https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9791

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E097 OF 2025** **ELIJAH MURIMI……………………………….…………..…………….. APPELLANT** **VERSUS** **REPUBLIC ……………………………………………………………………. RESPONDENT** ***(Being an appeal against the conviction and sentence by Hon. D.WASIKE (PM) in Kilifi CMC (SO) Case No. 051 of 2024)*** **JUDGEMENT** 1. The appellant herein Elijah Murimi, 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 are that on 13 March 2024 at around 1000 hrs at Tezo area in Tezo Location in Kilifi North Sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate into the vagina of S.N.A a child aged 11 years. 2. The appellant was also charged with an alternative offence of committing an indecent act contrary to Section 11 (1) of the *Sexual Offences Act* in that on 13 March 2024 at around 1000 hrs at Tezo area in Tezo Location in Kilifi North Sub-County within Kilifi County, intentionally and unlawfully touched the vagina of S.N.A a child aged 11 years with his penis. 3. The appellant denied the charges prompting the trial in which the prosecution to called four (4) witnesses. PW1, the complainant testified that she was 12 years old. That on 13 March 2024 at about 10am while on her way to the shop, she was accosted by two people who carried her to the bush near some unfinished houses, one closed her mouth while the other person whom she knew, removed her clothes and defiled her. That after he finished, the one who had closed her mouth and eyes when she tried to look at him ran away and she only saw his back. She further testified that she ran back home crying and told her mother, PW2 who took her to hospital where she was treated. She stated that she knew the appellant as she had sold him some *mahamri* sometimes back. During cross examination, she reiterated that she knew the appellant very well and that there was no one else on the road when he defiled her. 4. PW2 the complainant’s mother stated that the complainant was born on 28 April 2012 and produced her birth certificate (P exhibit 1). She went on say that on the material day, she sent the complainant to buy pampers for her younger sister and wheat flour. After a while, the complainant came back crying and limping while walking. On inquiry, the complainant told her that while walking to the shop, she was accosted by two people who emerged from the bushes nearby. One grabbed her from behind and closed her mouth while the other lifted her legs and they carried her to the bush nearby. She could see the person in front whom she recognized. The person Infront started removing her clothes, removed her pant and defiled her while the other was held her down and closed her mouth. 5. That she immediately rushed her to Kilifi Hospital where she was examined and treated. She then reported to Ngerenya police station. The next day, she recorded her statement and was also referred to the Children Officer. She testified that the complainant described the perpetrator as the person who sells cabbage and he was traced to the slaughter house where the complainant identified him, he was arrested and charged. During cross examination, she maintained that she did not know the appellant and it was the complainant who pointed him out. 6. PW3 Sharon Wakio was the investigating officer based at Ngerenya police station gender desk. Her evidence was that on 13 March 2024 at about 1725 hours the incident was reported to the police station by the complainant, PW2 and another person identified as PW1’s aunt. That the complainant reported that on that day at around 10 am, she had was sent to the shop by her mother, PW2 when someone closed her mouth from behind and another grabbed her legs, lifted her and dragged her to the nearby bushes. The person in font removed her clothes and pant and defiled her as the accomplice closed her mouth. They then ran away leaving her helpless. That she identified the assailant as someone known to her but did not identify the other person. That she went back home crying and informed her mother who took her to hospital and then reported to the police station. She went on to say that the complainant identified the appellant who was traced to a slaughterhouse where he was arrested and charged. 7. PW 4 Dr Anderson Kaingu stated that he is a clinician based at Kilifi County Hospital. He testified that on 13 March 2024, the complainant was examined at the hospital after reporting to have been defiled earlier in the morning. Physical examination showed that she had grass and soil on her head and grass on her vagina area. The hymen was freshly broken and she was in pain though there was no blood. Her pants had blood stains, she was tense, scared and fearful. He produced the blood-stained pant (p exhibit 2), Post Rape Care Form (P exhibit 3) and P3 Form (P exhibit 4). On cross examination, he stated that he did not test the stains on the pant for sperms or undertake a DNA test from the appellant. 8. At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence. The appellant, DW1, gave sworn evidence and called one witness, Harrison Kazungu DW2. The appellant testified that the charge and case was informed by the hatred between the owner of the slaughter house and him. It was his defence that on the material day, he was at work at the slaughterhouse until 10pm after which he went to Mama Africa and to Mzee Hamisi who was selling 8 acres of land at Kaloleni. He was arrested when he was from Ngerenya on his motorcycle. He also claimed that he was asked for a bribe of Ksh. 30,000 by the police for the case to be dropped but he declined to pay. 9. DW2’s evidence was that he knew the appellant deals with scrap metal. That in 2023, the appellant rented his slaughter house. In 2024, the appellant was arrested by police from Ngerenya on grounds that he had defiled a minor the previous day. He testified that the entire day, the appellant spent his day on his slaughter house and in the evening paid his dues. In cross examination, he testified that the appellant usually stays at the slaughter house the entire time but he sells scrap metal and also vegetables using a Tuktuk. He also admitted that he had nothing to show that the appellant spent the entire day in the slaughter house and that his did not know the complainant or her family and was not aware of any case between them. 10. At the close of the trial, the court after weighing the evidence, convicted the appellant and sentenced him to twenty-five (25) years imprisonment. Aggrieved, the appellant filed the present Appeal where he raised the following grounds of appeal: 11. The trial court erred in both law and fact by admitting the evidence of identification while failing to see that the same was erroneously arrived at. 12. The trial court erred in both law and fact by allowing evidence of penetration while failing to see that it did not meet the required standards of proof. 13. The trial court erred in both law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt. 14. The trial court erred in both law and fact by failing by dismissing the evidence of *alibi* without rebuttal from the prosecution. 15. The trial court erred in both law and fact by failing to note that there was contravention of Section 70,72 and 77 of the *Evidence Act.* 1. The appeal was argued by way of written submissions which both parties duly filed. The Respondent also filed a Notice of Cross Appeal dated 17 March 2026 where he sought enhancement of the sentence from 25 years to life imprisonment. 2. On ground one, the appellant submitted that sections 70, 72 and 77 of the *Evidence Act* were contravened when PW4 Dr Anderson Kaingu testified on behalf of Dr. Bernard Otieno who has examined the complainant and prepared the documents produced as exhibit 2, 3 and 4. He submitted that PW4 did not lay the basis for his testimony or qualifications in the medical field and specific area of specialization. He argued that the production of the said evidence rendered it illegal and in contravention of Article 50 (4) of the *Constitutio*n, and urged the court to disregard it. 3. He also questioned why DNA was not conducted and argued that the failure to do is evidence that the case was a fabrication. He cited the case of ***Dickson Amalemba Lisanza & Another vs Republic (2021) eKLR*** to support his arguments. 4. On the second ground, he submitted that in ***Remmy Wanyonyi Wanjoki vs Republic (2020) eKLR,*** the court held that identification is one of the key ingredients in a defilement case. He contended that the prosecution witnesses did not positively identify him as the assailant and faulted the trial court for convicting him yet the prosecution did not prove this element beyond reasonable doubt. He urged the court to allow the appeal, quash the conviction and set aside the sentence. 5. The respondent opposed the appeal and affirmed that the conviction was proper. It was submitted that this being the first appellate court, the court is duty bound to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. The cases of ***Okeno vs Republic [1972] EA 32*** and ***Mark Oiruri Mose vs Republic (2013) eKLR*** were cited in support thereof. 6. The respondent further submitted that they had proved all three ingredients of the offence of defilement, *that is*, age of the victim, penetration and identification of the perpetrator beyond reason doubt. 7. On age, it was submitted that the victim’s age was proved by the birth certificate produced as exhibit 1 which showed that the PW1 was born on 28 April 2012 and was 11 years on 13 March 2024 when the offence was committed. The case of ***Francis Omuroni vs Uganda, Criminal Appeal No. 2 of 2000*** was cited in support. 8. On penetration, it was submitted that the element was proved by PW1 evidence as corroborated by PW4’s evidence who produced exhibits 3 and 4. 9. On identity of the perpetrator, it was contended that PW1 clearly identified the appellant as the perpetrator as having been known to her prior to the incident since he had sold cabbages to her before. The case of ***Republic vs Turnbull & others (1976) 3 ALL ER 549*** on the issue of identification was cited in support thereof. 10. Regarding the defence of alibi, the respondent submitted that was no evidence to establish the defence of alibi or to controvert or dislodge the prosecution evidence. The case of ***Eric Otieno Meda vs Repuiblic (32019) eKLR*** on alibi was cited to support the averment. 11. On the cross appeal, it was argued that Section 8 (2) of the *Sexual Offences Act* sets a mandatory sentence of life imprisonment and that the sentence of 25 years by the trial court was unlawful. The respondent relied on the case of ***Muruatetu & Another vs R; Katiba Institute & 4 others (Amicus curiae) (2021) KESC 31 (KLR)*** where the Supreme Court of Kenya held that mandatory sentences and minimum sentences in the *Sexual Offences Act* were lawful. The court was urged to enhance the sentence from 25 years to life imprisonment. ***Analysis and determination*** 1. This being the first appeal, the duty of this court, as set out in ***Okeno Vs R [1972] EA 32*** andaffirmed in various decisions including the case of ***Mark Oiruri Mose vs Republic (2013) eKLR,*** is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. 2. The court of appeal, in ***Kiilu & Another V Republic [2005]1 KLR 174****,* stated thus; “*An 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 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 a 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 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.”* 1. With that in mind, the court will re-evaluate and re-examine the evidence adduced during trial and arrive at its own conclusion as to whether that evidence, considered as a whole, supports the finding of the trial court. The court does so while remaining conscious that it did not have the advantage of seeing or hearing the witnesses. 1. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the *Sexual Offences Act*. The said Act provides: “ *8 (1) A person who commits an act which causes penetration with a child is guilty* *of an offence termed as 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.”* 1. The specific elements of the offence of defilement arising from section 8 (1) of the *Sexual Offences Act* which the prosecution must prove beyond reasonable doubt are: proof of penetration; age of the complainant and positive identification of the assailant. 2. In the case of ***Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013*** the court held; *“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”* 1. Drawing from the above, the issues for determination in this appeal are as follows: - 2. Whether the ingredients of the offence were proved beyond reasonable doubt; 3. Whether any evidence was improperly admitted in violation of the *Constitution* and the *Evidence Act*; 4. Whether the sentence should be enhanced. ***Whether the ingredients of the offence were proved beyond reasonable doubt*** 1. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years. 2. The High Court in ***Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR)*** held; *“Proof of age is important in a sexual offense. In* ***Kaingu Kasomo vs. 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.”* 1. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See ***Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017]***. 1. In this case, PW2 the mother of the complainant produced the complainant’s Birth Certificate as P exhibit 1 which shows she was born on 28 April 2012. This proves that PW1 was 11 years on 13 March 2024 when the offence occurred. The court finds that this element of the offence was proved beyond any reasonable doubt. 2. On the issue of penetration, Section 2 (1) of the *Sexual Offences Act* defines penetration to mean the *partial or complete insertion of the genital organs of a person into the genital organs of another person*. “Genital organs” are defined by the said Act to include the *whole or part of male or female genital organs and for purposes of this Act includes the anus.* 3. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely. Being a minor, the complainant was incapable of consenting hence it is immaterial that she may have agreed to the act. 4. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See ***Bassita Vs Uganda S.C Cr[iminal Appeal No. 35 of 1995](https://kenyalaw.org/akn/ke/judgment/keca/1995/115%22%20%5Ct%20%22_blank)***. 5. The court of appeal in ***Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa)*** held: - *“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”.* See also***Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).*** 1. The complainant PW1 testified that on 13 March 2024 at about 10am while on her way to the shop, she was accosted by two people who carried her to the bush near some unfinished houses, one closed her mouth while the other person whom she knew, removed her clothes and defiled her. She testified that she had worn a skirt, shirt and pant which the assailants removed. She identified the appellant as the one who defiled her. She then went back home, crying and reported to her mother, PW2. 2. PW2 corroborated PW1 where she confirmed that she had sent PW1 to buy pampers and wheat floor when a few minutes later PW1 ran back home, crying, limping and informed her that she had been defiled by two people, one of whom she recognized. She explained that PW1 informed her that one of the assailants removed her pant, inserted his penis on her vagina and defiled her while the other held her mouth and hands. That she took PW1 to hospital and also reported to police. 3. PW4 testified that on 13 March 2024, the complainant was examined at the hospital after reporting to have been defiled earlier in the morning. Physical examination showed that she had grass and soil on her head and grass on her vagina area. The hymen was freshly broken and she was in pain though there was no blood. Her pants had blood stains, she was tense, scared and fearful. He produced the blood-stained pant (p exhibit 2), Post Rape Care Form (P exhibit 3) and P3 Form (P exhibit 4). 4. The court finds that PW1’s evidence was duly corroborated by medical evidence provided by PW4 that proves penetration did occur. 5. The appellant contended that no DNA was conducted to prove that he was responsible for the offence. The requirement of DNA testing in sexual offences cases is addressed in Section 36 of the Act. The said Section provides: *“36. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”.* 1. Thequestion for determination is whether the failure to conduct a DNAtest is fatal to the prosecution’s case. Section 36 (1) of the *Sexual Offences Act* is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. That provision does not oust the provisions of Section 124 of the *Evidence Act* which remains applicable to this case. 2. The court of appeal in the case of ***Williamson Sowa Mbwanga Vs Republic (2016) eKLR*** held: *“As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See*Twehangane Alfred V. Uganda, Cr. App. No. 139 of 2001)”. 1. The absence of DNA does not absolve the appellant from the allegations. The court is bound to consider evidence on record to determine if the ingredient has been proved. In this case, PW1, PW2 and PW4’s evidence together with exhibits 2, 3 and 4 leaves no doubt that the complainant was defiled on 13 March 2024. This evidence was not challenged or dislodged by the defence and the court finds that this ingredient was proved beyond reasonable doubt. 2. On the issue of identification, the appellant has submitted that he was not properly identified as the assailant as the only evidence relied upon to prove this ingredient is that of PW1. PW1 was very categorical from the word go that she recognized the appellant as the person who grabbed her legs, removed her clothes and defiled her. She testified that she was able to identify the appellant since it was 10 am in the morning in broad day light and that she had sold him *mahamri* at one time where they talked. 3. The record shows that she reported to her mother, PW2 a few minutes after the incident that she clearly saw and recognized one of the assailants. PW2 testified that she did not know the appellant but PW1 had told her that he usually sells cabbages. This was corroborated by DW2 who confirmed that the appellant sells vegetables using his Tuktuk. 4. PW1’s evidence was cogent, consistent and credible as she maintained the same position when she reported PW2, the police, hospital and was able to positively point out and identify the appellant at the slaughter house leading to his arrest. The Post Rape Care Form (P exhibit 3) and P3 Form (P exhibit 4) clearly demonstrates the consistency of her testimony on the matter. 5. The appellant raised the defence of *alibi* by claiming that he was not at the scene on the material day. The prosecution submitted that *alibi* was not established at all and the principles laid down in the case of ***Eric Otieno Meda vs Republic (supra)*** were not established. 6. The evidence by the defence is too general and contradictory. On one hand, DW2 claims that the appellant usually stays in the slaughter house the whole day while on the other, he states that he also does the business of selling scrap metal and vegetables using his Tuktuk. Additionally, the appellant did not controvert PW1’s evidence that she identified him since he sold her vegetables, and thus was clearly able to identify him as the assailant of the material day. The court finds that taken as a whole, the offence of defilement as charged was proved against the appellant. ***Whether any evidence was improperly admitted in violation of the Constitution and the Evidence Act*** 1. The appellant submitted PW4’s evidence was admitted in violation of section 70, 72 and 77 of the *Evidence Act* thereby rendering his evidence illegally obtained and urged the court to exclude it by dint of Article 50 (4) of the *Constitution.* 2. PW4 testified that he is a medical doctor based in Kilifi Hospital GBV department. He testified that the complainant was examined and treated by Dr. Bernard Otieno on 13 March 2024 and produced the blood-stained pant, P3 Form and PRC form as exhibits 2, 3 and 4 respectively. From the record, the appellant did not question the witness on his credentials or qualifications nor did he object to the production of the exhibits. 3. Section 77 of the *Evidence Act* authorizes the production of any document or report made under the hand of a medical practitioner as evidence and allows any a medical practitioner in the custody of the said document to produce it. PW4 testified that he works as a medical doctor at Kilifi County Hospital where the complainant was examined and documents were prepared in the ordinary course of duty. He remained a competent witness by dint of Section 77 of the *Evidence Act* to produce and testify on the documents. 4. The court finds that the exhibits produced by PW4 were properly produced as documents in his custody within the ordinary course of business and are not illegally obtained so as to fall under Article 50 (4) of the *Constitution.* This ground fails. The court finds that all ingredients of the offence were proved beyond doubt and affirms the conviction by the trial court. ***Whether the sentence should be enhanced*** 1. The respondent filed a Notice of Cross Appeal dated 17 March 2026 and submitted that the sentence of 25 years for an offence under Section 8 (1) and (2) of the *Sexual Offences Act,* is unlawful as it is below the mandatory sentence of life imprisonment prescribed by law.However,the appellant did not submit on this issue. 2. The Supreme Court in petition ***E018 of 2023 Republic vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR)*** held that the minimum sentences set out in Section 8 of the *Sexual Offences Act* are lawful. The court further clarified that the decision in ***Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR*** is limited to the mandatory nature of the death penalty under Section 204 of the *Penal Code* and does not extend to other statutes. 3. Section 8 (2) of the said act provides that *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.*** It is apparent that the sentence of 25 years in this case is below the mandatory sentence of life imposed by law thus unlawful. 4. Although Section 354 (3) of the *Criminal Procedure Code* empowers the High Court to vary any sentence on appeal. However, the appellant must be given prior notice of the intention to enhance the sentence. 5. The court of appeal in ***Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR)*** observed as follows: *“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.”* 1. In this case, whereas the Notice of Cross Appeal dated 17 March 2026 was duly filed, there is no evidence that it was served on the appellant who was at Shimo la Tewa prison at the hearing of the appeal or even brought to his attention during hearing of the appeal. This deprived the appellant an opportunity to make an informed decision on whether or not he wished to proceed with the appeal or abandon it. Enhancing the sentence without notice as aforesaid would violate the appellant’s right to fair trial under Article 50 of the *Constitution*, thereby rendering the whole proceedings a nullity. ***Final Orders*** 1. In view of the above, the court makes the following orders; 1. The appeal against conviction and sentence lacks merit and is accordingly dismissed. 2. The sentence of 25 years imposed by the trial court is upheld. **Delivered and signed at Nairobi on this 2nd day of July 2026** **JOSEPH KIPKOECH BIOMDO** **JUDGE**