https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9407

Njuguna v Republic (Criminal Appeal E037 of 2025) [2026] KEHC 9407 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9407 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E037 of 2025 SC Chirchir, J June 25, 2026 Between Joseph Njoroge Njuguna Appellant and Republic Respondent (Being an Appeal from the Judgment Hon. Jackinda Aketch (RM) delivered on 26th February 2025 in Kenol Magistrate’s Court Case No. MCSO/E056/2023) 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 Act). The particulars of the charge were that on the 4th day of December 2023 at [Particulars Withheld], Murang'a South sub-county within Murang'a County, the Appellant intentionally caused his penis to penetrate the vagina of CMK, a child aged 4 years. 2.He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. He was convicted of the main charge and sentenced to life imprisonment 3.The Appellant was aggrieved by the conviction and sentence and proffered this appeal. He has listed the following grounds:1.That, the learned trial magistrate erred in points of law and facts by failing to find that the elements of Defilement were not proved beyond reasonable doubt.2.That, the learned trial magistrate erred in points of law and facts by failing to find that the vital witnesses were not availed to testify.3.That, the learned trial magistrate erred in law and fact in failing to consider that there were other underlying issues that were brought in the matter that influenced my implication and subsequent charges.4.That, the learned trial magistrate erred in law and facts in failing to consider that there were material contradiction, inconsistencies and discrepancies.5.That, the learned trial magistrate erred in law and facts in failing to find that my defense statement was plausible as the court did not disprove it.6.That, the learned trial magistrate erred in law and facts by failing to consider my mitigation in accordance with Section 329 and 216 of the CPC by giving a harsh and excessive sentence. 4.The Appeal proceeded by way of written submissions. Appellant’s submissions 5.The Appellant has submitted that his conviction was based on a flawed foundation, primarily driven by a pre-existing grudge and bad blood between him and the victim’s step-father one SKM (PW1). He contended that PW1 had previously labeled him a criminal and a thief following a disagreement over alleged theft, and that PW1 used the child to tramp-up a charge to settle a personal vendetta. To support his argument that the testimony of such a witness is unreliable, he has relied on the case of Ndungu Kimani vs. Republic (1979) KLR 283, where it was held that:“We lay down the minimum standard as follows; the witness upon whose evidence it is proposed to be relied on, should not create an impression in the mind of the court that he is not a straight forward person or raise a suspicion about his trustworthiness, or do (or say) something which indicate that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence”. 6.The Appellant further argues that sexual offence cases are increasingly being used for extortion and personal vendettas, and maintains that the prosecution’s case was built on mere suspicion, which cannot sustain a conviction as held in Sawe vs Republic (2003) eKLR 364. 7.On the elements of the offence, the Appellant submits that the prosecution failed to prove age, penile penetration, and identity beyond reasonable doubt. In this regard he has relied on the decisions in the case of Fappyton Mutuku Ngui vs Republic (2010),John Muthama vs Republic (2016) and Francis Ndungu Tweni vs Republic (2017) eKLR to emphasize that these critical ingredients must be proven to sustain a conviction. 8.On the issue of penetration, it is pointed out that the evidence of the clinical officer (PW3), indicated that the child’s external genitalia looked normal and the hymen was intact. The Appellant argues therefore that without express evidence of penetration, it was unsafe for the trial court to arrive at an abstract inference of sexual abuse. 9.Further, the Appellant faulted the prosecution’s case for material contradictions, particularly regarding where PW1 met the child and where the alleged incident took place. He submits that while PW1 claimed to have found the child sitting with the accused near a shop, he later contradicted himself by stating he saw the child on the road. 10.It is further submitted that the Appellant had provided a plausible alibi, explaining that he was returning from Maragua Hospital where he had been treated for head injuries; that he sat down to rest at a shop because he was tired, and it was then that he was falsely implicated. He contended that the trial magistrate failed to consider his defense without a cogent reason, contrary to the holding in Republic vs David Ruo Nyambura & 4 others (2001) eKLR, which held: “...that no burden rests upon an accused person to establish any defence...” Respondent’s Submissions 11.The Respondent, through prosecution counsel Shadrack Kagema, strongly opposed the appeal and urged the court to dismiss it in its entirety. He submits that the prosecution proved all the essential ingredients of the offence. 12.On identification, the Respondent submits that the testimony of the victim (pw2 ) provided a clear account of how she met the Appellant, whom she easily identified as "Chichi". It is argued that the victim’s evidence was direct and consistent. That she described how the Appellant dragged her into a bush, removed her clothes, and penetrated her, only stopping when she screamed in pain. This evidence was further bolstered by the testimony of PW1, who saw the Appellant running away from the scene and with the assistance of the public, apprehended him. 13.Regarding the medical evidence, the Respondent submitted that the findings of the clinical officer, (PW3,) was conclusive. Counsel highlighted that PW3 confirmed trauma to the child’s vagina which was consistent with an attempt to penetrate, as documented in the P3 (Exh 3) and PRC (Exh 4) forms. It was further argued that the element of age was proven through the birth notification (Exh 1), which established that the victim was four years old at the time of the incident. 14.In respect to the Appellant’s defence, the Respondent characterized it as merely an afterthought and a poorly imagined script designed to misplace the Appellant from the scene of the crime and mislead the court. Counsel maintained that the defense did not shake the prosecution’s case and that the trial court was correct in its finding of guilt. Summary of the evidence 15.PW1, testified that he was the step-father to the complainant, CMK, having become a father to her in 2022. He produced a birth notification (PEx1) indicating she was born on 25th May 2019, making her four years old at the time of the incident 16.He stated that on 4th December 2023 at about 1:00 p.m, he sent the complainant to charge his mobile phone at a neighbour’s house. which was about a minute away from their home. When she failed to return after ten minutes, he went to look for her. A local shopkeeper, Mr. Kang’ethe, informed him that the child had been seen with Njoroge (the Appellant). PW1 searched a nearby field in vain but eventually met the child on the main road. She was heading towards home while crying. 17.Upon inquiring why, she was crying, the child told him she had "met someone". PW1 then saw the Appellant heading in the opposite direction. On seeing PW1, the Appellant ran away. This prompted PW1 to scream for help and gave chase. With the help of members of the public, they apprehended the Appellant. He stated that he got suspicious as the Appellant was a “known criminal” 18.He further told the Court that the complainant told him that Chichi ( the Appellant’s nickname ) had taken her to a nearby bush, removed her clothes, and put his susu( penis) in her susu. 19.PW1 took the child to Maragua Hospital, where a doctor examined her and noted that her vagina was reddish with bruises. He subsequently reported the matter at Karuhia Police Station. 20.In cross-examination, he maintained that he found the Appellant with his child and that the Appellant fled upon seeing him. He admitted calling the Appellant a "thief" because he had stolen from him previously, but denied having any personal grudge or hatred that would lead him to make a false accusation. 21.PW2, was the complainant. She was taken through voir dire examination and she gave a sworn testimony. 22.She testified that on the day of the incident, her father, SK (PW1), gave her his mobile phone to take for charging at Saida’s place. She told the court that she never reached the destination to charge the phone because she met the Appellant, whom she knew by the name Chichi. That the Appellant took her to a nearby bush, removed his own clothes, and then removed her trouser and panty. He then slept on her chest and put his susu (which she also referred to as kasusu) into her susu. She stated that she felt pain and cried out, but the Appellant covered her mouth with his hand and told her he would buy her a snack known as ngumu. After the Appellant left, she started heading home and met her father on the road, to whom she immediately reported that Chichi had put his susu in hers. She subsequently recounted these events to her mother and the doctor at Maragua Hospital. She positively identified the Appellant in court as the perpetrator. 23.In cross-examination, she maintained that she had seen the Appellant at a shop where he was buying something before she went with him. She clarified that although she did not see any blood, the Appellant had indeed removed his "kasusu" and put it in hers, making her to cry. 24.PW3, was the clinical officer at Maragua Sub-county Hospital. On 4th December 2023, he examined the complainant. He stated that while the external genitalia appeared normal, further examination revealed inflammation on both the labia minora and labia majora, which he described as a clear sign of trauma to the area. 25.He noted that the child’s hymen was intact. Laboratory tests were conducted, which returned negative for HIV and VDRL, and no spermatozoa were found in the high vaginal swab. Despite the intact hymen and the absence of spermatozoa, PW3 concluded that the child had been defiled because the inflammation on the labia majora indicated trauma from attempted penetration. 26.During cross-examination, he explained that it is possible for a hymen not to be broken during defilement, if the penetration is not deep or does not succeed in rupturing the membrane. He maintained that the trauma he observed on the outer part of the vagina was consistent with penetration. In re-examination, he reiterated that there was penetration on the outer part of the vagina, even though there was no penetration past the hymen. 27.PW4, was the investigating officer in the matter. She told the court that on 4th December 2023 at around 3:00 p.m., she received information from Inspector Agnes that a suspect had been apprehended at Kahuhia Police Post for defiling a child. When the Appellant was brought to her, she noted he had head injuries. She accompanied the victim, and the Appellant to Maragua Hospital, where the child was treated. She also assisted the child in recording a statement. The child recounted to her how she was intercepted by the Appellant while returning from charging a phone. The child stated that the Appellant took her to a nearby shamba, laid her under an avocado tree, removed her clothes, and put his penis in her vagina, causing her to scream in pain. 28.The witness further testified that she recovered and produced the child’s trouser (PEx5) and yellow panty (PEx6) as exhibits. She later visited the scene of the incident, which she described as a hidden area in a shamba without a fence, located about 400 metres from the road. When she questioned the Appellant about his head injury, he informed her that he had been cut on the head while attempting to steal elsewhere. She positively identified the Appellant in court. 29.In cross-examination, she stated that she visited the scene with the child. She noted that while the child had dried tears on her face, her walking style appeared normal. She also observed that the child’s clothes were not stained with blood or any other fluids at the time of recovery. 30.PW5, testified that she was the arresting officer. On 4th December 2023 at about 2:15 p.m., while in her office she saw a group of people approaching the station with the Appellant. She testified that she and her fellow officers had to intervene to save the Appellant from the crowd, who had already begun beating him. The Appellant was arrested. She escorted the Appellant, the victim, and the victim's mother to Maragua Hospital for medical examination and treatment. She positively identified the Appellant in court. 31.In cross-examination, PW5 stated that no members of the crowd who brought the Appellant volunteered to record a statement, except for the child’s father. Defence Case 32.The Appellant was put on his defence at the close of the prosecution’s case and he opted to give unsworn statement. The Appellant testified that on 4th December, 2023 he had sustained head injuries and had gone to Maragua Hospital to have them dressed. He stated that at approximately 1:00 p.m., while on his way home from the hospital, he sat down at a shop in Gathuri. While there, he met the complainant walking past him carrying a mobile phone. Shortly thereafter, he heard a voice ordering him to stop and demanding to know what he was doing with the child. He was then surrounded by a group of people who accused him of defiling the minor. He was subsequently arrested and taken to Sabasaba Police Station, then to Maragua Hospital for testing. The Appellant denied the charges. Analysis and determination 33.This being a first appeal, this Court is obligated to subject the entire evidence 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 and should therefore give due allowance for that disadvantage. (see:Okeno v Republic [1972] EA 32 ). 34.I have considered the Petition of Appeal, the Record of Appeal, and the written submissions filed by both parties, and I have identified the following issues for determination:a.Whether the prosecution proved all the ingredients of the offence beyond reasonable doubt.b.Whether the alleged contradictions, substantially affected the prosecution’s casec.Whether the Appellant’s defence was considered.d.Whether the sentence imposed was lawful. Whether the ingredients of the offence were proved. 35.The offence facing the Appellant was defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. It is well- established that for the prosecution to secure a conviction for the offence of such an offence it must prove the age of the victim, the identity of the perpetrator and penetration. The Age of the victim 36.The Age of the complainant was a fundamental ingredient of the offence because it determines sentence. (see the court of Appeal decision in Kaingu Elias Kasomo v Republic [2014] eKLR ) 37.The evidence on record shows that PW1 produced the complainant’s birth notification which indicated that she was born on 25th May 2019. The offence was committed on 4th December 2023. Consequently, the complainant was four years old at the material time. The authenticity of the birth notification was not challenged during the trial and no evidence was tendered to cast doubt on the age stated therein. Further it is trite law that such birth notification is one such document that can prove age. The Court is therefore satisfied that the prosecution proved beyond reasonable doubt that the complainant was aged four years and consequently fell within the category of children contemplated under Section 8(2) of the Sexual Offences Act. Positive identification of the perpetrator 38.The Appellant contends that he was falsely implicated and that the evidence of identification was unreliable. 39.The Court notes from the evidence that this was not a case of identification of a stranger. The complainant knew the Appellant beforehand and referred to him by his nickname, “Chichi/ chuchu”. She interacted with him at close range and the incident took place during daytime. She immediately identified him to her father and positively identified him before the trial court. Her evidence was clear, consistent and credible. 40.Further, PW1 testified that shortly after the incident he observed the Appellant walking away from the area, and that when the Appellant saw him, he ran away, prompting members of the public to pursue and arrest him. While flight alone was not conclusive proof of guilt, it was a relevant circumstantial factor when considered against the other available direct evidence given by the complainant. The Court finds no possibility of mistaken identity. 41.This was therefore a case of recognition. It is trite law that the that recognition is more reliable than identification of a stranger because it is based upon previous knowledge of the accused. (See :Anjononi & Others v Republic [1980] KLR 59.) 42.The court is satisfied that the Appellant was positively identified. Penetration 43.The Appellant has challenged the finding of penetration principally on the ground that the complainant’s hymen was found intact and no spermatozoa were detected. 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.”There is no requirement therefore for the penetration to be complete, to constitute the act of penetration. 44.Despite her tender age the courts observes that the complainant gave a coherent and consistent account of the events. She testified that the Appellant took her into a bush, removed her clothes, removed his own clothes and inserted his “susu” into her “susu”. She stated that the act caused her pain and made her cry. She further testified that the Appellant covered her mouth when she screamed. 45.Th Evidence of the complainant was corroborated by the testimony of the clinical officer (pw3) . He stated that there was evidence of trauma to the labia manora and majora even though the child’s hymen was intact. He further explained that that penetration can occur without rupturing the hymen and that the injuries observed were indicative of trauma caused by penetration. 46.There was evidence of penetration therefore which incomplete. The Court of Appeal in Mark Oiruri Mose v Republic [2013] eKLR held that penetration need not be deep and that even partial penetration satisfies the legal requirement. 47.Further the child’s testimony was corroborated as per the requirements of the proviso to section 124 of the Evidence Act. 48.Thus there was direct evidence of PW2 coupled with the medical findings of PW3 which left no doubt that there was at least partial penetration within the meaning of the section 2 of the Sexual Offences Act. 49.It follows that the prosecution established the existence of all the ingredients that constitute the defilement of a child below 11 years in accordance with the provisions of section 8(1) (2) of the Act. Whether there were contradictions that materially dented the prosecution’s case 50.The Appellant submitted that the prosecution evidence contained contradictions particularly the evidence of pw1 regarding where the complainant was found and where the incident occurred. 51.It is settled law that not every inconsistency is fatal to the prosecution case. In Twehangane Alfred v Uganda [2003] UGCA subsequently cited severally with approval, by the Kenyan courts, , it was held that it is only material contradictions which affect the substance of the charge and thus render the conviction unsafe. Minor contradictions are to be ignored. 52.Upon re-view of PW2’s testimony, this court did not find any discrepancies or contradictions. The Appellant seems to confuse reported and direct evidence. The allegation that the Appellant was sited outside a shop with the child was reported to PW2 by the owner, or attendant at the shop. That evidence did not come from PW2. In any event such evidence was hearsay and was not admissible. Also, the allegation that the incident took place in a bush was reported by the child. There were no contradictions in PW2’s testimony therefore. The Appellant’s defence 53.The Appellant told the court that he had been treated for head injuries and was seated at a shop. He met the complainant who was taking a phone somewhere. Then he heard someone shouting at him, while asking him what he was doing with his child. People then came and attacked him. 54.In this Appeal he has submitted that PW1 had a grudge against him arising from previous allegations of theft. The court wishes to point out that the Appellant never testified about the alleged past differences between him and PW1 in his defence. It only came out when he cross- examined PW1. 55.The Court has considered the defence . While PW1 readily admitted referring to the Appellant as a thief, there was no evidence demonstrating that PW1 influenced the complainant to falsely accuse the Appellant. More significantly however, the conviction did not rest on PW1’s testimony alone. The complainant herself independently identified the Appellant and gave a detailed account of the assault which was corroborated by medical evidence. I find the plea of fabricated charge, implausible. 56.Further an accused person assumes no burden of proving his innocence, where the prosecution has established a strong case, the defence must be weighed against the entirety of the evidence. 57.The trial court considered the Appellant’s defence and rejected it. Having independently evaluated the evidence, this Court reaches the same conclusion. The defence neither displaced nor weakened the prosecution case and amounted to a mere denial. The sentence 58.The Appellant did not address himself to this ground of Appeal. However, it suffices to state that it was within the law. The complainant was aged four years. Section 8(2) of the Sexual Offences Act provides that:“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.”The sentence imposed by the trial court is the minimum, and mandatory as per section 8(2) aforesaid. This court therefore has no power to vary it 59.In conclusion, both the conviction and the sentence by the trial court are hereby upheld, and the Appeal is dismissed in its entirety. DATED, SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS THIS 25TH DAY OF JUNE 2026.S. CHIRCHIRJUDGE .In the presence of:Roba Katelo- Court Assistant.