https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9050

Maina v Republic (Criminal Appeal E039 of 2025) [2026] KEHC 9050 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 9050 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Appeal E039 of 2025 LN Mutende, J June 23, 2026 Between George Wang’ombe Maina Appellant and Republic Respondent Judgment 1.George Wang’ombe Maina, the Appellant, was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act No 3 of 2006. The particulars being that on diverse dates between 4th and 5th day of December 2022 at [Particulars Withheld] village in Nyandarua North Sub County within Nyandarua County intentionally caused his penis to penetrate the vagina of MNM a child aged 15 years. 2.In the alternative he faces the charge of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars were that on diverse dates between 4th and 5th day of December 2022 at [Particulars Withheld] village, Nyandarua Sub county, within Nyandarua County intentionally touched the vagina of MNM a child aged 15 years with his penis. 3.He was taken through full trial, found guilty on the principle charge of defilement, convicted and sentenced to serve Twenty (20) years imprisonment. 4.Aggrieved he appeals on grounds that;a.That the learned trial magistrate fell into grave error of fact and law by finding conviction on heavily incoherent and contradictory evidence.b.That the learned trial magistrate completely misapprehended and misapplied section 124 of the Evidence Act and therefore occasioned a grave miscarriage of justice.c.That the learned trial magistrate erred in fact and the law by finding conviction against the Appellant when material witnesses namely Maureen, her mother, K, K Mama S and “boy child” were never availed in court and DNA test were not conducted on the spermatozoa found on the complainant and no explanation nor justification was offered to the court for the shortfall. All these occasioned a grave miscarriage of justice.d.That the learned trial magistrate fell into grave error of law and fact by abdicating her rule to evaluate and determine whether the complainant was a witness of truth and instead attributed such evaluation to the primary trial magistrate which was not factual nor correct and thus occasioned a grave miscarriage of justice.e.That the learned trial magistrate erred in both law and fact by failing to appreciate that the complainant was 15 years, 3 months and 12 days at the date of the alleged offence and that therefore no offence could have been proved against the appellant as charged under section 8(1) as read together with section 8(3) of the sexual offences act No 3 of 2006.f.That the learned trial magistrate erred in both law and fact in finding that the Appellant was the perpetrator for the offence herein when no evidence of recognition or identification was properly rendered in court.g.That the learned trial magistrate erred in convicting the Appellant and harshly sentencing him to 20 years imprisonment against the weight of evidence on record. This has occasioned a grave miscarriage of justice. 5.Briefly, facts of the case were that the Appellant was the complainant’s alleged friend. On the material date, the 4th day of December 2022, she left church and went to Gwa Kungu town where she encountered the Appellant who offered to give her a ride as his pillion passenger. Along the way he stopped the motor cycle at a thicket near her home, seduced her and violated her sexually. She requested him to take her home but he excused himself stating that he was going to fuel the motor cycle. In the result she spent the night where she was left and proceeded home the following day, but did not tell her parents what transpired. 6.Her father PW 2 DMN took her to the police station but she was uncooperative, she declined to say anything. Upon being taken to hospital it was established that she had engaged in sexual intercourse. He was taken back to the police station that is when she mentioned George as the assailant. 7.That on their way home they spotted the Appellant and informed PW 4 No.25xxxx PC Samuel Mwangi arrested him. PW5 No. 56xxx Corporal Joshua Mwongera investigated the case and caused the Appellant to be charged. 8.Upon being placed on his defence the Appellant denied knowing the complainant. He denied having defiled her. That he came to know the complainant in court, he was arrested without basis and no identification parade was conducted. And, that he did not record any statement to give his side of the story. 9.The appeal was disposed through written submissions. It is urged by the Appellant that no evidence was tendered that the Appellant was a friend to the complainant or that he was seen at Gwa Kungu Township with the complainant on the material day of 4th and 5th December 2022. That on being put under intense pressure by her father the complainant alleged that the aggressor was “kijana mwingine”. 10.That one Mama S who allegedly saw the complainant emerge from the bush near her home the following day was not called as a witness which leaves a lot to be desired about the veracity of the entire complaint. The medical evidence showed that though the hymen was broken it was old and there were no lacerations. That the alibi defence was questioned through cross examination. 11.That the time of the alleged incident was not clear in that the complainant claimed she was with the Appellant at 1.00 pm and on the other hand she said on 4.12.2022, she was at the cyber café with Rose, Elias, K, Francis K and Maureen at 7.00 pm then left for home after that. 12.On its part, the Respondent submits that the age of the child was proved to the required standard. On the ingredient of penetration, that medical documents showed that the complainant was on her menstrual period when she went to hospital on 6.12.2022, the hymen was old and perforated. Spermatozoa were seen when urinalysis was done and the trial court noted that scientifically, sperms survive in the body up to 72 hours which translates to three (3) days. This, it is argued, irrefutably proved that the complainant engaged in sex between 4th and 6th December 2022 which falls within the timelines of the alleged offence. 13.On identification, it is urged that the trial court convicted the Appellant based on the doctrine of recognition affirming that the victim’s identification of the Appellant was reliable despite investigative inconsistences and lack of formal identification parade. That while acknowledging gaps in the police investigations and additions in the complaint’s behavior, the magistrate found sufficient evidence to satisfy the Sexual Offences act regarding the appellant’s identity and the victim’s age. 14.This is a first appeal. The court is duty bound to re-analyze and re-evaluate afresh all the evidence adduced before the trial court so as to draw its own conclusion while bearing in mind that it neither saw nor heard witnesses testify. This duty was stated in Okeno v Republic [1972] EA 32 as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E. A. 424.” 15.The Appellant was alleged to have contravened section 8(1) (3) of the sexual Offences act No 3 of 2006, which provides thus;(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement(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 16.In the cited case of Mwareng v Republic [2013] KEHC 1353 (KLR), it was stated that:“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.” 17.The importance of proving the age of the victim as an ingredient of the offence of defilement was explained in Hillary Nyongesa v Republic, Criminal Appeal No 123 of 2009 (ELD) Mwilu J (as she then was) stated that:“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved. Anything else is not good at all. It will not suffice. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” 18.In the case, PW5 the Investigating Officer adduced in evidence a Birth Certificate for MN serial No (withheld). She was born on 23.3.2007. therefore, at the time of the alleged offence she was of an apparent age of 15 years. 19.On the question of penetration, it is defined by section 2 of the Sexual Offences Act as;“The partial or complete insertion of the genital organ of a person into the genital organ of another person”. 20.In Rugaizi v Uganda (Criminal Appeal 332 of 2016 (2005) UGCA 15, the court of Appeal emphasized that:“The trial court in its judgment rightly cited the case of Francis Omuroni v Uganda Court of Appeal Criminal Appeal No. 2 of 2000, wherein this court held thus;“In defilement case medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. Observation and common sense are relevant in cases where it is too obvious to everybody that the victim is a person below age by mere observation and common sense. It is only in circumstances where the victim’s appearance may not be sufficient to satisfy court and……………. that some kind of evidence should be adduced."The complainant testified as recorded thus; ““…He tried to seduce me. I requested him to put me on ground and defiled the (akafanya hio kitendo) ….” 21.On cross examination she stated that when she went home she didn’t tell anyone she was defiled and her mother told her to take a shower and do the dishes. But, when she was taken to hospital she told the doctor that she had been defied. 22.On examination it was found that the complainant was on menses hence there was bloody discharge. The genitalia was normal with an old hymen perforation. Further examination conducted showed presence of spermatozoa and pus cells. 23.In Wepukhulu Nguguli v Uganda SC Criminal Appeal No 21 of 2001, the Supreme Court of Uganda stated that penetration, however slight suffices to prove sexual intercourse. 24.In Bassita v Uganda SC Criminal Appeal No 35 of 1995 the Supreme court of Uganda stated that;“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s 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.” 25.In Kassim Ali v Republic Criminal Appeal No 84 of 2005 (MSA) the court stated 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 a victim of rape or by circumstantial evidence.” 26.Clearly, the victim herein was difficult in divulging what allegedly transpired, but circumstantial evidence proved the fact of presence of spermatozoa following the urinalysis test done. The presence of spermatozoa suggested recent exposure to the semen, a further suggestion of engagement in a sexual activity which was prove of penetration. As to the determination of the exact time of penetration there was need for accurate evidence by the complainant through oral testimony, but the evidence adduced was contradictory such that when exactly the act occurred could not be ascertained. 27.As to the identification of the perpetrator, the complainant stated that the Appellant was her friend. In analyzing evidence, the trial court stated thus;Admittedly, there appears to be something off with PW 1 testimony. She appears to have gone to the town with two friends and met with three others. They all left her and it does not add up why she did not leave the town sooner. If she claims she was left by the accused person about 500 meters away its strange that even out of fear of going back home, she would opt to spend a night in the thicket. She did not claim to have been beaten up or even threatened by the parents when she showed up the following day. She was simply taken to the police station because she had already been reported missing. The assertion that she was fearful of her father as the reason of her not going back home on the 4th becomes weak in the circumstances. It also begs the question how she would know the accused’s home. She appears to have deliberately left church and instead of returning home, gone to town and stayed there.Do these gaps make the evidence unreliable though? I do not find so. The court which took her evidence does not seem to have found her untruthful. I admit that it would have been helpful if the police would have interrogated the five friends and one of the friend’s mother to get accurate time line as to when PW 1 could have met the accused. However, she did not mention any of them as being the one she was defiled by to have the police look into them as suspects. The meeting especially with the male friends was established to have been in a public place, a cybecafe. The investigations could have been more thorough though.Should this shortcoming on the part of the investigators be to the detriment of the victims? I find not. The victim identified the accused person by name. she had been with him for a long while. She was able to describe what had transpired between them. The accused was arrested shortly after the alleged offence. Given the above I am satisfied that identification of the accused as the assailant was satisfactory. 28.Section 124 of the Evidence Act provides thus;"Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth." 29.Clearly, the trial court expressed doubts in its mind but nevertheless chose to believe the complainant. On 4.12.2022, according to PW 2, a parent, the complainant went to church and never returned home and upon return the following day she adamantly declined to tell her parent what happened that she did not come back home as expected. In her evidence in chief the complainant stated that when she left church at noon she met the Appellant who defiled her in a thicket. However, on cross examination, she stated that per her recorded statement, she went to the cyber café at 7.00 pm with a young lady where they were found by some two lads. She also stated that she went to Kidipa using a motor cycle where the rider was a ” boy child” To the doctor she said she was defiled by “ Another boy”. 30.In Joseph Ndungu Kimanyo v Republic [1979 eklr, the court of Appeal stated that;“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.” 31.The complainant was a witness who was not straight forward. She was not a credible witness. It was not possible to tell who defiled her. I say so because the investigating officer introduced in evidence the aspect of the complainant and the perpetrator having engaged in coitus beside the road and it was so muddy. The complainant alleges she slept in the bush and from there she retuned to her home. None of the witnesses talked of the place having been muddy. It is also inconsiderable that she slept in mud throughout the night and retuned home not covered in mud. 32.The complainant’s evidence could have been salvaged had the prosecution availed the alleged Mama S who allegedly saw her coming from the thicket to testify. As held in Bukenya v Uganda [1972] E.A, 549, failure to call the witness makes this court conclude that her evidence would have been detrimental to the prosecution’s case. 33.In the upshot, I find that the trial court misdirected itself in reaching a decision to convict the Appellant. Therefore, the appeal has merit, and; is allowed. The conviction is quashed and sentence set aside. The Appellant shall be released forthwith unless otherwise lawfully held. 34.It is so ordered DATED, SIGNED AND DELIVERED THIS 23RD DAY OF JUNE, 2026HON L. MUTENDEJUDGE