https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11463

Murimi v Republic (Criminal Appeal E079 of 2024) [2026] KEHC 11463 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11463 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E079 of 2024 ACA Ong’injo, J July 16, 2026 Between Emmanuel Mwita Murimi Appellant and Republic Respondent (Being an appeal from the conviction and sentence of the Senior Principal Magistrate Court at Kehancha by Hon M.O OBIERO delivered on 31st July 2024 in Sexual Offence No. E067 of 2024) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The Particulars of the offence were that on 18th day of December 2021 at [Particulars Withheld] village in Kuria West Sub- County within Migori County, willfully and unlawfully committed an act of which caused the penetration of his penis into the vagina of M.A, a child aged 8 years. 2.In the alternative, the Appellant was charged with indecent act with a child, contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006. The particulars are that on the 18th day of December at [Particulars Withheld] village in Kuria West Sub- County within Migori County, willfully and unlawfully committed an act which caused his penis to come in contact with the vagina of M.A, a child aged 8 years old. 3.The appellant was convicted on the main count and sentenced to serve 30 years’ imprisonment. 4.The appellant was not satisfied with the judgement of the trial court and thus sought this appeal. 5.The appellants’ grounds of appeal are summarized as follows;i.That he had pleaded not guilty to the charge.ii.That the learned trial magistrate erred in law and fact by not complying with Article 50(2) (g)(m)(h) of the Constitution of Kenyaiii.That the learned trial magistrate erred both in law and fact by failing to consider that the ingredients of the charge were not proved to the required standard of law.He invited the court to quash Prosecution’s case 6.The prosecution lined a total of 4 witnesses. PW1 Edwin Omahe, a clinical officer from Isebania Sub-County Hospital, testified and produced documents on behalf of the colleague Keri Sasi who examined the minor. It was his testimony that the victim (minor) was treated in the facility on 19.12.2021 at 3.20 p.m. the victim had been brought to the facility by her mother on allegations of sexual assault the previous day at 3.0pm at [Particulars Withheld] village. On examination the victim was found to be in fair general condition, STI and HIV negative. High vaginal swab showed pus cells, so was the urinalysis result. She was given pep and painkillers. 7.The P3 forms filled on the same day showed no blood stains or teats. It was his further testimony that the genitalia were normal with no laceration to the labia, with a broken hymen. There were no lacerations on the vaginal wall and diagnosis was defilement. She marked and produced treatment notes and the P3 form. On cross examination, she stated that the girl had no tears or lacerations on her vagina, hymen was not intact hence evidence of penetration and tears are not a must during penetration of the vagina. That an 8 years old child could sustain injuries unless the penis is small and that he does not know who committed the offence. Upon being recalled on 15.5.2023, he stated that they don’t do dusting of finger prints on a body to establish the identity of the DNA in the sperms. That the appellant was not examined at the facility and he does not know if the Appellant was the assailant. 8.PW2 No. 1xxxx0 PC Roselyne Anyango, the investigating officer testified on the 19/12/2021, the minor in the company of the mother reported to Isebania Police station that minor herein was defiled on 18/12/2021 by their neigbour BABA ANNE (the Appellant). That the minor had gone to play at the neighbor’s house when Baba Anne told her to escort him to the shop to buy her sweets to share with the friends. That after buying sweets and on the way back, the Appellant lured her into the maize plantation nearby, removed her clothes, removed his clothes and defiled her. The Appellant thereafter ordered the minor not to tell anyone. 9.That the Appellants’ wife followed the minor and her husband to the maize plantation where he saw the Appellant defile the minor. That when she inquired about the incident from the appellant later at night, the appellant beat her (the wife) prompting her to report him to the minor’s mother, who reported the matter to the village elder. That the village elder in the company of the villagers arrested the Appellant and escorted him to the station. That she escorted the minor to the hospital where age assessment was done and was issued with P3 form which she marked and produced as PEX3. 10.On cross examination, she stated that the Appellant was escorted to the station by members of the public and that the mother of the minor reported the case on 19/12/2021. Upon being recalled on 15/5/2023 she escorted the minor the hospital and that the child was brought to the station by the Appellant wife and the mother of the victim. That the victim was brought a day after the incident and no dusting was done to confirm the Appellants involvement in the matter. 11.Pw3 M.A (the minor herein) after viore dire examination testified that she goes to [Particulars Withheld] Primary School in class 2. She resides with her mom, dad and 1 sibling. She said that on 18/12/2021 she was playing with the children of the Appellant. That the Appellant sked her to accompany him to the shops to buy sweets for his children. 12.They bought sweets and, on their way back, they passed by a maize plantation where the Appellant asked her to remove her clothes. That she was wearing a skirt and a panty as well. That when she refused to remove her clothes, the Appellant removed her skirt and panty and did “tabia mbaya” between her legs. That the appellant used his part between the legs to do her “tabia mbaya”. 13.That the Appellant lowered his trouser and boxer and inserted his “dudu” inside her “dudu”. That it was just the two of them in the maize plantation and when the Appellant was done, he asked her to go home and when she arrived, she found the Appellants children but did not tell them anything. She said that the wife of the Appellant had seen them and reported the same to her mother. That when the mother inquired about it, she confirmed to her and even took her to the scene. That they returned home and her mother took her to the hospital the following day. She said that the Appellant is he neigbour and it was his first time to defile her. 14.On cross examination by the Appellant, PW3 said that she knew the Appellant very well by name and that her mother got to know the incident through the Appellants wife. She said she was not couched to come and lie against the Appellant and swore that the Appellant had inserted his dudu inside hers. That the Appellants wife was the one who reported him to his wife. 15.PW4, Janet Achieng Oluoch, the mother of the minor said that she comes from Rongo, lives in Ogwethi and has 2 children. That M.A was born on 13/08/2014 and has no birth certificate. She said that on the day of the incident, she was not present. The following day, the Appellants wife went looking for her and informed her that she had seen her husband (the Appellant) pulling M.A into maize plantation. That when she (Mama Anne) inquired from the Appellant what he was doing with the minor I the maize plantation, the Appellant beat her up. 16.That the minor told her before the Village elder that the Appellant asked her to go and buy sweets and, on their way, back pulled her into the maize plantation and did ‘tabia mbaya’ to her. That the Minor escorted her to the scene where she saw trampled maize. She then went to the Appellants home accompanied by the 2 village elders, Susan and the Appellant wife and found his father, who advised her to report the matter to police 17.She said that they recorded statements at the Police station, issued with an OB and later escorted to Isebania Hospital by a female police officer. That the child was examined by the doctor who confirmed that the child had been defiled but the penetration was not full. She further said that she had no grudge with the Appellant family as they are neighbors and that it was the Appellant wife who informed her of what he had done to the minor. 18.On cross examination by Appellant, she said that she was not present when the incident occurred and it was only reported to her the following day by the Appellants’ wife. 19.Efforts to get the Appellants wife to testify were futile, forcing the prosecution to close their case without her testimony Defence case 20.DWI Emmanuel Mwita Murimi the accused testified under oath that he stays in [Particulars Withheld]. He is a bodaboda rider. Dw1 said that on 18/12/2021 he was at his place of work at [Particulars Withheld]. That he has a disagreement with the wife because he found her with another man. He stated that he was arrested on 19/12/2021 at the evening at the stage and taken to Police station, where he was informed by the police that he had defiled a child. He denied the charges. On cross examination by the Prosecution, he said that he was at his place of work on 18/12/2021, that the complainant testified and identified him as Baba Anne, that he did not call any witness and that his wire recorded a statement but did not testify in the matter. 21.In his submissions dated 17th March 2025 identified three issues for determination. On the issue that the trial court erred in fact and in law in not finding that penetration by the Appellant was not proven beyond reasonable doubt, the Appellant submitted that the prosecution evidence was not enough to sustain his conviction. That the evidence before the court did not indicate that he was the one who penetrated the minor. 22.On the issue on whether the trial court erred in law and in fact in not making a finding that the age of the victim was not proven beyond reasonable doubt, the Appellant submitted that the age assessment report produced as evidence indicated that the child must have been between the age of 7-10 years and concluded that the most probable age was 8 years. He questioned the authenticity of the report and its suitability to be relied on by the trial magistrate. That the court could not rely on sworn evidence on the age of the victim to convict him because the age assessment report was not produced in evidence. He relied on the case of Eliud Ouma Agwara vs Republic (2015)eKLR where Justice J.A Kamau stated at paragraph 32 that; “The age of a complainant in a sexual offences under The Sexual Offences Act can be proved by documentary evidence. The relevant documents are many and apart from Birth certificate, age can be proved by production of other relevant documents such as Baptism card, school leaving Certificate, School admission letters, child Health Clinic card, Notification of Birth Card, Age assessment Report. That though sworn evidence can be admissible I am of the view that sworn evidence alone cannot suffice nor can P3 form unless the producer of the same testifies that he/she medically examined the complainant at the time of completing P3 form and assessed the victim's age as indicated in the P3 form and such information should be part of the information in the P3 form or be contained in the P3 form or be made in a separate note or age assessment Report.’ 23.On the issue whether the trial court erred in fact and in law in denying the Appellant his absolute rights to a least sentence prescribed in Article 25 (c), 50(2) (p), he submitted that he was arrested on 20.12.2021 and sentenced on 9.8.2024, his sentence said to run from the date of conviction. That he was on a bond term but the bond was suspended until all the prosecution witnesses testified. 24.The submissions of the Respondent were not in the court file. Analysis And Determination 25.The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” 26.Section 8 of the Sexual Offences Act, 2006 creates the offence and punishment for defilement as follows:1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2.A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.3.A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.4.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.” 27.The offence of indecent act is provided for under Section 11 (1) of the Sexual Offences Act as follows;1.Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” 28.The elements that need to be proved for a crime of defilement are provided for under Section 8 of the Sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; -i.The age of the victimii.There was an act which causes penetrationiii.Positive identification of the accused as the person who committed the act. Age of the victim 29.Proof of age is important in a sexual offense. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: -“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 30.Further in Musyoki Mwakavi vs Republic (2014) eKLR the court said; Malindi HCCCR No. 9 of 2020 - Judgment 9 “Apart from medical evidence, the age of the complainant may also be proved by both certificate, the victim’s parents or guardian and observation or common sense...” 31.From the record, at the time of the alleged offence, the victim had no birth certificate. The victim testified that she was 10 years old while the mother of the victim stated that she was born on 13.8.2014. the prosecution produced a Medical Assessment Report indicating that the victim could be between 7-10 years but most probably 8 years. 32.This court is therefore satisfied that the age of the child was proved to be within the age bracket under Section 8(2) of the Act. 33.In regard to whether penetration was proved, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the P3 form indicates that the victim had injuries on her vagina caused by penile organ. On examination her hymen was broken with no lacerations. This is corroborated by the presence of sperms as indicated by PW1 together with the testimony of the Minor that the Appellant inserted his “dudu” on her “dudu”. The findings on Ex P2, the P3 form indicated that she had a one day old injury on her vagina caused by a penile organ. The court thus finds that the evidence on record is enough to prove penetration beyond reasonable doubt. 34.In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal No. 35 of 1995, the court held: -“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 35.The Appellant took issues with the unsworn testimony of the child about her age and the age assessment report. It was his submissions that the medical assessment report was not produced in evidence and that the uncorroborated evidence of the child was not sufficient to determine the age of the victim. 36.A quick perusal of the record indicates that the medical assessment report relied on by the trial court was marked and produced by PW2 on 8/3/2023 as PEX3. The Appellant also had a chance to cross examine on it and object to its production but did not do so. In the foregoing, the Court finds that the evidence on record is sufficient to prove the element of penetration beyond reasonable doubt.As to whether the assailant was positively identified, the Complainant identified the Appellant as the person who defiled her. In her testimony, she narrated how the Appellant waylaid her into the maize plantation removed her skirt and panty, lowered his trouser and boxer then inserted his “dudu” on her “dudu”. The complainant described the Appellant as Baba Anne and a neigbour. During cross examination by the Appellant, she said she knows him well by his name and that the Appellant is the one who did to her tabia mbaya. 37.The mother of the complainant testified that she was informed by the Appellant’s wife that she had seen the Appellant dragging the Complainant into the maize plantation. She then asked the Complainant about it and the Complainant confirmed that indeed the Appellant took her to the maize plantation and did on her tabia mbaya by inserting his “dudu” on her “dudu. That when the Appellant was done, he asked her to dress up, go home and not to tell anyone. This narration was also given to the investigating officer when the mother of the Complainant reported the case on 19th December 2021. 38.The medical history in P3 form on record, at Part II, shows that the Complainant was allegedly defiled by a man well known to her in a maize plantation on 18th December, 2021 at around 3:00 pm. The Medical Officer upon examining the Complainant found that she had been defiled as the hymen was broken and the weapon causing the breakage was a penile organ. Laboratory tests revealed presence of spermatozoa in high vaginal swab. 39.Although the wife of the Appellant who allegedly witnessed the incident and later informed the mother of the complainant never testified in court, the trial Magistrate noted that the evidence of the Complainant was consistent and firm on what transpired between her and the Accused person and he was of the view that failure by the prosecution to call the Accused persons wife was not fatal to the prosecutions’ case as the same was not deliberate. The wife of the Appellant feared for her life and as a result the Appellant’s bond was suspended for threatening a witness who was his wife. This court finds that the Trial Magistrate having given reasons for believing the minor’s evidence and in consideration of the corroborating evidence by the Medical Officer and the P3 form the prosecution proved beyond reasonable doubt that that the Appellant is the one who defiled the minor. 40.The Prosecution case was cogent and corroborated. The defence did not cast any doubt on the prosecution case, neither did the Appellant attempt to call witnesses to ascertain his alibi which he raised only at the defence stage. 41.Having proved all the three elements of the offence of defilement this court is in agreement with the trial court’s findings regarding the Appellant’s guilt for the offence of defilement. The conviction was safe. 42.Regarding the 30-year sentence imposed by the trial court, this being an appellate court, it follows that it can only interfere with the sentence if it finds that it was excessive or arrived at based on wrong principles of the law or by considering irrelevant factors. 43.Section 8(2) of the Sexual Offences Act, provides that:-“A person who defiles a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”The appellant was sentenced to serve 30 years imprisonment. The sentence is lawful and the court finds no reasons to interfere with it. 44.The Appellant urged the court to consider the period when he was in remand custody during trial. He was arraigned in court on 21st December 2021 and he remained in custody until on 18th March 2022. 45.On 17th April 2023 the Appellant’s bond was suspended at the Prosecution’s request for reasons his wife refused to testify fearing for her life as the Appellant had threatened and intimidated her. The Appellant remained in custody from 17th April 2023 until on 9th August 2024 when judgment was delivered. In the circumstances the one year and seven months which the Appellant spent in remand custody pending trial should be factored in his sentence pursuant to Section 333(2) of the Criminal Procedure Code. 46.Consequently, the appeal against both conviction and sentence is dismissed. 47.Right of appeal 14 days explained.It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 16TH DAY OF JULY 2026LADY JUSTICE ANNE ONGI’NJOJUDGEDelivered In the Presence of: