https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11790

Momanyi v Republic (Criminal Appeal E008 of 2025) [2026] KEHC 11790 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11790 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E008 of 2025 NIO Adagi, J July 24, 2026 Between Francis Momanyi Appellant and Republic Respondent (Being an appeal from the conviction and judgment in S. O No. E021 of 2022 at the Magistrate’s Court at Kangundo delivered on 29/01/2025) Judgment 1.The Appellant Francis Momanyi was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 3rd June 2022 at [Particulars Withheld] ground in [Particulars Withheld] in [Particulars Withheld] Sub-county within Machakos County, intentionally and unlawfully caused his penis to penetrate the vagina of M.N (name withheld) a child aged 17 years old. 2.The alternative he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars are that on the 3rd June 2022 at [Particulars Withheld] ground in [Particulars Withheld]in [Particulars Withheld] Sub-county within Machakos County, intentionally touched the vagina of M.N (name withheld) a child aged 17 years old with his penis. 3.The Appellant pleaded not guilty to the main and the alternative charge and the matter was set down for hearing. The prosecution called five (5) witnesses in proving its case. 4.The Appellant gave sworn defence evidence and did not call any witness. 5.The trial court upon considering the evidence adduced, it convicted the Appellant of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and sentenced him to 15 (fifteen) years imprisonment on 29/01/2025. 6.Being dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal against both the conviction and sentence. The Appellant’s undated Petition is signed by the Officer In-charge, Machakos Main Prison on 10/02/2024 which raises three grounds of appeal as follows: - 1.That the learned trial Magistrate erred in matters of law and fact when she convicted the Appellant on contradictory, inconsistent and hearsay evidence. 2.That the learned trial Magistrate erred in matters of Iaw and fact by finding the accused person guilty notwithstanding that the prosecution did not prove their case beyond reasonable doubt. 3.That the learned trial Magistrate erred in matters of law and tact by failing to consider the Appellant's cogent testimony during defence hearing thus arrived at a conclusion contrary to the law and weight of the evidence on record. 4.That the learned trial Magistrate erred in matters of law and fact by failing to conclusively establish and prove ingredients of the offence of defilement. 5.That the learned Magistrate erred in law and in fact hy imposing on the Appellant a sentence that was unduly excessive in circumstance despite appellant's mitigation before the sentence. 6.That learned trial Magistrate erred in law and in fact when she convicted the Appellant only on the Complainant's uncorroborated testimony despite coming to conclusion that she cannot talk to the demeanour vis-a-vis her credibility because she did not have the benefit of seeing PWI the complainant. 7.That the learned trial Magistrate erred in law and fact by convicting the appellant on a general, speculative and vague evidence that fell short of specificity as to the act of penetration. Appellant’s submissions 7.The Appellant submits that the learned magistrate failed to properly weigh the defence or apply Section 124 of the Evidence Act in assessing credibility. Ultimately, the prosecution did not discharge its burden, and the benefit of doubt ought to have been accorded to the Appellant. 8.The Appellant cited section 124 of the Evidence Act which provides that;“Provided that where in criminal case involving a sexual offence the only evidence is that of the alleged victim 01 the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth " 9.Reference was made to the case of Kimani Ndungu Vs. Republic (1979) eKLR 282 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 She is not straight forward person to raise suspicion about his trustworthiness or do or say something which indicate that she is a person of doubtful integrity and therefore un reliable witness which makes it unsafe to accept his evidence” 10.It was submitted that in the present case the complainant’s evidence is speculative and lacks particularity as to what transpired. The complainant-PWI testified that the Appellant "raped her". She did not explain to the court with some degree of specifies as to what she saw and felt the Appellant do. Such evidence falls short of specifics and leaves the court to fill in gaps. Moreover, the statement "raped me" is not conclusive proof that penetration took place. That the evidence adduced by the prosecution does not meet the required threshold; that of beyond reasonable doubt. The same is internally inconsistent and inconclusive. The evidence of PW1 juxtaposed with that of PW5’s casts doubt as to whether penetration took place or not. Moreover, PW’5 phrase “indicates a recent sexual activity” was not explained medically or linked to the Appellant. PW5’s evidence and testimony taken in totality is speculative and illogical. That the trial court lowered the required evidentiary threshold by filling gaps in the prosecution case through inference rather than proof. The court failed to interrogate how penetration could occur without physical injury and yet still proceeded to convict. Moreover, the court failed to satisfy itself as to what the complainant meant by term “raped me”. 11.The Appellant further submitted that it is trite law that a victim of a sexual offence must describe the specifics of the act of penetration. This was the finding of this court in IMW v Republic [2024] KEHC 15434 (KLR) citing the decision in Julius Kioko Kivuva V Republic [2015] where the court held that: -“The complainant (PW1) testified as follows in this regard: The accused removed my pant and my skirt. I also had a black biker which he also removed. He did not use a condom. We had sex twice that night. We slept up to 9.00a.m the following day. PW1’s testimony in this regard was not specific as to the act of penetration; and her evidence of having sex does not necessarily prove that penetration took place, in the absence of further evidence and details as to what actually happened is the act of having sex. Evidence of sensory details, such as what a victim heard, saw, felt and even smelled, is highly relevant evidence to prove the element of penetration, as a victim’s testimony is the best way to establish this element in most cases. The specificity of this category of evidence, even though it may be traumatic, strengthens the credibility of any witness’s testimony, and is partially powerful when the ability to prove a charge rest with the victim’s testimony and credibility as it does in this appeal” 12.The Appellant submitted that PW1’s testimony lacked the specificity and alone could not be the basis of conviction. Such general and speculative testimony needs corroboration and the fact that the court stated that in terms of credibility of PW1, she could not talk to the demeanour vis-avis her credibility. The court ought to have found in favour of the Appellant. The conviction was therefore unsafe, based on speculation and material inconsistencies thereby occasioning miscarriage of justice. Respondent’s submissions 13.On the other hand, the Respondent opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion. That trial court was well within its jurisdiction and discretion to sentence the Appellant as it did. The sentence was within the law and thus legal. The Respondent urges this Court not to interfere with the sentence. The Respondent submits that the appeal lacks merit and ought to be dismissed in its entirety. Analysis and Determination 14.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 15.Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 16.In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows: -“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 17.In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:“Any appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate courts own decision on the evidence” 18.Having subjected the evidence to fresh and exhaustive re-examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, I find the following as issues for determination;a.Whether the prosecution proved its case beyond reasonable doubtb.Whether the sentence should be reviewed a. Whether the prosecution proved its case beyond reasonable doubt 19.It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller.vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 20.In this case, the Appellant was charged and sentenced for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. 21.The offence of defilement is provided for under Section 8 of the Sexual Offences Act. Section 8(1) provides that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. 22.To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients beyond reasonable doubt. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”. 23.Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task? 24.According to the Appellant the prosecution failed in this undertaking, whereas the Respondent is of a different view. i. Age of victim 25.PW1 the complainant testified in court on 16/3/2023. She did not say anything about her age. PW2- LNM was PW1’s mother. She only identified MFI-5 as PW1’s birth certificate but did not also state the name of the complainant. PW4, the Investigation Officer stated that she was given the birth certificate PExt.1 and PW1 was born on 04/7/2005. PW5, Dr. John Anyul, testified that the patient’s/complainant’s date of birth was 4/7/2005. The Birth certificate was produced showing the complainant was born on 04/7/2005. The defilement is alleged to have occurred on 03/6/2022. The complainant/victim was aged 17 years and 11 months old and therefore a child. Thus, the prosecution proved this ingredient of age beyond reasonable doubt. ii. penetration 26.On the ingredient for proof of penetration, penetration is defined under Section 2 of the Sexual Offences Act as follows:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 27.1 have considered the evidence tendered by the Prosecution witnesses as regards penetration in this case. The relevant evidence that touches on the alleged defilement is that of PW1, the complainant/victim, PW3, the Deputy head teacher at KC Secondary School and that of PW5, the Doctor. 28.PW1, the complainant testified that on 3/6/2022, she was going to school in a taxi. The taxi came early at 6.20am. That day it came early usually it comes at 6.30am. It is one person by the name Francis who ferries her to school. On reaching Joska, he diverted and said he was going for another client. PW1 stated that she was surprised he picked none and they went on. On reaching premier grounds he stopped and put on the child lock. He started touching PW1 on her breasts. She was on the co-driver’s seat. He adjusted her seat and tried inserting his hand on her breast and one button came off. He unbuttoned her skirt and raped her. He finished and took tissue and wiped her. He dressed up and they continued with the journey. He continued telling her that he loved her. When they reached Oasis, he got out and went to a chemist and bought medicine which he gave her and told her to swallow it but she didn’t. On reaching the school stage, he asked if she had water and she said she didn’t. He bought water and gave the watchman 200/= to buy mandazi for her. When she got to school, her skirt was messy and torn at the back. PW1 testified that “she” asked her why she was late and she told “her” she had been raped. She took her to the side and PW1 told her. “She” called PW1’s mother. She was taken to hospital and the matter reported. An Ambulance was called and she was taken to Mama Lucy Hospital. That a student who accompanied her was asked to go back to school not to miss classes. They passed by Kamulu police station to report and they were told the incident occurred in that area. The Appellant had carried her for close to one year. Police gave her a P3 Form MFI-P1 which was filled. At Mama Lucy Hospital she was given a bottle for urine collection, she was cleaned up. The doctor attending to her wrote treatment notes MFI-P2 and PRC Form MFI-P3. She wrote her statement at Joska police post. 29.On cross-examination she confirmed the Appellant had carried her close to a year and attended most family functions. He stopped at premier grounds where there was grass. He parked in the middle of the field and she could see premier school from far. She left home at 6.20am. Usually she gets to school at about 7.30am. He took 10 minutes to Joska. He pinned her on the chair, Passo is a small car. Her skirt zip is on the side and he tried unzipping it. He turned her to do it when the zip snapped, he lifted her skirt. He raped her and then wiped her with a tissue. It was painful and it was her first time. She cried. He didn’t mind that and strangled her. He had a rungu underneath his chair. She asked him why he held it at one time and she remembered he said it was for hitting someone if he knocked his car. He even injured her spine and she had to go for physiotherapy for two months. He continued touching her as they went on. He even proposed they go to his place she takes a bath but she refused. He had never bought her any food or drink before. Her mother had instructed him once in a while to give her Kshs.100/= fare send by her through Mpesa. She got late to school because the teacher shouted at her. He talked to the watchman telling him to give her Kshs.200/= he will send it on his phone. She registered at the gate that she had gotten to school. She explained to the teacher. She was messy. She called mum. She was supposed to be on her periods which had not started yet but the action led to the bleeding. PW1 was then stood down to allow the prosecution get her uniform. 30.When PW1 was recalled, she stated that she was in school uniform. She had a white blouse. As the Appellant was caressing her the button came off. The white blouse was marked as MFI-P6. She had a checked skirt whose zip was ripped out marked as MFI-P7. He stated that the Appellant defiled her. She had a blue pant marked as MFI-P8. He bought some drugs, emergency contraceptives marked MFI-P9. He also stopped and bought her a bottle of water marked MFI-P10 and a bottle of minute maid juice MFI-11. 31.On cross-examination she stated that the pant has dry blood. She confirmed to be knowing the Appellant. She stated that they had once picked “you” with Momanyi. Momanyi picked her from school before he came for “you”. You were at a salon. That happened before this instant case. So, you are a familiar face. She knew where he lives at Timber yard arch. This court finds it confusing to understand who this “you” and Momanyi was. 32.PW3, Morian Kangaillyod testified that she was a teacher at KC Secondary School. On 6/3/2022 he was the Deputy head teacher at KC Secondary School. At 7.00am, PW1, the complainant came to school late and found him outside the school. She did not display any concern or fear. She called out to him with some finger signs which was unusual. It was disrespectful but he decided to approach her. He saw a vehicle that had brought her to school, he could not recall the registration number but it was grey. PW1 told him that she was defiled by the driver. 33.On cross-examination he changed his earlier statement and testified that that morning PW1/complainant appeared disturbed and was crying. 34.PW5, Dr. John Anyul testified that he had a P3 Form which was filled by Dr. Farah who used to work at their facility on 3/6/2022 but he no longer works with them. He stated that he had taken over his work and duties and was familiar with his handwriting. 35.The Appellant’s Counsel objected to the witness being fit to produce the P3 Form. 36.In a brief ruling, the trial magistrate, Hon. D. N. Sure stated that he had perused the Evidence Act and the law is clear that when a maker of the document is unavailable, the document can be produced by the person in charge or who is familiar with it. That in this case and there are many files where Dr. Farah was expected to testify, they had received a written letter showing he was no longer at Mama Lucy hospital and that was a ground upon which she was to allow the witness to testify. However, this court notes that the said trial Magistrate failed to cite the relevant or applicable provision of the Evidence Act that she perused that guided her. 37.As per the P3 Form (PExb.1), the patient (PW1/complainant) reported that she was sexually assaulted. She was examined and the following was noted:-i.Stable conditionii.Estimated age 16 yearsiii.External genitalia normal with stick bloody discharge-recorded as mensesiv.The anal examination was normal Lab results i. Spermatozoa seen on high vaginal swab 38.PW5 further stated that he had the SGBV medical summary sheet that was drawn on 3/6/2022 at their facility. The patient’s date of birth is 4/7/2005 and was examined at her mother’s request. The sexual assault took place on 3/6/2022 at 6.40am at Joska by a known perpetrator who is a taxi operator and he usually took her to school but on this morning, he diverted to a deserted area when he locked the doors and windows and defiled her without a condom and wiped her with a tissue. He also stated that he had the PRC Form dated 3/6/2022 that was filled at their facility. The additional information is the state of clothing. She had a navy-blue sweater, navy blue and white tie, checked skirt with spoilt zip. She was given treatment and psychological counselling-PXt.3. He had the hospital attendance card. Dr. Farah’s finding was that spermatozoa were seen in the genitalia. There were no physical injuries. However, there was proof of recent sexual activities which may include penetration. 39.On cross-examination he stated that the blood is listed as menses. There were no lacerations or bruises. It is not recorded that the encounter was the first experience. If that was the first experience, there would be bruising and tearing or spermatozoa as in this case. The Appellant was not examined. Unless a DNA was done, it would be hard to associate the spermatozoa to anyone. From the report, I cannot tell if the girl (complainant/PW1) was a virgin or not. 40.Having re-evaluated the evidence on penetration, I have established that PW1(complainant- victim) went to the hospital for examination a few hours after the incident, the complainant stated that she got to school and her skirt was messy and torn at the back. She did not explain how her skirt was messy. PW3 stated that PW1 did not show any concern or fear but on cross-examination he changed his earlier statement and testified that that morning PW1/complainant appeared disturbed and was crying. This witness was not consistent. PW5 on the other hand stated that PW1’s checked skirt had a spoilt zip but did not mention any mess on the skirt. 41.PW1 also testified that the Appellant bought water and gave the watchman 200/= to buy mandazi for her. This court notes that the alleged watchman was not called as a witness to confirm that truly the Appellant gave him the said amount for that purpose and if he ever bought the same. 42.PW5 John Anyul testified that Dr. Farah’s finding was that spermatozoa were seen in the genitalia. There were no physical injuries. However, there was proof of recent sexual activities which may include penetration. This evidence of PW5 contradicts the evidence of PW1 that she was strangled by the Appellant and that she even injured her spine and she had to go for physiotherapy for two months. There was no evidence adduced to confirm that in deed the complainant’s spine was injured as a result of the alleged defilement and she had to undergo physiotherapy as alleged. 43.PW1 also testified that the Appellant turned her to do it when the zip snapped, he lifted her skirt. He raped her and then wiped her with a tissue. The complainant failed to describe the specifics of the act of penetration in this case. See IMW v Republic [2024] KEHC 15434 (KLR) citing the decision in Julius Kioko Kivuva V Republic [2015] (supra) cited by the Appellant in his submissions herein. 44.On cross-examination PW1 stated that her pant had dry blood. However, the examining doctor in his report listed the blood as menses. The examination did not connect the blood to the alleged defilement herein. 45.Whereas PW1 testified that the defilement was painful and it was her first time, PW5 testified that there were no lacerations or bruises. It is not recorded that the encounter was the first experience. If that was the first experience, there would be bruising and tearing or spermatozoa as in this case. The Appellant was not examined and that unless a DNA was done, it would be hard to associate the spermatozoa to anyone. From the report, PW5 could not tell if the girl (complainant/PW1) was a virgin or not. 46.In this case, according to Dr. Farah’s medical report, there were no lacerations or bruises noted on the complainant/victim’s vagina despite her being examined a few hours from the happening of the alleged defilement and PW1’s testimony that it was her first time. It would have been expected that freshly torn hymen, bruises or lacerations were to be noted on the complainant’s vaginal which was not the case in the instant case. 47.The Doctor, PW5 in addition testified that there was proof of recent sexual activities which may include penetration. It is undoubtful that PW5 was not sure whether penetration had occurred in the instant case and whether the complainant was a virgin or not. His evidence was speculative as it did not point to penetration as proof of recent sexual activities on the complainant. 48.PW5 further testified that the Appellant was not examined or tested for DNA on the spermatozoa seen on high vaginal swab. Him having testified that unless a DNA was done, it would be hard to associate the spermatozoa to anyone. Accordingly, in the circumstances of this case, this court finds that the Appellant was in no way linked to or associated with the spermatozoa obtained by the high vaginal swab. I fault the investigations in this case for the lapse in not taking the crucial step of conducting a DNA test on the retrieved spermatozoa in an attempt to link it to the Appellant. 49.This court therefore is of the considered view that PW1’s testimony lacked the specificity and the same alone could not be the basis of conviction of the Appellant. Such general and speculative testimony that penetration may have happened needs corroboration and the fact that the court stated that in terms of credibility of PW1, she could not talk to the demeanour vis-avis her credibility. The court ought to have found in favour of the Appellant and acquitted him. iii. Positive identification of the assailant 50.The ingredient of penetration above having not been proved, then automatically, proof of positive identification of the Appellant as the assailant equally fails despite him being known to PWI and PW2 by recognition. b. Whether the sentence should be reviewed 51.Upon conviction the Appellant was sentenced to serve 15 years imprisonment. 52.Section 8(1) are read with Section 8(4) of the Sexual Offences Act provides that:(l)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the fifteen and seventeen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 53.In Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law. 54.Had the ingredient of penetration been proved by the prosecution beyond reasonable doubt in this case, the law provides that upon conviction; the imprisonment should be for a term not less than 15 years, I would have upheld the Appeal and affirmed the sentence since the same as imposed by the trial court is lawful. 55.In the circumstances I am not satisfied that the prosecution proved its case beyond reasonable doubt before the trial court. Disposition 56.The upshot is that this appeal succeeds. The conviction is quashed. The sentence of fifteen (15) years is set aside. The Appellant is forthwith unconditionally set at liberty unless otherwise lawfully held. 57.The surety to be discharged and any cash bail deposited in court to be refunded to the depositor. 58.Orders accordingly. The file is closed. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 24TH JULY 2026NOEL ADAGIJUDGEDELIVERED AT MACHAKOS VIA TEAMS THIS 24TH JULY 2026In the presence of:Mr. Langalanga for the AppellantMs. Agatha Abang for StateMilly Grace -Court Assistant