https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9313

Ngeno v Republic (Criminal Appeal E024 of 2026) [2026] KEHC 9313 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9313 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E024 of 2026 DR Kavedza, J June 30, 2026 Between Peter Kipngetich Ngeno Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 26th February 2026 by Hon. Z. Abdul (PM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E012 of 2025 Republic vs Peter Kipngetich Ngeno)) Judgment 1.The appellant was charged and after full trial convicted by the Subordinate Court of the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 9th December 2024 at [Particulars Withheld] Area in Kibera Sub-county within Nairobi County the appellant unlawfully and intentionally touched the breast and buttocks of FM a child aged sixteen (16) years. He was sentenced to serve ten (10) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted, claiming that the prosecution failed to prove their case beyond reasonable doubt. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution called four witnesses. PW1, FM., a child, gave sworn evidence after a voir dire examination. She testified that on 9th December 2024 at around 7:00 p.m., while she had gone to the shop to purchase milk, the Appellant accosted her and touched her breasts and buttocks. She immediately ran home and narrated the ordeal to her mother, who went and confronted the Appellant, who was still at the shop. Members of the public gathered and began beating the Appellant, but her mother and their neighbour Bob pleaded with them to stop. Her mother then reported the matter to the police. 5.On cross-examination, PW1 affirmed that PW2, Brighton Ongoya (whom she referred to as Tony), witnessed the incident and corroborated her testimony. She stated that she was born on 7th October 2008. Both she and PW2 positively identified the Appellant before the court. 6.PW3, CP , the complainant’s mother, corroborated the previous witnesses’ testimonies. She stated that the Appellant had pleaded for forgiveness, but she declined. 7.PW4, PC Esther Kageru, the investigating officer, testified that on 22nd December 2024, while at the station, the complainant arrived with her mother to report the incident, which the complainant recounted to her. She recorded the report and the statement of a witness. The Appellant was later arrested and charged. 8.At the close of the prosecution case, the trial court was satisfied that the prosecution had established a prima facie case. 9.In his defence, the Appellant stated that on the material day he was heading home from work and, while purchasing milk at a shop, two ladies approached him. One asked if he knew her and told him to follow her. He was then taken to a place where a large crowd had gathered and was slapped and battered, sustaining injuries for which he sought medical treatment. He reported the matter to the police station and was issued with a P3 form. He was later arrested in connection with the present case. On cross-examination, he alleged that the investigating officer bore a grudge against him. 10.The appeal was canvassed by way of written submissions which have been considered. Section 2 of the Sexual Offences Act defines an indecent act as:-An unlawful intentional act which causes —a.any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration;b.exposure or display of any pornographic material to any person against his or her will; 11.The first issue for determination is whether the complainant was a child at the time of the alleged offence. Both the complainant and her mother testified that the complainant was born on 7th October 2008 and was therefore 16 years old at the material time. The trial court also considered the birth certificate produced in evidence by her mother, which confirmed the same date. The complainant was accordingly a child within the meaning of the law. 12.The second issue is whether the prosecution proved its case against the Appellant beyond reasonable doubt. The complainant gave a detailed account that the Appellant touched her breasts and buttocks while she was purchasing milk at the shop. She positively identified the Appellant in court. Her evidence, given on oath after a voir dire examination, requires no corroboration pursuant to the proviso to section 124 of the Evidence Act (Cap 80) and the principles set out in the Kenya Judiciary Criminal Procedure Bench Book 2018, paragraphs 94 – 96. The complainant’s testimony was therefore sufficient to prove the indecent act. 13.The complainant’s account was corroborated by PW2, Brighton Ongoya (referred to as Tony), who was at the scene and reiterated her version of events. Her mother, PW3 CP , further confirmed that the complainant promptly reported the incident to her immediately after it occurred. Taken together, the evidence established the commission of an indecent act with a child beyond reasonable doubt. 14.The Appellant contended that his right to a fair trial under Article 50 of the Constitution was violated. The record shows, however, that the Appellant was granted approximately three months to prepare his defence after seeking and obtaining several adjournments. His complaint in this regard is unsubstantiated, and his right to a fair trial was not violated. 15.With regard to sentence, the Appellant received ten years’ imprisonment. The trial court considered his mitigation, including that he was a first offender, but noted his lack of remorse. The sentence imposed was lawful and neither harsh nor manifestly excessive. 16.In the premises, the appeal is found to be lacking in merit and is dismissed. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026______________D. KAVEDZAJUDGEIn the presence of:Appellant PresentMs. Otiya for the RespondentKarimi Court Assistant