https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10963

Marangu v Republic (Criminal Appeal E007 of 2024) [2026] KEHC 10963 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10963 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Appeal E007 of 2024 CW Meoli, J July 16, 2026 Between David Gitari Marangu Appellant and Republic Respondent (Being an appeal against conviction and sentence in Ngong SPM’s S.O. Case no. E035 of 2021 - A. N Makau, PM) Judgment 1.The Appellant, David Gitari Marangu was charged in the main count with Defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act. In that on diverse dates between 10th and 15th March, 2021 at [Particulars Withheld] in Ongata Rongai township within Kajiado County, he intentionally and unlawfully caused his male organ (penis) to penetrate into female genital organs (vagina and anus) of F.N a child aged 15 years. 2.The alternative charge was Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He denied the charges and following a full trial, he was found guilty and convicted on the main count. He was consequently sentenced to serve twenty years imprisonment. Aggrieved by the conviction and the sentence the Appellant filed a petition of appeal, later amended, to raise the following grounds of appeal:‘’1. That, the charge sheet is defective.2.That, the learned magistrate erred in law and fact by convicting and sentencing me yet there are substantial contradictions and inconsistencies.3.That, the learned magistrate erred in law and fact by convicting and sentencing me yet the witnesses are incredible.4.That, the medical evidence relied upon are questionable, contradictory and admissible.5.That, the learned magistrate erred in law and fact by convicting and sentencing me yet key ingredients of the offence were not proved.6.That, the learned magistrate erred in law by ignoring my cogent defence.7.That, the sentence is illegal, harsh and excessive’’. 3.The appeal was canvassed by way of written submissions. By his submissions dated 9th October, 2025, the Appellant contended that the prosecution case was actuated by malice following the breakdown of his relationship with the complainant's mother, who allegedly fabricated the allegations against him. And that the trial court failed to properly evaluate his defence before convicting him. 4.Regarding the charge sheet, he asserted that it was defective because it was inconsistent with the evidence adduced at the trial. In so far as the dates of the offence per charge sheet vis-a-vis the evidence was concerned; that while the charge sheet and most prosecution witnesses alleged that the offence occurred in March 2021, the complainant testified that it occurred in May 2020. 5.Contending further that the complainant's allegations of anal penetration were contradicted by the medical evidence, which showed no anal injury, he cited Peter Ngure Mwangi v Republic [2014] eKLR and Yongo v Republic [1983] eKLR, and asserted that where a charge sheet was inconsistent with the evidence, the charge sheet was fatally defective and rendered the conviction unsafe. 6.He generally attacked the prosecution evidence as fraught with material contradictions regarding the date of the offence, the medical findings, the place where the complainant was examined, and the name appearing on the medical records. Which inconsistencies he claimed created reasonable doubt and undermined the prosecution case. Citing here Bakare v State (1987) 1 NWLR (Pt. 52) 579, M T G v Republic [2022] KEHC 189 (KLR) and Philip Muiruri v Republic, Criminal Appeal No. 76 of 2012. 7.The Appellant, zeroing in on the credibility of the individual prosecution witnesses, argued that their conflicting accounts rendered them unreliable, their evidence lacking credibility. The cases of Henry and Manning v Republic, Criminal Appeal No. 59 of 2011 and Kimani Ndungu v Republic [1979] KLR 282, were cited for the proposition that evidence of witnesses whose credibility had been seriously impeached ought not to be relied on. 8.Moreover, the Appellant dismissed the medical evidence as improperly admitted because the clinical officer who produced the PRC Form and P3 Form was neither the maker of the documents nor shown to have been sufficiently familiar with the handwriting and signature of the maker. Thus, the medical evidence was inadmissible and failed to corroborate the complainant's testimony. Citing the statement in Lonjerat Leura Dira v Republic [2008] eKLR and James Bani Munyoni v Republic [2010] eKLR, that medical documents should ordinarily be produced by their maker or in compliance with the provisions of the Evidence Act. 9.Concerning the ingredients of the offence, the Appellant argued that the prosecution failed to prove penetration or his identity as the perpetrator beyond reasonable doubt; that the complainant's testimony was unreliable and unsupported by credible medical evidence, thereby failing to establish the essential ingredients of defilement; and cited in support, Onyango v Republic, Criminal Appeal No. 155 of 2011 (Kisumu), concerning the necessity of corroboration. 10.The Appellant further complained that the trial court disregarded his defence that the complainant and her mother had left his residence in January 2021, and that he therefore could not have committed the alleged offence in March 2021. Asserting that the prosecution failed to rebut his defence or explain the inconsistencies in its evidence, he stated that the burden of proving its case beyond reasonable doubt lay with the prosecution and that any doubt should benefit the accused. As held in Ouma v Republic [1986] KLR 619, Uganda v Sebyala (1969) EA 204 and Pius Arap Maina v Republic [2013] eKLR, . 11.Finally, terming the sentence of twenty years imprisonment as illegal, harsh and excessive, he accused the trial court of failing to consider that the facts disclosed the offence of incest rather than defilement, to give credit for the period spent in remand custody under Section 333(2) of the Criminal Procedure Code, and ignoring his mitigating circumstances, including his responsibility towards his children. 12.He relied on MK v Republic [2015] eKLR, S v Holder 1979 (2) SA 70, S v Rabie 1975 (4) SA 855 (A) and S v Scott-Crossley 2008 (1) SACR 223 (SCA) in support of his argument that sentences should be proportionate and individualized. He therefore prayed that the appeal be allowed, the conviction quashed and sentence set aside, or alternatively that the sentence be reduced to the period already served. 13.In opposition to the appeal, the State through the Director of Public Prosecutions (Respondent) filed submissions dated 13th March, 2026. Dismissing the appeal as one devoid of merit the Respondent urged the court to uphold both the conviction and sentence. It was asserted that the Appellant was lawfully convicted for the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act after the prosecution proved its case beyond reasonable doubt. 14.Addressing the assertion that the charge sheet was defective, the Respondent submitted that it complied with the requirements of Section 134 of the Criminal Procedure Code, having sufficiently disclosed the offence and the particulars necessary to enable the Appellant understand the case facing him and prepare his defence. Here citing Yongo v Republic [1983] eKLR, where the Court of Appeal held that a charge is only defective where the evidence adduced at the trial varied with the offence or particulars disclosed in the charge. Hence, in the Respondent’ s view, the charge sheet in the present case conformed with the law and was not defective as alleged by the Appellant. 15.Concerning the ingredients of the offence, the Respondent pointed to the complainant's birth certificate, produced during trial, as establishing that she was fifteen years old at the time of the offence, thereby proving the age. Further refuting claims that the prosecution evidence was contradictory and inconsistent, the Respondent stated that the complainant's testimony clearly established that the Appellant had severally defiled her and that her testimony was corroborated by the medical evidence produced during the trial. Thus, the prosecution had discharged the burden of proving the offence beyond reasonable doubt and the Appellant's claim as to inconsistencies in the prosecution case and credibility of witnesses was unfounded. 16.In answer to claims that the Appellant’s defence was not considered, the Respondent stated that the Appellant was afforded an opportunity to cross-examine the prosecution witnesses and to tender his sworn defence. That the trial court having evaluated the defence alongside the prosecution evidence arrived at its decision. And hence, the Appellant's complaint that his defence was disregarded had no basis. 17.In summation, the Respondent submitted that the conviction was safe, the sentence lawful, and that none of the grounds of appeal had merit. Accordingly, the Respondent prayed that the appeal be dismissed in its entirety and that both the conviction and sentence be upheld. Analysis and Determination 18.The court has considered the submissions on this appeal and the entire record of the lower court. As the first appellate court, the court’s duty is to re-evaluate all the evidence adduced before the trial court with a view to arriving at its own independent conclusions. In Okeno -vs- Republic (1972) E.A 32, the Court of Appeal spelt out the duty of the first appellate court as follows:”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 finding and conclusion; 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 Vs. Sunday Post (1958) EA. 424.” 19.Three ingredients must be proved beyond reasonable doubt in a successful prosecution for the offence of defilement; namely, age of the victim, penetration, and identity of the perpetrator. 20.The prosecution case, through four witnesses, was as follows. SMK (PW1) was the mother of FN (PW2), who was physically disabled and aged 15 years old at the time of the offence, having been born on 28.10.2005 per birth certificate (Exh. 1). It was the evidence of PW1 that in the material time, she lived at Ongata Rongai and in cohabitation with the Appellant whom she described as her husband since 2016, and who was fending for the family. The couple lived with her children PW2 and a three-year-old son. She testified that she worked as a tailor, and that early on the night of 26.03.2021, she arrived home to find the Appellant showing her three-year-old son a pornographic video on his phone and asking him to name a woman's private parts. Upon reprimanding him, the Appellant allegedly retorted that pornography was everywhere. 21.After the Appellant left for work on the next day, PW1 spoke to PW2 about the incident, whereupon PW2 disclosed to her that the Appellant had also sexually assaulted her on several occasions by sucking on her breast and, on separate occasions, penetrating her vagina and anus, using threats and promises of gifts. Initially doubting her daughter, PW1 gave her a beating, but she maintained her revelation; and convinced, PW1 informed the Appellant's cousin, one Ken (a village elder), who took no action. She then resolved to escort PW2 to Nairobi Women's Hospital, where she was examined and found to have been defiled. The matter was reported to police at Kandisi Police Post. According to PW1, the alleged incident occurred between 10th and 15th March 2021. 22.Under cross-examination, PW1 confirmed that she and the Appellant had briefly separated on 11.1.2021, and that she resumed cohabitation with the Appellant in his residence on 14.2.2021 after he made amends. Recalled for further cross-examination, the witness stated that the defilement occurred while the family was living at the Appellant’s house at Kandisi, that he took advantage of PW1’s absence from home during working hours and the fact that the victim was physically handicapped, to perpetrate the offence. 23.PW2, the complainant was aged 16years during the trial. She narrated that she was a student at R. Academy at Ongata Rongai where she lived with her parents, PW1 and the Appellant the latter whom she described as her father. She described incidents in May 2020, when the Appellant defiled her by penetrating her vagina and anus with his penis while she lay on the bed, causing her pain and a wound to her anus. She narrated that the Appellant would also suck on her breasts, apply oil to her anus and vagina, stuff her mouth with clothes to stop her from screaming, and that this occurred on several occasions, always with instructions not to inform PW1, on promises of goodies. 24.However, she eventually confided in PW1, who took her to hospital, and that she began menstruating after the alleged defilement. She confirmed she reported the matter to police, who recorded her statement. Under cross-examination, she maintained her account, but stated that she could not recall the exact dates of the repeated assaults, and named another child, C, as having been present when one of the incidents occurred. 25.John Njuguna, a clinical officer, testified as PW3. To the effect that he worked at NWH where PW2 was attended by one Perminus Mungai, an erstwhile employee of Nairobi Women Hospital, on 29.3.2021. He stated that the relevant documents (PRC and GVRC forms) were originally completed by Perminus Mungai, a former colleague who had since left the hospital, and that he was familiar with Mungai's handwriting and signature, having worked with him in the clinical department for two years. The Appellant indicating that he had no objection, PW3 was permitted by the court, pursuant to Section 77 of the Evidence Act, to produce the P3 and PRC and GVRC forms on Mungai's behalf (Exh.2, 3 and 4). 26.He testified that the complainant’s name had initially been erroneously recorded as MMG but this was later corrected to FN on the GVRC and PRC forms. He stated she alleged defilement by her father in March 2021 but could not recall the exact date. Examination revealed her to be calm, with no physical injuries, with normal external genitalia but the hymen was perforated with an old scar, and while she tested negative for STI and pregnancy, she had vaginal candidiasis (infection). 27.During cross-examination, he confirmed the absence of spermatozoa, that no age assessment was conducted and that the offence dates stated in the P3 form had been inserted based on information from Kandisi Police Post. 28.PC Deborah Kerubo Morang'a (PW4 ) attached to Kandisi Police Post, testified that she was instructed to investigate the case on 29.3.2021; that she recorded the complainant's statement, in which the complainant stated that the incident occurred in March 2021 but could not recall the exact dates, and alleged that the Appellant penetrated her anus and vagina with his penis, threatened her to remain silent, promising her goodies; and that she referred the complainant to Nairobi West Hospital, in the company of her mother, where she was treated and discharged. 29.She further visited the scene, and confirmed that the Appellant and complainant lived together in the same house, and thereafter arrested the Appellant. She obtained and produced the complainant's birth certificate (Exh. 1) confirming she was 15 years old at the time of the alleged offence. 30.In cross-examination, PW4 confirmed the Appellant was arrested alone at the house, that he was husband to PW1, that the complainant's clothes and the Appellant’ s personal items were found in the same house, and that the complainant stated that the Appellant had instructed her not to reveal the defilement to anyone . 31.At the close of the prosecution case, the trial court ruled that the Appellant had a case to answer and proceeded to place him on his defence. Electing to give sworn evidence, the Appellant testified that he was 43years old, worked as a mason and carpenter, and had purchased a plot in Kandisi. Claiming his date of arrest as 4th March 2021 he stated that police officers visited his home and questioned him about alleged theft of Kshs. 200,000/- belonging to PW1; that police demanded Kshs. 45,000/- from him, and that he was coerced into signing a statement he had not written. 32.He denied committing the offence, stating that as a 43-year-old man he had never contemplated defiling a young girl. Further explaining that PW1 had been like a wife to him but that the mother PW2 was PW1’s sister, while denying that he was step-father to PW2. Adding that he had intended to marry PW1, but the relationship with her ended in 2020 after he discovered she had another boyfriend. He then built a home at Kandisi and married someone else. 33.He claimed that on 7.3.2021, PW1, her sister, PW2, and two men approached him demanding money he allegedly owed them, and threatening to take adverse action concerning his plot if he failed to pay up. He was subsequently arrested and framed in a scheme hatched by PW1 in order to take his plot. 34.Under cross-examination by the prosecution, he confirmed his relationship with PW1 between 2015 – 2020, denied knowing she had children, and stated that he had never lived with PW1 and any children, including PW2 whom he disclaimed as a step-daughter. He said that PW1 had loaned him money to purchase his plot at Kandisi where he settled with his new wife, upon ending his relationship with PW1 in 2020; that initially during their relationship he lived at Ongata Rongai and had only visited the home of PW1 at Kware but did not cohabit with her. 35.There was no dispute that the Appellant and PW1 were involved in a romantic relationship from 2016 and that the Appellant was known to PW2. This appeal turns on the question whether the prosecution proved its case beyond reasonable doubt. 36.But first, the court proposes to deal with the objection taken by the Appellant to the effect that the charge sheet before the trial court was defective. The charge sheet alleged that the offence occurred "on diverse dates between 10th and 15th March, 2021." The testimony of PW1, PW3 and PW4 was consistent with this timeframe, save for imprecision as to the exact date, which is unsurprising given that a young child especially one who may have suffered trauma may struggle to recall precise dates of traumatic events occurring over a period of abuse by significant others, as appears to be the case here. 37.PW2 herself referred to May 2020 as the period when the abuse began, but her narrative, read as a whole, describes conduct that was repeated "on several occasions" and continued into March 2021, which is the period of the charges. A charge sheet is defective when it is at such variance with the evidence that the accused is embarrassed in his defence or convicted of an offence not disclosed by the evidence. 38.In Jason Akumu Yongo v Republic [1983] eKLR the court of appeal held that,‘’In our opinion, a charge is defective under Section 214(1) of the Criminal Procedure Code where—(a)it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge, or because it charges offences not disclosed in such evidence, or fails to charge an offence disclosed by that evidence; or(b)it does not, for such reasons, accord with the evidence given at the trial; or(c)it gives a misdescription of the alleged offence in its particulars." 39.In this case, the Appellant evidently understood the charge, cross-examined all witnesses on the material dates, and mounted a defence directly addressing the March 2021 timeframe. The variance between when the abuse began, as opposed to the dates when the specific charged incidents occurred, without more, does not render the charge sheet defective. As described by PW1, there were several repeated incidents of defilement in the material period. Nothing turns on the complaint that the Appellant ought to have been charged with the offence of incest; he was evidently not PW2’s biological father, nor considered himself her putative father although PW2 regarded him as such. No prejudice was shown to have been occasioned to the Appellant by the fact that the prosecution opted, and correctly, in the court’s view given the circumstances of the offence, to prefer the charges of defilement rather than incest. The first ground of appeal must therefore fail. 40.The Appellant also highlighted discrepancies regarding the hospital where the complainant was treated, the initial recording of her name as MMG before correction to FN, and the precise date of onset of the abuse. On the second issue, PW3 clarified the name was corrected upon verification. As to the former issue, the handwritten notes of PW3’s evidence at the trial indicate that he introduced himself as a clinical officer and employee of NWH and was testifying on behalf of a former colleague who had left NWH. The documents he produced (Exh.2-4) bear the name of Nairobi Women Hospital and stamp. PW1 also testified that she took the complainant to Nairobi Women Hospital for treatment where according to PW4 she was referred, folllowing her revelations of sexual assault. 41.The typed record of the trial proceedings relating to the evidence of PW3 in one instance erroneously translated the initials NWH therein to represent Nairobi West Hospital but in reference to the colleague named by PW3 correctly reproduced the name Nairobi Women Hospital from the same initials. Clearly the first reference is in light of other evidence, a typo which cannot undermine the substance of the medical records themselves and findings therein, which were not seriously challenged. 42.In proving defilement, the prosecution was duty bound to prove three ingredients, namely, penetration, the age of the victim, and the identity of the perpetrator, beyond reasonable doubt. As to age, the complainant's birth certificate (PExh.1) was produced and was not seriously challenged, establishing that the minor was 15 years old at the material time. As to penetration, PW2's direct and consistent testimony was that the Appellant on several occasions had penetrated her vagina and anus with his penis as corroborated by the medical finding of a perforated hymen. The absence of a fresh anal injury does not disprove anal penetration; medical evidence is not the sole determinant of this element where the direct testimony of the complainant is cogent and credible, particularly given the time lapse between the last incident and the medical examination. 43.The Appellant’s contention that PW3 was not the maker of the PRC and P3 forms and ought not to have been permitted to produce them does not hold any water. The court record indicates that the court granted leave to PW3 under Section 77 of the Evidence Act to produce the documents on behalf of Perminus Mungai, his former colleague of two years whose handwriting and signature he professed familiarity with; after the Appellant stated that, he had no objection at the time. The authorities he cites, namely, Lonjerat Leura Dira v Republic and James Bani Munyoni v Republic do not aid his cause as no objection was raised at trial when the documents were produced. It is too late for Appellant to raise the objection for the first time on appeal, and without demonstrating resulting prejudice. 44.The medical evidence proving perforated hymen with an old scar and vaginal candidiasis was firm corroborative evidence of penetration, even if it does not conclusively establish the precise date of penetration. 45.As to the identity of the perpetrator, the complainant was admittedly familiar with the Appellant as a person cohabiting with her mother in the same house, or at worst, a lover to her mother and admittedly a frequent visitor to their house. The Appellant in his defence admitted such a relationship but claimed that PW1, out of sore grapes following his abandonment of his relationship with her had instigated trumped up charges against him. While this claim was never put to PW1 during cross-examination, there appears to be no plausible reason for PW2, a child, to give false evidence against him. Besides, PW1 maintained that although she and the Appellant had briefly separated on 11.01.2021, cohabitation had resumed on 14.02.2021 after the Appellant apologised. 46.The substance of the PW2’s account that the Appellant defiled her repeatedly at the shared house that was her home was consistent and was corroborated by her disclosure to her mother upon being informed about the pornography incident, and by the subsequent medical examination. A child of the complainant's age is not held to the same standard of precision as an adult witness, and the trial court, having had the advantage of observing her demeanour, was entitled to find her a credible witness, as it did, and invoking the proviso to Section 124 of the Evidence Act. On its own evaluation of the evidence, this court defers to that finding by the trial court, which had the advantage to hear and see the minor witness testify. It is trite that not every contradiction is fatal to the prosecution case; only material contradictions going to the root of the evidence will vitiate a conviction. No such contradictions have been demonstrated here. 47.The trial court, in convicting the Appellant, correctly rejected his defence, and this Court, on its own re-evaluation of the record, finds no basis to disturb that finding. The Appellant's defence in light of the prosecution evidence sounded contrived at best, or an afterthought at worst, raising as it did a myriad of contrasting allegations for the first time in the trial. 48.For instance, allegations that he had borrowed money from PW1 to buy his Kandisi plot, that prior to his arrest PW1 in the company of other persons had stormed his home and threatened to deal adversely with his plot if he did not pay, that she had accused him of stealing Kes. 200,000/- from her and that PW1 instigated the case in order to get even with him for leaving her, or because he owed her money. The trial court properly considered and rejected the defence; it was displaced by the prosecution evidence. In the circumstances, the court finds that the charges against the Appellant were proved to the required standard and his defence was properly dismissed. His conviction was well founded. Grounds 2 to 6 of the appeal are without merit and must fail. 49.Finally, concerning the sentence, the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, attracts a minimum sentence of twenty years imprisonment. The sentence imposed by the trial court was the cumulative statutory minimum and cannot be said to be illegal, harsh or excessive. 50.The Court of Appeal in Dismas Wafula Kilwake v Republic [2019] eKLR stated regarding section 8 of the Sexual Offences Act:“In Hadson All Mwachongo v. Republic (2016) eKLR, this Court stated as follows regarding the sentences prescribed by the Sexual Offences Act:"The Sexual Offences Act provides for punishment for defilement in a graduated scale. The younger the victim, the more severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment is imprisonment for life. Defilement of a child of 12 years to 15 years attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment." 51.Section 333(2) of the Criminal Procedure Code which the Appellant has invoked requires the trial court to take into account time spent in custody prior to sentencing a convicted offender. In this case, the Appellant was arrested on 3.04.2021 and remained in custody until sentencing on 20.04.2023, a period of two years. The trial court considered the mandatory sentence of 20 years imprisonment prescribed in Section 8(3) of the Sexual Offences Act before stating as follows in its notes on sentence:”The accused has been in custody for two years. As such, he is sentenced to serve imprisonment for a term of 18 years.” Hence, the trial court was hence alive to and complied with the provisions of Section 333(2) of the Criminal Procedure Code. The Appellant’s complaints regarding the sentence are therefore without basis. 52.Consequently, the court is of the considered view that the appeal against conviction and sentence is without merit. Accordingly, the appeal is hereby dismissed. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 16TH DAY OF JULY 2026C.MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaAppellant: PresentC/A: Lepatei