https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11982

Njoki v Republic (Criminal Appeal E026 of 2025) [2026] KEHC 11982 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11982 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E026 of 2025 SC Chirchir, J July 23, 2026 Between Peter Kamau Njoki Appellant and Republic Respondent (Arising from the Judgment of Hon. A. Okullo (RM) in Murang’a CM’S Court Sexual Offence Case No. E016 of 2024 delivered on 27th February, 2025) Judgment 1.The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. (The Act). The particulars were that on the 26th day of March 2024 at around 1700hrs in [Particulars withheld] village within Murang’a County, the accused person unlawfully and intentionally caused his penis to penetrate the genital organ of WW a child aged 13 years. 2.In the alternative, he was charged with Committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006, with the particulars being that on the same date and location, he unlawfully and intentionally touched the vagina of WW with his penis. 3.The Appellant denied the charge and the matter went to full trial. In the end, he was convicted of the main charge and sentenced to a prison term of 20 years . 4.Being aggrieved by the conviction and sentence, the Appellant proffered this appeal. Petition of Appeal 5.The Appellant, in his Amended Grounds of Appeal filed on 28th November 2025, raised the following grounds: 1.That , the Magistrate erred in law and fact by failing to ensure that penetration, a mandatory element under Section 8(1) of the Sexual Offences Act, was proved beyond reasonable doubt. 2.That , the learned Magistrate erred in law and fact by failing to properly establish the age of the complainant. 3.That , the learned Magistrate erred in law and fact by ignoring material contradictions in the evidence, including discrepancies, inconsistencies with medical records, and conflicting accounts of threats and alleged penetration, thereby creating reasonable doubt that was not addressed. 4.That , the learned Magistrate erred in law and fact by shifting the burden of proof onto the Appellant, contrary to Article 50(2)(a) of the Constitution and the principle in Woolmington v DPP AC 462, thereby violating the Appellant’s right to a fair trial. 5.That , the learned Magistrate erred in law and fact by conducting an inadequate voir dire that failed to properly ascertain whether PW1 understood the nature and duty of telling the truth, contrary to Kibangeny Arap Kolil v R (1959) EA and Section 19 of the Oaths Act(sic), resulting in improperly admitted evidence. 6.That , the learned Magistrate erred in law and fact by failing to inform the Appellant of his right to legal counsel as required under Article 50(2)(g) of the Constitution. 7.That , the learned Magistrate erred in law and fact by convicting the Appellant despite inadequate investigation. 8.That , the learned Magistrate erred in law and fact by imposing a harsh and disproportionate sentence of 20 years imprisonment without properly considering the Appellant’s status. 6.The parties filed written submissions in respect of the Appeal. Appellant’s Submissions 7.The Appellant as submitted that penetration must be established by cogent and credible evidence, citing Fappyton Mutuku Ngui v Republic (2014) eKLR. He contends that the medical evidence presented by PW5, showed no lacerations, bruising, or signs of force, and hence failed to meet the threshold of proof . 8.He argues that the age of the child is a fundamental element of defilement. He maintains that the medical assessment of 13-14 years was a mere estimate and that the prosecution failed to discharge its burden of proof, in that regard. 9.On penetration it is submitted that there were inconsistencies between the testimonies of PW2 and pw3 on one hand and that of PW5. That no DNA test was done to substantiate PW1’s allegations. He further points out that there were discrepancies on the timelines attendant to the incident as presented by the witnesses. He submits that unresolved inconsistencies in witnesses’ testimonies create reasonable doubt. He has relied on the decisions in the case of Philip Nzaka Watu v Republic (2016) eKLR and Twehangane Alfred v Uganda (2010) UGCA, to buttress his submissions in this regard. 10.The Appellant faults the trial court for shifting the burden of proof to him, contrary to Article 50(2)(a) of the Constitution and the principle in Woolmington v DPP (1935) AC 462. He states that the line of questioning by the trial magistrate showed that the Appellant was expected to give explanation, as opposed to leaving the prosecution to prove its case. He argues that he was not afforded the full benefit of the presumption of innocence under Section 55 of the Evidence Act. 11.On voir dire examination, he submits that it was cursory and was deficient in establishing whether the child understood the difference between the truth and lies, or the seriousness of giving false evidence. 12.The Appellant further faults the trial court for failing to inform him of his right to a counsel as per the requirement of Article 50(2) (g) and (h) of the constitution. He submits that the lack of counsel limited his ability to properly challenge the prosecution’s evidence. He states that failure to comply with the foresaid article of the constitution, vitiates the trial from inception. 13.On the sentence, he argues that the trial court failed to consider the fact that he was a first-time offender, was remorseful and ayoung person. He seeks for reduction of sentence. Respondent’s Submissions 14.The Respondent submits that the ingredients of the offence were proved beyond reasonable doubt. 15.It is submitted that the age of the victim was proved by PW1, PW2, and the Age assessment report. Penetration was confirmed by PW1’s direct testimony and the medical findings of PW5. 16.Regarding the Appellant’s right to representation, the Respondent argued that the Appellant never raised the issue during trial, and he demonstrated his ability to participate in the trial by cross-examining all prosecution witnesses. 17.The Respondent maintains that the 20-year sentence is the statutory minimum prescribed by Section 8(4) of the Act for a victim aged 13 years, and the law does not allow for a lesser sentence irrespective of mitigating circumstances. Summary of the Evidence 18.PW1 was the complainant, a minor aged 13 years and a student in Grade 7 at [Particulars withheld] Primary School. She gave a sworn testimony. she stated that on the 26th March 2024, at around 5:00 p.m., she was walking home from school, when she met the Appellant, whom she knew by his name, Peter. She told the court that the Appellant greeted her, grabbed her hand, and refused to let go. He was armed with a panga. He pulled her and took her into a thicket (kwa majani). Once they were in the bush, the Appellant ordered her to lie down, and because he was holding a panga, she complied. He ordered her to undress, and he also undressed himself. He had spread a green apron on the ground, which she identified in court as PMFI-1, and he made her lie upon it. She stated: then “alinifanyia tabia mbaya mara ya kwanza na pili” . She stated that the Appellant laid on top of her, took his penis (kitu yake ya kukojoa), and inserted it into her vagina (akaingiza kwa yangu). 19.She further told the court that while this was happening, the Appellant asked if he should buy her underwear, to which she replied that her mother usually buys them for her. She told her that if she screamed he will cut her with the panga. The woman saw him, Peter saw her and he started running away and the woman started screaming. On cross-examination, she maintained that the Appellant had a panga and told her to lie down and undress. 20.PW2 was the mother of the complainant. She told the court that the complainant was 13 years old. That on the material day at about 8:00 p.m, police officers came to her residence and instructed her to accompany them to Kambi Police Post together with her daughter; that the daughter did not tell her what happened until they were at the police station. The daughter narrated to her what had happened to her. She stated that she did not have a birth certificate but was certain the minor was 13 years old and a pupil in Grade 7 at [Particulars withheld] . Under cross-examination, she told the court that the child had bruises on her neck and stated that she had no prior disagreements or conflicts with the Appellant. 21.PW3 lived within the same vicinity as the complainant. she told the court that she was returning from her farm when she heard voices and stood to ascertain the source. She stated that she saw the (The Appellant) whom she knew by the nickname “Gataku,” walking with the complainant; the two were holding hands, and she decided to follow them covertly as the girl. She used to see the complainant going to school which her was the same school her daughter used to attend. She told the court that she observed them move through three different locations, eventually settling in a hidden spot. She saw the Appellant removing a green dust coat, which he was wearing and spreading. At some point the Appellant noticed her. He put on his clothes and ran. She went to where the complainant was and saw her panty on the dust coat. Upon being questioned by PW3, the minor disclosed that the Appellant had forcibly taken her into the bushes. 22.The witness instructed the minor to remain at the scene while she set off in pursuit of the Appellant. She began calling for help, which attracted the attention of several schoolboys returning home. These boys, along with villagers who had heard the commotion, successfully intercepted and apprehended the Appellant, and led him to the main road. She further testified that she informed the gathered crowd that she had caught the Appellant engaging in sexual acts with a school-going child. Although they initially returned to the bushes to search for the dust coat, PW3 admitted she was too confused at the time to locate it. The Area Chief was summoned, the Appellant was taken to Kambirwa Police Post. 23.On cross-examination, she remained steadfast in her account, though she clarified that while she saw the Appellant with a panga, she did not witness him using it to cut anyone. She maintained that she had no reason to lie, and it was a mother’s instinct that compelled her to intervene. 24.PW4 was the Investigating Officer in this matter. She testified that on the material date, the 26th March 2024, at around 8:00 p.m., she was at the station when the Area Chief and a group of villagers arrived with the Appellant, whom they had apprehended on allegations of defiling a minor. After recording the initial report, she proceeded to the complainant’s homestead in the company of the chief and a colleague. Upon interviewing the minor, the child disclosed that she had met the Appellant, who took her into the bushes and defiled her. The officer further testified that the complainant informed her of a dust coat at the scene, prompting her to visit the location. She recovered a green dust coat found spread on the ground. She testified that through her investigations, she established the garment (identified as PMFI-1/Pexh. 1) belonged to the Appellant. She escorted the minor for treatment and later for Age Assessment, which assessment placed her age at 13 – 14 years. The Appellant did not cross-examination the witness. 25.PW5 was clinical officer serving at Murang’a Level 5 Hospital. He told the court that he examined the complainant on 27th March 2024, who was then aged 12 years and 10 months. The minor gave a history of having been defiled. A vaginal examination revealed normal external genitalia with no lacerations or tears, though a whitish discharge was observed and hymen was not intact. Defence Case 26.The Appellant made a sworn statement. He told the court that on the material date, he was merely walking to the shop when he encountered a woman who began shouting that he had defiled a girl. According to his account, a mob quickly gathered and surrounded him, after which the Area Chief was summoned to the scene. He testified that he was taken to Kambirwa, where he was detained for three days before being charged. Analysis and Determination 27.This being a first appeal, this Court is enjoined to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated by the former East African Court of Appeal in Okeno v Republic [1972] EA 32, and has consistently been reaffirmed by the superior courts. 28.I have carefully considered the Record of Appeal, the judgment of the trial court, the amended grounds of appeal and the submissions by both parties. In view, the following issues arise for determination; —a.Whether the Appellant's constitutional right to a fair trial was violated;b.Whether the voir dire examination was adequatec.Whether the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt;d.Whether investigations carried out were adequatee.Whether this Court ought to interfere with the sentence imposed by the trial court. Whether the Appellant was denied the right to legal representation 29.The Appellant submits that the learned trial magistrate failed to inform him of his right to legal representation as guaranteed under Article 50(2)(g) and Article 50(2)(h) of the Constitution. Article 50(2)(g) guarantees every accused person the right: "to choose, and be represented by, an advocate, and to be informed of this right promptly” , and Article 50(2)(h) further provides for legal representation at State expense where substantial injustice would otherwise result. 30.The jurisprudence on the right to legal representation is now well settled. In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal held that legal representation at State expense is not automatic in every criminal trial but arises where substantial injustice is likely to result. The Court has also considered the provisions of the Legal Aid Act, No. 6 of 2016, which operationalizes Article 50(2)(h). Under that Act, legal aid is dependent upon the statutory framework and available resources and is not automatically available in every criminal prosecution. 31.From the proceedings before the subordinate court, the Appellant actively participated throughout the trial. He cross-examined prosecution witness, save the investigation officer.At no point did he request legal representation or indicate that he was unable to conduct his defence. Equally significant is that the Appellant has not demonstrated how the absence of counsel prejudiced his defence or occasioned substantial injustice. The burden lay upon him to demonstrate such prejudice. In respect to Article 50(2) (g) the mere failure by the trial court to expressly record that the Appellant was informed of his right cannot, without more, automatically vitiate an otherwise fair trial. 32.Accordingly, both complaints founded on alleged violations of the Appellant's constitutional rights have no merit. Whether the voir dire examination was adequate 33.The Appellant has submitted that the trial court failed to comply with Section 19 of the Oaths and Statutory Declarations Act and the principles laid down in Kibangeny Arap Kolil v Republic [1959] EA 92, thereby rendering the evidence of PW1 inadmissible. 34.Before considering the complaint, it is necessary to appreciate the current legal position regarding voire dire examination. Prior to the enactment of the Sexual Offences Act and subsequent judicial pronouncements, trial courts were required to undertake a formal inquiry to determine whether a child of tender years understood the nature of an oath before receiving sworn testimony. 35.However, the jurisprudence has since evolved. In Kathurima v Republic [2015] KECA 539 (KLR), the Court of Appeal held that failure to conduct a formal voire dire examination is not, of itself, fatal to a conviction where the record demonstrates that the child possessed sufficient intelligence, appreciated the duty of speaking the truth and gave sworn evidence. The Court emphasized that the ultimate consideration is whether the omission occasioned prejudice to the accused. 36.The Supreme Court, while discussing the competency of child witnesses in Director of Public Prosecutions v Peter Muthoka & Another [2020] eKLR, reiterated that procedural requirements relating to child witnesses should not be elevated into technicalities that defeat substantive justice where the reliability of the evidence is otherwise apparent. 37.In the present case however, the record shows that PW1 testified on oath after the trial magistrate satisfied herself that the witness understood the meaning of an oath and appreciated the obligation to tell the truth. Thereafter, the Appellant extensively cross-examined the witness. Nothing emerges from the record to suggest that the complainant lacked sufficient intelligence or failed to understand the proceedings. 38.Further, the Appellant has not demonstrated any prejudice that he suffered as a result of the manner in which the trial court received the evidence. Under Section 382 of the Criminal Procedure Code, an appellate court is prohibited from disturbing a conviction on account of an irregularity unless such irregularity occasioned a failure of justice. 39.The Court is satisfied that PW1 was a competent witness and that her evidence was properly admitted. This ground of Appeal therefore fails. Whether the prosecution proved the offence of defilement beyond reasonable doubt 40.The Appellant contends that the prosecution failed to establish the offence of defilement beyond reasonable doubt. The offence of defilement is established under Section 8(1) of the Act. 41.The Court of Appeal in George Opondo Olunga v Republic [2016] eKLR restated that the prosecution must establish three essential ingredients to secure a conviction for the offence; the age of the complainant; penetration; and the identity of the perpetrator. Failure to prove any one of those ingredients is fatal to the charge. Age of the complainant 42.Age is an essential ingredient because it determines both criminal liability and the sentence prescribed under Section 8 of the Sexual Offences Act. In Hadson Ali Mwachongo v Republic [2016] eKLR, it was the finding of the Court of Appeal that age may be proved through a birth certificate, age assessment report, school records or credible oral evidence from a parent or guardian. Likewise, in Fappyton Mutuku Ngui v Republic [2014] eKLR, the Court emphasized that no particular form of evidence is mandatory provided the court is satisfied, on the totality of the evidence, that the age has been established beyond reasonable doubt. 43.In the present case, PW1 testified that she was thirteen years old; PW2, who is the complainant's mother, confirmed that evidence and stated that although she did not possess a birth certificate, the child was thirteen years old. In addition, PW4 produced an age assessment report showing that the complainant was between thirteen and fourteen years old. The evidence, taken as a whole therefore established that the complainant fell within the age bracket contemplated under Section 8(3) of the Act. 44.The Appellant submitted that penetration was not established because the medical evidence did not reveal injuries to the complainant's genitalia and there were no physical signs consistent with forcible sexual intercourse. 45.Penetration is defined under Section 2 of the Sexual Offences Act as: "the partial or complete insertion of the genital organs of a person into the genital organs of another person. “The definition makes it clear that even partial penetration is sufficient to satisfy this ingredient of the offence. The law is equally settled that penetration need not be proved exclusively through medical evidence. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held that the testimony of the complainant, if believed by the court, may by itself prove penetration. The Court observed that medical evidence merely lends corroboration where available. 46.The complainant gave a detailed account of what transpired on the material day. She testified that the Appellant accosted her while she was walking home from school, grabbed her hand, threatened her with a panga, led her into a nearby thicket, ordered her to undress, spread a green dust coat on the ground and thereafter inserted his penis into her vagina. Her evidence on penetration remained firm even during cross-examination. The credibility of PW1's testimony was strengthened by the evidence of PW3, an independent witness, who had no apparent motive to falsely implicate the Appellant. PW3 testified that upon observing the Appellant walking while holding the complainant's hand, she became suspicious and discreetly followed them. She stated that she saw the Appellant spread a green dust coat on the ground before lying on top of the complainant and engaging in sexual intercourse. She immediately intervened, causing the Appellant to flee. 47.The recovery of the green dust coat by the investigating officer from the scene, as described by both PW1 and PW3, provides further corroboration of their testimony. The consistency between these witnesses regarding the sequence of events and the physical exhibit recovered from the scene lends considerable credibility to the prosecution case, in proving penetration. The court is satisfied that the testimonies of the three witnesses met the threshold of proof. Identification of the perpetrator 48.The Appellant did not raise mistaken identity as his principal defence. Nevertheless, this Court is under a duty to satisfy itself that the perpetrator was positively identified. 49.The offence occurred at about 5.00 p.m. in broad daylight. PW1 testified that she knew the Appellant before the incident and identified him by name. PW3 equally testified that she knew the Appellant by his nickname "Gataku" even before the events of that day. Their evidence was therefore one of recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is generally more satisfactory, more assuring and more reliable than the identification of a stranger because it depends upon prior knowledge of the offender. 50.The evidence further shows that immediately PW3 interrupted the incident, the Appellant ran away. PW3 screamed for assistance, members of the public joined in the chase and the Appellant was apprehended shortly thereafter before being handed over to the police. The continuity of these events substantially eliminates any possibility of mistaken identity. 51.The Appellant's defence was simply that he was on his way to a shop when members of the public falsely accused him. He did not suggest that PW1 or PW3 were mistaken as to his identity, nor did he allege any existing grudge capable of explaining why they would falsely implicate him. The learned trial magistrate considered that defence and rejected it as an afterthought. I associate myself with the position taken by the trial magistrate. 52.The court is satisfied that the prosecution proved beyond reasonable doubt that it was the Appellant who defiled the acts complained of. Whether the contradictions and inconsistencies were material 53.The Appellant submitted that the prosecution evidence was fraught with contradictions relating to the manner in which the offence was committed; the alleged threats with a panga; whether the complainant was strangled; the medical findings and the sequence of events leading to his arrest. He contends that these inconsistencies created reasonable doubt, which ought to have been resolved in his favour. 54.It is now well established that not every inconsistency in the evidence of prosecution witnesses is fatal to the prosecution's case. The Court of Appeal in Philip Nzaka Watu v Republic [2016] eKLR held that only contradictions which go to the root of the prosecution case and create doubt as to the guilt of an accused person justify interference with a conviction. The Court further observed that minor discrepancies are inevitable where witnesses recount events from memory and are often indicative of truthful testimony rather than fabrication. 55.I have re- evaluated the evidence on record. The alleged inconsistencies identified by the Appellant mainly concern: whether the complainant was threatened with a panga or strangled; the precise sequence of events observed by PW3 and the absence of physical injuries noted by PW5. 56.Those were minor inconsistencies and did not go into core ingredients of the offence. The prosecution witnesses remained consistent on the essential facts, namely that the complainant was a child; that the Appellant led her into a secluded bush; that he had sexual intercourse with her; that PW3 witnessed the incident and intervened; and that the Appellant fled before being arrested shortly thereafter. Those material facts remained substantially unshaken throughout the trial. It is also noteworthy that the evidence of PW3, an independent witness, materially corroborated the complainant's account in all significant respects. The recovery of the green dust coat from the scene by the investigating officer further reinforced that evidence. 57.It is the finding of this court therefore that the minor discrepancies identified by the Appellant did not dent the prosecution’s case. Whether the investigations were inadequate 58.The Appellant further faults the prosecution for allegedly conducting inadequate investigations. It is trite that the adequacy or otherwise of police investigations is not, in itself, an ingredient of a criminal offence. The duty of the court is to determine whether the evidence actually adduced proves the charge beyond reasonable doubt. An accused person is not entitled to an acquittal merely because investigations could have been more elaborate. 59.In Republic v Ismail Hussein Ibrahim [2018] eKLR, the High Court observed that imperfections in investigations do not automatically invalidate a prosecution where the evidence presented before the court sufficiently establishes the offence charged. Although it is always desirable that investigations be thorough, the evidence on record demonstrates that the investigations yielded sufficient evidence upon which the trial court could properly determine the issues before it. The defence 60.The Appellant's defence was that he was merely on his way to a shop when members of the public falsely accused him of defiling the complainant. The learned trial magistrate rejected that explanation because it was inconsistent with the direct evidence of PW1 and PW3 and did not displace the prosecution case. 61.Related to the above is the Appellant’s complaint that the trial court shifted the burden of proof to him contrary to Article 50(2)(a) of the Constitution, Sections 107 to 109 of the Evidence Act and the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462, which established the enduring principle that throughout a criminal trial, the burden of proving the guilt of an accused person rests upon the prosecution. 62.I have carefully examined the lower court judgment. The learned trial magistrate first analysed the prosecution evidence, evaluated whether the ingredients of the offence had been proved and only thereafter considered the Appellant's sworn defence. There is nothing in the judgment to suggest that the trial court required the Appellant to prove his innocence. Rejecting an accused person's defence after evaluating it against credible prosecution evidence does not amount to shifting the burden of proof. 63.This ground of Appeal equally fails. The sentence 64.The Appellant lastly challenges the sentence of twenty (20) years' imprisonment imposed by the trial court. He proposes that the sentence should be as per section 11(1) of the Act. He does not lay a basis for his proposal. 65.It suffices to state that the evidence before court proved the offence of defilement, and a one can only be sentenced to the prescribed sentence for the particular offence. The applicable sentencing provision for the offence of defilement in respect of a child of the age bracket under which the complainant herein falls is a prison term of not less than 20 years . Section 8(3) of the Act provides: "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." This court has no reason to interfere with the sentence. 66.In the end the Appeal fails in its entirety. It is hereby dismissed and the findings of the trial court on both conviction and sentence upheld. DATED, SIGNED AND DELIVERED AT ISIOLO VIA MICROSFOT TEAMS THIS 23RD DAY OF JULY 2026.S. CHIRCHIRJUDGE.In the presence of:Roba Katelo- Court AssistantThe AppellantMr. Majale for the Respondent.