https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8492

MW v Republic (Criminal Appeal E161 of 2025) [2026] KEHC 8492 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEHC 8492 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E161 of 2025 DR Kavedza, J June 17, 2026 Between MW Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. C.M Njagi (P.M) at Kibera Chief Magistrate’s Court Sexual Offences Case no. E016 of 2025 Republic vs Matevu Wambua) Judgment 1.The appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, No. 3 of 2006. After a full trial, he was convicted for the altermative count of committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act, No. 3 of 2006. He was sentenced to serve ten (10) years imprisonment on the main charge. 2.Aggrieved, he filed a petition of appeal challenging his conviction and sentence. He challenged the totality of the prosecution’s evidence against which he was convicted. He complained that the trial court failed to consider his defence. He urged the court to quash his conviction and set aside the sentence imposed. 3.As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32). 4.The Prosecution called seven witnesses. PW1 LW testified that the Appellant is her husband. Their daughter was born on 4th July 2014 and she produced her birth certificate. On the material day she was contacted by one Everlyne and informed that the child was in her care. She proceeded to Raila Estate, and found police officers present. The parties were taken to Langata Police Station. The child underwent counselling. PW1 stated that no defilement had occurred and that the child had fabricated the allegations because she did not wish to return to boarding school. She confirmed that the Appellant had acted as a father figure to the child since 2017 and described the child as a liar. 5.PW2 MEA, the block representative, testified that she was contacted by Wycliffe after the child (FM) was found in their block. She was informed that the Appellant had attempted to insert his fingers into the child’s vagina. The parties were subsequently taken to the police station. 6.PW3 Aileen Kimuyu wanted to testify on behalf of his colleague who examined the minor from Coptic Hospital but was stood down after the Appellant declined to proceed with her evidence. 7.PW4 No. 7xxxx Senior Sergeant Herbert Majane of Langata Police Station testified that he responded to a report of a commotion at an estate in Langata, relayed by WO. At the scene he was informed that the Appellant, Wambua Mutevu, had attempted to defile a child. He arrested the Appellant and conveyed the child and her mother to Langata Police Station. 8.PW5 Lorraine Mwende, Clinical Officer from Coptic Hospital, examined the child. She completed a P3 form and medical report. The child’s history was taken as narrated. On examination, the child’s vitals were normal and her genitalia showed no abnormalities. She produced the treatment notes and the P3 form. The child was treated and referred for trauma counselling. No visible injuries were noted. 9.The complainant (FA, the minor) testified that on 27th April 2025, while at home in Raila Estate, the Appellant returned, called her inside, sat down, placed her on his thighs, pulled her back, kissed her, and touched her private parts. She screamed. Her friends arrived to call her and the Appellant released her. She reported the incident to her friends, leading to the block representative and her mother being contacted. The Appellant was arrested and identified in the dock as Mutevu Wambua. She stated the touching occurred inside the house at approximately 5 p.m. and she had a clear view of the Appellant. The Appellant is not her biological father. 10.PW7 No. 10xxxx PC (W) Caroline Muchemi testified that on 27th April 2025 the mother, the Appellant, and the child made a report at the station. The minor gave a consistent account of the incident. The child was referred to hospital. Upon re-interview the minor repeated her account. At the station, the Appellant denied the allegations, stating he had neither inserted fingers nor kissed the girl. The minor was examined and charges were preferred. The Appellant was arrested for the offence. The minor was placed in protective custody to facilitate her testimony. 11.In his defence, the appellant testified that he had lived with the minor and her mother for ten years and had supported the child, including taking her to school. On the material day he woke the child, prepared breakfast, and they attended church together. Upon returning, the mother PW1 had prepared lunch which they ate. At approximately 3:30 p.m. the child went out to play with friends. Around 6 p.m. he went to call her and encountered a crowd who accused him of attempting to defile the minor. He denied the allegations, asserting that this was a trumped-up charge arising from neighbourly grudges. He confirmed he had cared for the child over a period of time. He denied ever attempting to defile her. 12.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. This court must therefore determine whether the prosecution adduced sufficient evidence to prove beyond reasonable doubt that the appellant committed an indecent act with the child complainant. 13.Section 11(1) of the Sexual Offences Act provides that: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. 14.The complainant’s age of ten years was duly confirmed by her birth certificate, which was produced in evidence thereby satisfying the legal definition of a child. 15.The minor complainant (PW6) gave clear, consistent and detailed testimony before the trial court regarding the events of 27 April 2025 at Raila Estate. She described how the Appellant called her into the house, placed her on his thighs, pulled her back, kissed her and touched her private parts with his hands. She screamed, and her friends arrived. She promptly reported the incident to her friends, the block representative (PW2), her mother (PW1) and the investigating officer (PW7). Her account remained consistent throughout. 16.The prosecution called seven witnesses in support of its case. Their evidence established that the Appellant was arrested at the scene following the complaint, that the child was medically examined at Coptic Hospital with no visible injuries noted but trauma counselling provided, and that formal charges were preferred after police investigation. 17.In his defence, the Appellant (DW1) elected to give sworn testimony and called no witnesses. He denied the allegations, stating that he had lived with the minor and her mother for ten years, acted as a father figure since 2018, and that the complaint was a trumped-up charge arising from neighbourly grudges and the child’s reluctance to return to boarding school. He maintained he had prepared breakfast, attended church with the family and only encountered the crowd when he went to call the child at around 6 p.m. 18.In evaluating the evidence, the learned trial Magistrate carefully observed the demeanour of the child witness (PW6) and found her testimony truthful. The court recorded sound reasons for accepting her evidence. 19.Section 124 of the Evidence Act (Chapter 80, Laws of Kenya) provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, 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.” 20.In accordance with the proviso to section 124 of the Evidence Act, the trial court, being satisfied that the minor was telling the truth and having recorded its reasons, properly convicted the Appellant on the uncorroborated evidence of the victim. The prosecution established beyond reasonable doubt the commission of an indecent act with a child contrary to section 11(1) of the Sexual Offences Act and the Appellant’s culpability. 21.The Appellant’s grounds of appeal are unsustainable. The conviction was proper and is accordingly upheld. The sentence imposed by the trial court is confirmed. 22.Regarding sentence, the trial court imposed a term of ten years’ imprisonment. The sentence is lawful and proportionate. No basis exists for appellate intervention. 23.In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JUNE 2026.................................D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMutuma for the RespondentBury Court Assistant.