https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6439

Murage v Republic (Criminal Appeal E057 of 2024) [2026] KEHC 6439 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6439 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E057 of 2024 AK Ndung'u, J May 14, 2026 Between Gibson Gitonga Murage Appellant and Republic Respondent (Being an Appeal from the sentence and conviction delivered in Nanyuki CMCCRC (SO) No. E002 of 2023 delivered by Hon. V.M. Masivo (SRM) on 23/08/2024) Judgment 1.The Appellant 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 were that on diverse dates between the 25th day of September, 2023 and the 9th day of October 2023, at [Particulars Withheld] of Kirinyaga West Sub-County within Kirinyaga County within the republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of TAE a child aged 17 years old. 2.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars were that on the same dates, at the same place, he unlawfully caused his penis to touch the vagina of TAE a child aged 17 years old. 3.The Appellant pleaded not guilty and the matter proceeded to full hearing where the prosecution called four witnesses. The Appellant was then placed on his defence, tendered unsworn testimony and opted to call no witnesses. By judgment delivered on 23rd August 2024, the Appellant was convicted and vide the ruling delivered on sentencing on 26th August 2024 sentenced to serve fifteen years imprisonment. 4.Being dissatisfied with the decision of the trial court, the Appellant instituted this Appeal against the conviction and sentence on the following grounds of Appeal vide a Petition of Appeal dated 30th August, 2024.1.That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution did not prove their case beyond any reasonable doubt.2.That the learned trial magistrate erred in matters of law and fact by failing to note that proof of penetration had not been conclusive in the instant case.3.That the learned trial magistrate erred in matters of law and fact by convicting the Appellant without appreciating that the Complainants birth certificates had discrepancies on record thus failing to prove her age which is an ingredient of defilement and therefore age was not proved as provided by law.4.That the learned trial magistrate erred in matters of law and fact by failing to appreciate that the medical evidence failed to support a recent act of penetration on PW1.5.That the learned trial magistrate erred in matters of law and fact by convicting and sentencing the Appellant without appreciating that the circumstantial aspects of the case favoured to be afforded the defence under section 8(5) as read with section 8(6) of the SOA.6.That the learned trial magistrate erred in matters of law and fact by quashing the Appellants’ defence without cogent reasons.7.That the learned trial magistrate erred in matters of law and fact by convicting and sentencing the Appellant without appreciating that PW1 was already an adult who was already working as a house girl as per proceedings and that no evidence was adduced on her attendance to any school.8.That the learned trial magistrate erred in matters of law and fact by failing to note that the sentence meted upon the Appellant was manifestly harsh and exorbitant. 5.The Appeal was canvassed by way of written submissions with the Appellant filing handwritten submissions and the respondent filing submissions through state counsel Clinton Muntui. Appellants’ submissions 6.The Appellant submitted that he wished to Amend his memorandum of Appeal pursuant to section 350 (2) of the penal Code and wished to rely on the following grounds;1.That the learned trial magistrate erred in matters of law and fact by failing to note that the medical evidence failed to support a recent act of penetration on PW1.2.That the learned trial magistrate erred in matters of law and fact by failing to comply to section 124 of the evidence act.3.That the learned trial magistrate erred in matters of law and fact by convicting and sentencing the Appellant without considering that the Appellant was not taken for medical examination. 7.The Appellant reproduced the evidence in the trial court and cited section 2 of the Sexual Offences Act on Penetration, and posed the question as to how the clinical officer was able to examine the complainant and come up with a clear result, if the last sexual intercourse was a month before the examination. He urged that the complainant was not a virgin and therefore, it was not proved that the Appellant was responsible for the penetration. The Appellant placed reliance on the case of PKW vs Republic (2012) eKLR and urged that the missing of the hymen is not conclusive evidence of penetration. 8.The Appellant cited section 124 of the evidence act and urged that the trial court shifted the burden of proof to the Appellant. As such, the prosecution failed to prove its case beyond reasonable doubt. Reliance was placed on the case of Ramanlal Trambaklal Bhatt vs Republic 1957 EA 358. Additionally, he urged that the trial court failed to consider the Appellants’ defence and that the Prosecution evidence lacked credibility, was inconsistent and could not sustain the burden of proof. He reiterated that the prosecution failed to prove its case to the required standard and prayed that the Appeal be allowed. Respondents’ submissions 9.Learned Counsel for the state submitted that the prosecution’s case was proved beyond reasonable doubt. He urged that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. That these ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. (See George Opondo Olunga vs. Republic [2016] eKLR). 10.Counsel urged that the first element is age, citing the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR in this regard. He also urged that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. Further, that Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. Counsel posited that there are various ways which can be used to prove a victim’s age as held in Mwalengo Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR). He urged that in the present case birth certificate marked Pexhibit-3 indicated that she was born on 6/04/2006. She was therefore 17 years old at the time of the offence. This dispenses with the first ingredient as adequately proven. 11.On Penetration, Counsel cited Section 2 of the Sexual Offences Act and urged that the same is proved through the evidence of the victim corroborated by medical evidence. That the testimony of the victim in this case coupled with a medical examination was sufficient to determine whether penetration occurred. Counsel cited Section 124 of the Evidence Act, Cap 80 and the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 on the issue of single witness evidence. He reproduced the evidence of PW1 and the Medical evidence provided by PW3, urging that the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence. 12.On identification, Counsel urged that the Appellant and PW1 were known to each other as they spent time together at the Appellant’s house in Baricho. The Appellant admitted that they were in contact with PW1 from the month of December 2022. That the evidence as to identification is thus that of recognition which was sufficiently proved. 13.Counsel maintained that it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. 14.On Whether the sentence passed on the Appellant was appropriate, Counsel cited the case of Shadrack Kipkoech Kogo vs R. Eldoret Criminal Appeal No.253 of 2003 and Bernard Kimani Gacheru vs. Republic [2002] eKLR. He additionally cited the case of Republic v Elijah Munee Ndundu and another 119781 eKLR on interference with sentence. 15.He urged that the sentence of fifteen (15) years imprisonment was not only lawful but lenient in the circumstances and urged the court to dismiss the Appeal. Analysis & Determination 16.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32). 17.PW1 was the minor victim and complainant TAE who testified that on 24th September 2023 she had disagreements with her mother at home and went to spend the night at a friend’s FK. The following day they went to borrow a phone and called the accused to send her money for a trip and pocket money. He sent her Kshs. 500/- and she went to his house in Baricho. She spent the night at the Appellant’s house, where they had supper and the Appellant invited her to bed. She stated that he touched her breast and inserted his penis in her vagina and the following day her sister called her informing her that she was being searched for at home. While going back home, she met a woman who gave her a job at her hotel and she then went back to the Appellant’s house where they were arrested at a later date by the police. It was her testimony that at the material time she was 17 years old. 18.During cross examination, she stated that the accused forced her to have sex with him and that he caressed and touched her private parts. 19.PW2 was JLM, PW1’s mother. She stated that on 24th September 2023 she disagreed with her daughter over house chores and she disappeared at around 2.00 p.m. and never returned back home. She began asking of her whereabouts from PW1’s siblings who informed her that she had left early morning to Kutus after she had received fare. She liaised with her friend on the number that sent PW1 money which she shared with the DCI who traced and arrested both PW1 and the Appellant. 20.PW3 was Lucy Maina a clinical officer at Lamuria Sub-County Hospital testified on 22nd February, 2023 PW1 was examined and the P3 form filed on 12th October 2023. She testified that the victim came with a history of defilement. The hymen was old broken , and her last sexual intercourse was a month prior. She produced P3 as P-Exhibit 1 and the PRC as P-Exhibit 2. 21.PW4 was Police Corporal Peter Kipsang, the investigating officer. He stated that on 5th October 2023 he was assigned to investigate a case of a missing child PW1. PW2 had reported that PW1 had disappeared on 29th September 2023 at Lamuria police post, and they traced the number that had sent PW1 transport money to Baricho 07xxxxxxxx which was registered with the Appellant. They found the Appellant and PW1 who were both arrested. He produced the birth certificate of PW1 as P-exhibit 3. 22.The Appellant, in his defence, stated that he received call from PW1 whom he had known in December 2022 asking for ksh.1000-/ in which he sent her ksh.500/-. They met in Baricho where she spent the night at his place. He gave her fare back home but she came back on 09th October 2023, he left her at a shop and went to Nyeri for an errand and on coming back on 10th October 2023, he was arrested. 23.The issues that arise for determination in this matter are evidently the following:a.Whether the defilement charge against the Appellant was proved beyond reasonable doubt.b.Whether the sentence of 15 years’ imprisonment imposed against the Appellant was justified. 24.For the offence of defilement to be established, 3 ingredients must be proved, namely, the age of the victim, penetration and positive identification of the offender (see the case of George Opondo Olunga v Republic [2016] eKLR), and also the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013. 25.In a charge of defilement, the age of the victim is important for two reasons:i.defilement is a sexual offence against a child; andii.age of the child is also used as an aggravating factor for purposes of determining the sentence to be imposed, the younger the child the more severe the sentence. 26.In this case, the minor’s Certificate of Birth produced in evidence indicates that she was born on 6th April 2006. There being no contrary evidence, and the alleged offence having reportedly been committed 25th September 2023, it was established that the minor was indeed, at the material time, about 17 years, 5 months old. Despite the Appellant claiming that there were discrepancies in the birth certificate, there was no evidence led to this effect and therefore this ground of Appeal is moot. 27.In respect to “penetration”, Section 2(1) of the Sexual Offences Act defines the term as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 28.In this case, medical evidence was provided by PW3 who examined the complainant 12th October 2023 whereas the incident occurred on 25th September 2023 and therefore, it is plausible that the clinical officer was unlikely to have noticed any injuries on the genitalia. 29.The courts have held that a broken hymen alone cannot be proof of penetration. In P.K.W v Republic [2012] eKLR, the Court of Appeal addressed its mind to this by stating;“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen.” 30.I am alive to the provisions of section 124 of the Evidence Act on single witness evidence, which provides as follows;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. 31.I am also cognisant of the fact that this court did not have the opportunity to witness the demeanour of the witness. Additionally, I have perused the judgment of the trial magistrate and he clearly recorded his reasons for believing the evidence of the complainant. I therefore have no reason to interfere with the trial Magistrate’s finding that penetration was proved, mainly on the basis of single witness evidence, and that the minor was defiled. 32.On the issue of identification, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR expressed itself as follows:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”. 33.From the Complainants’ evidence, it is clear that the Appellant was well known to her. Additionally, he admitted that she had visited him and they spent time together. He even sent her fare to meet with him and that is how the police were able to trace him. Therefore, the identification was clearly one of recognition, rather than that of a stranger. In respect to this nature of identification and its reliability, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR, stated that:“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. ……………………. 34.The Appellant was therefore not a stranger to the victim and upon considering the testimonies, his identification was proper. 35.Regarding the allegation of contradictions and inconsistencies in the Prosecution witnesses’ testimonies, it has also not been demonstrated that there were any serious contradictions that could create doubt on the credibility of the Prosecution witnesses. I have found none. In respect to slight contradiction and excusable inconsistencies in testimonies, the Court of Appeal, in the case of Philip Nzaka Watu v Republic [2016] eKLR guided that:“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing in the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 36.The primary testimony against the Appellant in this case was that given by the minor (PW1) who gave sworn testimony, and I find no material to controvert the trial Court’s finding that such testimony was sufficient. No justification has therefore been demonstrated to warrant this appellate Court’s interference with the verdict of conviction arrived at by the trial Court. 37.I note that the Appellant raised the issue of a defence under section 8(5) of the Sexual Offences Act in the Petition of Appeal but failed to address or submit on the same and further, the same was not raised in the trial court. In this regard, this ground fails as well. Notably too, this line of defence had not been posed at trial and therefore introduction of the same at the appeal stage would have been a non-starter. 38.Even if he had submitted on it, that line of defence would have been self-defeatist he having denied having penetrated the complainant. The court cannot be invited to accept both propositions simultaneously, as doing so would amount to permitting the Appellant to both affirm and deny the same transaction. Such inconsistency goes to the credibility of the defence and substantially weakens it. It is a settled principle that a party cannot approbate and reprobate; he cannot accept and reject the same set of facts depending on convenience. 39.It is therefore my considered view that the offence of defilement was proved beyond reasonable doubt and the conviction of the Appellant was safe in the circumstances. 40.On the second issue of appropriateness of sentence, the applicable principles in re-considering sentence on Appeal, were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:“It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. On Appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist”. 41.The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola S/O Owuora Vs Regnum (1954) 21 270 as follows: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the Appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James Vs R., (1950) 18 E.A.C.A 147:"It is evident that the Judge has acted upon some wrong principle or overlooked some material factor." 42.Section 8(4) of the Sexual Offences Act provides as follows:“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 43.The trial court sentenced the Appellant to 15 years’ imprisonment after giving him a chance to mitigate. The sentence was within the law and I find no reason to interfere with the same. 44.Accordingly, the Appeal is dismissed for lack of merit. DATED SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MAY 2026A.K. NDUNG’UJUDGE