https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1394

Maina v Republic (Criminal Appeal 114 of 2019) [2026] KECA 1394 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1394 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 114 of 2019 W Karanja, S ole Kantai & A Ali-Aroni, JJA July 3, 2026 Between Ibrahim Karuru Maina Appellant and Republic Respondent Judgment 1.The appellant herein was arraigned before the Chief Magistrates’ Court at Othaya, for the offence of defilement contrary to Section 8(1) of the Sexual Offences Act, as read with Section 8(3) of the same Act. It was alleged that on 30th December 2016 at [Particulars Witheld] Village, Othaya within Nyeri County, he intentionally and unlawfully caused his penis to penetrate the vagina of J.K.G., a female child aged 15 years. He was tried, convicted of the offence, and sentenced to serve twenty (20) years’ imprisonment. 2.Being aggrieved, the appellant moved to the High Court challenging his conviction and sentence on three grounds as summarized by the learned Judge. The learned Judge (A. Mshila,J.), after re-evaluating and analysing the evidence on record, found that the evidence tendered before the court proved the charge beyond reasonable doubt and that the sentence imposed on the appellant was lawful. She consequently dismissed the appeal against both the conviction and sentence. 3.Still aggrieved, the appellant has now filed this second appeal, which is predicated on four grounds contained in his homegrown undated memorandum of appeal. The learned Judge of the High Court is faulted for: upholding the conviction on the basis that the complainant was telling the truth; believing that the evidence of the prosecution witnesses was sufficient to convict; failing to consider the evidence of the clinical officer that there was no laceration noted on the minor’s external genitalia; and for rejecting the appellant’s defence. 4.In order to place the appeal in proper perspective, it is important that we revisit, albeit briefly, the evidence adduced before the trial court. In brief, the child, J.K.G., used to attend [Particulars Witheld] Secondary School as a day scholar, and she was in form one. On the date in question, she had been sent to the shops to buy paraffin. On her way back home, she decided to use a shortcut. On reaching the appellant’s employer’s gate, she found the appellant, who asked her where she was coming from, and she told him that she was from the shopping Centre. 5.She said that she continued on her journey home, but the appellant followed her, asking her why she was in a hurry. She started running, but the appellant grabbed her hand and pulled her back to his house, which was within his employer’s compound.She he screamed, but nobody went to her rescue, and the appellant defiled her. She went home after he released her, but she did not find anyone at home. She reported the matter to a female neighbour the following morning, who in turn informed the child’s father. 6.The matter was reported to Othaya Police Station, from where she was referred to Othaya District Hospital, where she was examined and given the necessary treatment. The clinical officer who examined her produced the P3 Form as exhibit before the trial court. The medical evidence confirmed that indeed the child had been defiled. She stated that she used to see the appellant from the time she was in class 6 but he was not her friend. He was, therefore, somebody she knew well before. 7.According to the investigating officer, Peterson Muriithi, attached to Othaya Police Station, the child gave the appellant’s name as the person who defiled her. The appellant was subsequently arrested and taken to the Police Station, where he was charged with the offence of defilement. 8.On being placed on his defence, the appellant gave a sworn testimony and called two (2) witnesses. He testified as DW 1 and stated that on 30th December 2016, he was in [Particulars Witheld] and used to work for Mr. Kibui as a farm worker looking after cattle, and had a co-worker named George. He stated that on the material day at around 1.00 pm, he was at Gitandara cutting nappier grass and was with George and Kibui’s wife, Lucy Wanjiru. He stated that they chopped the nappier grass up to 6.00 pm and he and George started milking the cows. He stated that he did not defile the child as he was away working. He stated he used to see the girl on the road but he did not know her name, but knew her home which was about 1 K.M. from where he used to work. He also knew the child’s father as he used to work for Kabui when the appellant was away on leave. 9.George Gichuki Gitandara and Lucy Wanjiru Macharia, the appellant’s witnesses, testified in similar vein. They stated that they knew the offence facing the appellant and that nothing like that happened on 30th December 2016 as they were with the appellant and did not hear any screams from anybody that night. 10.We heard this appeal virtually on 9th July 2025. The appellant appeared in person and relied on the undated written submissions that he had filed. Learned prosecution counsel Ms. Kaniu appeared for the respondent and also relied on her submissions. The respondent’s submissions are dated 7th July 2025. 11.In the written submissions, the appellant urged that the High Court erred by not taking into account the evidence presented by the clinical officer. It was contended that the question for determination is whether the finding by the clinical officer that the hymen was broken was conclusive enough to find that the appellant had committed the offence, in the absence of any supporting or other concurrent credible evidence. It was submitted that there was no evidence connecting the appellant to the alleged offence as the clinical officer said that the pregnancy test was negative. He did not mention any form of injuries and that no test was done to the appellant to clear doubt that he was the one who committed the alleged offence. 12.The appellant further submitted that he did not commit the offence as he was looking after cattle and was not at the place where the alleged offence was committed. He contended that in order to dislodge the alibi defence the prosecution should have evidence to place the appellant at the scene of the crime on the material date and time and that in the absence of such evidence the alibi defence is probable and casts doubt on the prosecution. He relied on Karanja -vs- Republic [1983] KLR. 13.With regard to the sentence the appellant submitted that the two courts below did not consider and record the rationale for sentencing the appellate to serve 20 years imprisonment. It was contended that the courts seemed to be in a rush to convict him without seeking a social inquiry report which would have formed a good basis for passing the sentence which he contends was prejudicial to him. 14.The appellant contends that both the conviction and sentence were erroneous and he urges us to overturn them and set him free. 15.In response to the appellant’s submissions, Ms. Kaniu, learned Prosecution Counsel maintained that the elements of the offence were proved. She stated that PW2 was a minor who after voire dire testified as to the occurrence of 30th December 2016 where she narrated in detail the circumstances leading to her defilement by the appellant. 16.Counsel submitted further that PW2 testified that the appellant was known to her as the worker of her neighbour, one Kibui, whom she had known since she was in class 6. It was contended that this was corroborated by PW5, who is the father of the victim, which is not disputed by the appellant, and as such that he was known to the minor prior to the incident through recognition. 17.Pertaining to the child’s age, it was submitted that the minor was found to be fifteen years old, which was attested to by the victim, PW1, PW5 and PW6. Her age was also proved through the birth certificate, which was produced in court as exhibit. 18.On the issue of penetration, it was submitted that the evidence revealed that the minor’s clothes; lesso and skirt were found to have blood stains and mud on them. It was contended that the medical examination captured on the P.R.C. and P3 Form indicated that there was blood present on the external genitalia, broken hymen and presence of blood and pus cells all an indication that there was sexual activity with the minor who was not capable of granting consent. 19.Counsel maintained that the victim’s testimony was sufficient to convict the appellant and that medical evidence is not necessary but supportive of the offence. Reliance was placed on Section 124 of the Evidence Act and the case of Kassim Ali -vs- Republic;Criminal Appeal No 84 of 2005 (Mombasa) Unreported for the proposition that the absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of the victim of rape or by circumstantial evidence. 20.On the appellant’s complaint that he was not subjected to medical examination to connect him to the alleged offence, counsel submitted that there is no legal requirement for the examination of an accused person in order to connect him to a case of sexual offence. It was submitted that Section 36 of the Sexual offences Act does not make medical examination of an accused person mandatory except where the court thinks it is appropriate in the circumstances of the case to subject the accused person to such examination. 21.As to whether the court rejected the defence by the appellant, it was submitted that the court was persuaded that the alibi evidence by the appellant did not dislodge the prosecution case and the same was sufficient enough to convict the appellant. 22.As regards the sentence, it was submitted that the appellant was sentenced to a term of twenty (20) years imprisonment which was neither harsh or excessive. Reliance was placed in Petition No E018 of 2023: Republic -vs- Joshua Gichuki Mwangi & 4 others (amicus curiae) eKLR for the proposition that the mandatory sentences be upheld in offences under the Sexual Offences Act. 23.We were urged to dismiss the appeal on both conviction and sentence. 24.This being a second appeal, our mandate as delineated by section 361[1][a] of the Criminal Procedure Code concerns matters of law, as issues of fact are deemed to have been settled in the two courts below. Thus, in Dzombo Mataza -vs-Republic [2014] KECA 831 [KLR] it was held that:“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court – see Okeno v Republic [1972] E.A. 32. By dint of the provisions of section 361[1][a] of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong. We do not discern such misgivings in this appeal.” 25.We have addressed our minds to the record and submissions by the parties within the parameters of our mandate as captured above. The two issues arising for our determination are whether the offence was proved beyond reasonable doubt; and whether the sentence was lawful. 26.The appellant was convicted under Section 8(1) and (3) of the Sexual Offences Act which states as follows:“8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed 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.” 27.Penetration is defined under Section 2 of the Sexual Offences Act as:“the partial or complete insertion of the genital organs of a person, into the genital organs of another person.” 28.The question on proof of penetration has been addressed variously by the courts. For instance, In Bassita -vs- Uganda S.C. Criminal Appeal No. 35 of 1995 the Supreme Court of Uganda held that:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims’ own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victims’ evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 29.The judgment of the first appellate court reveals that the court addressed the evidence and analysed the issue of the complainant’s age, penetration and whether the appellant was the perpetrator, before rejecting the appellant’s defence and coming to the conclusion that the offence of defilement was established and appellant proved to be the perpetrator. Those findings were confirmed by the first appellate court. 30.On our part we have similarly examined the evidence and found that the minor complainant testified how the appellant grabbed her from outside as she was walking home, took her to his house, and proceeded to have sexual intercourse with her for some time which the minor stated to have been twenty (20) minutes. The description clearly refers to insertion of the appellant’s genitals into her genitals. The evidence of the minor complainant was again consistent with that of PW1, the clinician who examined her and found that there was blood on the external genitalia with lacerations and that the hymen was freshly broken. There was, therefore, sufficient credible evidence that penetration had taken place. There were concurrent findings of fact by the two courts below on how the defilement happened and also on the issue of penetration. We are enjoined to defer to those concurrent findings of fact. 31.On proof of the minor’s age, there was the evidence of the minor who stated her age as 15 years; the evidence of her father who stated the age as 15 years and the birth certificate which confirmed that the child was 15 years old. We are satisfied that this was sufficient evidence to prove the age of the minor as 15 years. 32.The last element relates to the identification of the perpetrator of the defilement. The appellant was identified by the child who knew him well as he was a neighbour and she used to see him since she was in Class 6. The minor’s father also identified the appellant as a neighour. There was light and the two had even exchanged greetings and had a short conversation before the appellant pulled the child to his room. There was, in our view, no possibility of mistaken identity in this case, and the concurrent findings of the two courts below in that regard were properly arrived at. 33.The appellant’s other grievance was that there was no tangible medical evidence adduced to link him with the defilement of PW2. He also argued that medical examination was not conducted to link him to the defilement. In our view, such evidence was not necessary and, in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who had defiled her. 34.Addressing this issue, this Court in Kassim Ali v Republic Cr.App. No. 84 of 2005 (Mombasa) expressed itself as follows:“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” 35.Similarly, in Fappyton Mutuku Ngui -vs- R. [2014] eKLR, this court upheld the view that:“In our view, such evidence was not necessary, and in any event, the trial court found that there was sufficient medical evidence in support of PW- 2’s testimony, which was trustworthy as to the person who had defiled her.”See also A.M.L. -vs- Republic [2012] eKLR. 36.On the appellant’s complaint that the two courts below ignored his alibi defence, we note that the minor’s evidence as accepted by the two courts below squarely placed the appellant at the scene as the one who defiled her. It cannot, therefore, be said that there was no evidence that would link him to the crime. This ground of appeal is, therefore, baseless and is accordingly rejected. 37.We come to the conclusion that the first appellate court properly reconsidered and re-evaluated the evidence and came to the correct conclusion that the charge of defilement was proved to the required standard, against the appellant, and his alibi defence was properly rejected. We, therefore, reject all the grounds of appeal and dismiss the appeal against conviction. 38.As regards the sentence, it is noteworthy that the minimum sentence provided for defilement of a child aged between twelve and fifteen years under section 8(3) of the Sexual Offences Act, is the 20-year imprisonment. That was the sentence imposed on the appellant. The Supreme Court in Republic -vs- Mwangi;Initiative for Strategic Litigation in Africa [ISLA] & 3 Others [Amicus Curiae] [2024] KESC 34 [KLR] and Republic -vs-Ayako [2025] KESC 20 [KLR] has affirmed the constitutionality of the sentences as framed in the Sexual Offences Act. The sentence meted out on the appellant was the mandatory minimum sentence under the provision under which he was charged. It was, therefore, a lawful sentence. 39.The appellant’s challenge to the sentence is therefore without merit.Flowing from the foregoing, we find that this appeal lacks merit and is hereby dismissal in its entirety. 40.This judgment is delivered pursuant to Rule 34(3) of the Court of Appeal Rules, Kantai, J.A. being of a different opinion. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.W. KARANJAJUDGE OF APPEALALI-ARONIJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR