https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11371

Mwambi v Republic (Criminal Appeal E084 of 2025) [2026] KEHC 11371 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 11371 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E084 of 2025 JK Biomdo, J July 15, 2026 Between Kennedy Kaunda Mwambi Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. S Jalangó (SPM) in Tawa SPM (SO) Case No. E006 of 2025) Judgment 1.The appellant herein, Kennedy Kaunda Mwambi, was convicted and sentenced to 5 years imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. 2.The particulars of the offence are that on 8 May 2025 at around 1500 hours at Utangwa location in Mbooni west Sub-County within Makueni County he intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of MDM a girl child aged 17 years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act with particulars stating that on 8 May 2025 at around 1500 hours at Utangwa location in Mbooni west Sub-County within Makueni County he intentionally did an indecent act to MDM a girl child aged 17 years by touching her vagina using his penis. 3.He denied the allegations prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1 the complainant testified that she was born on 10 June 2007 as per her birth certificate and a student at [Particulars Withheld] Girls High School. She recalled that on 8 May 2025 she was in the school laboratory with two other students and the appellant who was a laboratory technician in the school. The two students left after finishing their exams and she was left with the appellant. The appellant grabbed her, took her inside the preparation room, placed her on the table, removed her under wear and inserted his penis on her vagina without a condom. She asked him to stop but he ignored her. After finishing, she rushed to the teacher on duty, Mr Swaleh and requested him to call the Deputy Head Teacher, Ms Rither Nthambi PW2 and told her what had happened. PW2 informed the principal Ms Muli Mutunga who examined the complainant and saw a whitish substance. They took her to the hospital and later reported to the police station. She identified the appellant as responsible. 4.PW2 Rither Nthambi stated that she was the Deputy Principal at [Particulars Withheld] Girls High School. She testified that on 8 May 2025, while in a meeting at the school, she received a call from a teacher, Mr Swaleh who informed her that the complainant was crying. She went to her office, found the complainant crying and on inquiry, she told her that the laboratory technician grabbed her while she was in the school laboratory, took her in the preparation room, had sex with her against her will and promised to buy her contraceptives. That she reported to the school principal, PW2 Dr Marrietta Mulinge who went to her office, examined the complainant and referred her to Mbooni Sub- County hospital where she was examined by PW4. The incident was then reported to the police station. 5.PW2 further testified that the appellant was the only laboratory technician for the school and had worked in the role for a period of 4 years. That the appellant did not report back to work the next day and was later traced to his rural home where he was arrested. PW 3 Dr Marrietta Mulinge testified that she was the principal of [Particulars Withheld] Girls High School. It was her evidence that on 8 May 2025 at 4pm, PW2 reported to her that the complainant had been defiled by the appellant in the laboratory. She went to PW2’s office where she found the complainant. She examined her panty and found whitish discharge. She then went to the laboratory but did not find the appellant or anything unusual in the laboratory table. She asked PW2 to accompany the complaint to the hospital and to the police, informed the complainant’s parents and reported the incident to the Ministry of Education. 6.It was her testimony that the appellant failed to go to school the next day and she directed the police to his home where he was subsequently arrested. PW4 Victor Mutua, a clinical officer at Mbooni Sub County hospital stated that on 8 May 2025 at 6pm, the complainant reported to have been sexually assaulted by someone known to him. Upon examination, it was established that the labia majora was painful and tender and the hymen was perforated leading to a conclusion that there was contact between the vagina of the complainant and appellant’s genitalia. He produced P3 Form (exhibit 2), treatment notes (exhibit 3) and post rape care form (exhibit 4) as evidence. 7.PW5 PC Hashim Nuno Abdi the investigating officer based at Mbooni Police station testified that on 9 May 2025 at 7pm while he was at the police station, a case of defilement was reported. He visited the scene and interviewed the witnesses after the complainant reported that she was defiled by the appellant at the school laboratory. He arrested the appellant the following day and charged him with the offence. He produced the complainant’s birth certificate (exhibit 1). 8.At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence. 9.In defence, the appellant testified on oath where he denied committing the offence. He testified that he was a laboratory technician at [Particulars Withheld] Girls High school and was in school on the material day. That he reported to work at 8am, cleaned the laboratory, closed it at 9 am, went to the secretary’s office until 12 noon, went for early lunch and then went to peace corner. In cross examination, he stated that on the material day, he was in school and there were students at the laboratory. He reiterated that he did not know the complainant and only met her in court. 10.At the close of the trial, the appellant was found guilty of defilement and sentenced to 5 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds of appeal:a.The trial court erred in law and fact by failing to find that the prosecution did not prove the ingredients of penetration and identification beyond reasonable doubt.b.The trial court erred in law and fact by failing to adequately analyze and take into consideration the evidence of PW 4 that found no evidence of penetration.c.The trial court erred in law and fact by placing reliance on the evidence of the complainant which lacked credibility due to the inconsistencies and without any corroboration.d.The trial court erred in law and fact by failing to take into consideration inconsistencies in the prosecution witnesses.e.The trial court erred in law and fact by failing to draw negative inference occasioned by the failure of the prosecution to call two students said to be in the laboratory as witnesses.f.The trial court erred in law and fact by failing to find that the prosecution did not avail evidence that placed the appellant at the crime scene.g.The trial court misdirected itself by shifting the burden of proof to the appellant and failing to consider the appellant’s defence. 11.The appellant filed written submissions which they relied on at the hearing of the appeal. He submitted that this being the first appellate court, it was duty bound to weigh the conflicting evidence and draw its own inference and conclusions, bearing in mind that it neither so nor heard the witnesses. The case of Njoroge vs Republic (1987) eKLR was cited in support thereof. 12.The appellant further submitted that the essential ingredients of the offence where age of the victim, proof of penetration and positive identification (See Charles Wamukoya Karani vs Republic Cr App No. 72 of 2013). He argued that whereas the prosecution proved the age of the complainant vide the birth certificate, the ingredients of penetration and identification of the appellant as the perpetrator were not proved. He went on to submit that the medical examination by PW4 did not find bruises, tears, lacerations on the body, vagina or cervix as proof of penetration. He pointed out what he deemed as contradictions between the evidence of PW1 and that of PW4 regarding the state of the hymen which PW4 had found to be old perforated meaning that there was previous penetration contrary to PW1 assertions that she was a virgin. Reliance was placed on the case of S vs Trainor (2003) 1 SACR (SCA) in support of the contention that the trial court erred in making a finding that the evidence by PW1 was corroborated by medical evidence adduced by PW4. 13.The appellant submitted that PW1’s testimony was riddled by inconstancies and contradictions that fundamentally undermined her credibility. He urged the court to find the contradictions in favor of the appellant and cited the case of John Mutua Musyoki vs Republic (2017) eKLR in support thereof. He further contended that the prosecution’s failure to call Antonina and Siam who were mentioned as witnesses reduced the weight of the prosecution’s case tremendously. 14.As regards identification, the appellant submitted that positive identification was not done and that PW1 was not a credible witness. The case of Bukenya & others vs Uganda (1972) EA 549 was cited on this issue. 15.The appellant further challenged the failure by the prosecution to adduce the complainant’s under pant that was alleged to have been recovered by PW5, the tissue said to have been used by the complainant to wipe herself and failure by PW5 to take photographs at the scene of the alleged incident without any explanation. 16.The appellant submitted that he was of good character, had never been cited for gross misconduct before and no complaints of such a nature had been reported to school. He cited Section 56 and 58 of the Evidence Act in support thereof. He contended that the evidence of PW2 and PW3 were hearsay and thus inconsequential since they were not present at the scene. 17.It was submitted that the appellant maintained a consistent narrative during the entire proceedings that he did not report to work on 9 May 2025 since he was attending a burial which evidence was corroborated by PW3 and is testament of his innocence. He maintained that on the material day, he left the laboratory at noon and only went back at 4pm to give access to the partitioned room in the library. He concluded that the prosecution did not prove the case against him beyond reasonable doubt and urged the court to allow the appeal and quash the conviction and sentence. 18.The respondent opposed the appeal, filed their submissions dated 8 May 2026 which they relied on. The respondent submitted that the element of penetration as defined in Section 2 of the Sexual Offices Act was proved by the evidence of PW1 who testified that the appellant inserted his penis into her vagina. That this was corroborated by medical examination which established that the hymen was perforated and there was tenderness of the labia majora. 19.On the issue of identification, it was argued that the appellant was a laboratory technician at the school since 2019 where the complainant was a student and that she knew him very well. That the appellant took advantage of the complainant when the two were left together in the laboratory and since the appellant was the only laboratory technician in the school, it ruled out the possibility of mistaken identity. The respondent further pointed out that the spontaneity within which the complainant acted after the event clearly leads to a conclusion that it occurred as alleged. 20.In conclusion, the respondent submitted that the sentence of five (5) years imprisonment was below the minimum sentence of fifteen (15) years prescribed by law under Section 8 (4) of the Sexual Offences Act. It was argued that the Supreme Court has held that minimum sentences set by law are lawful and must be observed, and that the trial court had no discretion to award a sentence below the minimum of 15 years in this instance. This court was urged to enhance the sentence to 15 years. Analysis and determination 21.This being the first appeal, the duty of this court is to examine and 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. See Okeno vs Republic [1972] EA 32 and the court of appeal decision in Kiilu & Another v Republic [2005]1 KLR 174. 22.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. 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.(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.” 23.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. See Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. 24.Drawing from the above, the issues for determination in this appeal are as follows: -a.Whether there was proof of the age of the victim.b.Whether there was proof of penetration.c.Whether the appellant was positively identified.d.Whether the sentence should be enhanced. Whether there was proof of the age of the victim 25.It is of utmost importance to prove the age of the victim in a case of defilement. In Hadson Ali Mwachongo vs Republic (2016) eKLR, the Court of Appeal held that:“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.” 26.The age of a victim may be proved in various ways. In Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR, the court stated:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 27.The complainant testified that she was born on 10 June 2007 meaning that she was 17 years and 10 months old at the time of commission of the offence. Her testimony was corroborated by the birth certificate produced by PW5 as exhibit 1. The appellant conceded that age was sufficiently proved. The court finds that age of the complainant as per the charge sheet was proved beyond any reasonable doubt. Whether there was proof of penetration 28.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. 29.To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainantMGM 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. 30.PW1’s testified that on 8 May 2025 she was in the school laboratory with two other students and the appellant who was a laboratory technician in the school. The two students left after finishing their exams and she was left alone with the appellant. She testified that the appellant grabbed her, took her inside the preparation room, placed her on the table, removed her under wear and inserted his penis on her vagina without a condom. She asked him to stop but he ignored her. After finishing, she rushed to the teacher on duty, Mr Swaleh and requested him to call the deputy head teacher, Ms Rither Nthambi PW2 and told her what had happened. 31.Her testimony was corroborated by PW2 Ms Rither Nthambi, the deputy headteacher who testified that she found the complainant in her office crying after being called by Mr Swaleh. That the complainant narrated to her what had happened and she immediately informed PW3, Ms Muli Mutunga, the principal who went to PW2’s office at 4pm, found the complainant, examined her and saw a whitish substance in her pant. PW1, PW2 and PW3 all testified that PW1 was then taken to Mbooni Sub-County hospital where they arrived at 6pm and she was examined by PW4. 32.PW4’s testified that he conducted a genital examination on PW1 on 8 May 2025 at 1845pm where it was established that her labia majora was tender and painful, the hymen perforated and found the present of epicireal cells meaning that she was sexually active. In cross examination, he testified that there was contact between the vagina of the complainant and the appellant genitalia which led to the tenderness of the vagina. He provided medical evidence in form of the P3 form, treatment notes and post rape care form to support his testimony. 33.The appellant did confirm that he was at the laboratory with the complainant which placed him at the crime scene. PW1 further clearly described when the defilement took place, that is, a preparation room within the laboratory. This place was confirmed to exist by PW3. 34.The appellant contested proof of penetration as summarized in the submissions. 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 Criminal Appeal No. 35 of 1995. 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). 35.The court finds that PW1’s evidence was cogent, consistent and corroborated by medical evidence by PW4 as well as evidence of PW2 and PW3. The fact of penetration was evidenced by the perforated hymen, tenderness and pain of the labia majora as well as presence of epicireal cells which according to PW4, meant that PW1 was sexually active. The court has considered the appellant’s contention that PW4 did not find bruises, tears, lacerations on the body, vagina or cervix as proof of penetration. However, no evidence has been placed before the court to show that penetration can only occur if there are bruises, tears, lacerations on the body, vagina or cervix. 36.The appellant submitted that PW1’s testimony was riddled by inconsistencies and contradictions that fundamentally undermined her credibility. He pointed out there were contradictions between the evidence of PW1 and that of PW4 regarding the state of the hymen which PW4 had found to be old perforated meaning that there was previous penetration contrary to PW1 assertions that she was a virgin. He urged the court to find the contradictions in favor of the appellant and cited the case of John Mutua Musyoki vs Republic (2017) eKLR in support thereof. 37.The court of appeal in case of Richard Munene Vs R (2018) eKLR had this to say regarding contradictions or inconsistency in the evidence of the prosecution witnesses:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law, however, that it is not every flirting contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that the accused person will be entitled to benefit from it.” 38.To the court’s mind, this court must consider if indeed there were material contradictions, inconsistencies or discrepancies as submitted by the appellant and if so, whether such contradictions or inconsistencies are substantial and fundamental to the main issues in question. 39.On the first limb, the court has considered the prosecution case wholesomely and did not find any material inconsistencies or contradictions that would totally discredit any particular witness. As regards the contradiction between PW1’s evidence that she was a virgin and PW4’s evidence, the court finds that such a distinction is immaterial to the main issue, which is whether there was evidence of penetration and not whether PW1 was a virgin. What matters in this instance is proof of penetration which remains a key ingredient of the offence. 40.The appellant faulted the prosecution for not calling the two people named by PW1 as witnesses to corroborate her evidence of PW1 arguing that these were crucial witnesses and failure to call them as witnesses casted doubt in the testimony on the complainant. 41.In Mwangi vs Republic (1984) KLR 595, the court of appeal said: -“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.” 42.The prosecution retained the discretion to determine which witnesses to call and is not obligated to call every named witness provided the evidence presented is sufficient to prove the charges against the accused beyond a reasonable doubt. The witnesses referred to by PW1 in her testimony was Antonita and Sima whose evidence would have reinforced PW1’s testimony that the appellant was in the laboratory on the material day. However, the appellant clearly testified that he was in the laboratory on that day and hence the failure to call the two, in the court’s view, is immaterial. 43.The court has analyzed the evidence on record and did not find any material inconsistencies in the prosecution’s case but rather minor deviations in some instances that did not go to the root or substance of the case. The prosecutions witnesses provided a consistent account of events that was corroborated by the evidence. The court finds penetration has been proved beyond reasonable doubt. Identification of the appellant as the perpetrator 44.On the issue of identification, the appellant contended that positive identification was not done and that PW1 was not a credible witness. The case of Bukenya & others vs Uganda (1972) EA 549 was cited on this issue. 45.PW1 testified that she was in the school laboratory on the material day together with the appellant who was a laboratory technician in the school. Her testimony was corroborated by PW2 and PW3 whose evidence was that the appellant had worked as the only laboratory technician in the school for four (4) years. PW1 who was a form four (4) student in the school clearly identified the appellant as responsible for the defilement. The incident occurred during day time and there was sufficient time for recognition. PW1 maintained at all material times that it was the appellant who defiled her. The court is satisfied that the appellant was positively identified as the perpetrator through recognition. 46.The appellant argued that the trial court did not consider his defence which exonerates him. However, the record shows that the trial court properly evaluated his evidence and weighed it against the prosecution’s evidence and concluded that it did not dislodge that the prosecution’s case which was consistent, cogent and credible. This court finds no reason to interfere with the trial courts finding. 47.This court is therefore satisfied that the trial court properly found that the prosecution had proved all ingredients of the offence beyond a reasonable doubt, finds the conviction by the trial court safe and upholds it. Whether the Sentence should be enhanced 48.The respondent submitted that the sentence of five (5) years imprisonment was below the minimum sentence of fifteen (15) years prescribed by law under Section 8 (4) of the Sexual Offences Act. He argued that the Supreme Court has held that minimum sentences set by law are lawful and must be observed, and that the trial court had no discretion to award a sentence below the minimum of 15 years in this instance. He urged the court to enhance the sentence to 15 years. The appellant did not submit on the issue of sentencing. 49.The appellant was sentenced to five (5) years imprisonment. However, Section 8 (4) of the Sexual Offences Act imposes a mandatory minimum sentence of 15 years. Mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi (2024) JELR 112261 (SC) and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR. The trial court did not have any discretion to award any sentence lower than 15 years. 50.What is before the court for determination is an appeal by the appellant against the conviction and sentence made pursuant to Section 350 (1) of the Criminal Procedure Code. Section 350 (2) of the said Code provides that the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal. Conversely, the Respondent is also barred from raising any point outside what is set out in the petition of appeal unless he files a cross appeal or issues a notice of intention to enhance the sentence. 51.Allowing the Respondent to contest the sentence without any form of notification would be a breach of rules of natural justice and a violation of Article 50 of the Constitution. 52.The court finds that the Respondent did not file any notice of cross appeal or issued a notice of enhancement of sentence that would have invited the court to consider enhancement of sentence. 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.” 53.Consequently, despite powers to vary granted under Section 354 (3) (a) (ii) of the Criminal Procedure Code, a sentence can only be revised upwards on appeal by the State or upon prior notice of enhancement being to the appellant on the possibility of enhancement of sentence. See also Mwanzia vs R (2023) KECA 420 (KLR). Final orders 54.The upshot is that the appeal lacks merit and is hereby dismissed in its entirety. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE