https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9078

Makori alias Ben v Republic (Criminal Appeal E017 of 2026) [2026] KEHC 9078 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9078 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E017 of 2026 DR Kavedza, J June 29, 2026 Between Benedict Mageto Makori alias Ben Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 29th January 2026 by Hon. Kahuya (IM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E033 of 2025 Republic vs Benedict Mageto Makori alias Ben) Judgment 1.The appellant was charged with 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 the 30th day of June 2025 in Kibra Sub-County within Nairobi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of LBW a child aged five (5) years. 2.After full trial, the appellant was convicted by the Subordinate Court of the offence of attempted defilement contrary to section 9(1) and 9(2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve ten (10) years imprisonment 3.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted, stating that the ingredients of the offence were not proven beyond reasonable doubt. He contended that the learned magistrate erred by disregarding the fact that the prosecution evidence was marred with inconsistencies and contradictions. He urged the court to quash his conviction and set aside the sentence imposed. 4.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 5.The prosecution availed five (5) witnesses in support of their case. PW2, LBW gave a sworn evidence after a voir dire testimony. She averred that as she was playing with two of her friends, when the appellant who was her neighbour beckoned her into his house that she may prepare their lunch. When she declined, he pushed her onto his bed, touched her vagina and promised to pay her a shilling. She firmly resisted, upon which he pulled out his penis before her eyes, proceeded to urinate in a basin and eventually let her go while cautioning her to remain silent. 6.PW2 proceeded to narrate the ordeal to PW1, OB, her mother. PW2 averred that as her daughter was in the appellant’s house, she screamed, alerting the neighbours who then dragged the appellant person outside and administered mob justice on him. She afterwards reported the incident to Ayani Police Post where she obtained a P3 form and sought treatment from Mbagathi Hospital. She stated that after she confronted the appellant on the matter leading to the violence meted on him, he reported her to the police station for assault which led to her arrest. PW1 and PW2 positively identified the appellant in court. 7.PW3 Inspector Korir, the investigating officer testified that on 30th March 2025, PW2 arrived at the station accompanied by her mother in order to report the complainant’s alleged defilement. He discovered that the appellant was undergoing treatment at Mbagathi Hospital after being lynched. Further, he established that the complainant was five years old based on her immunization card which he produced in court. 8.PW4, Dr. Sarah Adanjee upon examination of PW2 stated that there was absence of blood stains or perennial tears on her private parts, for which she produced her P3 Form and treatment notes. 9.At the close of the prosecution case, the trial court was satisfied that the prosecution had established a prima facie case. The appellant was then placed on his defence. He averred that on the material day, he was resting at home when he realized he had left his keys at work. Upon retrieving the keys as he was on his way back home, PW1 the complainant’s mother approached him, alleging that he had defiled her daughter, which led to mob justice. Following this, he reported the lynching occurrence to Kibera Police Station for which PW1 was arrested. Later on, she was released on cash bail and she was arrested instead. 10.To succeed in a prosecution for defilement, it must be proven that the accused committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 11.Further, section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8.Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 12.In the instant case, however, the evidence adduced by the prosecution fails to prove the element of penetration which is an essential ingredient in the offence of defilement. The testimony of the complainant was corroborated by the medical evidence by PW4 the medical officer, where upon examination the complainant’s vagina was found to be normal as there was absence of blood stains or perennial tears as indicated in her P3 Form and treatment notes. 13.Nonetheless, the Subordinate Court relied on the provisions of section 179 of the Criminal Procedure Code. The aforementioned section permits the court to convict an accused person of a lesser offence where a combination of some of the particulars of the offence he was charged with, constitute a minor offence other than that which he was charged with. 14.The Court of Appeal in Robert Mutungi Muumbi v Republic [2015] eKLR outlined two elements brought out under section 179 as stated below;“To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the charge, constitute the minor offence. Secondly, that the major charge has given the accused person notice of all the circumstances constituting the minor offence of which he is to be convicted.” 15.For the elements of attempted defilement to be met, the evidence adduced should prove beyond reasonable doubt that the appellant attempted to commit an act which would cause penetration with a child. The lower file record indicates that the appellant had thrown the complainant onto his bed, invasively touched her vagina and even showed her his penis. His intention to defile the complainant is evident, regardless of the fact that the defilement did not occur. 16.The element of identification was rightly resolved since the complainant had interacted with the appellant who was her neighbour. He was also positively identified by the complainant’s mother PW2 and the complainant’s friend PW5. Additionally, the age of the complainant was settled by virtue of her immunization card as produced by the investigating officer PW3. 17.On this premise, the evidence proffered before the court suffices in light of the elements of intention, the complainant’s minority and the appellant’s identity. Consequently, the appellant’s conviction is affirmed. 18.Regarding the sentence, the appellant was sentenced to serve ten years imprisonment. During sentencing, the court considered the pre-sentence report and exercised discretion. In the premises, I see no reason to interfere with the sentence. 19.In the end, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE 2026 ______________ D. KAVEDZAJUDGEIn the presence of:Appellant PresentMs. Otiya for the RespondentKarimi Court Assistant.