https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9406

Ngunjiri v Republic (Criminal Appeal E097 of 2025) [2026] KEHC 9406 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9406 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E097 of 2025 SC Chirchir, J June 25, 2026 Between Ephantus Mwangi Ngunjiri Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. O. Wanyaga (SPM) in Kigumo Sexual Offence Case No. E018 of 2022 delivered on 23rd September 2025) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (The Act). The particulars of the charge were that on diverse dates between December 2021 and 6th March 2022 at [Particulars Withheld], Makomboki Location in Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.W.M, a child aged eight (8) years. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act. After a full trial, he was convicted of the main charge, and sentenced to life imprisonment. 2.He was aggrieved by the conviction and sentence, and lodged the present appeal based on the following grounds:1.The Learned Trial Magistrate erred in law and fact by convicting the appellant on scanty and insufficient case by the prosecution.2.The Learned Trial Magistrate erred in law and fact by his failure to note that the prosecution had not proved its case beyond reasonable doubt as required in criminal cases.3.The Learned Trial Magistrate erred in law and fact by failing to conduct a “voir dire” examination of the minor complainant thus arose at a wrong decision while convicting the appellant.4.The Learned Trial Magistrate erred in law and fact by convicting and sentencing the appellant based on a defective charge which was never amended by the prosecution.5.The Learned Trial Magistrate erred in law and fact by failing to find that the age of the complainant was not sufficiently proved by the prosecution.6.The Learned Trial Magistrate erred in law and fact by convicting the appellant on the evidence of a single eyewitness without other sufficient corroboration and credible prosecution witnesses.7.The Learned Trial Magistrate erred in law by meting out a harsh and excessive sentence on the appellant. 3.The Appeal was heard by way of Written Submissions. Appellant’s submissions 4.It is the Appellant’s first submission that there was a variance between the charge sheet and the evidence tendered in support of the prosecution’s case; that whereas the Appellant was charged under section 8(1) and 8(4), the evidence led showed that the victim was 8 years and thus ought to have been charged under 8(1) and 8(2). 5.The Appellant further contends that it is the duty of the prosecution to prove the case beyond reasonable doubt. He has relied on the decision in case of Miller v Ministry of Pensions(1947) 2 ALL ER 372, where Lord Denning stated that” the degree of proof must carry a high degree of probability, and if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable," the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 6.On the ingredients of the offence, the Appellant argues that the prosecution failed to prove every element of defilement as required under Section 8 of the Act. Reference was made to the decision in Fappyton Mutuku Ngui -Vs- Republic (2012) eKLR, where it was held that the prosecution must prove beyond reasonable doubt that there was penetration of the complainant’s genitalia, that the accused was the perpetrator, and that the victim was below the statutory age. 7.Regarding the medical evidence, the Appellant submitted that the clinical officer’s findings were inconclusive and did not link him to the alleged act. The Appellant further argued that a broken hymen alone cannot serve as the sole proof of penetration, citing the Court of Appeal’s view in P.K.W -Vs- Republic (2012) eKLR, which questioned whether a child’s hymen being broken is justified only by sexual intercourse. 8.On the credibility of the evidence, the Appellant maintained that the complainant’s testimony to the effect that the Appellant’s thing entered her four times was incredible coming from a 8- year old. ; that she did not testify of the specific dates when she was defiled. 9.It is further submitted that the complainant’s evidence was not sufficiently corroborated; that it did not comply with the provisions of section 124 of the Evidence Act; and was marked by monumental inconsistencies and contradictions that should have attracted an acquittal. 10.Finally, on the sentence, the Appellant has urged the court to exercise its discretion and consider a more lenient sentence. He has relied on the decisions in the case of Michael Kiama Muinde-Vs- Republic (Appeal No. E064 of 2023) and Ben Maina Mwangi-Vs- Republic (Appeal No. 186 of 2010) to argue that sentencing must consider the status of the offender, and the circumstances of the case. 11.Ground 3 of the petition of Appeal was abandoned. Respondent’s submissions 12.The Respondent, maintains that the prosecution successfully proved all the essential ingredients of the offence beyond reasonable doubt, as stated in the case of George Opondo Olunga vs. Republic (2016)eKLR. 13.On the issue of the victim's age, the Respondent submitted that the testimony of the mother (PW1) and the production of a birth certificate (PEXH 1) showing a birth date of 19/09/2013 sufficiently established that the complainant was eight (8) years old at the time of the incident. The state also relied on the decision in Edwin Nyambogo Onsongo (2016) eKLR to argue that age can be proved through various means, including the production of documents or oral evidence from victim’s parents. 14.It is further submitted that the complainant gave a consistent narration of the events, which was corroborated by the medical findings of the clinical officer (PW4). It was pointed out that the clinical officer observed a tender vulva, minor tears, and a freshly broken hymen, concluding that the nature of these injuries was consistent with defilement, regardless of the absence of spermatozoa 15.On identification, the Respondent has argued that this was a case of recognition between persons well known to each other, as the Appellant was a cousin to the victim. Citing M.W vs Republic eKLR, the state contended that recognition of a familiar person significantly reduces the possibility of mistaken identity. 16.On the charge sheet the Respondent argues that the Appellant was charged with an offence known in law; that the charge was amended and the Appellant was given another chance to plead. 17.On the requirements of Section 124 of the Evidence Act it is submitted that the victim’s evidence was corroborated by medical evidence and the testimony of her mother. 18.Finally, on the sentence, the Respondent submits that it was founded in the provisions of section 8(2) of the Act and was deterrent in effect, considering how rampant the offence is. Summary of the Evidence 19.PW1, was the mother of the complainant. She testified that on 11th March 2022, she went to pick up her daughter from her mother-in-law’s residence where the child had been staying since June 2021. She further told the court that the following day, 12th March 2022, while she was bathing the child, the minor complained of pain in her private parts. Upon being questioned, the child revealed that the Appellant, had called her to Musa’s place and defiled her. 20.PW1 then called (PW3), to witness the injuries, after which she reported the matter to Maragua Police Station. She confirmed taking the child for medical examination at Maragua Hospital and later to Kangari Hospital where treatment was administered. Finally, she produced the complainant’s birth certificate (PEXH 1), which indicated the child’s date of birth as 19th September 2013, thereby establishing that the victim was eight (8) years of age at the material time. 21.PW2 was the minor complainant. She underwent a voir dire examination whereby the court found her capable of giving unsworn testimony. She testified that she was a pupil and well knew the Appellant as her cousin. She narrated how the Appellant lured her from the centre to Musa’s place and subsequently to a nearby tea bush, where he directed her to remove her clothing, specifically her long dress, stockings, and panties. She testified that the Appellant then removed his own trousers and defiled her, that he used his “thing” to enter her in the middle. 22.She further told the court that these acts occurred on diverse dates, stating that he defiled her five times at Musa’s house and on other occasions within the tea bushes. She informed the court that she experienced great pain and bleeding during the ordeal. 23.According to her testimony, the Appellant gave her a sweet and cautioned her not to tell anyone about what had transpired. She clarified that she eventually disclosed the matter to her mother while she was being bathed. She positively identified the Appellant in court as the person who had defiled her. 24.PW3, was TWL, a family friend and relative of the minor. She testified that on 12th March 2022, she was at her home in Maragua when she received a call from PW1, who informed her that the complainant was complaining of pain in her private parts. She visited the home, and personally saw the child’s injuries. She observed that the private parts appeared reddish and had a white blister on the outside of the vagina. 25.PW4, was the clinical officer attached to Maragua Sub-County Hospital. He examined the eight-year-old complainant on 13th March 2022. Upon examination, he found the child’s vulva was tender and noted the presence of minor tears and a freshly broken hymen. He further testified that while a urinalysis and VDRL test were negative and no spermatozoa were detected, he found epithelial cells, which he explained were indicative of the friction associated with sexual intercourse. He concluded that the nature of the injuries and the presence of smelly blood discharge he observed, were consistent with a child who had been defiled approximately one week prior to the examination. During cross-examination, he maintained that the probable weapon used was a penis and that the presence of a bacterial infection suggested a likely sexually transmitted disease. Finally, he produced the P3 form (PEXH 2), the lab request form (PEXH 3), the initial treatment notes (PEXH 4), and the PRC form (PEXH 5) as exhibits in the case. 26.PW5, was the, investigating officer attached to Kangari Police Station. He testified that on 12th March 2022, a middle-aged woman (PW1) came to the station to report that her eight-year-old daughter had been defiled. She told the court that the child revealed her cousin, the Appellant, as the perpetrator. she produced the complainant’s birth certificate (Exh 1), which confirmed the child’s date of birth as 19th September 2013. Defence case 27.The Appellant, elected to give sworn evidence and did not call any witnesses. He told the court that at the material time, he was twenty-three (23) years of age, unemployed, and lived with his parents. He told the court that on the date the offence was allegedly committed, he remained at home alone watching television while his parents attended church service. He stated that around noon, he went to water the cows and later visited a shop located approximately 100 metres from his home, where he saw the complainant’s father, SM. He denied meeting the child, luring her to any house, or buying her sweets. He stated that the complainant’s home was about one kilometre away and anyone would have seen her if she had come to his residence. 30.During cross-examination, he admitted that the complainant was his cousin; that their families were involved in a long-standing land dispute between their fathers, who are brothers. He maintained that he was being framed because of this grudge and asserted that no witness had actually seen the minor at his place on any of the dates specified in the charge sheet. Analysis and determination 30.This being a first appeal, this Court is enjoined to reconsider the evidence adduced before the trial court, re-evaluate and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32). 31.Having considered the grounds of appeal, the record of the trial court and the submissions by the parties, the issues arising for determination are: -a.Whether the charge sheet was fatally defective;b.Whether the trial court properly complied with Section 124 of the Evidence Act;c.Whether the prosecution proved its case beyond reasonable doubt; andd.Whether the sentence was harsh and excessive. Whether the charge sheet was fatally defective 55.The Appellant argued that the charge was defective because he was charged under Section 8(1) as read with Section 8(4) of the Act whereas the complainant was proved to have been eight years old, thereby bringing the matter within Section 8(2). 56.There is no dispute that the evidence established that the complainant was eight years old, and finally the Appellant was eventually sentenced pursuant to the provisions of Section 8(2) of the Act. The pertinent question, however, is whether the erroneous citation of Section 8(4) rendered the charge fatally defective. 57.The principles governing such a determination are found in Section 382 of the Criminal Procedure Code. The section provides interalia that no conviction shall be reversed unless the error occasioned a failure of justice. This position was reiterated in the case Yongo v Republic [1983] KLR 319, where the court held that a defect in a charge sheet is not fatal unless the defect occasions prejudice or confuses the Accused of the charge(s) he is facing. 58.In the present case, the particulars of the offence clearly stated that the complainant was aged eight years. The Appellant understood the case he was facing, demonstrated by his active participation in the proceedings. He cross-examined witnesses and tendered a defence. There is no prejudice that has been demonstrated by the use of subsection 4 instead of subsection 2 of section 8 of the Act. 59.Thus, although the charge cited an incorrect subsection, the defect was curable under Section 382 of the Criminal Procedure Code as it did not occasion a miscarriage of justice. Whether there was compliance with section 124 of the Evidence Act 47.The Appellant has argued that the complainant’s testimony, having been unsworn had little probative value; and that there was no sufficient compliance with section 124 of the Evidence Act. 48.Section 19 (1) of the Oaths and Statutory Declarations Act permits the court to receive the unsworn evidence of a child of tender years if it is satisfied that the child possesses sufficient intelligence and appreciates the duty to tell the truth. The section provides as follows:Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section. 47.The record shows that the complainant underwent a voire dire examination and that the trial court found her possessed of sufficient intelligence to testify, though incapable of understanding the nature of an oath. She therefore gave unsworn testimony. The record shows that the voir dire examination was quite detailed and the court used question-and-answer format . 48.On the other hand, section 124 of the Evidence Act qualifies the above stated section of the Evidence Act. The section provides 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. 47.The complainant’s evidence was fully corroborated by the medical evidence as presented by the clinical officer (PW3). He told the court that on examination the , the outer part of the vagina ( vulva ) was tender, there were minor tears , the hymen was freshly broken and there was smelly bloody discharge. Accordingly, the requirements of Section 124 of the Evidence Act were met as the child’s testimony was fully corroborated in that respect. Whether the offence of defilement was proved beyond reasonable doubt. 32.The burden of proof in criminal cases rests throughout, upon the prosecution and the standard is proof beyond reasonable doubt. (See Woolmington v DPP [1935] AC 462.) 33.The Appellant was charged under section 8(1) as read with 8(2) of the Act . The sections provide as follows:(1)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. 32.It is well settled therefore that for the prosecution to secure a conviction for an offence of defilement, it must prove the Age of the victim , the identity of the perpetrator and penetration. All these elements must exist for the crime to be complete. Age of the victim 32.On the age of the child, the evidence on record demonstrates that the complainant’s birth certificate as Exhibit 1. The document indicated that the complainant was born on 19th September 2013. It followed that at the time of defilement, between December 2021 to March 2022, the victim was 8 years old. This element of the offence therefore was proved. Positive identification 42.The complainant testified that she knew the Appellant very well because he was her cousin. The Appellant’s testimony in his defence also evidently show that, not only did he know the complainant but he knew her parents, her home and apparent disagreement then existing between the complainant’s parents. He told the court for instance: “ At the shop I saw the father of MW. He is SM. Complainant’s home is about a kilometer from our home. The complainant used to live with her father SM. The mother had differed with the mother”. And on cross- examination, he admitted that the complainant was his cousin. This was therefore a case of identification by recognition. The Court of Appeal in Anjononi & Others v Republic [1980] KLR 59 held that recognition is more reliable than identification because it is based upon prior knowledge of the offender. The court is satisfied that the Appellant was positively identified as the perpetrator. penetration 36.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.” 37.The complainant testified that the Appellant removed her clothes and inserted his “thing” into her private parts. She stated that she felt pain and bled following the ordeal. She further testified that the acts occurred on several occasions. 38.The complainant’s account was corroborated by the medical evidence of PW4, the Clinical Officer, as aforesaid, who examined her on 13th March 2022. He observed tenderness of the vulva, minor tears, a freshly broken hymen and blood-stained discharge. He concluded that the injuries were consistent with defilement and estimated that the injuries were approximately one week old. 39.The Appellant has submitted the absence of the hymen is not necessarily prove of penetration. That assertion is correct in principle. However, the medical evidence in this case went beyond a broken hymen. She sustained more injuries referred to under the above preceding paragraph. 61.Consequently, this last element was equally proved beyond any reasonable doubt. 62.Ultimately, am satisfied that the offence was proved beyond reasonable doubt. Appellant’s defence 61.I have considered the Appellant’s defence . His defence amounted to a denial coupled with allegations of a family dispute. The Appellant did not call any witness to back him up on the allegation of a family dispute. If indeed the dispute was between their respective fathers, as he put it, then at least he should have called his father as his witness for instance. 62.The defence of Alibi was not raised early on in the proceedings to give the prosecution a chance to investigate. It was never also referred to or suggested during the cross- examination of the prosecution witnesses. I consider the defence raised at the tail- end of the proceedings, to have been an afterthought. The court finds it implausible. The sentence 66.The complainant was eight years old. Section 8(2) of the Act prescribes life imprisonment where the victim is aged eleven years or below. The sentence is the minimum, and is mandatory. The sentence was founded on law, and this court has no reason to interfere with it. 67.Consequently, the appeal against both conviction and sentence is hereby dismissed. The conviction is upheld and the sentence of life imprisonment is affirmed. DATED, SIGNED AND DELIVERED AT ISIOLO , VIA MICROSOFT TEAMS, THIS 25TH DAY OF JUNE 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo- Court AssistantMr. Kirubi for the AppellantThe Appellant.