https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11486

Mtongonya v Republic (Criminal Appeal E062 of 2025) [2026] KEHC 11486 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11486 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E062 of 2025 JN Njagi, J July 24, 2026 Between Charo Kahindi Mtongonya Appellant and Republic Respondent (Appeal from original conviction and sentence by Hon.J.S Wesonga, PM, in Malindi Chief Magistrate`s Court Sexual Offence Case No. E123 of 2024 delivered on 4/4 2023) Judgment 1.The Appellant was convicted of 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 diverse dates between 1st and 13th November 2024 at (name withheld) area in Malindi Sub County within Kilifi County, he unlawfully and intentionally caused his penis to penetrate the anus of A.C.P.(herein referred to as the victim), a child aged 6 years. 2.The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his amended grounds of appeal are that:1.The trial court erred in law and fact in failing to find that the prosecution did not discharge its burden of proof of proving the case beyond reasonable doubt.2.The trial court erred in law and fact in failing to find that the ingredients of the offence of defilement were not proved beyond reasonable doubt.3.The trial court erred in law and fact in failing to find that voire dire examination was not properly conducted in the case.4.The trial court erred in law and fact in failing to consider the appellant`s strong defence.5.The trial court erred in law and fact in failing to find that the sentence imposed was manifestly harsh, unjust and unconstitutional. Case for prosecution 3.The case for the prosecution is that the victim herein was at the material time a PP2 pupil aged 6 years. He was living with his parents. His mother was PW3 in the case. The Appellant is their neighbour. 4.It was the evidence of the victim PW1 that on a date he did not tell the court he was playing with other children outside their home when their neighbour whom they normally called Rasta, the appellant, called him to his house. He went there and the appellant put his dudu into his anus. That children who were playing outside heard what was going on and they called people. He was rescued from the house. The appellant was arrested by members of the public. He PW1 was taken to the police station. 5.A neighbour to the victim PW2 testified that on 13/11/2024 at around 4pm she sent her children R and H to the shop. That after some time R went back and reported that a man had called his brother into his house. That R took her to the house but he did not find H in the house of the said man. H then appeared and told her that the appellant had sent him to call the victim herein. That the victim then appeared. She questioned him and he said that the appellant had inserted his penis into his anus and given him Ksh.10/= to buy potatoes. She called other people and they escorted the appellant to the police station. 6.The mother to the victim PW3 testified that she was at the material time at work when she received a phone call from her husband who told her that their son had been defiled by the appellant. She rushed home and found many people gathered outside the house of the appellant. They took the appellant to the police station. 7.A doctor at Malindi sub county hospital PW4 told the court that the complainant was attended to at their hospital by a clinician called Ibrahim who found him with tenderness and pain on the anal orifice. The examining doctor completed the victim`s P3 form. From the examination the doctor formed the opinion that there was possibility of anal penetration. 8.The case was investigated by PC Walter Chenzo PW3 of Malindi police station. He said that the victim and his parents went to the police station and lodged a complainant of defilement on the victim. He issued the victim with a P3 form and sent him to Malindi sub county hospital for examination. He recorded statements of witnesses and visited the scene. He obtained the victim`s birth certificate that indicated he was at the time aged 6 years. The appellant was taken to the police station by members of the public. He had been assaulted and they took him to hospital. 9.During the hearing the investigating officer produced the victim`s birth certificate as exhibit, P.Exh.1.The clinical officer PW3 produced the treatment notes, the lab report and P3 form as exhibits, P.Exh.1 – 3 respectively. Defence case 10.The appellant when placed to his defence stated that he was a casual worker. That before the material day he had been engaged by the complainant`s mother to clean her house. He did so and charged her Ksh.500/=. She did not pay him. That sometimes in the month of November 2024 he was coming from work when he met with the victim. He asked him to remind his mother to pay his money. That later the victim went to his house with half of the money his mother owed him. He refused to take the money. The victim went away but after some time he went back with a mob. They accused him of being a thief, beat him up and took him to the police station. 11.The appeal was canvassed by way of written submissions. Submissions 12.The appellant submitted that the ingredients of the offence of defilement were not proved. The Respondent on the other hand submitted that the same were proved beyond reasonable doubt. Analysis and determination 13.This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 14.The appeal is based on the grounds that the case was not proved beyond reasonable doubt. 15.The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR. 16.On the element of the age of the victim, a birth certificate was produced that showed that the victim was born on 29/11/2017, which placed his age at the time of the commission of the offence in early November 2024 at 6 years. The age of the victim was therefore proved. 17.The appellant admitted that he is a neighbour to the victim and his family. He also admitted that the victim went to his house on the material day but said that it was only to bring him some money from his mother. The issue of identification of the appellant was therefore not in issue as he was well known to the victim. The issue is whether he penetrated the victim as alleged by the victim. 18.Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 19.It was the evidence of the victim that the appellant called him to his house and that on going there he inserted his penis into his anus. That children who were playing outside heard what was happening and informed their mother who called other people. That people including his uncle Brighton went to the house of the appellant and rescued him. 20.The woman who was called in the case PW2 said that she received a report from her daughter that her son H had been called by a man into his house. That she rushed out and the house her son entered was pointed out to her. She did not find her son in the house. Her son then appeared and said that he had been sent by the said man to call the victim herein. The victim then went to the place and upon interrogation he said that the man had inserted his penis into his anus and gave him 10/= to buy potatoes. 21.Whereas the victim PW1 said that he was rescued by people from the house of the Appellant, no witness was called to corroborate that evidence. The lady who went to the house of the appellant, PW2, said that she checked her son in the house of the appellant and did not find him there. Neither did she say that she found the victim in the house. The witness said that the victim came to where she was but she did not say that she saw him coming out of the house of the Appellant. How come then that none of the witnesses who rescued the complainant from the house of the appellant was called to testify in the case, not even the complainant`s uncle? 22.The trial court made a finding that the evidence of the complainant that he was penetrated was corroborated by medical evidence. The medical evidence adduced before the trial court indicated that the complainant had pain and tenderness in his anus. The doctor talked of there being a possibility of defilement having taken place. He did not give a categorical opinion on defilement. However, the trial court took the evidence as if the doctor had made a positive opinion on defilement. It is worth noting that there are other factors that can cause tenderness on the anus of a child and not necessarily defilement. There are deceases of the anus that can do so. I believe that that is the reason why the doctor qualified her opinion by stating that defilement was one of the possibilities that may have caused the tenderness. It was for the prosecution to prove by credible oral evidence that the tenderness was caused by penial penetration. The question then is whether there was credible oral evidence to prove defilement. 23.The neighbour PW2 said that the victim told her that the appellant after defiling him gave him Ksh.10/= to buy potatoes. The complainant never adduced such evidence and no such money was produced in court. 24.PW2 in her evidence stated that the incident took place at 4pm. The treatment notes indicate that the same took place at 7pm. The same indicate that it is the patient who gave that information to the medical person who attended to him at the hospital. The evidence contradicts that of PW2 that the incident took place at 4pm. The disparity in the time was not explained. This creates doubt whether the complainant was a credible witness. 25.The appellant was charged with committing the offence on diverse dates between 1st November and 13th November 2024. The complainant never mentioned any other incident apart from the one of 13/11/2024. It is only the investigating officer came up with information that the defilement took place on diverse dates. Where did he get that information from if the complainant never alluded to it in his evidence in court? 26.Section 124 of the evidence Act allows a court in defilement cases involving children to convict on the sole evidence of the complainant victim if the court is satisfied that the child is telling the truth and gives reasons for believing the evidence. 27.The trial magistrate in convicting the appellant relied on the evidence of the complainant, the evidence of PW2 and the medical evidence. The magistrate however did not consider the discrepancies I have identified above. Had he done so, I doubt that he would have returned a verdict of guilty. The reasons the magistrate gave for convicting the appellant were devoid of detailed reasoning. The evidence of the complainant was shaky and unconvincing. It was necessary for his evidence to be corroborated by some other independent evidence. There was no such evidence in the case. In view of lingering doubt on the credibility of the complainant there was no reason to believe his evidence that he was penetrated by the Appellant on the 13/11/2024 or any other day. There was no credible evidence to prove defilement. The appellant was entitled to the benefit of doubt. 28.In view of the foregoing, I find that the case against the appellant was not proved beyond reasonable doubt. Consequently, the conviction is quashed and the sentence set aside. I order the appellant be set at liberty forthwith unless he is otherwise being lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 24TH DAY OF JULY 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - R