https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8938

MYN v Republic (Criminal Appeal E008 of 2024) [2026] KEHC 8938 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8938 (KLR) Republic of Kenya In the High Court at Narok Criminal Appeal E008 of 2024 CM Kariuki, J June 24, 2026 Between MYN Appellant and Republic Respondent (Being an appeal from the conviction delivered on 13/06/2024 and sentence delivered on 15/07/2024 of Hon. P. L. Shinyada (PM) in Narok MCSO NO. E012 OF 2023) Judgment A. Introduction and Background 1.This appeal arises from the judgment of the Principal Magistrate's Court at Narok in Sexual Offences Case No. E012 of 2023, where the Appellant, MYN, was charged with the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on 4th January 2023 at [Particulars Withheld] Area within Narok Central Sub-County, Narok County, she caused her vagina to be penetrated by the penis of JK, a child aged 15 years. In the alternative, she faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2.The prosecution called five witnesses in support of its case. The complainant (PW1) testified that while visiting his sister's home, the Appellant sexually assaulted him by manipulating his penis and causing it to penetrate her vagina. PW2, the complainant's mother, testified regarding the complainant's report shortly after the incident and the subsequent medical examination. PW3, the complainant's sister, confirmed that she had left the complainant in the company of the Appellant before the alleged incident. PW4, a Clinical Officer, produced the treatment notes, P3 Form, and Post-Rape Care Form and testified that although no genital injuries were observed, the complainant had sustained an injury on his upper lip. PW5, the investigating officer, narrated the investigations undertaken and the circumstances leading to the Appellant's arrest. 3.Upon being placed on her defence, the Appellant denied the allegations and maintained that she never remained alone with the complainant. She called two witnesses. DW2, her brother, testified regarding the strained relationship between the complainant's mother and sister, and the complainant's marriage to the sister. DW3, a minor aged 13 years, stated that he was present throughout and that neither the complainant nor the Appellant was left alone. 4.After evaluating the evidence, the trial court found that the prosecution had proved the offence of defilement beyond reasonable doubt, convicted the Appellant under Section 215 of the Criminal Procedure Code, and subsequently sentenced her to twenty (20) years' imprisonment pursuant to Section 8(3) of the Sexual Offences Act. 5.Being dissatisfied with both the conviction and sentence, the Appellant lodged the present appeal. B. Memorandum of Appeal 6.The Memorandum of Appeal dated 29th July 2024 challenges both the conviction and sentence imposed by the trial court in MCSO/E012/2023. The appeal raises the following grounds:1.That the learned Magistrate erred in law and fact in convicting the Appellant on evidence which did not meet the required standard.2.That the Learned Magistrate erred in law and fact in finding the Appellant guilty of the offence of defilement without proof of penetration.3.That the Learned Magistrate erred in law and in fact in convicting the Appellant without taking into consideration her defence.4.That the Learned trial court erred in law and fact in failing to consider the evidence of PW 4, who was the Clinical Officer. 7.Consequently, the appellant seeks orders from the appellate court to set aside and allow the appeal. C. Submissions i. Appellant’s Submissions 8.The Appellant submits that the conviction for the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act was unsafe and ought to be quashed because the prosecution failed to prove all the essential ingredients of the offence beyond reasonable doubt. While conceding that the complainant’s age and the identity of the Appellant were not disputed, counsel argues that the prosecution failed to establish the critical element of penetration. Reliance is placed on Section 8(1) of the Sexual Offences Act and the decision in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, where the court identified the essential ingredients of defilement as proof of the complainant’s age, penetration, and the identity of the perpetrator. 9.On the issue of penetration, the Appellant submits that the medical evidence adduced by PW4, Felix Rotich, a Clinical Officer, did not support the allegation of defilement. Counsel points out that PW4 testified that upon examination of the complainant, there were no injuries or bruises on the genitalia, no anal injuries, and no urethral discharge, the only noted injury being a wound on the complainant’s upper lip. Further, during cross-examination, PW4 allegedly conceded that the laboratory findings did not link the Appellant to the offence and that he could not conclude from his examination that penetration had occurred. It is therefore argued that the P3 Form, treatment notes, and Post Rape Care (PRC) Form failed to establish penetration and that the trial court erred by relying solely on the complainant’s testimony despite the absence of corroborative medical evidence. 10.In support of this contention, the Appellant cites EE v Republic [2015] eKLR, where the court held that proof of penetration is a fundamental ingredient of the offence of defilement. Reliance is also placed on Mark Oiruri Mose v Republic [2013] eKLR, where the Court of Appeal emphasised that a conviction for defilement cannot stand in the absence of proof of penetration. The Appellant further cites the Ugandan Supreme Court decision in Bassita v Uganda, Supreme Court Criminal Appeal No. 35 of 1995, for the proposition that although penetration may be proved by direct or circumstantial evidence, the evidence relied upon must be sufficient to establish the offence beyond reasonable doubt. Counsel therefore contends that the prosecution failed to discharge its burden of proof as required by the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462, which established the principle that the burden of proving a criminal charge rests throughout on the prosecution. 11.The Appellant further submits that the trial court failed to consider the defence case properly and, in particular, the testimony of DW3, LK, who was found competent to testify after a voir dire examination. According to the Appellant, DW3 was an eyewitness who stated that he was present in the house throughout the material period and that the Appellant was never left alone with the complainant. DW3 further testified that the Appellant did not commit the alleged offence. Counsel argues that the trial court wrongly disregarded this evidence on the basis that DW3 had not featured prominently during the prosecution’s case, notwithstanding that prosecution witnesses had mentioned his presence. It is submitted that having been admitted as a competent witness, his testimony ought to have been evaluated fairly and objectively. In support of this argument, reliance is placed on Bukenya & Others v Uganda [1972] EA 549, where the East African Court of Appeal stressed the importance of considering all material evidence before arriving at a decision. 12.The Appellant also contends that the trial court failed to evaluate the entirety of the evidence on record properly. Counsel argues that the court concentrated exclusively on the prosecution’s case while ignoring material exculpatory evidence from the defence, particularly the testimony of DW3. It is submitted that evidence must be considered holistically, and that failure to evaluate a material witness amounts to a violation of the right to a fair trial guaranteed under Article 50(2)(k) of the Constitution of Kenya, 2010. Reliance is placed on Okeno v Republic [1972] EA 32, in which the Court of Appeal held that a first appellate court is under a duty to reconsider and re-evaluate the evidence afresh and to draw its own independent conclusions. The Appellant therefore maintains that the trial court’s selective evaluation of the evidence rendered the conviction unsafe. 13.Consequently, the Appellant urges the appellate court to find that the prosecution failed to prove penetration, failed to establish the charge beyond reasonable doubt, and that the trial court improperly disregarded material defence evidence. On that basis, the Appellant prays that the appeal be allowed, the conviction quashed, the sentence of twenty years’ imprisonment set aside, and the Appellant be released forthwith unless otherwise lawfully held. 14.In the alternative, and without prejudice to the foregoing arguments, the Appellant submits that if the conviction is upheld, the sentence ought to be reconsidered. Counsel argues that although the Supreme Court in Republic v Joshua Gichuki Mwangi upheld the constitutionality of mandatory minimum sentences under the Sexual Offences Act, the Appellant’s conviction preceded that decision. It is therefore contended that the trial court ought to have exercised greater discretion in considering the Appellant’s mitigation and imposing a lesser sentence. Accordingly, the Appellant urges the court, should it decline to interfere with the conviction, to reduce the sentence imposed. ii. Respondent’s Submissions 15.The Respondent opposes the appeal and submits that the conviction and sentence imposed by the trial court were lawful, proper, and supported by cogent evidence which proved the offence of defilement beyond reasonable doubt. The Respondent contends that all the grounds of appeal revolve around the sufficiency and evaluation of the evidence adduced before the trial court and argues that the prosecution successfully established all the essential ingredients of the offence under Sections 8(1) and 8(3) of the Sexual Offences Act, No. 3 of 2006. 16.The Respondent submits that the law is settled that for a conviction for defilement to stand, the prosecution must prove three essential elements: that the complainant was a child, that there was penetration, and that the accused person caused the penetration. Reliance is placed on F.M.N v Republic, Criminal Appeal No. 78 of 2008, where the court identified these three ingredients as the indispensable elements of the offence of defilement. 17.On the first element, namely the age of the complainant, the Respondent submits that the prosecution proved beyond doubt that the complainant was a child aged fifteen years. Counsel refers to Section 2 of the Children Act, No. 29 of 2022, which defines a child as a person below the age of eighteen years. It is submitted that the complainant’s Birth Certificate, produced as Exhibit 4, confirmed that he was fifteen years old at the time of the offence. Further, the evidence of PW1, the complainant, and PW2, his mother, consistently established his age. The Respondent argues that the complainant’s age was never disputed during the trial and was therefore conclusively proved. 18.Regarding the issue of penetration, the Respondent relies on the definition contained in Section 2 of the Sexual Offences Act, which defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. It is submitted that PW1 gave a clear and consistent account of how the Appellant sat on him, manipulated his penis, and inserted it into her vagina. According to the Respondent, this evidence sufficiently established penetration. Counsel further points out that PW1 testified that the Appellant covered his mouth with her hand during the incident, causing an injury to his upper lip. This account was corroborated by PW4, the Clinical Officer, who testified that upon examination he observed an injury on the inside of the complainant’s upper lip, consistent with the complainant’s narration of events. 19.The Respondent further submits that the trial court was entitled to rely on the testimony of the complainant alone pursuant to Section 124 of the Evidence Act, Cap. 80 Laws of Kenya. The proviso to that section permits a court in sexual offence cases to convict on the sole evidence of the victim if the court records reasons for believing that the victim is truthful. It is argued that the trial magistrate found the complainant to be a truthful witness and properly relied on his testimony in reaching a conviction. Consequently, the Respondent maintains that the element of penetration was proved beyond reasonable doubt notwithstanding the absence of extensive medical findings. 20.On the issue of identification, the Respondent submits that there was no possibility of mistaken identity because the complainant knew the Appellant before the incident. The evidence showed that the Appellant was the sister-in-law of the complainant’s sister and had been left in the house to care for the children when the complainant’s sister went to a salon. The Respondent argues that this was therefore a case of recognition rather than mere identification of a stranger, making the complainant’s evidence particularly reliable. Counsel further notes that the Appellant allegedly fled to her sister’s residence after being confronted by DW2, conduct which the Respondent contends reinforced the prosecution’s case. 21.In conclusion, the Respondent submits that the prosecution discharged its burden of proof and established all the ingredients of the offence of defilement beyond reasonable doubt. It is argued that the trial magistrate properly analysed the evidence, correctly applied the law, and imposed a sentence that was lawful under Section 8(3) of the Sexual Offences Act. The Respondent therefore urges the court to find that the conviction was safe, the sentence lawful, and accordingly dismiss the appeal in its entirety while upholding both the conviction and the sentence imposed by the trial court. D. Issues for Determination 22.Having considered the record of appeal, the grounds of appeal, the submissions of the parties, and bearing in mind the duty of a first appellate court, the following issues arise for determination:i.Whether the prosecution proved the age of the complainant beyond reasonable doubt.ii.Whether the prosecution proved the element of penetration beyond reasonable doubt.iii.Whether the prosecution proved that the Appellant was the person who committed the offence.iv.Whether the trial court failed to consider and evaluate the defence evidence properly.v.Whether the conviction was safe.vi.Whether the sentence imposed was lawful and whether this Court should interfere with it. E. Analysis and Determination Duty of a First Appellate Court 23.This being a first appeal, this Court is obligated to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 24.In Okeno v Republic [1972] EA 32, the East African Court of Appeal stated:“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 the appellate court's own decision on the evidence." 25.Similarly, in Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal reiterated that a first appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions. i. Whether the Age of the Complainant was Proved 26.Age is a critical ingredient of the offence of defilement and must be proved beyond reasonable doubt. In Charles Wamukoya Karani v R CR Appeal No. 72 of 2013, the Court of Appeal held that the ingredients of the offence of defilement are proof of age, penetration, and identification of the offender. 27.The complainant testified that he was aged 15 years. PW2, his mother, confirmed the same. The investigating officer produced the complainant's Birth Certificate, which showed that he was born on 28th November 2007. 28.In Mwalango Chichoro Mwanjembe v Republic [2016] eKLR, the Court of Appeal held that a birth certificate, baptismal card, school records, medical evidence, or the testimony of a parent may prove age. 29.The evidence on record conclusively established that the complainant was aged fifteen (15) years at the time of the offence. Indeed, this aspect was not disputed by the Appellant either before the trial court or on appeal. 30.Consequently, this Court finds that the age of the complainant was proved beyond reasonable doubt. ii. Whether Penetration was Proved Beyond Reasonable Doubt 31.The central issue in this appeal is whether the prosecution proved the element of penetration beyond reasonable doubt. Penetration is the gravamen of the offence of defilement, and unless it is established to the required standard, a conviction cannot stand. 32.Section 2 of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 33.The law is settled that the prosecution bears the burden of proving penetration beyond reasonable doubt. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held that proof of penetration is an indispensable ingredient of the offence of defilement. Similarly, in EE v Republic [2015] eKLR, the Court emphasised that penetration must be established by credible and reliable evidence. 34.In the present case, the prosecution relied principally on the testimony of PW1, who stated that the Appellant manipulated his penis until it became erect and thereafter inserted it into her vagina. The trial court accepted that testimony and found it sufficient proof of penetration. 35.This Court appreciates that medical evidence is not the only means by which penetration may be proved. In Bassita v Uganda Criminal Appeal No. 35 of 1995 [1999] UGSC 5, the Supreme Court of Uganda held that penetration may be proved by direct evidence even in the absence of medical findings. Likewise, in Fappyton Mutuku Ngui v Republic [2014] eKLR, the Court of Appeal observed that credible oral evidence may suffice to establish penetration. 36.However, where medical evidence is available and forms part of the prosecution case, the court must evaluate whether such evidence supports, contradicts, or remains neutral regarding the allegations made. Medical evidence cannot be ignored where it raises legitimate questions concerning the occurrence of the alleged offence. 37.PW4, the Clinical Officer, examined the complainant on the day following the alleged incident. His findings revealed no injuries to the genitalia, no bruises, no urethral discharge, no anal injuries, and no medical indicators suggestive of recent sexual activity. The only injury observed was a bruise on the complainant's upper lip. 38.More significantly, PW4 conceded during cross-examination that the laboratory findings did not link the Appellant to the alleged offence and that the examination did not conclusively establish penetration. The P3 Form, treatment notes, and Post Rape Care Form, therefore, did not provide independent support for the allegation of penetration. 39.While the absence of genital injuries does not automatically negate penetration, it remains a relevant evidentiary factor. In the circumstances of this case, the medical evidence was neither corroborative nor supportive of the prosecution's narrative. At best, it remained neutral. 40.The prosecution therefore invited the court to rely almost exclusively on the testimony of PW1 pursuant to the proviso to Section 124 of the Evidence Act. That provision allows a court to convict on the sole evidence of a victim in a sexual offence if the court records reasons for believing the victim to be truthful. 41.Nevertheless, the proviso to Section 124 does not dispense with the requirement that the evidence be free from reasonable doubt. The court must still examine the totality of the evidence and determine whether the prosecution has discharged its burden of proof. 42.Upon re-evaluating the record, I find that there existed surrounding circumstances which called for greater caution before accepting PW1's evidence as sufficient proof of penetration. First, the evidence disclosed that several persons were present in or around the house during the material period. Secondly, the prosecution did not call the complainant's younger sister, who was allegedly present and who, according to PW1, touched the door during the alleged incident, prompting the Appellant to stop the alleged act. 43.The evidence of that witness would have been highly material in clarifying the circumstances under which the alleged offence occurred. No explanation was offered for her omission. 44.Furthermore, the investigating officer admitted that she did not establish whether Leon Kamau (DW3) was present in the house during the material time despite the significance of that issue to the investigations. 45.In Bukenya & Others v Uganda [1972] EA 549, the East African Court of Appeal held that where the prosecution fails to call material witnesses and the evidence on record is barely adequate, the court may draw an inference that the evidence of the uncalled witnesses would have been adverse to the prosecution's case. 46.Taking all these factors into account, I am unable to conclude that the prosecution established penetration beyond reasonable doubt. The evidence of PW1, though not necessarily false, was not sufficiently supported by the surrounding circumstances to eliminate reasonable doubt. 47.Consequently, I find that the prosecution failed to prove the essential ingredient of penetration to the standard required in criminal proceedings. iii. Whether the Appellant was Positively Identified as the Perpetrator 48.There is no dispute that the complainant knew the Appellant before the alleged incident. The evidence established that she was his sister's sister-in-law and that they had previously interacted on several occasions. 49.This was therefore a case of recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is generally more reliable than identification of a stranger because it is based upon prior knowledge of the person identified. 50.I am satisfied that there was no possibility of mistaken identity. The complainant consistently identified the Appellant as the person alleged to have assaulted him. 51.However, proof of identity alone is insufficient. The prosecution was still required to prove beyond reasonable doubt that the Appellant committed the alleged act constituting the offence. Recognition cannot substitute for proof of the actus reus of the offence. 52.Accordingly, while the identity of the Appellant was not in issue, that finding does not cure the evidentiary deficiencies regarding proof of penetration. iv. Whether the Trial Court Properly Considered and Evaluated the Defence Evidence 53.The Appellant contends that the trial court failed to adequately consider the evidence of DW3, who testified that he remained in the house throughout the material period and that the Appellant and the complainant were never left alone. 54.The duty of a trial court is not merely to summarize the defence evidence but to evaluate it alongside the prosecution's case and determine whether it raises a reasonable doubt. In Okethi Okale & Others v Republic [1965] EA 555, the Court emphasized that a court must weigh the defence against the prosecution's evidence before arriving at its conclusions. 55.DW3 was subjected to a voir dire examination and found competent to testify. His evidence was direct evidence from a person who claimed to have been present throughout the relevant period. 56.He stated that after lunch the Appellant was engaged in household chores, that the complainant remained in the house with the others, and that at no time were the complainant and the Appellant left alone. 57.The trial court rejected that evidence principally because DW3 had not featured prominently during the prosecution's case and because there were inconsistencies concerning the clothing worn by the Appellant. 58.With respect, the fact that a witness first appears during the defence case is not, by itself, a valid basis for rejecting his evidence. The real question is whether the testimony raises a reasonable doubt regarding the prosecution's case. 59.The inconsistency concerning whether the Appellant wore a dera or trousers was peripheral to the central issue. It did not necessarily discredit DW3's assertion that he remained present throughout the material period. 60.In my view, the trial court did not adequately address the significance of DW3's evidence in relation to the prosecution narrative. That evidence constituted direct evidence capable of creating doubt as to whether the alleged offence could have occurred in the manner described by PW1. 61.The failure to accord proper weight to that evidence resulted in an incomplete evaluation of the defence case. v. Whether the Conviction was Safe 62.The burden of proving a criminal charge rests entirely upon the prosecution and never shifts to an accused person. This principle was authoritatively stated in Woolmington v Director of Public Prosecutions [1935] AC 462. 63.Upon a fresh and exhaustive evaluation of the evidence, I find that although the age of the complainant and the identity of the Appellant were established, the prosecution failed to prove penetration beyond reasonable doubt. 64.The medical evidence did not support the allegation of penetration; material witnesses were not called; the investigations left significant gaps; and the defence evidence raised doubts which were not satisfactorily addressed. 65.In Sawe v Republic [2003] KLR 364, the Court of Appeal held that suspicion, however strong, cannot form the basis of a criminal conviction. 66.The cumulative effect of the evidentiary shortcomings identified above is that the conviction cannot be regarded as safe. 67.Where doubt exists, that doubt must be resolved in favour of the accused person. 68.I therefore find that the prosecution failed to prove the charge against the Appellant beyond reasonable doubt. vi. Whether the Sentence Should Stand 69.Having found that the conviction was unsafe, the sentence imposed by the trial court cannot stand. 70.The conviction is hereby quashed and the sentence set aside. The Appellant is entitled to an acquittal. F. Disposition 71.Having independently re-evaluated and re-analysed the entire evidence on record, the grounds of appeal, the submissions of the parties, and the applicable law, this Court is satisfied that the prosecution failed to prove the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act beyond reasonable doubt. 72.While the age of the complainant and the identity of the Appellant were established, the prosecution failed to prove the essential ingredient of penetration satisfactorily. The evidence on record, when considered in its entirety, left material gaps and unresolved doubts which ought to have been resolved in favour of the Appellant. 73.Accordingly, the Court makes the following orders:i.The appeal against conviction is hereby allowed.ii.The conviction for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act entered against the Appellant in Narok MCSO No. E012 of 2023 is hereby quashed.iii.The sentence of twenty (20) years’ imprisonment imposed upon the Appellant is hereby set aside.iv.The Appellant, MYN, is hereby acquitted of the charge and shall be released forthwith unless otherwise lawfully held. 74.Orders Accordingly. DATED, SIGNED, AND DELIVERED AT NAROK THIS 24TH DAY OF JUNE, 2026................................CHARLES KARIUKIJUDGE