https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10023

Njoki v Republic (Criminal Appeal E090 of 2025) [2026] KEHC 10023 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 10023 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E090 of 2025 JM Chigiti, J July 1, 2026 Between David Macharia Njoki Appellant and Republic Prosecution (Being an appeal against conviction and sentence in SO case No. E057 of 2023 in the Senior Resident Magistrate's Court at Kenol) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The Particulars as per the amended chargesheet were that on diverse dates between 9th and 12th December 2023, at [Particulars Withheld] of Ithanga/Kakuzi subcounty, within Murang'a County, the appellant intentionally caused his penis to penetrate the vagina of E.M.M, a child aged 5 years. In the alternative he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 2.The appellant was convicted in sentenced in SO Case Number 057 of 2023. 3.Being dissatisfied the appellant lodged an appeal, raising the following grounds of appeal. He argues that the trial Magistrate fell into error of law and fact in finding that the prosecution had proven that there was penetration. 4.He also argues that the clerical court fell into error in finding that he was positively identified. He also argues that the evidence used to convict him was full of material contradictions and unsafe to convict him and that the prosecution witnesses were incredible and unreliable, and he also argues that the victim was couched, and that there was a grudge that the court failed to consider. 5.He also argues that the trial court failed to consider his defense of alibi. The appellant’s submissions; 6.According to the appellant, there was no proof penetration because according to him, the evidence of the mother was inconsistent with the evidence of the clinical officer and in particular since PW 4, say that there were no test, no inflammation and no signs of inflammation. 7.The appellant argues that the fact that their mother was testified the child was urinating on herself, cannot form the basis of a conviction. He argues that the doctor dispelled that argument. 8.It is further the appellant’s case that the evidence of the mother that the child was having difficulties walking was contradicted by the doctor. 9.He further argues that the absence of the hymen cannot be conclusive proof that there was penetration. He argues that the hymen can be broken by many factors as set out in the case of P.K.W v Republic /2012] eKLR where the Court of Appeal paragraph 15 - 16 contended that: -“In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child's hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse" In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge.That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen.Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons.:Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769." (Underline added for emphasis). 10.In the instant appeal, according to the appellant, the absence of the hymen was not conclusive proof of penetration because of the following;a.For a 5 years old child, rapture of the hymen through sexual intercourse would have naturally been accompanied by other physical injuries such as tears, lacerations and inflammation which were not present.b.No comment was made by the doctor as to the apparent age of the rapture. Was the hymen freshly torn or old? By the evidence, the rapture must have been old.c.After the alleged defilement, the complainant reportedly went back to play with other children. For a 5 years old child, it is submitted, this does not make logical sense. 11.Reliance is placed in the Court of Appeal in Arthur Mshila Manga v Republic [2016/ eKLR thus: -“From both the evidence of PW3 as well as the P3 form, which we have carefully perused, other than noting absence of hymen and consequently an open vagina, Jenliza never expressed any opinion that the JM had been defiled, or defiled the previous day. There was nothing on record to suggest that JM had lost her hymen the day before Jenliza examined her." 12.In Mishila Manga v Republic /20167 eKLR it was held thus: -“From both the evidence of PW3 as well as the P3 form, which we have carefully perused, other than noting absence of hymen and consequently an open vagina, Jenliza never expressed any opinion that the JM had been defiled, or defiled the previous day. There was nothing on record to suggest that JM had lost her hymen the day before Jenliza examined her." 13.On the identification, it is his case that he was not properly identified as the perpetrator of the offences charged. To that effect, the testimonies relating to identification can be summed up thus: "I immediately knew who Macharia was because he the only Macharia neighbour of mine.I asked Eve to show me Macharia's door and she took me to accused door." (PW1 during examination in chief). "Accused was a stranger previously. I only knew him on the date I met him. .... I first knew him on 12/12/2023." (PW1 during re-examination). 14.PW3 testified during examination in chief that, "I waited a little bit but I thereafter followed them. The door was locked. I pulled it." "I showed mum who Macharia was." "Children told me accused is called Macharia." Then in cross-examination: "I have never seen you before. ....I saw you the date Everlyne was defiled." "Eva told me to come to your place. Eva showed me where your house was." Then in re-examination: "Eva showed me Macharia's house after the event." "I followed Eva to Macharia's place." 15.On her part, the complainant (PW2) testified in chief: "Catherine saw it, when Macharia was doing tabia." 16.He argues that none of the prosecution witnesses knew the perpetrator and none of them knew that he was their neighbour, not even through recognition. 17.It is this case that the prosecution witnesses blew hot and cold air at the same time because at one point they argued at one point that they knew the accused person and then at the other time, they said they did not. 18.It is his case that the prosecution case was riddled with the following contradictions which vitiates the conviction. 19.The complainant testified that: "Catherine saw it, when Macharia was doing tabia, ". Yet PW3 did not mention having witnessed the defilement. 20.He relies on the case of Erick Onyango Ondeng' v Republic [20141 eKLR, Held:“As noted by the Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 of 2001, [2003] UGCA. 6 it is not very contradiction that warrants rejection of evidence. As the court put it: "With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they_ point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case.'" (Underline added for emphasis). 21.On the motive to frame him and the incredibility of the prosecution evidence. He submits that PW1, PW2 and PW3 were of doubtful integrity thus their evidence was unsafe to base of his conviction.PW1 testified that:“I asked her what happened. She was quiet." Then in re-examination: "Eve refused to tell me what happened. She was afraid I may beat her." At the age of 5 years, children do not generally comprehend the social stigma the adult world attributes to sexual acts. Why would a child of such tender age shy from disclosing a defilement to her own mother? Chances are that the whole narrative was not true hence PW's hesitation. Common sense would inform that the complainant only subsequently accepted and memorized the defilement story, emanating from her mother's suspicions and would later tell the story as instructed by her mother. Hence the contradictions and inconsistencies in her testimony. 22.PW4 thus: "The mother gave the information.Eve told me comments I can not fully recall. Eve was able to talk but she was not so open." What did the complainant tell the doctor that he could not remember? Why only record what the mother said and not what the child said in the medical examination report? Common since would tell that whatever the child said was not favourable to the prosecution case, hence the omission. Why was the child still hesitant to speak yet she was capable of self-expression? 23.Was she muzzled by the mother in an attempt to have her say what she wanted her to say? The appellant herein is entitled to the benefit of doubt. 24.He submits that there was a twist in that the complainant, at page 21 paragraph 1, the trial record reads: "Ms Gathu - I pray we stand down witness. She is not talking. We can take another date." Why would the complainant, after commencing her testimony well suddenly freeze? Suffice to note that she had behaved the same previously. Could it have been a trick by the prosecution to get a chance to coach the witness. Was she haunted by guilty consciousness knowing well that she was telling lies as instructed by her mother? 25.He relies on the Court of appeal under an identical scenario in P.K. W v Republic /2012] eKLR at paragraph 13 thus: -“During the voir dire examination in court, the child appeared traumatised and at times she refused to answer some questions. She had behaved in more or less the same way when Dr. Mutahi was examining her on 13th May 2008. That behavior may be explained in two ways. It may be because the child was indeed defiled or alternatively because she was worried of the consequences of lying in court." 26.According to him, the evidence as analyzed is indicative of coercion and instruction of the child witnesses by their mother, PW1. 27.The motivation for this is not hard to glimpse from the trial record as PW1 herself is in record testifying during cross-examination that: "You talked badly. You talked so badly and I said“will report you." 28.This explains the delay in reporting of this case. After all, there is a glimpse of another suspect in the proceedings. PW1 testified that, "I know "Maina wa Mogoka'. He does not sell Mogoka therein now. 29.PW1 must have dropped pursuit of the original suspect to implicate the appellant after he had 'spoken so badly'. 30.The defence witnesses explained in detail that the appellant was not present at the alleged scene at the date and time of the alleged defilement. 31.It is the Appellant’s case that the court disregarded DW 2’s credible evidence that he spent the day harvesting oranges with Apple aunt. Further he submits that PW2 and Pw 3 testified that they were playing together with other children and none of the children testified having seen their appellant about time. 32.He places reliance in the case of Victor Mwendwa Mulinge v Republic /2014] eKLR where it was held that,“But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant's defence. The section states as follows: "309. If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it." The prosecution failed to do so. The respondents’ submissions; 33.According to the respondent the prosecution established and proved that there was defilement and the judgment, according to the respondent legally in place. 34.According to the prosecution, the age of their minor was demonstrated through their birth notification slip , which was produced proving that a child was five years at the time of the offense was committed having been born on 16 October 2016 was thus five years when they committed 35.Section 8(1) of the Sexual Offences Act, No. 3 of 2006 provide:“(1), A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 36.On the proof of penetration, it submits that Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:“penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person. 37.The complainant (PW2) narrated how while at home with her sister, macharia came and did "tabia mbovu" for her on her private parts. She narrated how he removed her clothes, pant and his clothes and put them all in his chair. He then put his "susu" in her private part. She felt pain. 38.Further, PW4, a clinical officer testified that the complainant was examined on the 13/12/2023 and they noted a broken hymen, the child was complaining of pain and could not hold urine. 39.It submits that the medical evidence overwhelmingly proves the element of penetration. 40.On identification of the accused, the complainant stated that the appellant was very well known to him. 41.PW3, her sister corroborated her version, specifically that on the material date, she was playing with the complainant, who was called by the appellant, and she later found her in his house with the appellant half dressed, and the complainant narrated that the appellant had defiled her. 42.Alleged inconsistencies and credibility of the victim, the appellant submitted at length and pointed out perceived inconsistencies in the evidence of PW1, PW2 and PW3. 43.The complainant was coherent, and credible. She explained in depth how the appellant defiled her.PW2 was very candid and consistent and there are no major contradictions that affect the credibility of the complainant's testimony. 44.In Erick Onyango Ondeng' -v- Republic [2014] eKLR, The Court of appeal held;“Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at about 7 pm" in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No' 139 of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As the court put it:"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case." 45.In Ndolo Musyoki v Republic [2022] eKLR that“As regards inconsistencies in the evidence of PW1 and PW2, while it is true that there were minor discrepancies in the evidence of the two witnesses, such minor inconsistencies in the evidence of the witnesses were not fatal to the prosecution case, Whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol. 1 at 46. " 46.The accused, in an unsworn statement raised a defence of alibi and detailed his movements on the date of the offence. His witness could not account for his whereabouts the entire day. 47.The court weighed the defence raised and found the defence raised to be an afterthought, poorly imagined and a developed script intended to mislead the court and avert justice. 48.The defence was not raised at the earliest opportunity and it did not dislodge the evidence tendered by the prosecution in proof of its case. Analysis and Determination; 49.The issue for determination is whether the appeal has merit. 50.This being a first appeal, this court is guided by the principles as enunciated in the case of Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal stated thus:a.“. 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.b.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.” 51.Section 8 of the Sexual Offences Act provides as follows: -a.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.b.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.c.A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.d.A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 52.In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was held that: -“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 53.The age of the victim was proven through the birth notification slip, which was produced proving that a child was five years at the time of the offense haven’t been born on 16th October 2016 and was thus five years when the offence was committed. 54.In dealing with the question whether the prosecution proved that there was penetration the court has looked at the appellant’s argument that the prosecution did not prove penetration. 55.Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:“penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 56.It was the appellant’s case that the victim’s mother observed the injury on the 12th of December 2023 and immediately took the child to hospital 13th of December 2023. 57.The court has also looked at the charge sheet and in the particulars of the offense it is clear that the penetration took place on diverse dates between 9th and 12 December 2023.The fact that it came to the mother’s attention that there was a problem with the victim at the tail end doesn’t mean that the child was not defiled. 58.The victim testified that the appellant put his thing for susu in her. She testified that she was thereafter feeling pain on her private part. She narrated the ordeal in a coherent manner. During cross examination she repeated the ordeal and identified the appellant as the person who defiled her. 59.Doctor Bernard Muraguri Mwangi testified that he examined the child and filled the PRC and the P3 forms. 60.It was his evidence that the child had a history of defilement, and that the child had waist pains. On examination he found out that the victim’s hymen was broken. 61.The doctor confirmed that there was penetration trauma physical damage of the muscle as a result of which the urine holding muscles had been damaged and that this explained why the child was urinating on herself. The court is satisfied that the prosecution proved that there was penetration. 62.On the issue of contradictions, the complainant testified that: "Catherine saw it, when Macharia was doing tabia". 63.The appellants' argument that the prosecution evidence is contradictory and he wonders why PW3 did not mention having witnessed the defilement. 64.In The Uganda Court of Appeal in Twehangane Alfred vs Uganda it was held that it is not every contradiction that warrants rejection of evidence. It was held that: -“With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (Emphasis ours).It is this court's finding that minor contradictions cannot displace a conviction. They do not affect the main substance of the prosecution's case. 65.This court shall now address its mind to the issue of identification.PW1 testified that she knew the appellant before since they were once neighbours in another compound. 66.She also testified that she knew him and he used to play football and he used to be called Michael. 67.PW 3 testified that he called them to his house.The victim was found in his house and he did not disown the house on 9.12.25 where she was followed them and found the victim. 68.Catherine Wanza the victim’s sister testified that the appellant called the victim and took her to his house.This ground fails. 69.The appellant finally argues that his defence of alibi was ignored.An accused person who wishes to rely on the defence of alibi must raise it at the earliest opportunity to give the prosecution an opportunity to evaluate as the appellant bears no burden to proof his alibi defence. 70.The Court of Appeal in Kiarie –v- Republic (1984) KLR stated:-“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable….” 71.In Victor Mwendwa Mulinge –v- Republic(2014) eKLR Court of Appeal. It stated “It is trite law that the burden of proving the falsity if at all of an accused’s defence of alibi lies on the prosecution.” 72.The court is of the view that the trial court applied its mind to the issue of alibi within the law. 73.Determination:The appeal lacks merit. 74.Order:The appeal is dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 1ST DAY OF JULY 2026.……………………………………J. CHIGITI (SC)JUDGE