https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1191

Ndege v Republic (Criminal Appeal 89 of 2019) [2026] KECA 1191 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1191 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 89 of 2019 PM Gachoka, JM Ngugi & MB Kairaria, JJA June 26, 2026 Between Jackson Ndege Appellant and Republic Respondent (An appeal from the judgment by the High Court of Kenya at Nakuru (J. Mativo, J.) and delivered by (Mulwa, J.) on 7th November 2019 in HCCRA No. 255 of 2014) Judgment 1.The appellant, Jackson Ndege, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. The particulars of the offence were that on 2nd April 2014, at Gilgil District, within Nakuru County, the appellant intentionally and unlawfully committed an act, by inserting his penis into the vagina of CW, a girl aged 7 years, which caused penetration. 2.The appellant also faced an alternative count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on 2nd April 2014, at Gilgil District, within Nakuru County, the appellant intentionally and unlawfully committed an indecent act with CW, a girl aged 7 years, by touching her vagina. 3.The appellant was arraigned before the trial court to answer to the charges. He pleaded not guilty to both counts. The prosecution marshalled 4 witnesses to prove its case. After a full trial, the appellant was convicted on the main charge and sentenced to life imprisonment. The appellant preferred an appeal before the Nakuru High Court where Mativo, J., as he then was, dismissed his appeal on conviction and sentence. 4.The appellant was aggrieved by those findings. He filed his notice of appeal dated 14th November 2019. He also filed his memorandum of appeal dated 14th November 2019 and undated supplementary grounds of appeal that raised a total of nine grounds disputing the findings of the learned judge. We have taken the liberty to summarize those grounds as follows: that the mandatory sentence imposed on him was declared unconstitutional by the Supreme Court; that the prosecution failed to discharge its burden of proof to the required standard; that the first appellate court failed to warn itself on the dangers on relying on the evidence of a single identifying witness; that the High Court wrongly shifted the burden of proof to the appellant; that his defence was wrongly dismissed; and that his rights under Article 50 of the Constitution were violated. For those reasons, the appellant urged this Court to allow his appeal, quash his conviction, set aside his sentence and that he be set at liberty. 5.The appeal was heard on 17th May 2025 on the basis of the parties’ written submissions. The appellant was virtually present from prison, while the respondent was represented by Senior Assistant Director of Public Prosecutions, Mr. Omutelema. 6.As a second appeal, section 361 of the Criminal Procedure Code provides that this Court shall only hear appeals on points of law. This Court’s jurisdiction cannot thus interfere with the decision of the High Court on facts unless it is shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were wrong in their decision, when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. 7.The Court, in Dzombo Mataza v R [2014] eKLR, set out succinctly our role as a second appellate court in the following words:“This is but a second appeal. Under the law, we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court – see Okeno v Republic (1972) EA. 32. By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it is shown that the two courts below- considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 8.As already stated, the parties relied on their written submissions.The appellant cited several authorities and attacked the mandatory nature of the life sentence, arguing that it takes away the discretionary powers of the court and is thus unconstitutional. In his own words: “the court should consider jurisprudential development and award a sentence that does not traumatize the appellant but also gives an opportunity to make something of his life” 9.While acknowledging the decisions of the Supreme Court, that clarified that mandatory sentences were lawful, the appellant urged this Court to depart from those findings and reconsider the sentence as it was unconstitutional. The appellant cited several authorities in support of this argument, and we have read and considered all of them. 10.Lastly, the appellant submitted that his defence was cogent but was not considered by the two courts below and that his defence of alibi was not dislodged by the prosecution. For those reasons, the appellant urged this Court to quash his conviction and set aside the sentence that was imposed on him. 11.The respondent opposed the appeal. Mr. Omutelema filed written submissions, a list of authorities and case digest, all dated 21st August 2024, to submit that all the ingredients of the offence of defilement, namely, the age of the complainant, penetration and identity of the perpetrator, were proved beyond reasonable doubt. He further submitted that the appellant was afforded a fair trial, in line with Article 50 of the Constitution. In fact, he was ably represented by counsel. On whether the appellant’s defence was considered, counsel submitted in the affirmative, stating that after considering the same, his defence was rightly rejected. Lastly, on the sentence meted out, the respondent argued that the same was lawful. Mr. Omutelema urged this Court to dismiss the appeal for those reasons. 12.Based on our limited jurisdiction set out in our foregoing paragraphs, we turn to the question whether the appeal on conviction is merited. In order to sustain a conviction for a charge of defilement, the prosecution must prove beyond reasonable doubt, the age of the complainant, penetration and the positive identification of the perpetrator. 13.On the complainant’s age, the trial court confirmed from the record that the complainant testified that she was 8 years old. Her mother estimated her age, as corroborated by the age assessment report that was produced in evidence by PW3, Dr. Justus Nondi, as between 7 and 7½ years old. The evidence of the P3 form further indicated that the minor was 7 years old. We are satisfied from that evidence that the two courts below arrived at a correct conclusion that the minor was 7 years old at the time of the offence. 14.Turning to the aspect of penetration, we note that the complainant narrated that she met the appellant by the road on her way home. The appellant, who was selling sugarcane on the roadside, took her to his house, undressed her and defiled her. She felt pain and cried. After the ordeal, she went home and told her mother, PW2. The complainant was subjected to a rigorous cross-examination by the advocate for the appellant, but her narration remained consistent. 15.PW2 gave evidence that on 2nd April 2014, she was at home when the complainant returned from school. The complainant went to the toilet but stayed there for more than 40 minutes. On questioning her, PW2 was told by the complainant that she was feeling pain in her private parts. She observed her private parts and noted some discharge and blood. The complainant did not disclose what had happened but would later confide to her class teacher that the appellant had defiled her and she later took the child to the hospital. 16.From the medical exam, the conclusion by PW3 was that there was penetration, as from the examination of the complainant, her hymen was broken with injuries in her labia minora. We therefore see no reason to interfere with the finding that indeed there was penetration. 17.Was the appellant the perpetrator? From the findings of the two courts below, the complainant knew the appellant very well. Her mother testified that the appellant was their neighbour. 18.As already stated, the complainant was subjected to rigorous cross-examination. Her evidence remained consistent. She was categorical that the ordeal took place during the day, at around 1:00 p.m. At the risk of belaboring the point, the complainant met the appellant selling sugarcane by the roadside before proceeding to sexually assault her. She knew him very well. In answer to a question raised in cross-examination, she said: “the accused person used to call me to his house to wash utensils”. Clearly, this was a case of recognition rather than identification and there was no case of mistaken identity. 19.We observe that the complainant’s testimony was truthful as she remained unshaken in cross examination. Her evidence was qualified under the proviso to section 124 of the Evidence Act, which allows a court to convict an accused person on the basis of a single identifying witness’s testimony, so long as the court is satisfied that the witness is telling the truth. 20.On whether the appellant’s defence was considered, we have examined the judgments of the two courts below. We find that they extensively analyzed the evidence of the appellant and his witnesses. Their conclusions were correct in finding that their testimonies did not persuade them to make a finding that the appellant had been framed. That the appellant’s witnesses were economical with the truth and gave contradictory statements. We thus find that the appellant’s defence was properly considered and rejected. 21.We also find that contrary to the appellant’s allegations, the courts did not shift the burden of proof to him. Lastly, the appellant failed to demonstrate how his rights under Article 50 of the Constitution were violated. That ground must therefore fail. 22.In the end, we find no reason to fault the concurrent findings of the two courts below. We therefore uphold the conviction.The appellant was sentenced to life imprisonment in line with section 8 (2) of the Sexual Offences Act. This sentence was upheld by the High Court. The appellant has raised compelling grounds urging this Court ought to interfere with it. Cognizant of the holding of the Supreme Court, the appellant persuaded this Court to nonetheless reconsider the sentence imposed on him as it was unconstitutional and failed to give room for discretion. 23.We acknowledge the sentiments of the appellant. However, decisions of the Supreme Court bind this Court under the doctrine of precedent. In Republic v Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) and Republic v Manyeso [2025] KESC 16 (KLR), Supreme Court affirmed mandatory sentences provided in law to be lawful. We cannot depart from those findings. In the circumstances, we find that the appeal on sentence similarly lacks merit and is hereby dismissed. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb........................................JUDGE OF APPEALJOEL NGUGI.......................................JUDGE OF APPEALMURUNGI B. KAIRARIA.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR