, alongside the testimony of the complainant, sufficiently proved penetration. 34.Finally, the appellant contended that the courts below shifted the burden of proof to him and disregarded his alibi defence and denial. We have reviewed the trial court's judgment. The trial court considered the appellant's defence and found it to be a "mere denial”. There is no indication in the record that the court shifted the burden of proof to the appellant. The two courts below correctly noted that the prosecution had established its case. The appellant’s claim of cutting grass during the day did not sufficiently dislodge the prosecution’s timeline on how the incident occurred. The incident occurred in the afternoon at the child’s home, and the appellant admitted he was working in that homestead. Therefore, the alibi was not exculpatory. 35.In the end, we find that this appeal to be without merit in its entirety. We therefore dismiss the appeal. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026M. GACHOKA C.Arb, FCIArb…………………………. JUDGE OF APPEALW. KORIR…………………………JUDGE OF APPEALL. M. NDOLO…………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR