https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12045

Ngari v Republic (Criminal Appeal E064 of 2024) [2026] KEHC 12045 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12045 (KLR) Republic of Kenya In the High Court at Embu Criminal Appeal E064 of 2024 RM Mwongo, J July 29, 2026 Between Timothy Ngari Appellant and Republic Respondent (Appeal arising from the decision of Hon. V.M. Masivo in the Runyenjes MCSO No. E004 of 2025 delivered on 17th November 2025) Judgment The Charge 1.The appellant herein was charged with defilement contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act. Particulars of the offence were that on 21st January 2025 at around 1530hrs at [Particulars withheld] village, [Particulars withheld] Location, Embu East sub county within Embu County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of EWN, a child aged 6 years. 2.He faced the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars are that on 21st January 2025 at around 1530hrs at [Particulars withheld] village, [Particulars withheld] Location, Embu East sub county within Embu County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of EWN, a child aged 6 years. 3.The appellant pleaded not guilty of the charges and a plea of ‘not guilty’ was duly entered. The prosecution called witnesses in support of its case and the appellant gave his defense. He was convicted for defilement and sentenced to imprisonment for life. The Petition of Appeal 4.Dissatisfied with the decision of the trial court, the appellant filed a petition of appeal dated 27th November 2025, the grounds of which are:1.That the learned trial Magistrate erred in both matters of law and facts by imposing harsh and excessive sentence hence violating Article 50(p) of the constitution of Kenya 2010;2.That the learned trial Magistrate erred in both matters of law and facts by convicting the appellant whereas the evidence by the medical expert did not corroborate with complainant’s narrative;3.That the learned trial Magistrate erred in both matters of law and facts by relying on insufficient evidence to sustain a safe conviction;4.That the learned trial Magistrate erred in both matters of law and facts by relying much on suspicion hence arriving at a wrong decision; and5.That the learned trial magistrate erred in both matters of law and facts by rejecting the appellant's defense which was enough to displace the prosecution's case. Summary of the Evidence at the Trial 5.PW1 was the victim, a minor, who gave unsworn evidence following voire dire examination. She stated that she met the appellant at the home of Munene and they shared some porridge. She was familiar with him as he is usually at home. He then lay her on a seat and inserted something into her vagina (kasusu). She did not see the thing but he inserted it when he was sitting and she was lying down. She stated that when he inserted the thing into her vagina, he had told her to close her eyes and she did; then she opened her eyes when he told her to do so. That it was during daytime and he was not undressed. 6.The accused then dressed her up and told her to go to Kim’s house. She told her mother about the ordeal and she was taken to the hospital and to the police station. She identified the appellant in the dock as her assailant. On cross-examination, she stated that they were drinking porridge outside the house and after the incident, he told her to go and play with Kim’s daughter. The trial court noted the demeanor of the witness as testifying in a low tone but firm. That she appeared confident and was looking at the appellant as she answered the questions. 7.PW2 was the victim’s mother. She produced the victim’s birth certificate indicating that the child was 6 years old at the time of the incident. She stated that after work on the day of the incident, she was on her way to pick up the victim who ordinarily waited for her at Kennedy’s shop. On that day, when she arrived, she saw the victim leaving the appellant’s home. When the victim saw her, she was afraid and so she (the witness) called her and demanded that she tells her what was happening. The victim lied to her at first and so she beat her with a sandal. The victim then opened up and narrated the incident to her. 8.She called the sub-area and told him about the incident. He advised that PW1 be taken to the hospital and the matter be reported to the Chief. She took PW1 to Runyenjes Level 4 Hospital where she was examined and treated. She stated that she saw the appellant when she was picking PW1 and that she knew him as her sister-in-law’s co-worker. She denied holding any grudge against the appellant; that she knew him as a good person who worked for her from time to time. On cross-examination, she stated that the appellant used to buy sweets for PW1 often and they were fond of each other. 9.PW3 was EN, a village elder who stated that PW2 called her about the incident and he went to her home. PW1 revealed that the appellant had inserted something into her vagina but she did not know what object was inserted. He advised PW2 to take PW1 to hospital. At the time, the appellant had been employed by PW2’s neighbour. 10.PW4 was Ann Kithinji a Clinician at Runyenjes Level 4 Hospital. She produced the P3 and PRC forms as evidence. She stated that on 21/01/2025 she examined PW1 who presented with a history of defilement. Upon examination, she found that PW1’s urethra region was swollen, her hymen was broken and there was redness around her vaginal area. She observed that there was a white discharge outside her genitalia. On cross-examination, she stated that the appellant was not presented to the hospital for examination. 11.PW5 was PC Agnes Wambui the investigating officer of Ena Police Station, She testified that the incident was reported at the police station on the same day that it had occurred. She stated that the appellant was arrested the same day in the evening. The age of the child was ascertained through the birth certificate presented by her mother and it indicated that she was 6 years old at the time of the incident. On cross-examination, she stated that the appellant was arrested by the area Assistant Chief. 12.DW1 was the appellant who stated that at the time, he was working for the victim’s aunt. On the material day, he was making porridge when the victim came asking for her father and he told her where he was. PW1 then went to the main house and asked to do her homework from there. She also requested for a cup of porridge when she saw the appellant taking his porridge. He gave her the porridge and then she returned to the main house. Shortly afterwards, she left the house and said that she was going to her home and he did not see her again. 13.At about 10pm, PW2 came calling for him and when he went outside, he was handcuffed but not told why he was being arrested. He was escorted to Ena Police Station where he was informed of the charges against him. On cross-examination, he stated that he knows PW1. On the day of the incident, he was alone with the child and her home was not far from where they were. That she stayed for about 10 minutes before leaving. He stated that he relates well with the family of PW1. Parties’ Submissions on Appeal 14.In his submissions, the appellant re-hashed the evidence by the prosecution and argued that it did not meet the required evidentiary threshold. He added that PW1 was coached to implicate him. He relied on the cases of Charo Ngumbao Gugudu v. Republic (Criminal Appeal 358 of 2008) and Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR). He argued that the sentence contravenes Articles 25(c), 27(1) & (2, 50(2)(p) and 51(1) of the Constitution. 15.The respondent relied on sections 2 and 8(1 &2) of the Sexual Offences Act, Rule 4 of the Sexual Offences Rules 2024 and the cases of Moses Mwarimbo Dau v Republic [2018] KECA 91 (KLR), Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) and Hadson Ali Mwachongo v Republic [2016] KECA 521 (KLR). It stated that the offence was proved beyond reasonable doubt through the prosecution’s witnesses. It stated that the conviction was safe and the sentence ought to be upheld. Issues for Determination 16.The issues for determination are as follows:1.Where or not the offence was proved beyond reasonable doubt; and2.Whether or not the sentence was harsh or unlawful and should be set aside. Analysis and Determination 17.This Court’s role on a first appeal is to re-evaluate the evidence adduced before the trial court and make its own decision thereon. This is the guidance in the case of Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal 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; 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.” [Emphasis added] 18.The first issue is whether the offence was proved beyond reasonable doubt. Section 8(1) and (2) of the Sexual Offences Act provides:“(1)A person who commits an act which causes penetration with a child is guilty of an offence termed 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.” 19.Therefore, the elements of the offence may be broken down as follows:1.The age of the complainant must be established; that the complainant was a child of a certain age;2.That penetration as defined under section 2(1) of the Sexual Offences Act happened to the child;3.That the perpetrator was positively identified. 20.PW2 produced PW1’s birth certificate indicating that she was 6 years old at the time of the incident. That is sufficient proof of that the victim was a child within the meaning of the Children Act, and that she was aged 6 years old. 21.PW1 testified that after sharing porridge with the appellant, he took her to the house, lay her on a seat, undressed her, and then inserted something into her vagina while he himself was sitting and dressed. She said that she did not see the thing that the appellant inserted into her vagina. PW4 testified that upon examining PW1 it was observed that the urethra region was swollen, her hymen was broken and there was redness around her vaginal area. 22.Section 2 of the Sexual Offences Act provides:“"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;” 23.From this evidence, there is proof that something was inserted into the victim’s vagina. However, there is nothing to prove that the inserted thing was the appellant’s penis. 24.PW1 testified that she knows the appellant and that he was her assailant. She also identified him in court. She stated that he inserted something that she did not see into her vagina while she was lying down on the seat. The trial court conducted voire dire examination and was satisfied that the child could give unsworn evidence in the case. 25.In his judgment, the learned trial Magistrate cited, among others, the case of Mercy Kajuju & 4 Others v Republic [2009] KEHC 2951 (KLR) where it was held that unsworn evidence would require corroboration despite the provisions of section 124 of the Evidence Act. He also relied on Paragraphs 94-96 of the Kenya Judiciary Criminal Procedure Bench Book 2018 on corroboration and followed the reforms to the Evidence Act leading to the proviso at section 124 of the Evidence Act. 26.As to identification of the assailant, the testimony of PW1 is to be held as sufficient evidence that need not be corroborated. This is provided for under section 124 of the Evidence Act as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), 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.” 27.The trial Magistrate recorded the reasons why he found the evidence of PW1 to be truthful. He also recorded her demeanor and ability to recollect during the testimony. Therefore, the finding on the victim’s assailant is sound. 28.With this evidence, 2 of the 3 limbs of the offence have been proved beyond reasonable doubt, namely; the age of the victim and her assailant. Whilst penetration was proved, the evidence adduced does not, however, fit it into the meaning offered under section 2 of the Sexual Offences Act cited hereinbefore. The meaning of penetration limits it to “partial or complete insertion of the genital organs of a person into the genital organs of another person”. This has not strictly been proved. 29.However, it is evident that the appellant was also charged with the alternative charge of committing an indecent act with a child under section 11(1) of the Sexual offences Act which states:“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.” 30.The particulars of that offence are that the appellant “intentionally touched [the] female genital organ of EWN, a child aged 6 years.” with his penis. These facts, also do not prove that alternative charge beyond reasonable doubt since there is no proof that the appellant touched the victim’s vagina with his penis. Indeed, the evidence of PW1 is that she “did not see his thing” and that “the accused [was] not undressed.” 31.All this notwithstanding, the set of facts before the court prove that the appellant did, in fact, insert an unknown object into the vagina of the victim. The medical examination proved this, and explained the injuries to the victim’s genital area. In this kind of a scenario, the court is guided by section 179 of the Criminal Procedure Code which states:“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.” [Emphasis added] 32.The evidence adduced does however, prove beyond reasonable doubt the offence of sexual assault under Section 5 of the Sexual Offences Act which provides:“(1)Any person who unlawfully—(a)penetrates the genital organs of another person with—(i)any part of the body of another or that person; or(ii)an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body; is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.” [Emphasis added] 33.Therefore, even though the appellant was not charged with the offence of sexual assault under Section 5 (SOA), the evidence availed demonstrates that the appellant should have been or be convicted of the offence of sexual assault. The mandatory minimum sentence for sexual assault is also prescribed under the relevant provision, as imprisonment for not less than 10 years which may be enhanced to life imprisonment. Conclusions and Disposition 34.This Court is therefore satisfied that the appellant should have been charged with and convicted for Sexual assault. In the absence of a charge under that provision, the appellant should be convicted and sentenced for sexual assault. It is so ordered. 35.Accordingly:1.The trial court’s finding on conviction is hereby set aside and substituted with an order convicting the appellant with the offence of sexual assault contrary to section 5(1) as read with 5(2) of the Sexual Offences Act; and2.The trial court’s finding on sentence is hereby set aside and substituted with a sentence of 10 years imprisonment, being the mandatory minimum sentence prescribed under section 5(2) of the Sexual offences Act. 36.The sentence shall be deemed to commence on the date of the appellant’s first incarceration and shall take into account any period he was in pre-conviction custody in terms of Section 333 (2) CPC. 37.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 29TH DAY OF JULY, 2026...............R. MWONGOJUDGEDelivered in the presence of:Appellant Present in CourtMs. Mwaniki for the RespondentFrancis Munyao - Court Assistant